Trial by declaration allows a defendant to state their case in writing, send it to the judge, and have the judge make a decision based on the facts presented in the letter. The officer must also either respond to the declaration or make a court appearance. There are presently only 9 states where the Trial by Declaration (Affidavit) is allowed and each has their own set of rules: California, Florida, Hawaii, Indiana, Louisiana, Nebraska, Ohio, Oregon, and Wyoming.
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 license or CDL. While this may sound good, there are some downsides to not appearing in court:
- Because you are not appearing in court, you give up your right to ask the officer any questions;
- You will not be able to get a dismissal if the officer does not show up in court;
- Some feel that it is easier for the judge to find you guilty because you are not appearing; and,
- In some of the states allowing trial by declaration, you give up your right to a regular trial.
The Declaration/Affidavit
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.
