Does a double jepordy defense work on a traffic trial?
I went to contest a stop sign offense. I went to trial court (traffic). Judge called my name, said officer wasn't there. Judge said,"dismissed" so as I was exiting the door I got called to say the officer was present he was busy literally picking his nose. I thought I left something behind so I went back into the court room only to be tried. Judge ruled guilty after the testimony. I realized after exiting the second time that the judge clearly said dismissed the first time. Can I go back and plead my case on the first decision by the judge? Is it worth my time to appeal? I just want no record on my driving points. I live in the state of California.
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(1) Traffic cases (except for DUI and driving on a suspended license) are civil. As such, double jeopardy does not apply.
(2) Even if double jeopardy did apply, double jeopardy attaches in a bench trial once the first witness is sworn in. Your case was dismissed. No witness was sworn in prior to dismissal and therefore jeopardy did not attach. A pre-trial dismissal is not considered a disposition on the merits for double jeopardy purposes. And, unless a dismissal is entered with prejudice, the State is always free to reinstate charges. Moreover, the judge always has the power to allow a case to be reopened.
Double jeopardy DOES apply to traffic infractions. The answer above mine is incorrect in this regard.
But, you have two problems: First, double jeopardy (arguably) did not attach when the judge dismissed your case. Second, and more important, the time to raise the issue of double jeopardy is at trial. You went back to the courtroom for trial, and never raised the issue. You thus effectively waived any possible double jeopardy defense.
Most traffic court cases are regrettably (unless you're a taxpayer) not officially recorded. I think it's dumb because I've seen where it would've made a difference several times.
If your case was recorded, appeal away. A simple call to the clerk will net you an answer and a copy, if available. If it wasn't, let it go. You'll never prove it, and even if you did, it would cost you more in missed work.
if you're worried about your points, it may be worth your time to appeal. but if they just do a mass appeal session, they may not listen to your testimony, assuming you want a lessened sentence, and just charge you 50$. Be respectful and before the judge gets a sentence out, say "your Honor" and proceed to explain your situation. legally, i think you can get the penalty repealed due to the original verdict.