FAQ’s – Traffic Tickets
1. What is a traffic infraction?
A traffic infraction includes: speeding, overdue parking meters, not using turn signals, parking in a handicap zone without authorization
2. What is a traffic misdemeanor?
A traffic misdemeanor includes: reckless driving, drunk driving (DUI and DWI), driving without a license, drag racing
3. Should I fight my traffic infraction?
Always. You can contest your ticket by mail without making a single court appearance.
4. Should I fight my traffic ticket even though I was guilty?
Even if you seem to be guilty of violating the law, the procedural hassles for the prosecution will often lead to a dismissal. There is a 30% chance the prosecution will not submit its version of events in writing to the court by the deadline date. If that happens, your case will be dismissed regardless of your guilt or innocence.
5. Can I fight any kind of traffic ticket through the mail?
No. Only traffic infractions (as described above). The law allows you to contest any traffic infraction entirely by mail.
6. How would I “plead” if I fight my traffic infraction by mail?
“Not Guilty” or a “Written Not Guilty Plea”. You write a letter (there is no state approved form) to the courts indicating your plea and ALSO you can request a “Trial by Written Declaration” in this letter. By doing this, the courts now have to provide a trial. Surprisingly, California government makes contesting seem difficult and inconvenient. They make threats like: you could have an “arrest warrant” or “license suspension” or “$250 civil assessment”. The truth is, contesting your traffic infraction is PERFECTLY LEGAL according to California Vehicle Code 40519(b). You will have around 20 days to turn this “plea” in to the courts.
7. What happens if I plead Guilty?
This clearly would be the worst plea. The court will typically require you to pay the maximum fine allowed by law and will record a conviction on your public DMV record for 5 years. A conviction on your record will increase your insurance by an average of $250 per year for three to five years.
8. How do I arrange the trial by mail?
After submitting the Not Guilty Plea letter, the court will mail you a “Judicial Council approved” Trial by Written Declaration form to you. (form TR-205) and you will have 3-4 weeks to turn this in. With this form you can include pictures, diagrams and present any evidence to support your case.
9. Why don’t I hear more about fighting traffic tickets by mail from our government?
Only 1% of traffic infraction violations get fought by mail. The courts don’t make money if you fight by mail – it is more of a hassle for the courts. The officer that cited you gets paid $200-$400 to appear in court to fight you. The officer that cited you doesn’t get paid anything extra to submit all of their supporting evidence as to why they ticketed you.
10. What happens if I lose my trial by declaration?
You will have 20 days to request a new trial!! It’s called a “trial de novo”. This is an in-person trial in which the judge hears evidence and testimony from yourself and the citing officer. If the officer does not show up, (maybe he’s on vacation in Disneyland with his family) at the new trial your case is dismissed. By the time you get to the “trial de novo” stage, it will have been 3-6 months after the incident and the officer might not remember the exact details.
11. How do I go about requesting the “trial de novo”?
The court will send you a finding of “guilty” by the judge through the mail. To request a “trial de novo” you must submit form TR-220 to the court postmarked within 20 days of the mailing date of your guilty verdict. You have to request this form from the Courts.
12. What do I do if I get a traffic ticket in California?
After being issued a California traffic ticket, you must decide how you will plead. You have three options: guilty, no contest or not guilty. If you plead guilty or no contest you will need to pay the ticket before the appearance date posted on your citation. If you opt to plead not guilty then you will need to notify the court of this either in person or through mail, depending on the violation.
13. What happens if I ignore the ticket all together?
You will be sorry. Failure to contact the court could lead to the suspension of your driver’s license, fines (called a civil assessment) and even a warrant for your arrest.
14. What do I do if I get a “fix-it” ticket?
Your traffic ticket will indicate whether you must pay for the violation or provide proof of correction. If its “proof of correction”, you must get an authorized person (police officer, DMV agent, court clerk) to sign the Certificate of Correction part of your ticket. You then must appear in court before the citation’s deadline date with proof of correction and payment for the dismissal fee. The court will then dismiss your case.
15. What do I do when issued a Red Light Photo Enhancement ticket?
The traffic citation that arrives in the mail will provide detailed information on how to pay or fight the fine. Most county court websites provide online links for viewing your photographs. Or, in some instances, you may be given a phone number to call to arrange for an appointment to see your photos. Your citation will also provide information on how to proceed if you’re not the person in the photograph.
16. I just received a ticket, can I attend traffic school?
Most courts will mail you a courtesy notice about two to three weeks after you receive a ticket. If you don’t want to wait, then contact the Court Clerk. The courtesy notice you get in the mail will inform you of the bail amount you must pay for the ticket, as well as, your traffic school eligibility.
17. Can I do a traffic school online?
You’ll need to check with your county’s court system for a list of approved, online schools.
18. Which violations are NOT eligible for traffic school?
- Any violation that carries a negligent operator point count of more than one point.
- Any speeding violation in which the speed cited is 26 miles per hour or more over the posted speed limit.
- Seat belt violations
- Mechanical or equipment violations
- Failure to have insurance
- Registration violation
- License violation
- Alcohol related violations
- Accidents with injury or death
- Hit and Run
- Reckless Driving with or with out bodily injury
- Reckless Driving alcohol related
19. Will traffic school cost money?
Yes. A non-refundable traffic school fee equivalent to the citation bail amount, plus $52, must be paid to the Court. The Traffic School of your choice will charge you an additional fee to attend their program.
20. I’ve already paid the court money for traffic school, why do I have to pay again?
Each court charges an additional fee to allow you to attend a traffic school or home study program. This is separate from any of the Traffic School fees. If you do not pay this fee to the court, then the court will not accept your certificate of completion from the School. All traffic schools including classroom, home study or internet courses will charge separate additional fees.
Every county is different. It is best to check with the Court Clerk, or go to your countys court website for particulars.
Criminal defense FAQ’s
1. My first criminal court date is in a couple of days, do I need an attorney?
If you had an attorney at the arraignment, they would be able to enter a correct plea on your behalf. Entering a “guilty plea” is not the correct way to go if you intend to fight for your freedom and your bank account.
It is not required to have an attorney, but it’s the best move you could make. Your first court date is an arraignment. This is where you are informed of the charges against you and this is also where you enter a plea. In order not to be completely bullied and railroaded by the District Attorney’s office and the judge, having an attorney representing you can actually save you a lot of grief. Are you prepared to plea bargain with the DA?
2. What if I am being charged with a misdemeanor and I know I am guilty? Would it be better if I plead guilty at the arraignment with the hope that the judge will show me leniency?
In most cases, even if the accused person is guilty, it is better to plead not guilty. Pleading not guilty allows the case to go to trial where evidence can be weighed – the judge will make a date in the near future for trial proceedings. You do not pay any fines at the moment. If you plead guilty, the judge most likely charge you with the highest amount of money he/she could get for your violation.
Remember, the state of California is broke. Any source of revenue law makers can generate, they will – that includes no leniency. The only leniency that might be shown is a payment plan with the County. Certainly NOT less money.
3. I’ve already plead guilty but I haven’t been sentenced yet. Is there anything you can do for me?
Maybe. Sometimes an accused pleads guilty, but the exact terms of his sentence are unknown. An experienced Criminal Defense Attorney can prepare and file with the court a “Statement of Mitigation”. This is a legal document spelling out various reasons why the accused person should receive a lenient sentence.
4. I’ve already plead guilty and I have been sentenced, but I feel my sentence is overly harsh. Is there anything that could be done on my behalf?
Yes. First, if you were found guilty after a trial, you may have appellate issues. There is a statute of limitations to appeal, so it is time sensitive and you need to contact an experienced criminal defense attorney with appellate background immediately so you do not lose any rights. Second, if you waived your right to appeal by pleading guilty, a good criminal defense attorney may be able to get your sentence modified.
5. What is meant by a sentence modification?
Early release from jail, transfer from jail to work furlough, transfer from jail to residential treatment, converting fines to custody, staying fines temporarily, converting formal probation to informal probation or probation to the court and early termination of probation. There are other conditions of probation that can also be modified, but these are the most common.
6. I’ve already been arraigned with the Public Defender, but now I want to hire my own Attorney. Is it too late?
No. You can hire your own Attorney at any time during the proceedings. The sooner you hire your own criminal defense attorney, the better. It is easier for your attorney to negotiate the best deal possible if you retain him before your first readiness or pre-trial conference.
7. What should I do if I get a call that a loved one has been arrested?
Try to gather as much information as possible about the arrest and write it down. The following questions may be useful: What is the name, birth date, and social security number of the arrested person? What has he or she been charged with? What law enforcement agency made the arrest? Where is the arrested person being held? Has bail been set and, if so, what is the amount?
8. What can I do if I can’t afford to pay the bail listed on the bail schedule?
If you can’t afford the amount of bail on the bail schedule, you can ask a judge to lower it. Depending on the state, your request must be made either in a special bail-setting hearing or when you appear in court for the first time, usually called the arraignment. A good criminal defense lawyer could really help you right about now.
9. If the police pull me over for a traffic offense, can they search my car and arrest me?
Yes. Once the police pull you over for a moving or non-moving traffic violation, they can search for and seize anything in plain view. If police have probable cause to believe you have been involved in criminal activity, including drunk driving, they can arrest you without a warrant.
10. Can the police legally stop me, even if I have done nothing wrong?
Yes. It is not against the law for one person to stop another in the street and ask him or her questions, and the same rules apply to police officers. They can approach you, ask you questions and even ask to search your belongings. What the police can legally do during a stop depends largely on what the officer is thinking about you at the time. This may seem unfair, but if the police have a “reasonable suspicion” that you have been involved in a crime – even if you are totally innocent – they can detain you and even frisk you.
11. What is the difference between felonies and misdemeanors?
Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.
12. I’ve been charged with assault. If I get convicted, what will happen to me?
If you are convicted of misdemeanor assault in California, you can be incarcerated for up to six months in the county jail. Other non-incarceration penalties include three years of summary or informal probation, a maximum fine of $1,000, successful completion of a batterer’s program and/or community service.
If you are convicted of felony assault, you can be sentenced up to four years state prison. Alternatively, if you are granted probation, you may be ordered to serve up to one year in county jail.
Assault with a weapon can be charged as a felony “Strike” in California under the Three Strikes Law. If you are charged with felony assault involving a weapon, such an offense is a “Strike”.
Remember, no actual touching has to occur for you to be convicted of assault.
13. What does the prosecutor have to prove in order to prove I am guilty of assault?
For misdemeanor assault:
a. That you acted willfully (in other words, “on purpose”)
b. That you were aware that the act would result in an “application of force” to the victim (even slight
touching but in a rude or angry way, even if it causes no pain or injury)
c. When you acted, you had the “present ability” to apply force
The prosecutor can charge you with felony assault if you used a deadly weapon or a means of force that was likely to cause great bodily harm to the victim.
14. What does the prosecutor have to prove in order to prove I am guilty of battery?
For simple battery:
a. that you willfully and unlawfully touched the victim
b. that you touched the victim in a harmful or offensive manner
The battery can be charged as a felony if there was bodily injury in addition to a. and b. for simple battery.
15. Can I be charged with possession of drug paraphernalia even if the items in question are household items that I purchased legally?
Yes. Drug paraphernalia can be any item, including everyday household items. However, the prosecution will have the burden to prove beyond a reasonable doubt that the household item was used for an unlawful injection or smoking of a controlled substance or any other apparatuses used for unlawful drug use.
16. I did not know that the item in my possession is considered to be drug paraphernalia. Can I still be criminally charged?
Yes. But to actually obtain a conviction, the prosecution must prove that the defendant actually knew that the item could be used to unlawfully inject or consume a controlled substance. At trial, the jury will ultimately decide on whether you actually knew that the item in your possession could have been used for drug paraphernalia. This is why it is critical that you talk to a criminal defense attorney with experience on drug crimes.
17. I’ve been charged with drug possession. Do I go to Drug Court? What about a Diversion Program?
Since the year 2000, with the passage of Prop 36, first-time and second-time offenders of nonviolent possession offenses, whether misdemeanors or felonies, can be sentenced to a substance abuse treatment program instead of jail.
California operates many different types of drug courts: adult, juvenile, and dependency drug courts, with different rules and procedures for each model. There are ways to avoid conviction or even prosecution. If a pre-plea or drug diversion program is in place, one may be able to avoid prosecution by agreeing to participate in treatment. In other situations, one may enter a plea but have the charges dismissed upon completion of the program.
When drug courts are an option in your case, a good criminal defense attorney will review with you the pros and cons of participating in the program versus going to trial and help you make an informed decision that is in your overall best interest.
18. How are sex offenses punished?
Punishment for a sex offense can vary dramatically depending on the category of crime. A misdemeanor sex crime conviction (such as indecent exposure) may receive less than a year of jail time, a fine, community service, counseling, or probation. A felony, on the other hand, may be punished by a lengthy prison term (up to a life sentence). Additionally, released sex felons must register as sex offenders and multiple convictions often lead to greater punishments.
19. Is consent a defense?
Consent may be a defense to sex crimes, in some cases. However, some individuals are not considered able to consent to sex under the law. For those individuals, even if they explicitly agree, their agreement is not legally valid. For example, minors, the mentally disabled and unconscious or intoxicated people (even if they willingly became intoxicated) typically cannot provide valid consent. Statutory rape or date rape charges may result.
20. What is entrapment in sexual offenses?
Police may uncover sex offenders by posing as prostitutes, underage individuals or other parties to catch sex offenders while committing (or preparing to commit) sex crimes. Some sex-offense defendants argue that police actions, such as offers of sexual services, constitute entrapment. Entrapment means that the police induced the defendant to commit a crime he or she did not intend to commit before it was suggested by the police.
However, entrapment is not a valid defense if the defendant intended to commit the crime and the police simply provided a means to do so. In prostitution cases, the offer of sexual services by a police officer is almost never held to be entrapment because the defendant is generally found to have been intending to purchase sexual services prior to interacting with the decoy officer. The elements of an entrapment defense are complicated and sensitive to the facts of your situation.
Contact an experienced criminal defense attorney immediately if you believe you were entrapped.
21. Is it statutory rape if someone lies about his or her age?
A mistake about age is not typically a defense to statutory rape charges, even if the underage person lied and gave consent. It is a “strict liability” offense, which makes the perpetrator responsible regardless of the surrounding circumstances.
FAQ for DUI
1. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite, “I would like to speak with an attorney before I answer any questions.” is a legal and acceptable reply. The police officer has no idea why you would say that, except for that you’re either under the influence and you know it or maybe there is something else going on legally in your life and you need the protection of an attorney.
On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication – and it may explain the odor of alcohol on the breath.
2. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
The law on this varies from state to state. As a general rule, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with an attorney upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.
3. What should I do if I’m asked to take field sobriety tests?
There are a wide range of field sobriety tests (FST’s), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus (to see if your eyeballs “jiggle” when you move them to the extreme right or extreme left, from being under the influence of any drug or alcohol), alphabet recitation, modified position of attention (Rhomberg), fingers to thumb, hand pat, etc…Most officers will use three to five of those tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FST’s. The reality is that officers have usually made up their minds to arrest when they give the FST’s; the tests are simply additional evidence which the suspect inevitably “fails”. Thus, in most cases a polite refusal may be appropriate.
Recently, many states have begun following the federally-approved (National Highway Traffic Administration) “standardized” FST’s:
1. Heel-to-toe
2. One-leg-stand
3. Horizontal Gaze Nystagmus
All other FST’s are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFST’s are scored objectively – that is, a numerical score is assigned according to specific errors or clues.
4. Should I agree to take a chemical test? What happens if I don’t?
It will be up to you to decide the likelihood of a high blood-alcohol reading against the consequences for refusing, which are:
1. Your driver’s license WILL AUTOMATICALLY be suspended for 3 to 6 to 12 months. This may be true even if you are
found not guilty of the DUI charge; in California, the suspension for a refusal on a first-offense is one year.
2. In some states, refusal is a separate crime; in others, it just adds jail time to the sentence for the DUI offense (in
California, 48 hours)
3. The fact of refusal may be introduced into evidence as “consciousness of guilt”. Of course, the defense is free to offer
other reasons for the refusal.
5. Do I have a choice of chemical tests? Which should I choose?
In most states, you have a choice; breath, blood or urine. If you choose breath many jurisdictions permit you to have a second test of blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense.
In California, only blood or breath are offered, unless neither is available in which case urinalysis is possible; a blood sample will be taken if requested after a breath test is given.
Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate is the urinalysis test. If you are confident you are sober, a blood sample is a wise choice; urine, being the least accurate and most easily impeached, is the best option if you believe your blood alcohol concentration is above the legal limit.
6. The officer never gave me a “Miranda” warning. Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
What’s worse is the officer’s failure to advise you of the state’s “implied consent” law; which states that it is your LEGAL OBLIGATION to take a chemical test and what will happen to you if you refuse. Doing this can affect the suspension of your license.
7. Why am I being charged with violation of TWO drunk driving laws?
Yes that’s right, California Vehicle Code 23152, sections a. and b.
The traditional offense is “driving under the influence of alcohol” (DUI) or in some states, “operating while intoxicated” (OUI) or “driving while intoxicated” (DWI). In recent years, 49 states have also enacted a second, so called “per se” (which means evidence that “stands alone” or “by itself”) offense: driving with an excessive blood-alcohol concentration (either .08% – as in California – or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one.
If the case involves refusal to submit to chemical testing, of course, only the traditional offense will be charged.
8. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I’m presumed innocent?
Agreed, it is blatantly unfair. But the law in most states (including California) having a “per se” statute (California vehicle code 23152 (b) – if you were .08% or over, that fact alone, is against the law.) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).
Warning: Be aware of a 10-day deadline for calling the California DMV to request a hearing on the suspension and to get an extension of the temporary license.
12. What is a sentence enhancement?
Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or similar offense – usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
- a child was in the car at the time
- the defendant was traveling 20 or 30 miles over the speed limit at the time
- the blood alcohol concentration was over .20%
- the defendant refused to submit to a chemical test
- there was property damage or injury
- the defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level and impose longer license suspensions)
In most states, the existence of significant personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states (including California) murder charges.
13. What is a “rising BAC defense”?
It is unlawful to have an excessive blood alcohol concentration (BAC) at the time of DRIVING – not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the results is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a BAC above the legal limit – but his actual BAC AT THE TIME OF DRIVING was below.
14. What is “mouth alcohol”?
Mouth alcohol refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can ring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca Blast and Listerine have alcohol in them); cough syrups and other products also contain alcohol.
Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
15. What are some possible defenses for a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense.
- Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle
- Probable Cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
- Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied Consent Warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
- “Under the Influence”. The officer’s observations and opinions as to intoxication can be questioned. The circumstances under which the FST’s were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Witnesses can testify that you appeared to be sober.
16. Will I be able to drive while I’m waiting to go to court for my charges?
When you are arrested for DUI, you will be given a temporary license that will last for 30 days. If you fail to schedule your DMV hearing within 10 days of your arrest, your license will be automatically suspended 30 days after your arrest. The whole point of the DMV hearing is to enable you to contest the suspension of your license so you can retain your driving privileges until and during your DUI criminal trial.
17. Can a DMV hearing be won?
Yes. In order for the DMV hearing officer to restrict your California driving privilege he must make three determinations:
- Who was driving the vehicle
- Whether the police officer had “reasonable cause” to pull over and arrest the driver (a complicated legal question)
- Whether the driver had a blood alcohol concentration of .08% or above (which is open to many challenges)
If you can contact a good DUI attorney in time, before the scheduled DMV hearing, the attorney can arrange for an expert witness, like a forensic toxicologist, to test the breathing device for faultiness and give his findings at the Hearing.
18. How long will all this take?
Unless you are willing to plead guilty at your first court hearing, a DUI defense will take a minimum of several months. More complicated DUI cases can easily last six months to a year as they wind their way through the court and DMV systems. Felony DUI cases (ones involving accidents) or cases with multiple priors may well endure for several years.
19. Is it possible to win a California DUI case?
Yes. It is not only possible to get DUI charges reduced, but in some cases, the charges can be dismissed all together. A number of DUI defenses have proven successful in prior cases including arguing constitutional violations and challenging blood alcohol concentration measurements.
A good DUI attorney will systematically review police reports for inconsistencies and lapses in procedure. He or she can also request complete disclosure regarding the device used to test your blood alcohol level, the personnel involved in the maintenance and operation of the device, and the lab certification.
20. What is the best way to beat a drunk driving charge?
Don’t drink and drive. Use a designated driver, call a taxi, call a friend or don’t drink alcohol if you are going to need to drive within a few hours. For some people, even one drink can impair their driving abilities.
If you did unsafely drink and drive, experienced legal counsel may be able to help minimize your legal problems and maximize your opportunities to move ahead toward a brighter future.
FAQ’s on appeals
1. What can I do if I am wrongly convicted, or my sentence is unfair?
After conviction and sentencing, a defendant has the opportunity to file an appeal of his sentence. If the conviction results from a guilty plea, the defendant may have to ask for “leave” or permission to appeal the conviction. If the conviction results from a trial, the defendant has an absolute right to appeal. An appeal is not a retrial of the case, but it is AN EXAMINATION OF THE TRIAL RECORD TO ENSURE THAT PROCEEDINGS WERE CONDUCTED IN A FAIR MANNER (in other words, an appeal is to check on the prosecution and the judge and jury that they followed the rules correctly)
2. What happens when I appeal?
The parties to an appeal submit written “briefs” to the appellate court, along with a copy of the trial court transcript and any exhibits that were used at trial. Oral arguments may be scheduled. Arguments are typically very short in duration, and tend to be academic in nature, focusing on legal issues.
Appellate review of a conviction is a bit like watching a videotape of a football game, to look for errors by the referees. If the referees make a lot of errors in a close game, you might get the feeling that their mistakes changed the result of the game. Even if they made a lot of errors, the score can be so lopsided that you conclude that the errors did not affect the outcome.
The judges on appeal are looking for errors which may have changed the verdict, and will disregard “harmless errors”, which they believe did not have an effect. The judges will also disregard what they deem to be mistakes of “trial strategy” – a concept that is akin to when the coach chooses a play that doesn’t work out the way he intended.
3. Can I appeal from a probation violation or a parole violation?
Yes. Depending on your state, you may have to pursue an “administrative appeal” of a parole violation, before seeking an appeal to a trial or appellate court. An administrative appeal is heard by an officer of the legislative branch of government, called an “administrative law judge”.
4. What types of “errors” occur at trial, and what do they mean for my appeal?
- Fundamental Error – An error which goes to the heart of the case, and which can be considered by the court “in the interest of justice”, even if the appellant fails to properly raise the issue on appeal.
- Harmful Error - An error which the appellate court concludes had a probable impact on the outcome of the trial.
- Harmless Error - An error which the appellate court concludes had no effect on the outcome of a trial. For example, if a defendant confesses to a murder, and the prosecution has his fingerprints on the murder weapon, the use of inadmissible “hearsay” testimony is likely to be found “harmless”, due to the “overwhelming evidence” against the defendant.
- Invited Error - Where the appellant asks the trial court to make a ruling which is actually erroneous (wrong, in error), that party cannot later appeal the trial court’s decision on the basis of that error.
- Reversible Error - An error which causes the appellate court to overturn the lower court’s decision is a “reversible error”.
5. What do they mean by “procedural due process” and “substantive due process”?
Procedural due process involves the safeguard’s to a person’s liberty and property, set forth in the Constitution, such as the right to an attorney, the right to appointed counsel if you’re indigent, the right to compel witnesses to appear at trial, the right to confront prosecution witnesses at trial, and the right to obtain a transcript of trial proceedings.
Substantive due process involves the broad notion that a person shall not be arbitrarily deprived of his life, liberty or property. If a person is deprived of the opportunity to appeal a court decision, or is convicted when the prosecutor fails to produce “exculpatory evidence” (evidence that JUSTIFIES why the person did the crime) which tends to prove his innocence, his substantive due process rights have been violated.
6. What happens if I lose my appeal?
The first level of appeal, in most states, is to an intermediate-level appellate court. From there, it is possible to appeal to the State Supreme Court. Afterward, it is possible to pursue relief through the federal courts. (If you are convicted following a trial in federal court, your first appeal will be to the federal Court of Appeals, and your case will never be heard before a state court.)
In most cases, after the initial appeal, you must request permission before you can file your appeal with a new court. An appeal to a federal court from a state court conviction must be premised upon “federal issues” – usually, violations of federal constitutional law. Your attorney on appeal must be sure to raise these issues with the state appellate courts, in order to “preserve” the issues for the federal appeal.
7. What happens if I win my appeal?
If you win your appeal, the prosecutor will have the option of appealing to a higher court. Quite often, after a defendant wins an appeal, the prosecutor will offer a defendant the opportunity to plead guilty to an offense, with a sentence of “time served”. This can be a good deal for a defendant, who may not want to risk being again convicted if the case is retried, and whose immediate priority may well be getting out of prison.
However, sometimes the defendant will insist that he is innocent, and will demand a new trial. Other times, the prosecutor will refuse to plea bargain, insisting that the defendant belongs in prison.
8. Are there situations where the prosecutor will simply drop the charges, after an appeal?
Yes. If an appellate court rules that certain evidence, or a confession, should not have been admitted at trial, and it appears that the defendant cannot be convicted without the use of that evidence, sometimes the prosecutor will decide to dismiss the charges. It is rare that a prosecutor will decide that a defendant is, in fact, innocent — but if that does happen, a prosecutor will refuse to retry the case.
9. Is there a time limit for filing an appeal?
Yes. There are strict time limits. You have, typically, less than ten days to sixty days to file for an appeal following a criminal conviction. Appeals may take a period of several months before they occur, which provides time for each party to obtain a complete transcript of the prior trial, as well as prepare for appellate court. To appeal, defendants must file “notice of appeal”, and in turn, obtain a copy of the court transcript, which is expensive, but provided at no cost to indigent defendants.
10. What happens if I cannot challenge my conviction via an appeal?
If this happens, defendants may seek writs, or orders from a higher court to a lower authority, from an appellate court. A writ may be the best remedy, which will assert something occurred during the trial proceedings that prevented a fair trial for the defendant. Typically, appeals are limited to one, but an individual may file a number of writs, which are typically heard much more quickly than appeals.
11. Can any type of felony conviction be appealed?
Yes. All felony convictions can be appealed including: grand theft, drug crimes involving marijuana, methamphetamine, cocaine, heroin, MDMA (ecstasy), cultivation, manufacturing, possession for sale and drug sales, assault, battery, assault with a deadly weapon, bribery, terrorist threat, gang enhancements, street terrorism, perjury, forgery, receiving stolen property, conspiracy, money laundering, manslaughter, murder, robbery, burglary, discharging firearm, stalking, false imprisonment, insurance fraud, prostitution, loitering, pandering, violation of protective order, lewd and lascivious act, failure to register, obscene material, exploitation, indecent exposure, credit card fraud, embezzlement, arson.
12. How do I know in which Court of Appeals my case?
The California Court of Appeal for the First District, handles criminal appeals for the following counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano and Sonoma.
The California Court of Appeal for the Second District, handles criminal appeals for the following counties: Los Angeles, San Luis Obispo, Santa Barbara, and Ventura Counties.
The California Court of Appeal for the Third District, handles criminal appeals for the following counties: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba.
The California Court of Appeal for the Fourth District, handles appeals from Imperial, San Diego, Inyo, Riverside, Orange County and San Bernardino Counties.
The California Court of Appeal for the Fifth District, covers the following counties: Fresno, Kern, Kings, Madera, Mariposa, Merced, Sanislaus, Tulare, and Tuolumne.
The California Court of Appeal for the Sixth District, handles appeals from Monterey, San Benito, Santa Clara, and Santa Cruz Counties.
13. What will it cost to appeal?
Ballpark estimate for some of the initial costs:
- $655 to file for anything else other than criminal or juvenile. Criminal and juvenile are free to file!
- cost of transcript from trial (1 day trial is $650, 10 day trial is $6,500)
- cost of attorney’s time (2-3 week at full time, that’s about 80-120 hours “times” their hourly rate
If you are indigent, the fee for the transcript is waived.
14. Can I file my appeal?
No. Whoever the lawyer on record is must file the documents on your behalf, or a self-represented party may file .
15. I am a “Qualified Individual with Disabilities” making an appeal, what accommodations can the court make for me while I am at the court house?
Accommodations may include making reasonable modifications in practices and procedures or furnishing auxiliary aids and services, equipment, devices, or materials. The court, however, cannot exceed the law in granting a request for an accommodation. For example, the court cannot extend the statute of limitations for filing an action because someone claims that he or she could not make it to the court on time because of a disability. Additionally, the court cannot provide free legal counsel as a medical accommodation.
16. How do I make the request for accommodations?
The form for this request: Judicial Council form MC-410 This form can be dropped off in person, by mail, or orally as the court may allow to the ADA Coordinator, Office of the Clerk, or courtroom clerk where the proceeding will take place.
17. When should the request for accommodation be made?
As far in advance as possible. In any event, it should be made no less than five court days prior to the date(s) needed. The court may, in its discretion, waive this requirement.
18. When will I hear back from the Court regarding my request?
The court will promptly inform the applicant of its determination to grant or deny an accommodation request. If the request is denied, in whole or in part, the response will be in writing. The court may provide an accommodation for an indefinite period of time, for a limited period of time, or for a particular matter or appearance.
19. I understand I have to buy the transcript from the reporter of my criminal trial for the Appeal, what will I get for my money?
The reporter’s and the clerk’s transcripts will contain the following:
- Generally, the jury examination and opening statement
- Sealed and in-camera hearings
- Waivers of constitutional rights
- Guilty or nolo contendere pleas and admissions
- Pretrial proceedings
- Revocation of probation
20. What happens if the appeal is not filed in time?
In California, a late “notice of appeal” is ineffective. Once the time to appeal runs, the appellate court loses the power to hear an appeal. There are a few situations in which the normal time to appeal can be extended. If one party appeals, all other parties are given an additional 20-day period in which they can also appeal. The time to appeal can also be extended up to 30 days for certain motions, such as a motion for a new trial or for reconsideration.
If the last day to appeal falls on a Saturday, Sunday or holiday, the appeal can be filed the next day that the clerk’s office is open.
But, in California, once the time, including any of those extensions, has run, it is no longer possible to appeal. Federal courts may let a party file a late notice of appeal. The federal rules allow a party to appeal up to 30 days late, but only if the district court finds that the appeal was not filed in time because of “excusable neglect or good cause. If the district court does not find excusable neglect or good cause, a late notice of appeal is ineffective.
21. What are my chances of winning an appeal?
In California, about one appeal in four results in reversal of the trial court, in whole or in part. Looking at it from the other direction, the chances are about three to one that any civil appeal will lose.
Some kinds of trial court rulings are more likely to be reversed than others. One example is an order in which the trial court dismissed the entire lawsuit on technical grounds before trial. Under recent decisions of the United States Supreme Court, punitive damage awards are increasingly vulnerable to reversal on appeal.
Other kinds of rulings are less likely to be reversed. An appellate court will be unlikely to overturn a judgement after a full trial; appellant will have to make a convincing argument that the trial court committed an error that was so serious that it prevented appellant from having a fair trial and opportunity to fully present his or her case.
