OFF THE WIRE, F.Y.I , Letter #1
NOTE: This letter and attachments from the CHP outlines the problems and issues surrounding a loud pipes ticket I received in California. In my case, there were 2 main issues: 1) enforcement of these related laws is not uniform or scientific throughout the state and 2) that the California Judicial Council has deemed these tickets uncorrectable.
Consider the level of training and sophisiticated technology used for enforcing speed laws with radar and driving under the influence with breath and blood tests. Now compare this with a total absense of training, no technology or dB meters and just using one's ears as the sole "instrument" for noise enforcement you can see that enforcement of noise related laws in this State is neither reliable, consistant state-wide, accurate, sophisticated or apparently legal since my case was dismissed after pointing all this out to the court.
Below is are 2 letters to my Assemblymember (at the time) along with a CHP Bulletin which describes in detail just how subjective and un-technological noise enforcement is.
Assembly Member Wally Knox
State Capitol Room 6025
Sacramento, CA 95814
RE: Motorcycle Exhaust Noise Levels and Correctability Issues
Dear Assembly Member Knox ,
Please find attached my ticket for an alleged 27151 violation checked as correctable by the CHP, the L.A. Valley Court non-correctable bail notice I received , a Fullerton Court correctable Bail Notice for a similar exhaust violation per your request.
When I read that my bail was $77 without mention of correctability, I called the LA Valley Court Clerk who advised me very definitely that 27151 was no longer correctable per the 2000 Bail Schedule. I have seen a copy of the 2000 Bail Schedule and see that 27151 is listed as non-correctable, but according to the law, it is definitely correctable.
Contrary to Mr. Tucker of the California Judicial Council's interpretation of VC 40303.5 sub-section (d), my read of it only serves to prove that 27151 is clearly a correctable violation. Regardless of his or the CJC's opinion or "feelings" about this or any law, the CJC cannot modify any law inconsistent with it's spirit or Legislative intent. To do so is beyond the Judicial Branch's Constitutional power and authority.
40303.5. Whenever any person is arrested for any of the following offenses, the arresting officer shall permit the arrested person to execute a notice containing a promise to correct the violation in accordance with the provisions of Section 40610 unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of Section 40610 exist:
Any registration infraction set forth in Division 3 (commencing with Section 4000).
Any driver's license infraction set forth in Division 6 (commencing with Section 12500), and subdivision (a) of Section 12951, relating to possession of driver's license.
Section 21201, relating to bicycle equipment.
Any infraction involving equipment set forth in Division 12 (commencing with Section 24000), Division 13 (commencing with Section 29000), Division 14.8 (commencing with Section 34500), Division 16 (commencing with Section 36000), Division 16.5 (commencing with Section 38000), and Division 16.7 (commencing with Section 39000).
In the opening the language "shall" means "must" unless the person is disqualified per 40610.b
These disqualifying conditions are threefold:
Evidence of fraud or persistent neglect.
The violation presents an immediate safety hazard.
The violator does not agree to, or cannot, promptly correct the violation.
In the absence of any of the disqualifying conditions, the officer "shall" permit the arrested person to execute a notice containing a promise to correct the violation, which CHP Officer Riley did per the law.
In 40303.5 subsection "d", the Code also states:
(d) Any infraction involving equipment in Division 12 (commencing with Section 24000)
Division 12 ranges from 24000 to 28150 (see attached Table of Contents). My ticket, 27151, is for an alleged exhaust system violation, which is certainly a piece of equipment, and the number falls well within Division 12. I see absolutely no confusion in the language. It is very clear. 27151 is equipment, is and always has been part of Division 12 and is clearly a correctable violation.
After being on the books for over 30 years, it seems strange indeed that the CJC would suddenly need to interpret what they feel the Legislators "really meant" in a few fairly innocuous equipment laws. If the Legislature didn't want 27151 to be correctable, I'm certain they would have written it that way or amended it over the subsequent 30 odd years.
In addition to the changing 27151, the CJC also changed VC 27803 (the helmet law) from correctable to non-correctable a few years ago. And just like 27151, VC 27803 is listed as equipment and part of Division 12 and was intended to be correctable.
California Judicial Council
In addition to what the Vehicle Code says, I have done some research on the CJC and it's authority and power regarding existing statutes. Per the California Consitution (Article VI. §6), the CJC does have the authority to review the Bail Schedule, but as I understand it, any revision must be in harmony ("not inconsistent") with the law and Legislative Intent.
California Constitution, Article VI, § 6 - Judicial Council
To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute.
"not inconsistent with statute" is part and parcel of the CJC's authority and their limitations. In California Court Reporters Association vs. California Judicial Council (39 Cal.App.4th 15 - 1994), Alameda Superior Court Judge Reardon, defines "not inconsistent" to mean:
Construing the relevant constitutional language, the trial court defined the term "not inconsistent" as "not ... merely inharmonious or unsymmetrical, but connot[ing] impossibility of concurrent operative effect, or contradictory in the sense that the provisions cannot co-exist .... ["] " 'Inconsistent' means mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand.
Correctable and non-correctable are clearly contradictory states and cannot co-exist which clearly illustrates that making 27151 and 27803 "non-correctable" would be totally inconsistent with the existing law and quite beyond the CJC's authority.
Further, the Superior Court addresses the extent of the CJC's authority to make rules. Take particular note of the second and third sentences. It appears that the CJC has attempted to test its boundaries before:
II. A. [4] Preliminarily, we must determine the relative value to be assigned to the Judicial Council's rules and the Legislature's enactment of statutes before we turn to the merits of our inquiry. The Judicial Council argues that as it and the Legislature both derive their powers from the state Constitution, the two institutions are coequals. We find this argument to be specious. The Constitution reserves to the Legislature and the people of this state the higher right to provide rules of procedure. The Judicial Council's right is secondary-a right to adopt rules only when the higher authority of the Legislature and the people has not been exercised. (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 476-477 [304 P.2d 7]
Reviewing the Bail Schedule is one thing. Changing a correctable violation to non-correctable is a major contradictory revision that must go through an accountable representative Legislative process, rather than an internal private Judicial process; hidden from the Legislature's and People's view and in violation of the Constitution and case law.
I would like the CJC to send us a copy of the 1999 and 2000 Bail and Penalty Schedule for side by side comparison. It should further support that 27151 was not always "non-correctable" as Mr. Tucker would have us believe.
Given the above, I think we need to ask on what authority did the CJC change both VC 27151 and VC 27803 from correctable equipment violations to non-correctable ones. Further, if the CJC will not back down, I would like an opinion from Mr. Knox and also Attorney General Lockyer. Having served in the Legislature, I would bet he could shed the proper and binding light on all this.
Thank you very much for your concern and help. I hope the above information is helpful in your investigation. I look forward to speaking to you soon.
Sincerely,
Steven Shmerler
(signature)
Via Fax
Encls.
