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I got my first cell phone ticket in San Diego, CA. What should I do??

San Diego, CA |

I ended up getting a cell phone ticket the other day. I was on my phone for maybe 30 seconds and ended up getting pulled over. I read online the ticket was $20.00 for first offense. Well I got the ticket in the mail and it is $160.00!!!! Why is this??? I have the option of doing traffic school for $214.00. If I do not do the traffic school will this increase my insurance for sure??

Please let me know. Thanks!

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Attorney answers 3

Best Answer
Posted

You can fight this twice - first by a written trial by declaration. You submit a declaration laying out your side and why you weren't guilty. If the officer doesn't respond, you win. If you lose the trial by written declaration, you can then request a trial de novo (a traffic trial). If the officer is properly served and doesn't show, you win. If they do show, the worst that happens is you get the same fine.

The $20 jumps because of the "penalty assessments" they tack on. Essentially, they are taxes on any base fine. There are also mandatory court costs on top of that.

The good news for this violation is that it does not count as a "point" on your driving history, so it should not affect your insurance. Yes, you could do traffic school to get this dismissed, but you won't be eligible for traffic school for another 18 months, so if I were you, I'd "save" traffic school for in the event you get caught for a moving violation that really matters. I'd rather get a speeding ticket dismissed by way of traffic school than the cell phone ticket.

The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.

Asker

Posted

Thank you for the helpful info! Good point on the traffic school! Ok so even though I am guilty of it I would still do this? Would I just explain my record is clean, it was an emergency etc? Also where do I find the written trial by declaration form and would I send that to the court listed on my ticket? Thank you!!!

Joseph Briscoe Dane

Joseph Briscoe Dane

Posted

Contact the traffic clerk's office at the courthouse where your case is to be heard. You'll have to post the bail amount and they will provide you with the forms for your trial by declaration. When you submit yours in time, they notify the officer and they'll have a deadline to submit theirs. You're not guilty unless a judge finds you guilty. Yes, Vehicle Code section 23123(c) does have an exception for use of handheld devices for emergencies, so if that's the case, you better be prepared to document that along with your declaration.

Asker

Posted

So I would need to pay the fine of the $160.00 and than file the papers? How does that work? Do they give me the money back if the police officer does not respond to the trial by declaration? It was not a 911 kind of emergency so I would imagine they will not except it as a real emergency. I was on my phone for 30 seconds though and was at a stop light as I crossed the light and clicked my phone off the bike cop was right there! I have a great driving record and wish that it would count for something. Being that this is a first offense $160 seems insane to me. It is California though....

Joseph Briscoe Dane

Joseph Briscoe Dane

Posted

Yes, you post the bail amount ($160) so if you don't submit your papers, it becomes a closed case and bail forfeiture. If the officer doesn't respond, they will return the bail amount to you. If you win, they will return the bail amount to you. I can't tell you what to say in the declaration you'll be submitting under penalty of perjury, but you can look at the code yourself and determine what explanation you want to give. You could always NOT make a statement and simply put that you stand by your "Not Guilty" plea (or simply "I am not guilty.") Why? Because even in your traffic matter, you're innocent until proven guilty. The government must prove the case against you, not the other way around. If you offer your explanation and plea for sympathy, you're simply offering up facts for the court to find you guilty. I'm fairly sure they'll look at this as a $20 non-moving violation. I don't think they'll be moved by a clean prior record enough to just dismiss the case if you're guilty. Sorry. So - bottom line: It's your call. $160 fine and lesson learned, move on with no point on your DMV history and don't do it again (because the second one carries a larger base fine that just makes the total fine go way up).... OR.... Spend tonight Googling trial by declaration. Look at form TR-200 and TR-205 [the official forms for the trial by declaration and instructions to defendants], read websites about this issue and then decide. Again - you probably have nothing to lose. You're posting the same amount to fight it as you would to just plead guilty. It's a form. It'll take you about 3 minutes to fill out (plus the time to go to court) and you may just win. Your mention "bike cop" - if you mean motorcycle, then you should know... they're traffic cops. They have probably done more than a few of these trial by declarations. If they do not remember you or the details of your case to sufficiently fill out their declaration, then you'll win. If you lose, you can still set it for a traffic trial and see if the officer shows up then or not. Best of luck. If you've found this exchange helpful, please click the "best answer" button as a thank you for the answers.

Asker

Posted

Ok. I think I will do the declaration either way and if I can not decide what to write, I will write not guilty. Hopefully the cop will not remember me and if I do not win I guess lesson learned. To do this I just go to the court house listed, pay the fine and THAN ask for the paperwork for the declaration right? Than can I just fill it out right there at the courthouse and hand it right back to them?

Joseph Briscoe Dane

Joseph Briscoe Dane

Posted

You should be able to do it all at once. Look up the form online if you want so you can practice and know what you're going to put on the form. You should be able to pay and submit it. You may even be able to take in one you download and fill out ahead of time. When you see the traffic clerk, tell them you want to do a trial by declaration.

Asker

Posted

Ok. I just wanted to say thank you so much for your prompt responses, all of your advice and for educating me on what my options are. I'm sure you are very busy and I just wanted you to know I REALLY appreciate you taking the time to go into detail about what to do and how to handle the ticket. Thanks again! Cheers!

Posted

A cell phone ticket is a non point moving violation. Traffic school is not necessary. The fine is so high because of State penalty assessments.

Asker

Posted

Does this mean that my insurance WILL NOT go up because I did not get any points?

Andrew Stephen Roberts

Andrew Stephen Roberts

Posted

That is correct.

Posted

Hiriing an attorney likely will be more expensive than paying the ticket. If you have the time, go to the first court appearance, plead not guilty, set a trial for about 2-3 months out, and if the officer doesn't show up for the trial date then the case will likely be dismissed.

Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

Asker

Posted

I do not have a court date or time to show up for though. It says Appearance Date: Sept. 9, 2012 Please pay $160.00 on or before 9-6-12 and settle this citation with bail forfeiture with no further action required......