Trial By Declaration (TBD) to Contest Driving Citations

Trial By Declaration Basics

A "trial by declaration" (TBD) allows a defendant to state their case in opposition to a driving citation in writing (an "affidavit"), send it to the judge, and have the judge make a decision based on the facts presented in the TBD. The police officer must also either respond to the TBD or make a court appearance. The TBD is only available in a handful of states and each has its own set of rules:  California (Vehicle Code 40902), Florida, (where it is referred to as an Affidavit of Defense: Traffic Code Rule 6.200, Hawaii (Hawaii Traffic Rule §291D-6), and Oregon (referred to as Testimony by Affidavit; ORS 153.080 -- scroll down). Other jurisdictions may permit a response by affidavit or declaration so check with the local jurisdiction to see if the practice is permitted.

These declarations/affidavits not only save the court valuable time, but they allow you to tell your side of the case without having to go to court.  The declarations/affidavits are available to persons with a regular driver's license or a commercial license (CDL).  While this may sound good, there are some downsides to not appearing in court:

  1. Because you are not appearing in court, you give up your right to ask the officer any questions;
  2. You will not be able to get a dismissal if the officer does not show up in court;
  3. Some people believe that it is easier for the judge to find you guilty because you are not appearing; and,
  4. In some states allowing trial by declaration, the driver gives up the right to a regular trial.

The Declaration/Affidavit

A template for the Trial By Declaration is typically provided by the court clerk. Usually these can be downloaded from the state's website. For example, you can download a copy of California TB form (TR-205). Complete it according the state's instructions. By notifying the court, you will be able to get information on their procedures and required formats in the state. Most states do offer a standard form for the declaration that you can use to draft your own.  Although this introduction is from Oregon, it may be similar to others:

“The undersigned Defendant, having entered a plea of Not guilty to the Violation(s) charged in the above case, hereby submit my own Affidavit testimony in lieu of my personal appearance at trial. Although I do not give up my right to a trial, I do waive my right to appear at trial, to offer oral testimony in open court at trial, and to confront any witnesses called against me. I further understand and consent that the State's witnesses may appear at said trial and give oral testimony, or may submit testimony by Affidavits. I further acknowledge that I have received and read the Linn County "Court Rules for Traffic and Other Violation Trials." My testimony is as follows: (attach additional sheet if necessary): ______________________________”

Your testimony should describe the event that led to the ticket and the reasons why you feel that the judge should rule in your favor.  Be sure to cover the items that you think the officer might address should he appear. At the time that you send your declaration to the court, you must also enclose the full amount of your fine or ticket which will be returned to you if the judge rules in your favor. Once you have submitted the paperwork, you just need to wait to hear from the court as to the judge’s decision.

Summary

There is no doubt that the ability to file a written affidavit is a time saver, but, as listed above it does have some drawbacks.  You should seek the advice an attorney in your area so that you can make an informed decision as to whether you would be better off appearing in court or perhaps the affidavit will be sufficient.

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