US+-+California+-+Traffic+Infractions

Name of Game
California Plays the Traffic "Infraction" Scam

Unless otherwise provided, Vehicle Code violations are infractions. See Cal Veh Code § 40000.1. Registration and equipment violations, and all but the most serious moving violations, are infractions.

Type of Action
Criminal Proceeding

Penal Code section 16: Crimes and public offenses include: 1. Felonies; 2. Misdemeanors; and 3. Infractions.

Offenses
Includes, but not limited to, vehicle license and registration, failing to stop at a stop sign or red light, changing lanes without signaling, broken tail light, financial responsibility (insurance).

Procedure for complaints
"In most infraction and misdemeanor traffic cases, by signing a notice to appear on a form prescribed by the Judicial Council, the motorist is released from arrest and does not have to post bail. See 80 Ops Cal Atty Gen 111, 116 (1997); People v Monroe (1993) 12 Cal. App. 4th 1174, 1180, 16 Cal. Rptr. 2d 267 (“in the vast majority of cases the violator will not be taken into custody”). When a minor Vehicle Code violation is involved, the “arrest” is complete when, after an investigatory stop, the officer determines that there is probable cause to believe a traffic violation has been committed and begins the process of citing the violator to appear in court. 12 Cal. App. 4th at 1181.

A notice to appear that is filed with the court serves as a verified complaint to which the defendant-motorist may plead guilty or no contest. Veh C §40513(a). If the defendant violates his or her promise to appear or enters a plea other than guilty or no contest, a verified complaint conforming to the requirements of Pen C §§948–964 must be filed, unless the defendant executes a written waiver of this requirement and an election to proceed on the notice to appear. Veh C §40513(a).

Notwithstanding Veh C §40513(a), if the notice to appear was prepared on a form approved by the Judicial Council, a duplicate copy of that notice filed with the court constitutes a complaint to which the defendant may enter any plea, i.e., a plea of guilty, a plea of no contest, or a plea of not guilty. Veh C §40513(b). The notice to appear may be filed in place of a formal, verified complaint even if the defendant pleads not guilty and the case proceeds to trial. //People v Barron// (1995) 37 Cal. App. 4th Supp 1, 3–5, 44 Cal. Rptr. 2d 348. See Heldt v Municipal Court (1985) 163 Cal. App. 3d 532, 537–539, 209 CR 579 (notice to appear also constitutes valid complaint under Pen C §853.9). If the notice is verified, a warrant may be issued on it. If it is not verified, the defendant may request at the time of arraignment that a verified complaint be filed. Veh C §40513(b).

There is no right to a verified complaint when the citation is issued on a form approved by the Judicial Council. See People v Barron, //supra//, 37 Cal. App. 4th Supp. at 3–5. A defendant who contends that the notice to appear is defective must raise the issue before trial by filing a demurrer. See Pen C §§1004(2), 1012; People v Gompper (1984) 160 Cal. App. 3d Supp 1, 8–9, 207 Cal. Rptr. 534." (See California Judges BenchGuides, Benchguide 82 - Traffic Court Proceedings)

Anomalies
The anomaly lies in the proposition that if “[a] statute does not trump the Constitution" [see People v. Ortiz (1995) 32 Cal.App.4th 286] then how is a "traffic infraction" a public offense and prosecuted in a criminal action without availability of trial by jury, counsel without expense, or even a prosecutor? [See Cal Gov. Code §26500]

> otherwise provided by law. > The __//**public prosecutor shall attend the courts**//__, and within his or > her discretion __//**shall initiate and conduct**//__ on behalf of the people __//**all**//__ > __//**prosecutions for public offenses**//__. (Bold, italic and underline relief added.)
 * 26500. The district attorney is the public prosecutor, except as

//**California Constitution**//

 * “Trial by jury is an __//**inviolate**//__ right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict.” California Constitution, Article 1, section 16.” (Bold, italic and underline relief added.)[[image:MirandaAfter.gif align="right" link="@http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=2-33"]]

//Statutes//

 * __Code of Civil Procedure__**


 * “A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.” See Code of Civil Procedure section 30


 * “THE PENAL CODE defines and provides for the prosecution of a criminal action.” See Code of Civil Procedure section 31


 * “When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is __**//not merged in the other//**__.” (Bold, italic and underline relief added.) See Code of Civil Procedure section 32


 * __Penal Code__**


 * “CRIMINAL ACTION DEFINED. The proceeding by which a party charged with a __//**public offense**//__ is accused and brought to trial and punishment, is known as a criminal action.” (Bold, italic and underline relief added.) See Penal Code section 683


 * “//__**No person can be convicted of a public offense unless**__// by __//**verdict of a jury**//__, accepted and recorded by the court, by a __//**finding of the court**//__ in a case __//**where a jury has been waived**//__, __//**or by a plea of guilty**//__.” (Bold, italic and underline relief added.) See Penal Code section 689



//**California Courts**//

California courts’ web site defines civil and criminal:


 * “civil jurisdiction: A court’s right or power to hear noncriminal (‘civil’) cases.” California Courts: Self-Help Center: Glossary




 * “public offense: A crime. Compare to private or civil wrongs that violate ‘private laws,’ for example, a contract between 2 parties. The difference between civil/private and criminal/public wrongs is that public offenses focus on the behavior of the offender while the law of civil wrongs focuses on making an injured person whole.” (See also crime.) See California Courts: Self-Help Center: Glossary



__**California Judicial Council**__


 * 1967 Council-sponsored legislation reclassifies minor traffic violations as __//**noncriminal infractions**//__. (Bold, italic and underline relief added.) (See California Judicial Council 2001 Annual Report, (as of August 6, 2007) [pg. 6, Milestones 1967])





__**California Supreme Court**__


 * “The Legislature’s first proposed bill. . .//__**sought to decriminalize**__// the simple possession. . .//__**by classifying the offense as an infraction**__//.” (Bold and underline relief added.) See Tracy v. Municipal Court (1978) 22 Cal.3d 760, at p. 764, ¶ 2

__**California Court of Appeal**__


 * “Further, __//**infractions are not crimes**//__ and the rule forbidding successive prosecutions of a defendant is not applicable when an infraction is one of the offenses involved. (People v. Battle (1957) 50 Cal.App.3d Supp.1 [123 Cal.Rptr. 636].)1 (1b) Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The __//**limitation**//__ on an accused’s right //__**to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes**__//. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, //supra//, 50 Cal.App.3d Supp. 1.) (Bold, italic and underline relief added.) See People v. Sava (1987) 190 Cal.App.3d 935, at p. 939


 * Successive prosecutions is the “double jeopardy” rule. (See California Constitution, Article 1, section 15, clause 2.)


 * There is no room for quasi-criminal actions between § 22 [Code of Civ. Proc.] and this section, and an action under a municipal ordinance for a violation thereof offensive to the public welfare is criminal. In re Application of Clark (1914, Cal App) 24 Cal App 389, 141 P 831, 1914 Cal App LEXIS 81.

__**California Attorney General**__


 * "We are asked whether California motor vehicle registration and driver’s license requirements are subject to enforcement against Indian tribal members on roads within their Indian reservation. We conclude that they are not." (See Ops. Cal. Atty.Gen (2006) 04-1202 link at point below.)


 * “[I]f the intent of a state law is generally to prohibit certain conduct, it falls within. . .criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory.” See Ops. Cal. Atty. Gen. (2006) 04-1202

//Resources//
Find California Codes [|LexisNexis(R) Customized Solution for California Courts] Superior Court of California - County of Los Angeles

Judicial Council of California 1967 Report to the Governor and Legislature (Infractions in California became operative in 1968.)

Part I

Part II

Part III

Joint Legislative Committee for Revision of the Penal Code re to Infractions

=="This is . . . for the average man [and woman] and its purpose is to try to plant in his [and her] head, at the least, a seed of skepticism about the whole legal profession [service], its works and its ways.==

* * *
==If only the average man could be led to see and know the cold truth about the lawyers and their Law. With the ignorance would go the fear. With the fear would go the respect. Then indeed – and doubtless in orderly fashion too – it would be: —==