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need a quick thought

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  • cowboy03692001
    i recently got a ticket,in May, for driving while lisc. susp. I did not get arraigned until 2 August. within days I sent to the prosecutor a notice of
    Message 1 of 5 , Aug 25 6:58 AM
      i recently got a ticket,in May, for driving while lisc. susp. I did
      not get arraigned until 2 August. within days I sent to the prosecutor
      a notice of challenge of SMJ [I think this means Subject Matter Jurisdiction; moderator]and a Notice for request of admissions.
      he never responded to either. i just had my second preliminary
      confrence where no progress was made. i did send to the prosecutor
      proof i recinded my contract with the Michigan DMV and Sec of State.
      that went ignored too. the Judge in a conference said I had no right
      to file any motions as trial was scheduled for next week, and if i did
      file them they would be denied. I am only to prepare jury
      instructions. should i get an injunction in federal court barring
      prosecution or wont this work. thank you for any responses
    • JD
      Think maybe you missed a step. When you sent your proof of recession to Secretary of State, you should have copied the AG of the state you are in. That would
      Message 2 of 5 , Aug 25 8:18 AM
        Think maybe you missed a step.  When you sent your proof of recession to Secretary of State, you should have copied the AG of the state you are in.  That would have finalized your administrative process.  If no rebuttal, then you have established a legal fact.  What would be left is what you did exactly to prove that you were not required to have driver's license to travel.
         
        If your license was suspended prior to the time you sent in the recession, then it would have been too late.  The suspension would have to have been lifted.  (Opinion only - not legal advice)
        ----- Original Message -----

        i recently got a ticket,in May, for driving while lisc. susp. I did
        not get arraigned until 2 August. within days I sent to the prosecutor
        a notice of challenge of SMJ [I think this means Subject Matter Jurisdiction; moderator]and a Notice for request of admissions.
        he never responded to either. i just had my second preliminary
        confrence where no progress was made. i did send to the prosecutor
        proof i recinded my contract with the Michigan DMV and Sec of State.
        that went ignored too. the Judge in a conference said I had no right
        to file any motions as trial was scheduled for next week, and if i did
        file them they would be denied. I am only to prepare jury
        instructions. should i get an injunction in federal court barring
        prosecution or wont this work. thank you for any responses    






      • paradoxmagnus@earthlink.net
        I would DISQUALIFY the judge for BIAS. There are a lot problems with you going to TRIAL since the STATE has failed to EXHAUST their administrative remedies. I
        Message 3 of 5 , Aug 25 10:42 AM
          I would DISQUALIFY the judge for BIAS.
           
          There are a lot problems with you going to TRIAL since the STATE has failed to EXHAUST their administrative remedies.
           
          I would formally REBUT the PRESUMPTION that you were DRIVING or OPERATING a MOTOR VEHICLE as defined in the VEHICLE CODE at the time you were stopped.
           
          Have you researched the STATUTES/CODES in your state?
           
          If you go back to the STATUTES from 1925 on you'll probably find some EVIDENCE that will expose the COMMERCIAL NATURE of the VEHICLE CODE.
           
          Most likely you will find something like what we have here in California:
           
          LICENSES are required of those in BUSINESS.

          GC 15367. The agency shall compile a comprehensive listing of all state licenses, permits, and registrations required of any person desiring to operate a business enterprise in California, except permits for a development project as defined in Section 65928. The agency shall categorize the required permits, licenses, and registrations into a comprehensive handbook that is readily available to persons interested in establishing a business enterprise.

          TRANSPORTATION OF PERSONS & PROPERTY is defined as a BUSINESS.

          PUC 208.  "Transportation of persons" includes every service in
          connection with or incidental to the safety, comfort, or convenience
          of the person transported and the receipt, carriage, and delivery of
          such person and his baggage.

           

          PUC 209.  "Transportation of property" includes every service in
          connection with or incidental to the transportation of property,
          including in particular its receipt, delivery, elevation, transfer,
          switching, carriage, ventilation, refrigeration, icing, dunnage,
          storage, and handling, and the transmission of credit by express
          corporations.

          The VEHICLES used in the BUSINESS of the TRANSPORTATION OF PERSONS & PROPERTY the MOTOR VEHICLES that are required to be REGISTERED & REGULATED under the VEHICLE CODE.

          PUC 214.5.  With respect to a motor vehicle used in the transportation
          of passengers for compensation by a passenger stage corporation,
          "owner" means the corporation or person who is registered with the
          Department of Motor Vehicles as the owner of the vehicle, or who has
          a legal right to possession of the vehicle pursuant to a lease or
          rental agreement.

           

          VC 260.  (a) A "commercial vehicle" is a motor vehicle of a type
          required to be registered under this code used or maintained for the
          transportation of persons for hire, compensation, or profit or
          designed, used, or maintained primarily for the transportation of
          property.
             (b) Passenger vehicles and house cars that are not used for the
          transportation of persons for hire, compensation, or profit are not
          commercial vehicles.  This subdivision shall not apply to Chapter 4
          (commencing with Section 6700) of Division 3.
             (c) Any vanpool vehicle is not a commercial vehicle.
             (d) The definition of a commercial vehicle in this section does
          not apply to Chapter 7 (commencing with Section 15200) of Division 6.

            

          9605. “Motor vehicle” includes any automobile, truck, tractor, or other self-propelled vehicle used for the transportation of persons or property upon the public highways, otherwise than upon fixed rails or tracks, and any trailer, semi-trailer, dolly, or other vehicle drawn thereby, not exempt from registration fees under the laws of this State. STATUTES OF CALIFORNIA 1941, California Revenue & Taxation Code, Chapter 39, pg 591

          One who is employed to drive a MOTOR VEHICLE involved in the TRANSPORTATION OF PERSONS a CHAUFFEUR and one who is employed to drive a MOTOR VEHICLE involved in the TRANSPORTATION OF PROPERTY an OPERATOR.

          9603. “Operator” includes:
          (a) Any person engaging in the transportation of persons or property for hire or compensation by or upon a motor vehicle upon any public highway in this State,

          either directly or indirectly.
          (b) Any person who furnishes any motor vehicle for the transportation of persons or property under a lease or rental agreement when pursuant to the terms thereof the person operates the motor vehicle furnished or exercises any control of, or assumes any responsibility for, or engages either in whole or in part in, the transportation of persons or property in the motor vehicle furnished. 

          “Operator” does not include any of the following:
          (a)  Any person transporting his own property in a motor vehicle owned or operated by him unless he makes a specific charge for the transportation.  This subdivision does not in any way limit any other exemption granted by this section.
          (b)  Any farmer . . .
          (c)  Any nonprofit . . .
          (d)  Any person . . transports . . school . .
          (e)  Any person . . . hearse . . .
          (f)  Any registered owner of a pleasure vehicle who, while operating the vehicle, transports persons to his work, or to a place through which he passes on the way to his work, whether for or without compensation, if he is not in the business of furnishing such transportation. STATUTES OF CALIFORNIA 1941, California Revenue & Taxation Code, Chapter 39, pg 590

          That what a DRIVER'S LICENSE is really for.

          310. "Driver's License" includes both an operator's and a chauffeur's license. Statutes of California 1959, Chapter 3, Vehicle Code, page 1531.
          I highly suggest that you check out:
           
           
           
          Patrick in California
           
        • baer@gap.net
          ... This would, of course, depend on the laws of your state, but I would be very surprised to learn that after three months there would be any valid
          Message 4 of 5 , Aug 25 10:20 PM
            At 02:58 PM 8/25/2005, you wrote:
            >i recently got a ticket,in May, for driving while lisc. susp. I did
            >not get arraigned until 2 August. within days I sent to the prosecutor
            >a notice of challenge of SMJ [I think this means Subject Matter
            >Jurisdiction; moderator]and a Notice for request of admissions.
            >he never responded to either. i just had my second preliminary
            >confrence where no progress was made. i did send to the prosecutor
            >proof i recinded my contract with the Michigan DMV and Sec of State.
            >that went ignored too. the Judge in a conference said I had no right
            >to file any motions as trial was scheduled for next week, and if i did
            >file them they would be denied. I am only to prepare jury
            >instructions. should i get an injunction in federal court barring
            >prosecution or wont this work. thank you for any responses

            This would, of course, depend on the laws of your state, but I would be
            very surprised to learn that after three months there would be any valid
            opportunity to arraign you on a Violation or Infraction. I am used to
            seeing a maximum of 30 days within which to arraign, and anything greater
            would be the denial of a speedy trial. You have to raise the issue, of
            course, but it should be worth taking a look at the state code for the time
            frame granted by law for a court to acquire jurisdiction.

            I am speaking specifically about the time that elapses between the filing
            of the charge and arraignment, and you might very well find that the filing
            was 30 days or more after the issuance of the ticket, itself -- indeed, I
            have seen examples where charges were never filed even though a trial and
            decision did take place.

            Baer
          • pd
            I agree with Baer as far as that was taken. First thing to remember is that once a charge is filed against you (many States statutes declare the citation is
            Message 5 of 5 , Aug 26 8:37 AM
              I agree with Baer as far as that was taken. First thing to remember is that once a charge is filed against you (many States statutes declare the citation is allowable as the complaint) the clock starts (hence Baer's observations). Once the clock starts, everything has to go through the court so the judge has full knowledge of what has transpired. Under discovery, you can get the documents being used by the gov't in its prosecution of you. You can also use interrogatories and request for admissions to further supplement your understanding of the case against you. Read the statutory demands placed upon the prosecution with regards to your case. It is important that you sufficiently challenge the subject matter jurisdiction by placing your arguments (supplemented with statutory demands and supporting case law) in a documented format to be placed before the court. Remember, the courts often neglect to properly set the court and forget to record oral arguments, etc. - thus leaving
              no record of these proceedings other than the judge's notes which are usually biased and incomplete. You may want to read your court rules and you will probably find that you can file motions even while court is in session. There just has to be an allowance of time made for the judge and your adversary to review the filing. One of the judge's favorite tricks is to issue rulings or orders by just declaring them "denied". Any time a judge issues an order that is not supported by findings of fact and conclusions of law, the order is considered a minute order and is only binding on court officers and employees when challenged by a party that is not employed by the court (you). The reason for findings of fact and conclusions of law is to apprise the parties (and possibly the reviewing courts) of the reason for the order. How else are you to know what is going through the judge's head? As for going to Federal court -- you have to exhaust your State remedies before going to the
              Feds. I am guessing that you are in one of the inferior courts of your State. In this case, you have to go to the next court up the food chain and go for mandamus, certiorari, etc. Once you go to a superior court with your challenge, all activity at the lower court is held in abeyance until the superior court has issued its ruling. This should buy you some time to read the State statutes and the court rules, etc. so you will have some idea of what you are doing and where this procedure is taking you. pd

              baer@... wrote:To: tips_and_tricks@yahoogroups.com
              From: baer@...
              Date: Fri, 26 Aug 2005 06:20:04 +0100
              Subject: Re: [tips_and_tricks] need a quick thought

              At 02:58 PM 8/25/2005, you wrote:
              >i recently got a ticket,in May, for driving while lisc. susp. I did
              >not get arraigned until 2 August. within days I sent to the prosecutor

              This would, of course, depend on the laws of your state, but I would be
              very surprised to learn that after three months there would be any valid
              opportunity to arraign you on a Violation or Infraction. I am used to
              seeing a maximum of 30 days within which to arraign, and anything greater
              would be the denial of a speedy trial. You have to raise the issue, of
              course, but it should be worth taking a look at the state code for the time
              frame granted by law for a court to acquire jurisdiction.






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