Los Angeles County's Secret Ban on Traffic Ticket Plea Bargaining: How We Intend to Fix It
Following the lead of Orange County’s supervising Judge, Los Angeles County’s Judge Brandlin had his research attorney examine the advisability of a plea bargaining ban on traffic infraction cases is Los Angeles County. Judge Brandlin then issued the advisory memorandum on January 9, 2015.
The advisory memorandum purports to examine three questions:
(1) whether police officers are prohibited from negotiating/plea bargaining with a defendant/defense counsel in an infraction case;
(2) whether police officers who engage in negotiating/plea bargaining are guilty of misdemeanor unauthorized practice of law; and
(3) whether defense counsel who engage in negotiating/plea bargaining with a police officer are guilty of aiding and abetting the peace-officer’s misdemeanor unauthorized practice of law.
Although the memo purported to limit its inquiry only to infraction cases the Los Angeles City Attorney chooses not to appear at, this was a distinction without a difference because the Los Angeles City Attorney never appears at infraction trials.
The Real Question: Should We Outlaw Plea Bargaining?
Therefore, the true question examined was “whether Los Angeles County judges should outlaw plea bargaining in traffic ticket infraction cases.” As to “why” such an examination took place, well, one is left to speculate. The short answer to the true question, according to Judge Brandlin’s research attorney, was “yes.”
The logical steps used to reach the advisory memorandum’s conclusions? Hold on tight, because we may lose you:
Wait ... What?
Although the hypothetical citing officer issues the actual citation, may later amend it, pick a trial date, move to dismiss the ticket, and is the sole witness to the alleged crime, the officer is still not permitted to cross-examine the citizen regarding the ticket because he is “not a party” to the case, but instead, “merely a witness.” So far, so good . . .
The advisory memorandum settles, “by analogy”, the citing officer may likewise not engage in plea bargaining/negotiations with the defendant (or his attorney) because, as merely a witness, who is not a party, and also not a lawyer, that constitutes “the practice of law.” No bar number, no plea bargaining or negotiating.
Legal support, you ask? A lone dissenting opinion from a 1988 Appellate Division case drawn upon “by analogy.” Yes, you read that right. A dissenting opinion from a case decided 28 years ago was the basis for the conclusion, and still yet, only “by analogy.”
Next, the advisory opinion points out “dissenting opinions do not constitute binding precedent on any court.” Notwithstanding, given this particular dissenting opinion from three decades ago, the citing officer “may [still] be engaging in the unauthorized practice of law.” If nothing else, Orange County’s Judge Fish agrees…
The advisory memorandum points out “it would be absurd to conclude plea dispositions are not permitted in infraction cases wherein the city prosecutor has declined to represent the People”, but that is precisely what it accomplished.
Wait … no, sorry, the advisory memorandum points out that the citing officer may “recommend” a disposition to the court. What disposition you ask? The same one the citing officer cannot engage in - - lest he be the first to be charged with a crime.
Yes, you read that right too. The advisory memorandum concludes, on the one hand, that the citing officer may make a recommendation to the court based upon negotiations, but, on the other hand, cannot engage in said negotiations.
Naturally, a crime for which no citing officer has ever been charged with, or likely ever will be; but nonetheless, a crime. Well, it’s usually the prosecutors that decide what crimes to prosecute, but in this case … well, is this case any different? What is going on here? Why?
Infraction (Traffic Ticket) Plea Bargaining Ban
After released in January of 2015, Supervising Judge Brandlin’s advisory memorandum became some kind of edict that all other lower judges (all of them) must now agree with. Thus, 2015 was the year that thousands of criminal defendants in Los Angeles County were denied their right to negotiate a disposition short of trial, commonly referred to as “plea-bargaining” or "charge-bargaining."
In 2016, attorney Patrick Santos intends to have the Los Angeles County Appellate Division decide whether the outlaw on plea bargaining on infraction cases (you know, the thing that would be “absurd to conclude”) should be struck down. He also seeks the recovery of attorney’s fees under the Private Attorney General doctrine. Recent decisions by the United States Supreme Court will very likely play an important role in deciding whether to strike down the “law.”
Attorney Patrick Santos is the sole owner of The Ticket Dump, APC, Southern California’s most loved DUI and traffic ticket law office. The opinions he expresses herein are only that, opinions. You are welcome to disagree by commenting below. In fact, Patrick freely admits he is wrong quite often and encourages disagreement. Here's a copy of the memo.