| Thank you for posting your
experience. I agree the law is flawed, abusive, and should be revised. Your legislator is responsible and should be held accountable. Post all those that passed this law! Also, if you posted a full trancsript I agree that you did not recieve a fair trial. However, the appellate departments have apparently decided and have published two opinions (that I saw) saying they do not have jurisdiction to review the trial de novo court's decision. So you arguably got all the process that was due, warts and all. That you were able to get a hearing date at all is an acomplishment itself. The law does not specify how the appeal is to be filed, and some places require personal appearances and special forms or procedures (which no one, clerks or administrators, seems to understand or admit to), in order file the appeal. This multiplicity of gaultlets is erected and deliberately meant to deter filing. I am informed that very few such appeals actually get filed. There should be a simple way to pay the fee and file the de novo appeal by mail. An appropriate form and instructions should be provided with the administrative decision. The city should required to dismiss and pay attorney fees in cases where an appropriate form and instructions have not been provided. You do not make clear in your site whether you had factual contentions to make, or witnesses to support these, eg disputing a time or something. I believe the The judge was, however, correct that there is no right of confromtation for an infraction.. read the 5th amendment. There are, however, other rights and laws that apply including court rules and rules of evidence. If there are no issues of fact then the judge can rule on matters of law without allowing witnesses. The judge engaged you on one of your legal contentions, and impliedly found against you on the issue of law. I'm afraid I must agree with the judge on that point also. With due respect, it wasn't much of a legal argument. The judge did not give you a chance to make any other arguments. In the end, apparently the judge found no other grounds for finding in your favor. The most serious problem with 40230 relates to the admission into evidence of the issuing agency's file as prima facie proof of the facts therein. VC 40230 says this can happen. Once this is permitted and happens the game is essentially over and the judge has everything she needs to basically ignore everything you have to say and uphold the violation. Even if the judge disagrees with the law she may not actually have the authority to declare it invalid. In sum, the admission of the file was the trial, subject to your opportunity of rebuttal on issues of fact, and opportunity to make objections regarding issues of law. So you got your basic trial. Was it fair? I don't think so. If it was unfair, is there an appeal. Apparently not in state court. These may have been other avenues of redress, but you nead to consult a lawyer and don't foget to take money. In the end, your lack of understanding of laws and the legal system and your lack of resources may have undermined your ability to challenge this wrongful law and procedure. You need an orginization to fund and challenge this law. Perhaps the ACLU would take an interest. In the end you actually did get your trial de novo, flawed and chickenshit as it was. So now please send the $10,000 reward, or I'll pass it around that you're a lawbreaker (the "trial") and a yellabelly welcher. hey! Regards, -medork99 I referred this letter to my friend George McCalip who knows more about traffic tickets and the law than anybody I have ever met. It's too bad those judges I appeared before are not a knowledgeable. Dear medork99, Paul Bezaire forwarded your email to me for a response. I think that you are the one who lacks “understanding of laws and the legal system”. You state in your first paragraph, “the appellate departments have apparently decided and have published two opinions (that I saw) saying they do not have jurisdiction to review the trial de novo court's decision.” Did you (unlike the
Appellate Division or the Court of Appeal) bother to look at either of
those opinions (Lagos v. City
of Oakland (1995) 41
Cal.App.4th Supp.10 and Smith v. City of Los Angeles Department of
Transportation (1997) 59 Cal.App.4th Supp. 7)?
Both cases cited originated in Municipal courts, which made them
questionable as precedents since Mr. Bezaire's case was heard in a
Superior Court, and there is a major difference.
However, leaving that point aside, the legislature amended Vehicle Code
§ 40230(a) in 1998 by adding the sentence "A proceeding under this
subdivision is a limited civil case." This, in conjunction with Code of
Civil Procedure § 904.2 (also rewritten in 1998) obviously overcomes the
issue in both Smith and Lagos that, "No express provision
is made for further appeal to the appellate department." The appeal
should have been granted as the case was heard (per CVC 40230(a) as a
limited civil case in the Superior Court and (per CCP 904.2), "An appeal
in a limited civil case is to the appellate division of the superior
court." How much more express can a provision be?
In a trial the defendant has a Constitutional right to confront his
accuser. Mr Bezaire never had the opportunity to question anyone.
Therefore, by definition he never had a trial, de novo or otherwise.
I believe that a thorough understanding of this case will prove that Mr.
Bezaire's $10,000 and his reputation are both secure.
Sincerely, Geo. McCalip,
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