Is It Really 'Bail' That’s Posted for Traffic Offenses?

Monday, June 3, 2002

Page 7

PERSPECTIVES (Column)

Is It Really ‘Bail’ That’s Posted for Traffic Offenses?

By ROGER M. GRACE

What do you do if you get a traffic ticket and deserved it, and don’t want to go to traffic school? You send in a check in the amount of the fine (plus penalty assessments), and that’s it. Whether this constitutes paying a fine, or actually entails posting bail which is then forfeited when you don’t show up in court, doesn’t really matter. You’ve taken care of the ticket.

But what if the officer who issued the citation was dead wrong, and you decide to fight? Well, according to what the officer reels off after handing you the ticket, you have to post bail by thus-and-such date. Also, the date is written right on the ticket. And a notice that comes by mail a couple weeks later sets forth a “DUE DATE” and “BAIL AMOUNT.” The notice states:

“TO CLEAR THIS CITATION, PAY THE BAIL LISTED ABOVE UNLESS OTHERWISE STATED.”

The message is: if you want to fight the ticket, you have to pay the amount of the fine first, then have the matter tried. This payment is denominated a posting of “bail.”

Hold on, now. Why should someone who contests a traffic ticket be required to pay it before having a day in court? What this boils down to is a required pre-payment of a penalty before there is an adjudication of guilt. This somehow strikes me as inconsonant with due process. The Romans had a ditty that went “Nulla poena sine crimen”—no punishment without crime. Here, if the alleged offender is determined by a court not to have committed an infraction, the monetary punishment will already have been imposed, and is not quite undone by the return of the money months later, sans interest.

What if a statute required a defendant in a contract action to pay the damages sought by the complaint at the outset of the action, but required that there be a refund if the judgment were for the defendant? The statute would be infirm, as is the analogous requirement of the pre-payment of a traffic fine.

The California Supreme Court has pretty much said that “bail” in traffic cases is not really bail. It held in McDermott v. Superior Court (1972) 6 Cal.3d 693 that “true bail” may be set in no greater an amount than is necessary to ensure the defendant’s presence at trial, and that a statute requiring the amount of the potential penalty assessment to be tacked onto the bail breached the federal constitutional proscription against excessive bail. The opinion, by Justice Marshall F. McComb, went on to say that the statutory requirement did not breach the Eighth Amendment as applied to “bail” in cases of minor traffic offenses, saying that bail in these cases is “not set for the purpose of insuring the defendant’s appearance in court” and is “not true bail.” McComb explained that “[b]ail for traffic law offenses is, generally, in effect a fine and is employed more for the purpose of punishment and judicial convenience than insuring that the trial process will take place.”

What was not decided in that case—or since, so far as I can determine—was whether the pre-trial collection of the fine plus penalty assessment runs afoul of procedural due process.

It’s true that courts of appeal in Tyler v. County of Alameda (1995) 34 Cal.App.4th 777 and Love v. City of Monterey (1995) 37 Cal.App.4th 562 upheld against due process challenges the requirement that alleged parking violators deposit the amount of the fine before there is an administrative hearing. In those cases, however, it was stressed that an alleged offender had a statutory right to informal administrative review by the ticketing agency, upon request, before making the deposit. With respect to traffic tickets, no departmental review is available prior to the time the penalty is to be pre-paid.

Too, while parking tickets are adjudicated at administrative hearings, and carry the prospect of civil penalties, the issuance of a traffic ticket is legally viewed as an “arrest” and criminal procedures come into play. Tyler and Love are heavily reliant on U.S. Supreme Court decisions which delineate circumstances under which postdeprivation hearings satisfy due process. Those cases involve administrative proceedings; consequently they, along with Tyler and Love, have no applicability in the context of traffic tickets.

The concept of punishment first, trial later is antithetical to basic concepts of fairness. To comport with due process, the notice that is sent to accused traffic law violators should present the choices of paying the specified sum or requesting a trial date, with imposition of the fine to occur only upon rendition of a judgment against the alleged offender.

The foregoing is predicated on the notion that use of the term “bail” is pretextual. Okay, let’s play a game and suppose that, notwithstanding the view expressed by a unanimous Supreme Court in McDermott, there really is “bail” in traffic ticket cases. That is to say, a motorist, in putting up funds in the very amount that a judge would order to be paid upon an adjudication of guilt, is actually depositing the amount necessary to secure his or her presence at trial. If we engage in that fiction, a conclusion is unavoidable that bail procedures being utilized skirt a state constitutional provision.

Art. I, §12 of the state Constitution provides, in relevant part: “A person may be released on his or her own recognizance in the court’s discretion.”

Yet, the officer who hands the motorist the ticket orally proclaims that bail must be posted; there is a statement to that effect on the ticket; it’s reiterated on the notice that comes by mail. There is nothing in any of these three communications to alert a recipient of a ticket to the state constitutional right to have a court determine if bail is to be posted.

The Superior Court does provide information on its website as to the prospect of an O.R. release, but not in a direct manner. It says:

“You may appear before a Judicial Officer who will set the amount of bail, if any. The Judicial Officer may consider the nature of the offense, your prior record, and the likelihood of appearance, or other lawful factors….”

The words “if any” do provide a hint, but only that, that there must be a judicial determination, upon application, of the appropriateness of an O.R. release.

As a matter of practice, persons accused of major crimes are being released on their own recognizance; persons accused of illegal turns, stops and lane changes aren’t.

If “bail” in a traffic court context is to be regarded as true bail, then forms and procedures should be revamped to take into account the right to an O.R. determination under Art. I, §12.

As you might have surmised from the fact that I wandered onto this subject, I recently got a traffic ticket. I was cited for making a left turn without yielding the right of way to an oncoming car, in violation subd. (a) of a Vehicle Code section. However, the car was not oncoming at the time I started the turn and, under subd. (b), I had the right of way.

In the course of dealing with the ticket, I encountered a couple other practices which warrant criticism.

•I opted for a “trial by declaration.” A few days after I got the ticket, a messenger went to the Traffic Court in downtown Los Angeles to file my declaration, along with an application for an O.R. release. The papers were refused. It seems the citation had not yet been entered in the computer system. This was not a slip up in this single instance. As a matter of routine, I learned, tickets don’t get entered for about two weeks. That being so, it is a matter of cavalier inconsideration not to afford an advisement of that fact to cited motorists to avoid wasted trips to the courthouse or kiosk. The officer who handed me the ticket on April 19 advised that I had to take care of it by June 7; the same was indicated on the ticket. There should have been an additional forewarning not to try to do anything before two weeks had passed.

•There is a phone number on the ticket to call for information. Chances of there being other than a busy signal appear to be on a par with winning the lottery or Steve Cooley rendering an apology.

In the end, I didn’t post “bail” and was found not guilty. But the experience has left me with the feeling that procedures relating to traffic tickets are in need of examination and revamping.