Misdemeanor Dredging Charge

[Enlitnd1]

I've noticed several threads concerning the Ca. prohibition against suction dredging. LEOs (law enforcement officers) have the option to issue tickets for infractions or misdemeanors, rather than take you before a magistrate for a probable cause hearing. However, that ticket you sign, promising to appear, is not a summons and does not confer jurisdiction upon the court over your person. Now, personally, I try to stay within the confines of the law and consequently, I seldom receive tickets of any nature. But, if you find yourself receiving a ticket, for whatever reason, there is a way to successfully fight it and win.
I wrote the following tutorial for traffic tickets because those are the most common, but a ticket written for any purpose is just as much a nullity. I have used this successfully and am now on the "DO NOT TICKET" list. The State does not want to see these issues raised in the courts.
Bill in Ariz.

TRAFFIC COURT TUTORIAL


Understand the scam that is traffic court. Never go to the merits when you already have the charges defeated for lack of in personam jurisdiction. In personam jurisdiction is jurisdiction over your person.

Q. From whence does in personam jurisdiction derive?
A. From procedural DUE PROCESS which derives from substantive due process

Q. What is substantive due process?
A. Substantive due process is found in the fourth article in amendment to the constitution “No warrant shall issue but upon probable cause supported by oath or affirmation.”

Q. What is procedural DUE PROCESS?
A. Procedural DUE PROCESS is promulgated in furtherance of substantive due process and is the steps required to place you properly before the court and confer upon the court jurisdiction over your person.

Q. What are the steps of procedural DUE PROCESS?
A. In a criminal action, the placing of a sworn complaint before a magistrate initiating a probable cause hearing and a subsequent finding of probable cause initiating the issuance of either a summons or a warrant. In lieu of the probable cause hearing, the submission of a sworn complaint to a grand jury and a subsequent indictment to properly place the defendant before the court. If a summons is used to bring the defendant before the court, the summons must be served in accordance with the procedures for service of process.

Q. In the case of a traffic ticket, has any of the above been observed?
A. No!

Q. How then does the court presume to have in personam jurisdiction?
A. The court depends upon you to waive your right to procedural DUE PROCESS by making a general appearance or traversing within the court.

Q. What constitutes a general appearance?
A. Any appearance not specifically identified as a special appearance for the purpose of challenging the jurisdiction of the court.

Q. How do you traverse within the court?
A. By asking the court to do anything. If you enter a plea you are asking the court to accept your plea and implicitly recognizing the jurisdiction of the court over your person. In personam jurisdiction can be waived if not challenged timely and once waived is forever lost to the defendant.


Q. Am I required to enter a plea?
A. No! Use of the term “may” rather than the term “shall” in traffic court procedures determines that entry of plea is discretionary rather than mandatory.

Q. Can the court enter a plea on my behalf?
A. There is no provision in traffic court procedures for the court to enter a plea on your behalf.

Q. Why would the court procedures fail to provide for the court to enter a plea if the defendant refused to do so.?
A. The court, because of insufficiency of process, does not have jurisdiction over your person and must depend on you to waive this issue and thus is powerless to enter any plea on your behalf.

Q. How does the court obtain in-personam jurisdiction in a civil action
A. The only instrument which can place you properly before the court in a civil action is a civil summons.

Q. Does a traffic ticket meet the requirements for a civil summons?
A. No, the form requirements for a civil summons states that the summons must be signed by the clerk of court.

Q. Does a traffic ticket meet the form requirements for a criminal warrant?
A. No, a warrant must be signed by the issuing magistrate

Q. Does a traffic ticket meet the form requirements for a criminal summons?
A. No, the criminal summons must also be signed by the issuing magistrate.

Q. Does a traffic ticket meet the form requirements for an indictment?
A. No, an indictment must be delivered in open court by the foreman of the grand jury.

Q. What then is a traffic ticket if not a summons?
A. A traffic ticket is nothing more than a promise to appear.

Q. How do I appear without making a general appearance or traversing?
A. You appear by filing a motion to dismiss with the court challenging in personam jurisdiction for insufficiency of process or insufficiency of service of process and prominently labeling the appearance as a special appearance.

Q. Is the challenge to in personam jurisdiction necessarily fatal to the charges against the defendant?
A. No.

Q. Can the prosecutor cure the defective process?
A. Yes, by observing the steps outlined above for procedural DUE PROCESS, the prosecutor can place the defendant properly before the court. The traffic ticket is a method of shortcutting procedural DUE PROCESS by inducing you to waive your right to same.

CONCLUSION

Traffic tickets:

1. Do not meet the requirements of substantive due process.
2. Do not meet the requirements of procedural due process.
3. Do not meet the form requirements of criminal process.
4. Do not meet the form requirements of civil process.
5. Do not require the entry of a plea.
6. Do not confer in-personam jurisdiction upon the court.

 

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[Enlitnd1]

Here is an Arizona specific example of a special appearance and motion to dismiss. You must translate the references to authorities, to those for your state. Either mail the motion to the court or take it to the court clerk and file it in personally. Either way, have the clerk date stamp a second copy for your own records. A motion filed into a case is considered an appearance. If you need further assistance with court procedure go to this site and join the forum. [email protected]

Bagdad-Yarnell Justice Court
22591 Lookaway
Yarnell, Arizona

THE STATE OF ARIZONA,
Plaintiff,
vs.
_____________________________
Defendant )
)
)
)
)
)
)
)
)
) Case No.: ________________

Motion to Dismiss for lack of in-personam jurisdiction due to insufficiency of process and service of process.

INTRODUCTION

1. Defendant is domiciled at __________________ in Yavapai County where he may be served with process. Defendant appears specially and not generally to challenge “in personam” jurisdiction of this judicial branch court of limited jurisdiction pertaining to the “Arizona Traffic Ticket and Complaint” numbered _____________

2. Defendant specifically does not waive any rights orally or procedurally until executed in written form nothwithstanding any oral or silent acquiescence to the contrary.

STATEMENT OF FACTS

1. Defendant, upon good faith investigation, has seen no decisive evidence, proof or claim and believes none exists, that a magistrate has at any time made a determination of probable cause in the instant case.

2. Defendant, upon good faith investigation, has seen no decisive evidence, proof or claim and believes none exists, that a summons, warrant or supervening indictment has issued in defendant’s name in the instant case.

ARGUMENTS, POINTS AND AUTHORITIES

1. Is the defendant required to appear in person to challenge “in personam” jurisdiction?

Arizona Rules of Civil Procedure Rule 12b states in part:
How presented; motion to dismiss. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion.

1. Lack of jurisdiction over the subject matter.
2. Lack of jurisdiction over the person.
3. Improper venue.
4. Insufficiency of process
5. Insufficiency of service of process.
6. Failure to state a claim upon which relief can be granted.
7. Failure to join a party under rule 19.

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

The term may is used. May is discretionary.

The defendant is not required to appear in person to challenge “in personam” jurisdiction, but may appear by motion.


2. Does a motion qualify as an appearance?

Black’s Law Dictionary, 8th edition, page 107; appearance: A coming into court as a party or an interested person, or as a lawyer on behalf of a party or interested person; a defendant’s act of taking part in a lawsuit, whether by formally participating in it or by an answer, demurrer or motion, or by taking post judgment steps in the lawsuit in either the trial court or an appellate court.

Per Black’s Law Dictionary, a motion qualifies as an appearance.


3. Is a magistrate required to dismiss the complaint in the absence of a finding of probable cause?

Arizona Rules of Criminal Procedure Rule 2.4 states: (a) if a complaint is made upon oath before a magistrate, the magistrate SHALL make a determination whether there is probable cause to believe an offense has been committed and the defendant committed it. The magistrate shall proceed under rule 3.1 if a determination of probable cause is made. If no such determination is made, the magistrate SHALL dismiss the complaint.

The term SHALL is used rather than the term MAY. The term SHALL is mandatory rather than discretionary.

Because there has been no finding of probable cause, the magistrate is required to dismiss the complaint.


4. Must the magistrate issue a summons or warrant immediately upon a finding of probable cause?

Rule 3.1 of the Arizona Rules of Criminal Procedure states in part: (a) upon presentment of an indictment, or on a finding of probable cause made pursuant to Rule 2.4a, the magistrate SHALL IMMEDIATELY issue a warrant or summons or a notice of supervening indictment under Rule 12.7c.

The phrase SHALL IMMEDIATELY is used rather than the term MAY IMMEDIATELY.

The phrase SHALL IMMEDIATELY is mandatory rather than discretionary.

Because the phrase SHALL IMMEDIATELY is used, the magistrate is required to issue a summons, a warrant or a supervening indictment immediately.


5. Does the Arizona Traffic Ticket and Complaint meet the requirements for a warrant?

Arizona Rules of Criminal Procedure 3.2b states in part: The warrant SHALL be signed by the issuing magistrate…

The Arizona Traffic Ticket and Complaint is not signed by the issuing magistrate.

Because the Arizona Traffic Ticket and Complaint is not signed by the issuing magistrate, the Arizona Traffic Ticket and Complaint does not meet the requirements for a warrant.


6. Does an Arizona Traffic Ticket and Complaint meet the requirements for a summons?

Arizona Rules of Criminal Procedure 3.2b states in part: the summons shall be in the same form as the warrant…

The Arizona Traffic ticket and Complaint is not signed by the issuing magistrate.

Because the Arizona Traffic Ticket and Complaint is not signed by the issuing magistrate, the Arizona Traffic Ticket and Complaint does not meet the requirements for a summons.


7. Does an Arizona Traffic Ticket and Complaint meet the requirements for a supervening indictment?

Arizona Rules of Criminal Procedure 12.7b states in part: The indictment shall be returned in open court by the foreman in the presence of the Grand Jury and the prosecutor.

The Arizona Traffic Ticket and Complaint was not returned in open court by the foreman in the presence of the Grand Jury and the prosecutor.

Because the Arizona Traffic Ticket and Complaint was not returned in open court by the foreman in the presence of the Grand Jury and the prosecutor, the Arizona Traffic Ticket and Complaint does not meet the requirements for a supervening indictment.


8. When challenged, can the court proceed to merits without demonstrating jurisdiction on the record?

Arizona Rules of Civil Procedure Rule 12b states in part: A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

The unambiguous implication of this rule is to require a ruling on the motion before proceeding to merits.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather, should dismiss the action.” Melo v. U.S. 505 F2d 1026

“The trial court must have jurisdiction of person and jurisdiction of subject matter of action and a want of jurisdiction over either person or subject matter is always open to inquiry.” D.W. Onan and Sons v. Superior Court, Santa Cruz County, 179 P.2d 243

“When jurisdiction is challenged, the court cannot proceed to the merits before demonstrating all jurisdictional facts related to the jurisdiction asserted.” Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp. 150

When jurisdiction is challenged, the court cannot proceed to the merits before demonstrating all jurisdictional facts on the record, per Melo v. U.S., D.W. Onan and Sons v. Superior Court and Lantana v. Hopper.

CONCLUSION

1. There has been no finding of probable cause in the instant action.

2. In the absence of a finding of probable cause, the magistrate must dismiss the complaint.

3. A warrant has not issued in the instant action.

4. A summons has not issued in the instant action.

5. A supervening indictment has not issued in the instant action.

6. The Arizona Traffic Ticket and Complaint is neither a summons, a warrant nor a supervening indictment, but merely a promise to appear.

7. This instant motion to dismiss qualifies as an appearance.

8. Defendant does not waive his right to procedural due process.

9. In the absence of a timely issued warrant, summons or supervening indictment, the defendant is not properly before this court and this dispositive motion to dismiss must be granted and the instant action dismissed for lack of in personam jurisdiction due to insufficiency of process.

I,___________________, knowing the penalty for bearing false witness before my Creator, affirms that I have read the foregoing, it is true and correct, to the best of my knowledge, and belief, not brought to vex, annoy, delay, or any other improper purpose, believing that it is firmly justified by right and law.

______________________________________________ _______________________
________________________ Date


PROOF OF SERVICE


I, _____________________, declare the following:

On _____________________ I served this Motion to Dismiss for Lack of In-Personam Jurisdiction at the clerk’s window of the Bagdad-Yarnell Justice Court.

Signed: ______________________________________ __________________
Date




P.S. Include one more issue between #7 and #8 Does the traffic ticket meet the form requirements for a civil summons? Answer- a civil summons must be signed by the clerk of court.
Look up the procedure for issuing a civil summons in your civil procedures.

Note- the form of the header is incorrect. Change to standard pleading format.

Bill in Ariz.