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. 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.

Here are two documents that are used in California in San Mateo county. Other states have similar forms.

Trial by declaration information.pdf • Trial by declaration request.pdf

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.

(Source: National Motorists Association)

The lights sitting atop traffic poles on W. University Avenue, in Gainesville, FL, glow white when the stoplights below them turn red and shut off when the lights turn green.

Broward County’s new policing-without-boundaries plan would allow officers to patrol any of its cities, the South Florida Sun-Sentinel reported.

Sheriff Al Lamberti has discreetly provided agreements to police departments giving city officers unfettered authority to enforce traffic laws countywide – even while off duty and running errands in civilian clothes.

So far, Sunrise, Coral Springs, Margate and Coconut Creek Counties have signed the plan. Fourteen cities and areas patrolled by sheriffs are also part of the policing agreement, including: Cooper City, Dania Beach, Deerfield Beach, Lauderdale-by-the-Sea, unincorporated Broward, the airport and seaport, Lauderdale Lakes, North Lauderdale, Oakland Park, Parkland, Pembroke Park, West Park, Pompano Beach, Tamarac, Weston and Southwest Ranches.

According to the Sun-Sentinel, Coral Springs Police Chief Duncan Foster said the plan will help his city get tough on belligerent and careless drivers.

“Many times we’ll have officers outside their jurisdiction and people will just be flagrantly driving by,” Foster said. “There was little we could do.”

Fort Lauderdale city commissioners are entertaining the idea and considering trying the plan out for six months, limiting police intervention to only cases of drunk and reckless driving.

“We have people literally thumbing their noses at other police officers because they figure there’s nothing they can do about their driving,” Sheriff Jim Leljedal said. Under the new plan, “that marked police car will be a deterrent wherever it is.”

Under normal circumstances, a city police officer might be forced to turn a blind eye to traffic violations like blown stoplights and excessive speeding because he would not have authority outside of his jurisdiction; however, the proposal could turn Fort Lauderdale into a heavily policed traffic zone as all city officers travel to the county jail and courthouse.

According to the news report, the plan will bring money into cities because the officer’s jurisdiction would receive a small cut of the traffic fine. However, Leljedal said that is not the point.

“We’re stressing that revenue-producing is not the purpose here,” he said.

© 2008 WorldNetDaily

That’s what attorneys Mark Gold and Ted Hollander of The Ticket Clinic in West Palm Beach determined while traveling statewide representing motorists in traffic cases. And they’re accusing Collier County judges of conspiring to prejudge cases to whittle down their increased caseloads.

The dispositions grew even more severe after state budget cuts eliminated hearing officers, resulting in Collier County judges presiding over traffic cases beginning on April 1, adding to their caseloads.

The lawyers reviewed their cases and statewide statistics, determining that about 86 percent of those who contested their cases in Collier County were found guilty of speeding, compared with 5 percent statewide.

And 40 percent here were hit with license suspensions.

“That’s astronomical,” said Hollander, whose firm specializes in traffic tickets. “Nowhere do you see anything like that.”

Gold and Hollander said their clients also were being denied hardship licenses, which allow motorists to drive only to and from work.

They thought something unusual was going on, so they sought judges’ e-mails under the state public records law. They got 42. One provided insight.

An April 4 e-mail from County Judge Vince Murphy to all Collier County judges said he was writing to tell judges how he and Judge Eugene Turner handled cases that first day of traffic court. It referred to Hollander’s and Gold’s local co-counsel, Naples attorney Lee Carney, saying he set several cases for afternoon hearings to work out plea deals with law officers for withholds of adjudication. He urged judges not to accept deals once a case reaches hearing day.

The e-mail’s subject line is “Traffic Court sentencing” and says, in part:

a. Look back only to 1/1/00 for bad driving. If clean since then, probably no suspension.

b. Previous speeding ticket within 2-3 months … suspend D/L 30 days.

c. Triple-digit speed … suspend … length of susp. based on record.

d. Lots of speeding tickets … suspend D/L 3-12 months.

e. Teens or young 20s … short suspension if record isn’t bad.

f. Opportunity to pay the civil fine or to elect driving school is gone by hearing day. Need a very good reason to give a second bite at the apple. Grant a withhold extremely sparingly.

g. We had a couple of not guilty decisions. Remember that the burden is beyond a reasonable doubt. Above all, be fair.

h. If this is going to work, we need to discourage the practice of plea bargaining with the officers. …

The e-mail ended with a caution: “Remember, if we ever let the inmates run the asylum, a la Dade County, we will have to go through Hell to get it back.”

Hollander and Gold, who branded the e-mail evidence of Collier County’s traffic court policy and bias, filed a motion to disqualify all five Collier County judges from hearing traffic cases. Other similar motions followed. All were denied.

The first motion, filed May 16, contends that in an effort to reduce their caseload and to encourage all defendants to admit guilt and pay fines, rather than exercise their constitutional right to a trial, “the County Court Judges of Collier County conspired together to create an unlawful policy of suspending driver licenses, based upon a predetermined schedule …”

They attached the e-mail, saying the dispositions of cases proved they were following Murphy’s outline. The motion contended defendants are being punished for exercising their constitutional rights to a trial.

It argues that the Florida Code of Judicial Conduct states that judges are to perform their duties without prejudice and noted that bias or prejudice is manifested when a judge has a predisposition toward sentencing.

In a recent interview, Murphy explained that the e-mail was written only to show judges what he and Turner had considered that day, factors for disposing of each case. He pointed out that he reminded judges, “Above all, be fair.”

Murphy explained that many attorneys were walking around courtrooms, working out plea deals with officers, becoming disruptive — and judges needed to retain control.

He said courtrooms were packed in the mornings and law enforcement officers were spending too much time away from their jobs sitting in court all day, so Judge Christine Greider suggested pleas in the mornings, with hearings starting at 1:30 p.m., which freed officers in the mornings and saved law enforcement agencies money.

“Talk about a waste of resources,” Murphy said. “It sort of got out of control.”

Collier County is more severe, Murphy conceded, but only because he considers Miami-Dade, Palm Beach and Broward counties more lenient.

He said he saw too many east coast drivers with bad driving records who received withholds of adjudication or dismissed tickets in east coast courtrooms.

“If someone got a ticket doing 100 mph on I-75, on the Broward side of the line, and gets a withhold and then goes and gets another speeding ticket for doing 100 mph, I’m thinking real hard that this person is an accident waiting to happen,” Murphy said. “Someone is going to die and they don’t understand that driving is a privilege.’’

He cited one trucker’s case in which he was caught speeding through a school zone and had a past history of speeding tickets that were dropped, so he suspended his license.

Murphy conceded his e-mail’s last sentence about inmates running the asylum was “regrettable,” adding, “What I meant to say was the tail shouldn’t be wagging the dog.”

“I think they’re judging us by an east coast standard and we’re on the west coast,” Murphy said, calling Collier judges impeccably fair. “We don’t have a policy. Every case is considered on its own facts.”

Judge Mike Carr also said he didn’t consider the e-mail a policy and he looks at each case individually.

“Our judges actually judge,” said Shannon McFee, a Naples defense attorney, “and some of these attorneys aren’t used to that and if they just want to do volume work, then they need to stay in Broward and Dade counties, where they can do that.

“But here, the judges are going to look at each file.”

Gold and Hollander contend they have proof the e-mail shows a policy.

“We’ve had no suspensions since we got it,” Hollander said of the e-mail.

*****

During the past four weeks, Gold argued cases in which they’d filed motions to disqualify the county judges, along with other tickets they were contesting.

Greider was the first to deny the disqualification, ending in a lengthy hearing to determine guilt on a speeding ticket. But she withheld an adjudication of guilt, saying the driver had an impressive driving record, with no citations for 11 years.

Turner denied other motions to disqualify.

Attorneys are continuing to appeal the adjudications of guilt and suspensions to circuit court, where appeals from county court cases are heard.

Because traffic court hearings aren’t recorded, as they are in other courtrooms, Gold once brought in a videographer to record an entire day of traffic court. Since then, he’s paid a court reporter to transcribe the hearings so he can decide which ones to appeal.

The Tuesday afternoon traffic court hearings sometimes were tedious, but piqued the interest of many law enforcement officers who watched Gold’s repeated objections over numerous sections of traffic law.

Some arguments were that officers weren’t following manufacturer guidelines when checking the accuracy of radar guns. Instead, officers were using their own agencies’ guidelines, which Gold argued didn’t comply, or flicked a button on the gun, which said the gun was working fine.

But two weeks ago, Turner threw out some radar readings after officers admitted they used round or rectangular targets to gauge radar guns’ accuracy, when the manufacturer requires 1-foot-square targets.

Turner then allowed officers to testify what they believed the speed was, and despite lengthy, repeated objections and cross-examination by Gold about how long ago the officers took the classes to gauge speed, Turner sustained the officers’ testimony — ending in many clients being found guilty.

After two weeks of the same repeated objections, Turner, at one point asked Gold if he had any more. He didn’t.

“You’ve got more. I know you.” Turner said, half jokingly.

“I missed one?” Gold quipped.

Many of Gold’s repeated arguments had law enforcement officers who sat waiting for their cases nodding in approval and admiration. Some even congratulated Gold in the hallway, telling him there was no ill will in him ripping apart their testimony and qualifications.

Hollander and Gold don’t plan to give up their fight to prove Collier judges have a policy of prejudging.

Gold added: “We aren’t going to lie down and accept people being found guilty and fined without a fight.”