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Traffic Court - Filing a Demurrer to a Photo-Radar Citation - Los Angeles

Posted by Christian Woods | Aug 15, 2024 | 0 Comments

There are a few cities, including Los-Angeles where photo-radar tickets, i.e., a radar unit placed in a police vehicle connected to a camera that photographs the license plate of the offending vehicle, as well as the driver and provides a generated Notice to Appear that is mailed to the registered owner of the vehicle. However, there are some requirements and ways that you can attack this ticket. One such device is the use of a Demurrer, which you would seek to enter at the time of arraignment. See Penal Code, Section 1003. 

Penal Code, Section 1003 includes the following: Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.  Therefore, on the date of your arraignment, you would file your demurrer with the Court in open court. Then it is up to the judge for them to hear it, rule on it and provide an outcome. 

Remember the reference to the generated Notice to Appear, set forth above. In California, a Notice to Appear is a valid substitute for a complaint (i.e., ticket) but only when issued by an officer who observed the violation or issued it as the result of an accident.  See Penal Code, Section 949 and Vehicle Code, Sections 40513 and 40600(d). 

As set forth within Penal Code, Section 949: The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a. The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law. The first pleading on the part of the people in a proceeding pursuant to Section 3060 of the Government Code is an accusation.

Furthermore, Vehicle Code, Section 40513(a) sets forth: 

Whenever written notice to appear has been prepared, delivered, and filed with the court, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead “guilty” or “nolo contendere.”  If, however, the defendant violates his or her promise to appear in court or does not deposit lawful bail, or pleads other than “guilty” or “nolo contendere” to the offense charged, a complaint shall be filed that shall conform to Chapter 2 (commencing with Section 948) of Title 5 of Part 2 of the Penal Code, which shall be deemed to be an original complaint, and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear.

This is followed by Vehicle Code, Section 40513(b), providing: Notwithstanding subdivision (a), whenever the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed. In the case of an infraction violation in which the defendant is a minor, the defendant may enter a plea at the arraignment upon a written notice to appear. Notwithstanding any other provision of law, in the case of an infraction violation, no consent of the minor is required prior to conducting the hearing upon a written notice to appear.

Additionally, the text of Vehicle Code, Section 40600(d) includes: For purposes of this article, a peace officer has reasonable cause to issue a written notice to appear if, as a result of the officer's investigation, the officer has evidence, either testimonial or real, or a combination of testimonial and real, that would be sufficient to issue a written notice to appear if the officer had personally witnessed the events investigated.

However, as most things in life, there are a few exceptions for tickets issued by automated enforcement systems which take pictures of violators of traffic including picture of the driver and license plate.  Yet, these exceptions apply to stop sign and stop light violations, illegal turns and bypassing railroad gates.  See Vehicle Code, Section 40518.  They are not applicable nor are there exceptions for speed violations.  See Vehicle Code, Section 21455.6(b). 

Potential other grounds for a Demurrer to look for include the following:

(a) Whenever a written notice to appear has been issued by a peace officer or by a qualified employee of a law enforcement agency on a form approved by the Judicial Council for an alleged violation of Section 22451, or, based on an alleged violation of Section 2145321455, or 22101 recorded by an automated traffic enforcement system pursuant to Section 21455.5 or 22451, and delivered by mail within 15 days of the alleged violation to the current address of the registered owner of the vehicle on file with the department, with a certificate of mailing obtained as evidence of service, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea. Preparation and delivery of a notice to appear pursuant to this section is not an arrest.

(b)(1) A notice to appear shall contain the name and address of the person, the license plate number of the person's vehicle, the violation charged, including a description of the offense, and the time and place when, and where, the person may appear in court or before a person authorized to receive a deposit of bail. The time specified shall be at least 10 days after the notice to appear is delivered.  If, after the notice to appear has been issued, the citing peace officer or qualified employee of a law enforcement agency determines that, in the interest of justice, the citation or notice should be dismissed, the citing agency may recommend, in writing, to the magistrate or the judge that the case be dismissed. The recommendation shall cite the reasons for the recommendation and be filed with the court. If the magistrate or judge makes a finding that there are grounds for dismissal, the finding shall be entered on the record and the infraction dismissed.

(2) A notice to appear shall also contain all of the following information:

(A) The methods by which the registered owner of the vehicle or the alleged violator may view and discuss with the issuing agency, both by telephone and in person, the evidence used to substantiate the violation.

(B) The contact information of the issuing agency.

(c)(1) This section and Section 40520 do not preclude the issuing agency or the manufacturer or supplier of the automated traffic enforcement system from mailing a notice of nonliability to the registered owner of the vehicle or the alleged violator prior to issuing a notice to appear. The notice of nonliability shall be substantively identical to the following form:

(2) The form specified in paragraph (1) may be translated to other languages.

(d) A manufacturer or supplier of an automated traffic enforcement system or the governmental agency operating the system shall not alter the notice to appear or any other form approved by the Judicial Council. If a form is found to have been materially altered, the citation based on the altered form may be dismissed.

Vehicle Code, Section 21455.6(b)(1) provides: The activities listed in subdivision (c) of Section 21455.5 that relate to the operation of an automated enforcement system may be contracted out by the city or county, except that the activities listed in paragraph (1) of, and subparagraphs (A), (D), (E), or (F) of paragraph (2) of, subdivision (c) of Section 21455.5 may not be contracted out to the manufacturer or supplier of the automated enforcement system.

Point of the Blog: Always be on the lookout to see whether your ticket would allow for you to bring a Demurrer as to the Notice to Appear based on any grounds which would warrant it. 

Just remember, when it comes to traffic, just like all other areas of law, you have rights and tools on your side. Safe driving out there!

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