8 Mondays until Christmas!

Between now and Christmas, we're looking at some Top 10 lists, personalized by me.

Today let's look at:  Top 10 12 best places to retire.

I compiled this selection from several lists.

USA

Florida

Fort Myers, Sarasota, Port St. Lucie, Jacksonville, Lakeland, Daytona Beach, Naples

Pennsylvania

Lancaster, Pittsburgh

North Carolina

Asheville, Winston-Salem,

Tennessee

Nashville

Michigan

Grand Rapids

Texas

Dallas-Forth Worth, Austin, San Antonio, El Paso, McAllen

Non-USA

Portugal

Thailand

Germany

Spain

Costa Rica

Argentina

If you live in any of these places, please give us your opinion!  Do you like living there?  Why or why not?

 

9 Mondays until Christmas!

Between now and Christmas, we're looking at some Top 10 lists, personalized by me. 

Today let's look at:

Top 10 movies from 2019

I'm not much of a movie-goer, so I looked at several [more than 5] lists of 2019 movies and chose 10 12 that I've actually heard of.  If I haven't heard of it, it mustn't be that good, right?!

Let me know your opinion on these, or others.

Apollo 11
Avengers: End Game
A Beautiful Day in the Neighborhood
Captain Marvel
How to Train your Dragon: The Hidden World
It Chapter 2
Joker
The Lion King
Missing Link
Rocketman
Spiderman: Far from Home
Toy Story 4

10 Mondays before Christmas!

Wake up call!  There are 10 Mondays before Christmas.

For the next 10 weeks, let's look at some top 10 lists.

Top 10 8 most interesting [to me] Supreme Court cases from 2019.

Census citizenship question
Department of Commerce v. New York
Decided: June 27, 2019
5-4
The question of whether the census should contain a citizenship question was sent back to the lower court for review of the Trump administration's plan, leaving in doubt whether the question would be on the 2020 census.

Partisan gerrymandering
Rucho v. Common Cause
Lamone v. Benisek
Decided: June 27, 2019
5-4
The Constitution does not bar extreme partisan gerrymandering, which is a purely political question.

First Amendment - Scandalous trademarks
Iancu v. Brunetti
Decided: June 24, 2019
6-3
Prohibiting trademark protection to material deemed "immoral" or "scandalous" is unconstitutional.

Racial discrimination on juries
Flowers v. Mississippi
Decided: June 21, 2019
7-2
A Mississippi man, tried six times for a quadruple murder and imprisoned for 22 years, deserves a new trial because of the prosecution's racial discrimination in jury selection.

Maryland Peace Cross
American Legion v. American Humanist Association
Decided: June 20, 2019
7-2
A local government's display and maintenance of a nearly century-old WWI memorial cross does not violate the Establishment Clause of the First Amendment.

Apple antitrust dispute
Apple Inc. v. Pepper
Decided: May 13, 2019
5-4
Users of iPhones can sue Apple over excessive prices on its exclusive App Store.

Executions and mental disability
Madison v. Alabama
Feb 27, 2019
5-3
The Eighth Amendment does not prohibit a state from executing a prisoner with a mental disability who cannot remember committing his crime, but it does prohibit executing a prisoner who cannot understand the reasons for his execution.

Civil forfeiture
Timbs v. Indiana
Decided Feb. 20, 2019
9-0
The Eighth Amendment limits the ability of police to seize private property used to commit crimes.

What to say – and not say – at trial

Once you've considered all possibilities, type out what you plan to say, and the evidence you plan to bring with you.

If the officer shows up, I'll attempt to speak with him and ask him to dismiss the case.  My focus will be “I was not talking on the phone”.  Do NOT say “I was texting, not talking” because if I admit to doing something illegal, even if it's not the offense noted on the citation, I can still lose.

If trial proceeds and the officer tells the truth, that I was texting, I will point out that I was not charged with texting, but with talking.  Since the officer didn't testify that I was “speaking or listening”, then I am not guilty of the crime charged, and the case should be dismissed. 

I can also argue the two cases.  For the first case, I need to ensure the officer testifies that I was texting while the car was stopped at a traffic light.  If he doesn't say this, I need to ask him on cross-examination - “Was the car moving when you saw me texting?”  For the second case, I need to ask him - “Did you see what was on my phone's screen?  Could it have been a map?”

If trial proceeds and the officer testifies that he saw me talking on the phone [which was NOT true], I will testify that I have ONE cell phone, produce the bill that includes that date, and point out that it does NOT show that any call was made or received at the relevant time.

If the judge finds my guilty anyway, I have the photo of me and my son, and the actual text message, so I can request leniency in my fine.

I wrote all of this information on paper and brought the pages with me, so I didn't forget.

As it turned out, the officer did NOT appear, so my case was dismissed.  You might say that all this work was for nothing, but it was worth it to be prepared for any situation.

Go forth and fight your own traffic ticket!

Preparing for trial – evidence to bring

Now that you've found some legal analysis to argue and/or show to the judge, it's time to collect your evidence for trial.

Aaron Judge - who is obviously NOT the judge we're considering here

Remember, do NOT just bring your phone and/or tablet and/or computer.  Sure you can bring those, but it's best to have EVERYTHING on paper that you can actually hand to the judge.  Well, okay, you won't be personally handing it to the judge.  Most likely you'll hand it to the bailiff who will hand it to the judge.

Presumably your judge will look more like this

But the important thing to remember is you need something on paper in addition to on your phone or whatever.

Here's the possible scenarios that might happen at my trial, and the evidence I brought.  You need to consider all the possibilities for your own trial, and what evidence you should bring to support your position for each possibility.

#1 Police officer fails to show up.  If this happens, most likely the case against me will be dismissed.  Yay!

#2 Police officer shows up.  I talk to him/her before trial and s/he agrees to dismiss the case.  I usually am able to speak with the officer when I'm in court as an attorney representing someone else.  Most of the time [but not always], the officer will agree to reduce the charge to something that doesn't carry any points against my client's license, and allow my client 30 days to pay the fine.  It's rare but not unheard of that an officer will speak with a traffic defendant directly, but if I wear one of my court suits, I might be able to swing this.

#2a Before trials begin, the court usually asks all traffic defendants whose officer shows up, whether they want to change their plea to no-contest and request traffic school.  LOTS of folks plead not-guilty and show up at trial just to see of the officer shows up.  If not, case dismissed.  If so, request traffic school.  If you'd accept traffic school but you'd rather the citation be dismissed, ask the court whether you'll be allowed to change your plea and request traffic school in this situation.  NOTE:  if you wait until after you lose at trial to request traffic school, most likely that will be too late.

#3 Police officer shows up and we proceed to trial.  Officer tells the truth, that he saw me texting while stopped at a traffic light.  I will bring copies of the court cases I wrote about previously, with relevant sections yellow-highlighted.  I also need my phone [because that's where the original text message is located], plus a paper copy of the text message.  I also bring a copy of my son's orders, and a photo of me and my son.

#4 Police officer shows up and we proceed to trial.  Officer LIES and says he saw me speaking on the phone.  Rare, but a possibility.  I need to bring a copy of my phone bill that shows no calls on that date/time.

Next week we'll look at how the trial will proceed and what I should and should not say.

Preparing your case to fight your traffic ticket, part 5

Finally, you can use the "all-knowing google" to see if there's anything else out there that might help you.  I googled “California case cellphone use driving” and various combinations and permutations.  I discovered the case People v Spriggs.

In that case, Mr. Spriggs pulled out his cell phone to find an alternate route around a traffic jam.  He was NOT talking, he was NOT texting.  He was looking at a map.

He was charged with violating Vehicle Code section 23123, same as I was.

Here's the court's summary of its decision:

Spriggs contends he did not violate the statute because he was not talking on the telephone. We agree. Based on the statute's language, its legislative history, and subsequent legislative enactments, we conclude that the statute means what it says — it prohibits a driver only from holding a wireless telephone while conversing on it. Consequently, we reverse his conviction.

The court engaged in a very long discussion of the history behind the law, and focused on what it thought was the intent of the legislature when it drafted the law.

The statute specifically states the telephone must be used in a manner that allows for "hands-free listening and talking." It does not state that it must be used in a manner that allows for hands-free looking, hands-free operation or hands-free use, or for anything other than listening and talking. Had the Legislature intended to prohibit drivers from holding the telephone and using it for all purposes, it would not have limited the telephone's required design and configuration to "hands-free listening and talking," but would have used broader language, such as "hands-free operation" or "hands-free use."

Therefore, since I was not listening or talking, I wasn't guilty of violating this statute!

Same caveat as last week:

Caveat – I'm discussing the law as it existed (1) at the time I received my ticket, or (2) at the time I wrote this blog post.  The law frequently changes.  The Vehicle Code section might be different now.  A new case might have been decided with the opposite result and which overruled the case I discuss here.  Always look at the law and the cases which are in effect on the date YOU received YOUR traffic ticket.

Next week we'll look at collecting your evidence for trial.

Preparing your case to fight your traffic ticket, part 4

What's the definition of the word DRIVE?

California Vehicle Code section 305 states – A “driver” is a person who drives or is in actual physical control of a vehicle.

A driver is a person who drives.  Wow that's helpful.  Not.

And, even while the car was stopped at a red light, I was in actual physical control of the vehicle.  This doesn't look good for me so far.

I then found a jury instruction that is relevant to the word “drive”.

This instruction includes statutes and cases, what we lawyers call authority.  Yay!  One is the Vehicle Code section above.  The other is a case.  Mercer v DMV (1991).  I googled it.  Now admittedly I'm an attorney and know how to read cases, pull out the relevant information, and argue it.  Even if you're not an attorney, bring a copy of the case with you to your trial.  Yellow-highlight the parts that you think are important and are in your favor.  It can't hurt, right?

This case is from the California Supreme Court, not a lower Court of Appeal, so it's the final word in California on whatever it decided.

“We now turn to the essential question posed in this case, namely, whether an officer may make a 'lawful arrest' for 'drunk driving' in violation of section 23152(a), if the arrestee's vehicle is lawfully parked and the officer has not observed the vehicle move.”

I wasn't arrested for drunk driving.  Was I “parked”?

California Vehicle Code section 463 - “Park  or parking” shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers.

I was stopped at a red light.  Therefore, my vehicle was standing.  It was occupied.  It was “otherwise than temporarily for …”  Therefore, I could also argue I was “parked”.  Let's read more of the case to see if  “driving” also includes “parked”.

“Any doubt about our understanding of the word 'drive' is dispelled by decades of case law holding that the word 'drive,' when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle.”

Okay this case is limiting its definition to “when used in a drunk driving statute” but I can still try to argue that it applies to me too.

The court analyzes the laws of 43 states, then states:

“But as we noted above..., the presence of the disjunctive 'or' in the quoted definition discloses legislative intent that a distinction be drawn between the verb 'drive' and the concept of 'actual physical control,' and thus it is improper to conclude, as did the Colorado and New Mexico courts, that the two terms are synonymous.”

Yes, every single word in every statute is important!

“Based on (i) the 'plain meaning' of the statutory term 'drive,' (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word 'drive' and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle.”

Yes!  The car must be moving to satisfy the definition of “drive”.  I was NOT moving.  I was stopped at a red light.  Yay me!

Caveat – I'm discussing the law as it existed (1) at the time I received my ticket, or (2) at the time I wrote this blog post.  The law frequently changes.  The Vehicle Code section might be different now.  A new case might have been decided with the opposite result and which overruled the case I discuss here.  Always look at the law and the cases which are in effect on the date YOU received YOUR traffic ticket.

PS – if you found this statutory analysis interesting or fun or exciting, (1) come back next week because we'll be looking at another case, and (2) consider going to law school =)