Trial By Declaration: Fight A Traffic Ticket Without Going To Court

May 13th, 2008 Posted in Traffic Tickets

The traffic ticket industry relies on people not having enough time to fight their tickets. Going to court, often multiple times, can be a burden on even the most motivated ticket fighters.

Because of the amount of time a traffic ticket case requires, we’re often asked if there is any way to fight a traffic ticket without the hassle of driving to the courthouse. The good news is that in certain states, through something called “trial by declaration” or “trial by affidavit,” it’s possible. The bad news is that those states are in the minority.

Trial by declaration allows a defendant to state their case in writing, send it to the judge, and have the judge make a decision based on the facts presented in the letter.

Although this may sound appealing, there are few things to consider before fighting a traffic ticket in this way:

1. When you fight your traffic ticket using trial by declaration, you give up the right to directly ask the officer questions.
2. Any chance of dismissal due to the absence of the ticketing officer disappears.
3. Because you’re not there in person it becomes much easier for the judge to find you guilty — all it takes is a rubber stamp.
4. In some states you give up your right to a regular trial when opting for trial by declaration.
5. As mentioned previously, it’s not available in the vast majority of states.

States where trial by declaration is not allowed include:
Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

However, these nine states do allow trial by declaration to some degree:

1) California
Here is the California Law (Vehicle Code Section 40902) that allows trial by declaration:

40902. (a) (1) The court , pursuant to this section, shall, by rule, provide that the defendant may elect to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code, other than an infraction cited pursuant to Article 2 (commencing with Section 23152) of Chapter 12 of Division 11.

(2) The Judicial Council may adopt rules and forms governing trials by declaration in accordance with this section. Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph (1).

(b) If the defendant elects to have a trial by written declaration, the defendant shall, at the time of submitting that declaration, submit bail in the amount established in the uniform traffic penalty schedule pursuant to Section 40310. If the defendant is found not guilty or if the charges are otherwise dismissed, the amount of the bail shall be promptly refunded to the defendant.

(c) Notwithstanding Division 10 (commencing with Section 1200) of the Evidence Code, the rules governing trials by written declaration may provide for testimony and other relevant evidence to be introduced in the form of a notice to appear issued pursuant to Section 40500, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant.

(d) If the defendant is dissatisfied with a decision of the court in a proceeding pursuant to this section, the defendant shall be granted a trial de novo.

As the law states, defendants are required to prepay their ticket (which acts as bail) and are refunded their money if found not guilty. Also, it’s important to note that if a defendant is found guilty they can request a “trial de novo” or new trial. This wipes the slate clean and allows the defendant a second chance to prove his or her case, this time in court.

2) Florida
In Florida, in order to bypass a court appearance you must file an “Affidavit of Defense”. Here is an excerpt from the Florida Rules of Traffic Court:

RULE 6.340. AFFIDAVIT OF DEFENSE OR ADMISSION AND WAIVER OF APPEARANCE

(a) Appearance in Court. Any defendant charged with an infraction may, in lieu of a personal appearance at trial, file an affidavit of defense or an admission that the infraction was committed as provided in this rule.

(b) Posting of Bond. The trial court may require a bond to be posted before the court will accept an affidavit in lieu of appearance at trial. The defendant shall be given reasonable notice if required to post a bond.

(c) Attorney Representation. If a defendant is represented by an attorney in an infraction case, said attorney may represent the defendant in the absence of the defendant at a hearing or trial without the defendant being required to file an affidavit of defense. The attorney shall file a written notice of appearance. The attorney may enter any plea, proceed to trial, present evidence other than the defendant’s statements, and examine and cross examine witnesses without the defendant being required to file an affidavit of defense. Nonetheless, a defendant represented by an attorney may file an affidavit of defense. If a represented defendant files such an affidavit, the affidavit must be signed and properly notarized, subjecting the affiant to perjury prosecution for false statements.

A sample Affidavit of Defense can be found here:
Florida Rules of Traffic Court 2008 Edition (PDF, pgs 15,16)

3) Hawaii
Here is the law allowing trial by declaration in Hawaii:

§291D-6 Answer required.

(a) A person who receives a notice of traffic infraction shall answer the notice within twenty-one days of the date of issuance of the notice. There shall be included with the notice of traffic infraction a preaddressed envelope directed to the traffic violations bureau of the applicable district court.

(b) Provided that the notice of traffic infraction does not require an appearance in person at [a] hearing as set forth in section [291D-5(d)(10)], in answering a notice of traffic infraction, a person shall have the following options:

(1) Admit the commission of the infraction in one of the following ways:

(A) By mail or in person, by completing the appropriate portion of the notice of traffic infraction or preaddressed envelope and submitting it to the authority specified on the notice together with payment of the total amount stated on the notice of traffic infraction. Payment by mail shall be in the form of a check, money order, or by an approved credit or debit card. Payment in person shall be in the form of United States currency, check, money order, or by an approved credit or debit card; or

(B) Via the Internet or by telephone, by submitting payment of the total amount stated on the notice of traffic infraction. Payment via the Internet or by telephone shall be by an approved credit or debit card;

(2) Deny the commission of the infraction and request a hearing to contest the infraction by completing the appropriate portion of the notice of traffic infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the person may submit a written statement of grounds on which the person contests the notice of traffic infraction, which shall be considered by the court as a statement given in court pursuant to section 291D-8(a); or

(3) Admit the commission of the infraction and request a hearing to explain circumstances mitigating the infraction by completing the appropriate portion of the notice of traffic infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the person may submit a written explanation of the mitigating circumstances, which shall be considered by the court as a statement given in court pursuant to section 291D-8(b).

Section (2) has the specific phrasing which allows the defendant to avoid going to court for his or her ticket.

4) Indiana
In Indiana, in order to bypass a court appearance you must opt for a “Trial by Affidavit.” Contact the court for the rules and regulations involved.

5) Louisiana
Contact the court for the rules and regulations involved.

6) Nebraska
Contact the court for the rules and regulations involved.

7) Ohio
Trial by declaration is available only at the discretion of each court. Contact the court to find out if it’s available where you received your ticket.

8) Oregon
Here is the law (ORS 153.08) that allows trial by affidavit in Oregon:

153.080 Testimony by affidavit. Notwithstanding any other provision of law, the court may admit as evidence in any trial in a violation proceeding the affidavit of a witness in lieu of taking the testimony of the witness orally and in court. The authority granted under this section is subject to all of the following:

(1) Testimony may not be presented by affidavit under the provisions of this section unless the court has adopted rules authorizing the use of affidavits and providing procedures for the introduction and use of the testimony.

(2) The court shall allow testimony by affidavit under this section only upon receiving a signed statement from the defendant waiving the right to have the testimony presented orally in court.

(3) Testimony by affidavit under this section is not subject to objection as hearsay.

(4) A statement signed by the defendant under subsection (2) of this section does not constitute a waiver of trial unless the affidavit specifically so provides.

(5) Nothing in this section requires that the defendant or any other witness waive the right to appear if other testimony is introduced by affidavit as provided in this section.

As stated in the law, if requesting a trial by affidavit, the court must receive a signed statement from the defendant waiving the right to have the testimony presented orally in court.

9) Wyoming
Trial by declaration is available only in certain courts. To find out if trial by declaration is available, contact the court you’re scheduled to appear in.

If you’ve had any experiences with trial by declaration, good or bad, tell your story in the comments.

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