Friday, February 6, 2009

How to Fight Traffic Tickets in Tennessee

From: "Tona" www.naturaltreasure.net
Subject: Found a new way to fight traffic tickets in Tennessee

Hello Fellow Tennesseeans,

I believe that I have found an infallible way to fight speeding tickets in Tennessee.

The State Legislature has expressly defined the disobedience of a traffic signal as a criminal offense. T.C.A. § 55-8-109, titled Obedience to any required traffic-control device, in pertinent part reads: (a) The driver of any vehicle shall obey the instructions of any official traffic-control device. (b) A violation of this section is a Class C misdemeanor.

The State Constitution says:

ARTICLE I.
Declaration of Rights.
Section 14.

That no person shall be put to answer any criminal charge but
by presentment, indictment or impeachment.

ARTICLE V.
Impeachments.
Section 1.

The House of Representatives shall have the sole power of impeachment
Section 2.

All impeachments shall be tried by the Senate.


We can rule out answering criminal charges by impeachment because none of use go before the State House of Representatives or Senate.

Excluding drunk driving and vehicular homicide, traffic misdameanors never go before a grand jury for indictment or presentment.

It appears to me that we can motion for dismissal for failure to prosecute, because there's no indictment or presentment.

Do you see or know anything to the contrary?

To freedom!
Tona

"There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus."
-Galatians 3:28

"The person who says it cannot be done should not interrupt the person doing it."
-Chinese Proverb

"If people let the government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as the souls that live in tyranny."
-Thomas Jefferson





From: "John Lee" PirateNews.org, DealsGapDRagon.com
Subject: Re: Found a new way to fight traffic tickets in Tennessee

Tona,

You might want to pass this warning to your email list. Only by understanding these current "rules" can we win in court and re-write them on appeal.

This is why I'm trying to set precedent on appeals in state and fed courts that all traffic tickets are civil, not criminal, like currently written into statutes in Florida. SOME "constitutional rights" do not apply in civil cases, however due process, trial by jury, full discovery, and countersuits do apply.

Just knowing WHICH rulebook the game is played by makes it infinitely easier to WIN. Secret rules are how Big Brother wins 95% of 100-million annual trials for "traffic crimes" in USA.

Your idea is correct in CITY courts, where ONLY city ordinances can be adjudicated. TN Code or county ordinances are NEVER adjudicated in city courts. See State vs Bankston, a DUI trial where TN Supreme Court ordered that all trials in city court are CIVIL not criminal, and ALL city jails were CLOSED. ONLY TN Rules of Civil Procedure are allowed in county circuit court for appeals from city court.

Bankston v. State, 908 S.W.2d 194, 196-97 (Tenn. 1995)
City of White House v. Whitley, 979 S.W.2d 262, 268 (Tenn. 1998)
Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992)
Tennessee Attorney General Opinion No. 07-07
Don R. Moses vs. City of Jellico

TCA only applies to traffic tickets by THP or county deputies, in county general sessions courts.

To decide criminal misdemeanor or felony cases, judges in sessions court MUST be "licensed lawyers", aka "attorneys at law". TCA 17-1-106. Judges to be lawyers — Exceptions.

As Class C criminal misdemeanors ("small offenses"), ALL traffic tickets and parking tickets under TN Code have a max sentence of 30 days in jail. Fines can be over $10,000, since "trial by magistrate in sessions court" requires signed waiver of trial by jury, which is automatic CONSENT contract to UNLIMITED FINES, same as allowed by juries.

"Court finds $27,500 fine for second offense driving on a revoked license to be excessive."
—State vs Taylor, 70 S.W.3d 717 (Tenn. 2002); fine reduced to $15,000.


Those cases go to county general sessions court for "misdemeanor bench trial by magistrate" OR "preliminary hearing on probable cause", depending on what the defendant AND prosecutor demand in writing. Prosecutor has final discretion on which it is.

Losing a "bench trial by magistrate" in sessions court results in a "guilty verdict".

Losing a "misdemeanor preliminary hearing on probable cause" in sessions court results in "bindover to the grand jury".

In theory it is possible to demand trial by jury in general sessions court, however, if jury trial is demanded in writing, prosecutors will presumably demand "preliminary hearing on probable cause", forcing the jury trial to criminal court.

"Final appeal by right" of a "guilty" verdict by "bench trial by magistrate in sessions court" is to county criminal court.

"Final appeal by right" of a JURY trial in sessions court is presumably to TN Court of Appeals (not 100% sure). Has there EVER been a jury trial in sessions court for a traffic ticket?

"Interlocutory appeal by discretion" of a "preliminary hearing on probable cause in sessions court" is to county criminal court, but must be made before the grand jury meets.

If a grand jury finds probable cause an indictment is issued, and the defendant is arrested and booked. Bail is arranged, or get out of jail free on "personal recognizance bond".

Trial by jury can be demanded IN WRITING within 10 days of notice of trial in county criminal court.

All this is what happened to me in Blount County sessions and criminal court, where I won DISMISSAL of a ticket from BCSO for "rolling through a stop sign". After losing a PC hearing in sessions court, which bound over to grand jury, the prosecutor called me to dismiss the charge "in the interests of justice". I had filed criminal charges in sessions court, and was prepared to testify to the grand jury, against the deputy using his own videocam and testimony showing him perping 5 misdemeanors within 30 seconds on his own in-car videocam.
http:piratenews.org/state-v-lee-bcgsc-answer-to-complaint.html
http:piratenews.org/how-to-win-in-dragon-court.html#bcgsct

It appears that no grand jury or indictment is allowed in federal court for traffic tickets (ie criminal misdemeanors are "petty offenses"). No trial by jury is allowed in federal court for any misdemeanor. 1,000s of acres of highways in Blount County are federal jurisdiction (Foothills Parkway, US129 Calderwood Hwy, all TVA lakes and property). Max sentence in US Code for petty offenses is six months jail and $5,000 fine, no jury allowed.

Federal traffic ticket trial in Knoxville US District Court in 2009 seeks to reverse ALL misdemeanor guilty verdicts since 1997, for failure to comply with Local Court Rules requiring signed waiver of "trial by judge" and signed consent contract for "trial by magistrate":
http:piratenews.org/US_v_Lee_Apellant_Brief_Feb2008web.html

Lawyers are very much afraid of federal court. Ask Herb Moncier.

Feds grabbed another 500 acres this week in Blount County.
http://www.thedailytimes.com/article/20090203/NEWS/302039980

To win TCA traffic tickets buy this book (ok for fed tickets):
http://west.thomson.com/productdetail/150358/40121152/productdetail.aspx

To win city court appeals to circuit court buy this book:
http://west.thomson.com/productdetail/150360/40121149/productdetail.aspx

TN Rules of Procedure, Rules of Evidence and Jury Instructions are free online, though annotated books are best to read caselaw.

To win fed court traffic tickets buy this book
http://west.thomson.com/productdetail/150628/13996018/productdetail.aspx

FYI, any person can be an "Attorney-In-Fact", without a law license, bar card or law degree. This is called "Power of Attorney" contract, and applies in any court or any case, civil or criminal. Lawyers call POA-In-Fact a "pro se for a pro se".
http://en.wikipedia.org/wiki/Power_of_attorney

75% of all judges in USA are NOT licensed lawyers and never graduated law college, according to NY Times. In TN, county judicial commissioners and city judges are NOT required to be licensed lawyers. TN Supreme Court calls these "de facto judges", but they are sort of "pro se judges".
http://piratenews-tv.blogspot.com/2009/01/75-of-judges-are-not-licensed-lawyers.html

A "licensed lawyer" is called an "attorney at law", not "attorney-in-fact".

A "lawyer" is defined in law dictionaries as merely someone who "studies" law.

LAWYER.
A counselor; one learned in the law. Vide [see] attorney.
-LawDictionary.org


TCA 23-3-103. Unlawful practice prohibited — Penalty.

(a) No person shall engage in the practice of law or do law business, or both, as defined in § 23-3-101, unless the person has been duly licensed, and while the person's license is in full force and effect, nor shall any association or corporation engage in the practice of the law or do law business, or both.

(b) Any person who violates the prohibition in subsection (a) commits a Class A misdemeanor.

(c) (1) The attorney general and reporter may bring an action in the name of the state to restrain by temporary restraining order, temporary injunction, or permanent injunction any violation of this part; to obtain a civil penalty in an amount not to exceed ten thousand dollars ($10,000) per violation

TCA 23-3-108. Falsely representing self as a lawyer.

(a) It is unlawful for any person, either directly or indirectly, falsely to advertise such person as, or hold such person out as, a lawyer.

(b) A violation of this section is a Class E felony.

TCA 17-1-106. Judges to be lawyers — Exceptions.

(a) In addition to the qualifications provided for judges by article VI, §§ 3 and 4 of the constitution of Tennessee, judges of the supreme court, court of appeals, chancery courts, circuit courts, and criminal courts, and courts exercising the jurisdiction imposed in one (1) or more of the last three (3) named courts, shall be learned in the law, which must be evidenced by the judge being authorized to practice law in the courts of Tennessee.

(b) (1) The provisions of this section shall not apply to courts of general sessions in counties of this state having a population according to the federal census of 1960 or any subsequent federal census as follows: [click table chart to read insane population census].

(2) This section shall not apply to judges of the county courts nor to chairs of county courts in the various counties of this state except in those counties where such judges or chairs exercise general criminal jurisdiction normally exercised by the criminal and circuit courts; jurisdiction of purely civil cases wherein a jury is provided for, except insanity proceedings and condemnation of land proceedings; and jurisdiction to hear and determine divorce cases.

(d) Notwithstanding the provisions of any other public or private act, law or charter provision, the provisions of subsection (a) shall also apply to judges of city courts of all cities of this state having a population in excess of one hundred sixty thousand (160,000) according to the federal census of 1980 or any subsequent federal census.

TCA 17-1-105. Practice of law prohibited.

No judge or chancellor shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge or chancellor may have been employed as counsel previous to the judge's or chancellor's election.

HOW TO SIGN ALL GOVT CONTRACTS (DRIVER LICENSE OR TRAFFIC TICKETS) TO DENY JURISDICTION OF TRAFFIC COURT:

TN Code Title 47. Commercial Instruments And Transactions

Chapter 1. Uniform Commercial Code — General Provisions

TCA 47-1-308. Performance or acceptance under reservation of rights. [formerly TCA 47-1-207]

(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice”, “under protest”, or the like are sufficient.

TN Code
http://www.tennesseeanytime.org/laws/laws.html

(9)(a) "Any law student who has successfully completed one-half of the legal studies required for graduation in an approved law school in the State of Tennessee may, with the written approval of the Supreme Court of Tennessee, provide legal services to, and/or may appear in any municipal, county or state court on behalf of, any person or entity financially unable to afford counsel or on behalf of the state of Tennessee or of any municipal or county government; provided, however, that the law student is participating in a law school clinical program, furnishing assistance through a legal aid program, or serving as an assistant to a District Attorney General, Public Defender, the state’s Attorney General, the general counsel of any state agency, or a county or municipal legal director’s office; and that the law student is under the immediate and personal supervision of a member of the law school’s faculty, a licensed legal aid attorney, a District Attorney General or designated Assistant District Attorney General, a District Public Defender or designated Assistant District Public Defender, the Attorney General of Tennessee or any assistant in his or her office, the general counsel of any state agency or any staff attorney in his or her office, or the director of a county or municipal legal office or designated staff attorney."
-RULES OF THE SUPREME COURT OF THE STATE OF TENNESSEE. ARTICLE X. SPECIAL OR LIMITED PRACTICE, Sec. 10.03. Law Student Practice

(12) "This Rule applies to the sale of a law practice by representatives of a deceased, disabled or disappeared lawyer. Thus, the seller may be represented by a non-lawyer representative not subject to these Rules. Because, however, no lawyer may participate in a sale of a law practice that does not conform to the requirements of this Rule, the representatives of the seller as well as the purchasing lawyer can be expected to ensure that the requirements are met."
-RULES OF THE SUPREME COURT OF THE STATE OF TENNESSEE. Rule 1.17 - SALE OF A LAW PRACTICE

"We researched all 50 States and all the federal circuits on Westlaw to find all reported cases in which nonlawyers were permitted to represent parties in law cases."
-Barbara C. Johnson attorney at law, FalseAccusations.com, When Nonlawyers Represent Parties and the Representation Does Not Constitute the Unauthorized Practice of Law

"To be a Social Security representative, a person does not have to be a lawyer. Many companies which advertise as representatives not affiliated with lawyers and do not send lawyers to the hearing with their clients. Many lawfirms send their paralegals to the final evidentiary hearing on their social security claims. A lawyer does not attend the final hearing."
-Kinsell, Zadel & Whitaker attorneys at law, How to choose a Social Security Disability Law Firm

"He who represents himself has a fool for a client."
-Jewish President Abraham "Lincoln" Rothschild, unlicensed lawyer who never attended law school and never passed a bar exam, shot dead by his own secretary of war, after genociding 1-million US citizens in the Mother of All Wacos

Florida statutes: All traffic tickets are CIVIL not criminal:

Title XXIII
MOTOR VEHICLES Chapter 318
DISPOSITION OF TRAFFIC INFRACTIONS
Florida Statutes 318.14 Noncriminal traffic infractions; exception; procedures. 2008

(1) Except as provided in ss. 318.17 and 320.07(3)(c), any person cited for a violation of chapter 316, s. 320.0605, s. 320.07(3)(a) or (b), s. 322.065, s. 322.15(1), s. 322.16(2) or (3), s. 322.161(5), s. 322.19, or s. 1006.66(3) is charged with a noncriminal infraction and must be cited for such an infraction and cited to appear before an official. If another person dies as a result of the noncriminal infraction, the person cited may be required to perform 120 community service hours under s. 316.027(4), in addition to any other penalties.

(2) Except as provided in s. 316.1001(2), any person cited for an infraction under this section must sign and accept a citation indicating a promise to appear. The officer may indicate on the traffic citation the time and location of the scheduled hearing and must indicate the applicable civil penalty established in s. 318.18.

(3) Any person who willfully refuses to accept and sign a summons is guilty of a misdemeanor of the second degree.

(4) Except as provided in subsection (12), any person charged with a noncriminal infraction under this section who does not elect to appear shall pay the civil penalty and delinquent fee, if applicable, either by mail or in person, within 30 days after the date of issuance of the citation. If the person cited follows the above procedure, he or she shall be deemed to have admitted the infraction and to have waived his or her right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings. Any person who is cited for a violation of s. 320.0605 or s. 322.15(1), or subject to a penalty under s. 320.07(3)(a) or (b) or s. 322.065, and who makes an election under this subsection shall submit proof of compliance with the applicable section to the clerk of the court. For the purposes of this subsection, proof of compliance consists of a valid driver's license or a valid registration certificate.

(5) Any person electing to appear before the designated official or who is required so to appear shall be deemed to have waived his or her right to the civil penalty provisions of s. 318.18. The official, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the official may impose a civil penalty not to exceed $500, except that in cases involving unlawful speed in a school zone or involving unlawful speed in a construction zone, the civil penalty may not exceed $1,000; or require attendance at a driver improvement school, or both. If the person is required to appear before the designated official pursuant to s. 318.19(1) and is found to have committed the infraction, the designated official shall impose a civil penalty of $1,000 in addition to any other penalties and the person's driver's license shall be suspended for 6 months. If the person is required to appear before the designated official pursuant to s. 318.19(2) and is found to have committed the infraction, the designated official shall impose a civil penalty of $500 in addition to any other penalties and the person's driver's license shall be suspended for 3 months. If the official determines that no infraction has been committed, no costs or penalties shall be imposed and any costs or penalties that have been paid shall be returned. Moneys received from the mandatory civil penalties imposed pursuant to this subsection upon persons required to appear before a designated official pursuant to s. 318.19(1) or (2) shall be remitted to the Department of Revenue and deposited into the Department of Health Administrative Trust Fund to provide financial support to certified trauma centers to assure the availability and accessibility of trauma services throughout the state. Funds deposited into the Administrative Trust Fund under this section shall be allocated as follows:

(a) Fifty percent shall be allocated equally among all Level I, Level II, and pediatric trauma centers in recognition of readiness costs for maintaining trauma services.

(b) Fifty percent shall be allocated among Level I, Level II, and pediatric trauma centers based on each center's relative volume of trauma cases as reported in the Department of Health Trauma Registry.

(6) The commission of a charged infraction at a hearing under this chapter must be proved beyond a reasonable doubt.

(7)(a) The official having jurisdiction over the infraction shall certify to the department within 10 days after payment of the civil penalty that the defendant has admitted to the infraction. If the charge results in a hearing, the official having jurisdiction shall certify to the department the final disposition within 10 days after the hearing. All dispositions returned to the county requiring a correction shall be resubmitted to the department within 10 days after the notification of the error.

(b) If the official having jurisdiction over the traffic infraction submits the final disposition to the department more than 180 days after the final hearing or after payment of the civil penalty, the department may modify any resulting suspension or revocation action to begin as if the citation were reported in a timely manner.

(8) When a report of a determination or admission of an infraction is received by the department, it shall proceed to enter the proper number of points on the licensee's driving record in accordance with s. 322.27.

(9) Any person who does not hold a commercial driver's license and who is cited for an infraction under this section other than a violation of s. 316.183(2), s. 316.187, or s. 316.189 when the driver exceeds the posted limit by 30 miles per hour or more, s. 320.0605, s. 320.07(3)(a) or (b), s. 322.065, s. 322.15(1), s. 322.61, or s. 322.62 may, in lieu of a court appearance, elect to attend in the location of his or her choice within this state a basic driver improvement course approved by the Department of Highway Safety and Motor Vehicles. In such a case, adjudication must be withheld; points, as provided by s. 322.27, may not be assessed; and the civil penalty that is imposed by s. 318.18(3) must be reduced by 18 percent; however, a person may not make an election under this subsection if the person has made an election under this subsection in the preceding 12 months. A person may make no more than five elections within 10 years under this subsection. The requirement for community service under s. 318.18(8) is not waived by a plea of nolo contendere or by the withholding of adjudication of guilt by a court.

(10)(a) Any person who does not hold a commercial driver's license and who is cited for an offense listed under this subsection may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld; however, no election shall be made under this subsection if such person has made an election under this subsection in the 12 months preceding election hereunder. No person may make more than three elections under this subsection. This subsection applies to the following offenses:

1. Operating a motor vehicle without a valid driver's license in violation of the provisions of s. 322.03, s. 322.065, or s. 322.15(1), or operating a motor vehicle with a license which has been suspended for failure to appear, failure to pay civil penalty, or failure to attend a driver improvement course pursuant to s. 322.291.

2. Operating a motor vehicle without a valid registration in violation of s. 320.0605, s. 320.07, or s. 320.131.

3. Operating a motor vehicle in violation of s. 316.646.

(b) Any person cited for an offense listed in this subsection shall present proof of compliance prior to the scheduled court appearance date. For the purposes of this subsection, proof of compliance shall consist of a valid, renewed, or reinstated driver's license or registration certificate and proper proof of maintenance of security as required by s. 316.646. Notwithstanding waiver of fine, any person establishing proof of compliance shall be assessed court costs of $25, except that a person charged with violation of s. 316.646(1)-(3) may be assessed court costs of $8. One dollar of such costs shall be remitted to the Department of Revenue for deposit into the Child Welfare Training Trust Fund of the Department of Children and Family Services. One dollar of such costs shall be distributed to the Department of Juvenile Justice for deposit into the Juvenile Justice Training Trust Fund. Fourteen dollars of such costs shall be distributed to the municipality and $9 shall be deposited by the clerk of the court into the fine and forfeiture fund established pursuant to s. 142.01, if the offense was committed within the municipality. If the offense was committed in an unincorporated area of a county or if the citation was for a violation of s. 316.646(1)-(3), the entire amount shall be deposited by the clerk of the court into the fine and forfeiture fund established pursuant to s. 142.01, except for the moneys to be deposited into the Child Welfare Training Trust Fund and the Juvenile Justice Training Trust Fund. This subsection shall not be construed to authorize the operation of a vehicle without a valid driver's license, without a valid vehicle tag and registration, or without the maintenance of required security.

(11) If adjudication is withheld for any person charged or cited under this section, such action is not a conviction.

(12) Any person cited for a violation of s. 316.1001 may, in lieu of making an election as set forth in subsection (4) or 1s. 318.18(7), elect to pay a fine of $25, or such other amount as imposed by the governmental entity owning the applicable toll facility, plus the amount of the unpaid toll that is shown on the traffic citation directly to the governmental entity that issued the citation, or on whose behalf the citation was issued, within 30 days after the date of issuance of the citation. Any person cited for a violation of s. 316.1001 who does not elect to pay the fine imposed by the governmental entity owning the applicable toll facility plus the amount of the unpaid toll that is shown on the traffic citation directly to the governmental entity that issued the citation, or on whose behalf the citation was issued, as described in this subsection shall have an additional 45 days after the date of the issuance of the citation in which to request a court hearing or to pay the civil penalty and delinquent fee, if applicable, as provided in s. 318.18(7), either by mail or in person, in accordance with subsection (4).

(13)(a) A person cited for a violation of s. 316.1926 shall, in addition to any other requirements provided in this section, pay a fine of $1,000. This fine is in lieu of the fine required under s. 318.18(3)(b), if the person was cited for violation of s. 316.1926(2).

(b) A person cited for a second violation of s. 316.1926 shall, in addition to any other requirements provided in this section, pay a fine of $2,500. This fine is in lieu of the fine required under s. 318.18(3)(b), if the person was cited for violation of s. 316.1926(2). In addition, the court shall revoke the person's authorization and privilege to operate a motor vehicle for a period of 1 year and order the person to surrender his or her driver's license.

(c) A person cited for a third violation of s. 316.1926 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Upon conviction, the court shall impose a fine of $5,000, revoke the person's authorization and privilege to operate a motor vehicle for a period of 10 years, and order the person to surrender his or her driver's license.




See also:

Battle of Athens Tennessee 1946 - 500 citizens open fire and make citizens arrests of 300 crooked cops for bogus traffic tickets

75% of judges are not licensed lawyers - Since judges (prosecutors) in traffic court are not required to have a license to practice law, how can they require citizens to buy a license to travel?

Constitutional Right to Travel - Police officer Jack McLamb says you don't need a Communist driver's license internal passport extorted at gunpoint by police state death squads

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