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RE: [tips_and_tricks] Re: New Texas Traffic Ticket Hoopla!

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  • Frog Farmer
    ... So my goal is to see if we can all have a nice day before we get to the point where I make that demand. I never REALLY want to go see the magistrate,
    Message 1 of 2 , Dec 16, 2010
      Patrick McKEE wrote a nice analysis:
      > In California you do have the OPTION of DEMANDING to IMMEDIATELY see a
      > magistrate IMMEDIATELY.

      So my goal is to see if we can all "have a nice day" before we get to
      the point where I make that demand. I never REALLY want to go see the
      magistrate, but I will if I have to.

      > VEHICLE CODE 40302. Whenever any person is arrested for any violation
      > of this code, not declared to be a felony, the arrested person shall
      > be taken without unnecessary delay before a magistrate

      Yes, except that they interpret "without unnecessary delay" to mean
      "with necessary delay" and then they make up the reasons for the delay
      to be necessary.

      I prefer to see the magistrate "immediately" (which admits of no delay!)
      and so I reference section 40305.

      40305. (a) Whenever a nonresident is arrested for violating any
      section of this code while driving a motor vehicle and does not
      furnish satisfactory evidence of identity and an address within this
      state at which he or she can be located, he or she may, in the
      discretion of the arresting officer, be taken immediately before a
      magistrate within the county where the offense charged is alleged to
      have been committed, and who has jurisdiction over the offense and is
      nearest or most accessible with reference to the place where the
      arrest is made.

      > Just REALIZE that by doing so the LEO may take you into CUSTODY, your
      > car might be TOWED & you might find yourself in JAIL for up to 72
      > HOURS before you finally see a magistrate.

      If your car is towed you have to go for a tow hearing within three days
      (as you'll read in the light grey microscopically-fine print on the
      ticket). Everybody waives that due to ignorance of it. The 72 hours was
      recently reduced to 48 by the courts, from hearsay locally. I haven�t
      done any fact checking there, but a few people recently released claimed
      to be sure of it.

      > Of course, by doing so the LEO MAY be DEPRIEVING you of your RIGHTS &
      > be waiving any claim to IMMUNITY.

      He's not a LEO, and because of that, he's just guilty of impersonation,
      but maybe you can get an impersonator on kidnapping and extortion.

      > CIVIL CODE 52.3. (a) No governmental authority, or agent of a
      > governmental authority, or person acting on behalf of a governmental
      > authority, shall engage in a pattern or practice of conduct by law
      > enforcement officers that deprives any person of rights, privileges,
      > or immunities secured or protected by the Constitution or laws of the
      > United States or by the Constitution or laws of California. (rest
      > omitted)

      Without oath and bond, he's not an authority, or agent or acting on
      behalf of anything. Taking the paycheck is more fraud, but no proof of
      any office or authority.

      > VEHICLE CODE 40306. (a) Whenever a person is arrested for a
      > misdemeanor or an infraction and is taken before a magistrate, the
      > arresting officer shall file with the magistrate a complaint stating
      > the offense with which the person is charged.

      This is why I would demand to go see the Wizard immediately: the
      arresting impersonator will NOT have a complaint to file with him, which
      is "whenever a person is arrested for a misdemeanor or an infraction and
      is taken before a magistrate". Whenever is immediately. The pig's
      articulable suspicion has to be reducible to writing and conform to
      court rules. But his public education virtually guarantees that he
      cannot do it without lots of help that is not available "immediately".
      He most likely will not be able to defend himself from a verbal
      disqualification either. So, make your demands for release as is your
      right, and if necessary, disqualify the magistrate if he disagrees with
      you, for all the same reasons.

      > (b) The person taken before a magistrate shall be entitled to at
      > least five days continuance of his case in which to plead and prepare
      > for trial and the person shall not be required to plead or be tried
      > within the five days unless he waives such time in writing or in open
      > court.

      They get the Rubes to cave in, in open court, with trick questions.

      > (c) The person taken before a magistrate shall thereupon be
      > released from custody upon his own recognizance or upon such bail as
      > the magistrate may fix.

      Before bail setting, we need to have a probable cause hearing! Yes,
      NOW! IMMEDIATELY! Put this so-called witness fool a.k.a. impersonator
      on the stand!

      > PENAL CODE 145. Every public officer or other person, having arrested
      > any person upon a criminal charge, who willfully delays to take such
      > person before a magistrate having jurisdiction, to take his
      > examination, is guilty of a misdemeanor.

      Got 'em there, since the Fool they woke up fails in the oath and bond
      department as well!

      > PENAL CODE 146. Every public officer, or person pretending to be a
      > public officer, who, under the pretense or color of any process or
      > other legal authority, does any of the following, without a regular
      > process or other lawful authority, is guilty of a misdemeanor:
      > (a) Arrests any person or detains that person against his or her
      > will.
      > (b) Seizes or levies upon any property.
      > (c) Dispossesses any one of any lands or tenements.

      See? Pretending to be an officer and pretending that what is done is
      lawful is so prevalent here in Northern Mexico they even write it into
      law! How many victims take the time to decide, are they dealing with a
      public officer, or person pretending to be a public officer?? Do any
      but myself and a few others even TRY to discover the lawful status of
      these miscreants?

      > In that
      > case plaintiff was incarcerated for almost 24 hours before being
      > released and was never taken before a magistrate.

      Nobody is taken before anyone but impersonators now, but who complains
      or objects timely? Few.

      > The Peckham case also cites 22 American Jurisprudence [1939],
      > page 366, False Imprisonment, section 20, stating the rule to be: ��It
      > is the duty of an officer or other person making an arrest to take the
      > prisoner before a magistrate with reasonable diligence and without
      > unnecessary delay; and the rule is well settled that whether the
      > arrest is made with or without a warrant, an action for false
      > imprisonment may be predicated upon an unreasonable delay in taking
      > the person arrested before a magistrate ..., regardless of the
      > lawfulness of the arrest in the first instance ... an officer
      > arresting a person without a warrant, as on view under statute, is
      > liable for a false imprisonment where he detains the prisoner an
      > unreasonable time without securing a warrant or other legal authority
      > for his detention.� (See, also, 22 Am.Jur. � 85, p. 412.)� Kaufman v.
      > Brown, 93 Cal.App.2d 508 (1949)

      This is why I personally would let impersonators that I catch off with a
      stern warning, since I cannot afford to feed and care for them for the
      time it would take to find a lawful custodian with his oath and bond in

      > When taking you to the MAGISTRATE they are NOT supposed to SEARCH or
      > BOOK you.
      > "As noted above (Part II A, ante) sections 40300-40604 of the Vehicle
      > Code provide the exclusive procedure to be followed after making a
      > warrantless arrest for a traffic violation not amounting to a felony,
      > and those provisions must be read together to effectuate the
      > deliberate legislative scheme they embody.
      > �
      > The clear and unmistakable import of these provisions, when read
      > together, is that a person taken into custody pursuant to section
      > 40302 must be transported directly to a magistrate or to one of the
      > officials listed in section 40307, and must immediately be released on
      > bail or written promise to appear. fn. 17 Accordingly, he cannot
      > lawfully be subjected to the routine booking process used in the case
      > of a nontraffic misdemeanant; nor can he be searched as an incident of
      > that process, either in the field or at a police station." PEOPLE V.
      > SUPERIOR COURT (SIMON) , 7 Cal.3d 186 (1972)

      In other words, you get invited to "have a nice day"! (So far...)

      > And they may even be subject to CRIMINAL PENALTIES for their �acts
      > done without and beyond the bounds of their lawful authority; provided
      > that, in order for unlawful acts of any official to be done under
      > "color of any law," the unlawful acts must be done while such official
      > is purporting or pretending to act in the performance of his/her
      > official duties�.

      Key words: "such official". There's no such official. Officials could
      pretend, and that's what this law is about, but it is not about "pretend

      > And they, like any other government official, they MAY have NO CLAIM
      > to IMMUNITY if they have FAILED to TAKE & FILE their OATH OF OFFICE as
      > MANDATED by LAW.

      There's nothing "like any other government official" for a man or woman
      who has no oath or bond. They cannot BE government officials! They
      never BECAME an official, even though they may at one time have
      qualified to take and file the oath and bond required, they obviously
      elected not to do so and so elected not to take office, leaving it
      vacant. It matters not what the local newspaper reported when they were
      supposed to take their job!

      > SEC. 3. Members of the Legislature, and all public officers and
      > employees, executive, legislative, and judicial, except such inferior
      > officers and employees as may be by law exempted,

      So you ask the impersonator, "Do you have a personal exemption that
      absolves you from compliance with Article XX, section3?"

      > shall, before they
      > enter upon the duties of their respective offices, take and subscribe
      > the following oath or affirmation:
      > ...
      > And no other oath,

      But all they ever file is some "other oath"! So you get a certified
      copy of that one, and ask them, "did you ever file some other oath?"

      > "Public officer and employee" includes every officer and employee
      > of the State, including the University of California, every county,
      > city, city and county, district, and authority, including any
      > department, division, bureau, board, commission, agency, or
      > instrumentality of any of the foregoing.

      Unless they're inferior....is this one inferior??

      > GOVERNMENT CODE 1360. Unless otherwise provided, before any officer
      > enters on the duties of his office, he shall take and subscribe the
      > oath or affirmation set forth in Section 3 of Article XX of the
      > Constitution of California.

      > GOVERNMENT CODE 1770. An office becomes vacant on the happening of
      > any of the following events before the expiration of the term:
      > �
      > (i) His or her refusal or neglect to file his or her required oath or
      > bond within the time prescribed.
      > �Judge Christian had not qualified for his new office. [6] Until an
      > officer-elect or officer-designate takes the oath [238 Cal.App.2d 256]
      > of office and gives whatever bonds are required, he is not authorized
      > to discharge the duties of the office. He is not an incumbent. (Hull
      > v. Superior Court, 63 Cal. 174, 176.)

      You wonder how these people fail to get it, but they are all covering
      for each other.

      > "Given the basic purpose of the oath it follows in reason that the
      > requirement of execution of the oath "before" entering upon the duties
      > to be undertaken establishes the execution of the oath as a condition
      > precedent to a lawful undertaking of those duties. It becomes, in a
      > sense, a matter of eligibility, for one who cannot take the oath, in
      > effect, is rendered ineligible for public employment. (Cf. Reed v.
      > Hammond, 18 Cal.App. 442 [123 P. 346]; Searcy v. Grow, 15 Cal. 117.)

      Reading and understanding English is also a condition precedent to a
      lawful undertaking of those duties. It becomes, in a sense, a matter of
      eligibility, for one who cannot take the oath because he cannot read the
      requirement mandating the taking of the oath, in effect, is rendered
      ineligible for public employment. Disqualify ALL contestants for your

      > When called upon to construe laws requiring execution of the oath and
      > filing of a bond within a certain period of time the California courts
      > have held them to be mandatory (see Norton v. Lewis, supra, 34
      > Cal.App. 621; People v. Perkins, 85 Cal. 509, 511 [26 P. 245]; Hill v.
      > New Amsterdam Casualty Co., 105 Cal.App. 156, 158-159 [286 P. 1103,
      > 158 A.L.R. 639])." Smith v. County Engineer , 266 Cal.App.2d 645
      > (1968)

      How messy!

      > "Oh Lucy! - You Gotta Lotta'Splainin To Do" Ricky Richardo



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