How I Beat A Cell Phone Ticket In California

UPDATE 7/18/12:
Wow, this is one of the most frequently visited pages on my website. Those cops must be giving a heck of a lot of cell-phone tickets. Chances are that if you're on this page, you have been issued a citation for talking on your cell-phone. If this is the case, I highly recommend you fight it. I'm not a lawyer and don't give advice, but rather simply share my own experiences. Below is the story of how I beat my cell-phone ticket in 2008. The good thing about a cell phone ticket is that it is not a 'moving violation' and doesn't add a point to your DMV record. You have nothing to lose by fighting it! Whatever you do though, do not be a moron and forget or miss your court date. If you do that, you will be charged with a more serious crime ("failure to appear") and a warrant could be issued for your arrest, along with increased fines. After you get your ticket, you can get extensions as the court allows prior to your arraignment (your first court date), and then you may opt for a TRIAL BY DECLARATION (a trial through the mail). If you lose the trial by declaration, you are entitled to a brand new trial in person (called a trial de novo), so you have nothing to lose by doing it. Plus, the cop who issued you the ticket (who is the witness for the prosecution) has to take his time to fill out the paperwork in response to your declaration. Unlike in-person court trials, the cop doesn't get paid overtime to fill out his declaration. If the cop doesn't fill out the response to the court, the charge will be dismissed, as in the case of my friend John Shanahan who has beaten four tickets through the mail! [He beat a red-light camera ticket through the mail , a seat belt ticket through the mail, a stop sign ticket through the mail, and another seat belt ticket through the mail.] Also, be sure to visit our TRAFFIC TICKET ARCHIVE PAGE. Best wishes and remember to fight for liberty! Don't let the revenue agents steal your hard-earned money, and may God bless you and your families.

On the first day of July 2008 I received a 'cell phone ticket' from a cop who felt it necessary to use his siren to pull me over. It was the first day the law went into effect, and police throughout California didn't waste any time searching for offenders. The officer came to my car window and asked if I had forgotten to buy my headset or if I had not seen the reminders that the law went into effect today.

I had a brief conversation with the officer and informed him that I will never wear a flashing electronic device attached to my head, that government has no authority to dictate such things, and furthermore, that government has no authority to dictate who, how or when I speak with somebody. I told him that i was aware of the law, but I reject the law as invalid and tyrannical, and that I would fight the ticket in court. It was an amiable conversation; I was not fighting with him, but merely stating a plain case. He insisted in reply that he thought the law is great and that it "save lives", which is a completely baseless and unproven contention. I contended that the law, officially known as Hand-Held Wireless Telephone: Prohibited Use , was unconstitutional.

The fact that something is at odds with the constitution rarely sways the establishment, though, so my gameplan was that if I did not win on those grounds, as was my primary preference, I would win by drowning them in their own procedural paperwork. There is an excellent treatise on the unconstitutionality of cell phone laws, which was filed in a case out of New York a few years ago. The defendant in New York lost her case, but the arguements seem valid nevertheless. As I outlined in a previous article, there are plenty of reasons why everyone should fight their traffic tickets.

If someone wants to fight their cell phone ticket, the first thing they must understand is that as with any ticket, we are entitled to the presumption of innocence. You may have indeed been talking on your cell phone, but it is incumbent upon the state to prove their case. If they want a hundred or more dollars from you, as they did with me for the mere crime of answering my wifes phone call, you may as well make them work for it!

The first thing I did when the cop wrote the ticket was demand a 'change of venue'. In California, as per the vehicle code, if a person lives or works closer to the "county seat" (the main courthouse in whatever county you're ticketed in), you can demand the county seat as the location if you ask for it prior to signing your ticket. You don't have to ask for it if you don't want to, but generally it will force the cop to drive farther, out of their way. That is why I always demand it. The officer in my case actually didn't know what the county seat was, and was not familiar with 40502(b), so I told him to call his watch commander, who would explain it to him. He did so, and proceeded to give me the 'county seat' as required by law (if you demand it).

Once you request the county seat and sign the ticket, you are required to appear at your arraignment. Your "promise to appear" date is written on your ticket. Your ARRAIGNMENT is simply a first court appearance in which you plead guilty or not guilty. You can generally do this over the phone with the court, or any time prior to the date by simply going to the clerk's window. This saves time. I always get the maximum number of extensions (over the phone) prior to my arraignment date. In most cities, you can do this over the phone. Dragging it out is a key step, as it seems to make the officer forget about the court date. Since the officer serves as the sole witness for the prosecution, if he doesn't show up the case will likely be dismissed. Sometimes judges will try to reschedule the trial, but if you know your rights, you will not agree to a postponement.

What happened next in my particular case [See below] is not relevant to your issue and is not necessary reading in order for you to fight your ticket, but it is a true example of how one must be steadfast in fighting the statist nonsense if one is dedicated to advocating an accountable, limited servant government.

I got my court arraignment date after a few extensions (always get extensions, it always helps.) I pled not guilty and got an "own recognizance" (bail waiver) to avoid paying the scum $93 bucks 'bail'.
[Note: Be sure to read my other articles about DISCOVERY, and TRIAL BY DECLARATION, as these are very simple steps you can opt for which increase your chance of winning.]

I then filed a ''discovery request'' with the local D.A. In a traffic infraction case, this is an informal process which involves sending letter (certified with a return reciept, if you're smart) to the D.A. who is prosecuting the case. Although the D.A. never shows up to traffic cases personally , at least as far as I have seen, they are indeed the prosecutor and must comply with your discovery request. This is part of our basic due process, your right to examine all the evidence against you.

I showed up to court April 24th for my trial, and the dumb-as-a-rock socialist pig cop, who had explained at the time of the ticket that he loved the cell phone law because 'it saved lives' (complete nonsense) did not show up. Probably for a number of reasons:

1. Nearly a year had gone by since he wrote the ticket
2. I had subpoenaed all sorts of stuff to make it hard on him
3. Traffic tickets must be adjudicated within 45 days of arraignment, and since I had appeared for arraignment 9/12/08, it had long been past 45 days. Despite the fact that the pig clerk and her pig supervisor claimed that they were not obligated to let me see the judge that day, I am sure that is complete nonsense and that I would have certainly won even if the pig cop had shown up.

By the way, if anyone resents the fact that I refer to all these scum as 'PIGS', too bad. A spade is a spade and a pig is a pig. Do more research and you will realize that we live in a literal satanic inspired police state. We must all fight with everything we have to resist this evil tyranny which has envloped our nation on every level. That is why I fight traffic tickets and every other sort of evil oppressive tyranny that the state and it's loyal servants employ.

Please remember that i am not a lawyer, nor would i want to be. "Woe to you lawyers also, because you load men with burdens which they cannot bear", Luke 11:46

However, they had done so too late. When I showed up for my court date on 9/12/08 at the Los Angeles County Seat court on Hill Street as promised on the citation I signed, the shrew of a court clerk (a really very power-starved, nasty and unprofessional woman) had the gall to refuse to let me see any judge for my arraignment because, as she put it, 'we have no record of this ticket'. I told her that wasn't my problem, showed her the citation, and demanded to see a judge as lawfully required on my promise to appear. She said NO. I called her supervisor and he was at lunch. She asked me to sign what she called a 'TRACER', & said the court would contact me if they found the ticket. So I went home.

About 3 weeks later I recieved a notice stating that my license was being suspended, that there was a warrant out for my arrest, and that the fine had increased from $93 to almost $1000, because a 'FAIL TO APPEAR' had been issued.

Can you IMAGINE the consciousless evil of such satanic filth who would dare pull such an affrontive operation? I have already known for years that government is unspeakably corrupt, which is one reason I always fight tickets, but words can not describe the anger when I recieved this letter.

I reached the court supervisor by phone to detail this outrageous fraud and demanded he remove all these phony charges immediately, which, to his credit, he did. After all that, I had my court date as I explained above, and won.

Martin Hill on GCN Live with 2004 Libertarian party Presidential Candidate Michael Badnarik 1/28/09 discussing fighting traffic tickets
Audio here. See also [Show Notes 1/28/09- A good resource].

The Brett Darrow Case
Brett Darrow is a 20 year old from St. George Missouri, who decided to mount a video camera in his car after getting some traffic tickets. Watch the bizzare series of events that unfolds in September 2007 when Brett politely invokes his God given rights to privacy and Constitutional protections. Sgt. James Kuehnlein became outraged and began screaming like a lunatic, berating and threatening Darrow, saying he would find '9 different charges' to lock him up on. Darrow later posted the video online where it got international attention, and Sgt. Kuehnlein was promptly fired. Darrow had an eerily similar incident happen to him in December 2006, when he politely invoked his rights and told a cop at a checkpoint that he did not want to discuss his personal life. Both these are must-see videos. Kudos to Brett Darrow for standing up for his unalienable rights and privacy. We can all learn from him.

"Traffic rules account for most of the contact by average citizens with law enforcement and the courts. Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws." The Appellate Department, in People vs. Goulet

But he said: Woe to you lawyers also, because you load men with burdens which they cannot bear and you yourselves touch not the packs with one of your fingers.
Luke 11:46