When the Officer Sends No Statement in a California TBWD

One of the least understood parts of California's Trial by Written Declaration process under CVC 40902 is what happens when the citing officer does not send a written statement. The citing officer is asked to send one. If the officer does not, the case may be dismissed, but that is the judge's decision and no result is guaranteed. Here is how the officer's statement works and what the court does when none arrives.

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How the Officer's Declaration Works Under CVC 40902

In a Trial by Written Declaration, you submit a written declaration, and the citing officer is asked to send one too: a written account of the stop, the alleged violation, and the basis for the citation. If the officer sends it, it is the officer's sworn testimony in writing.

The rules do not require the officer to give a reason for not sending a statement. What they do set out is the process: what the court clerk sends to the officer's agency, and the return date for the officer's statement.

What the Clerk Sends the Officer's Agency

Under California Rules of Court, rule 4.210, once the clerk receives your Request for Trial by Written Declaration (form TR-205) and any required bail by the due date, the clerk must deliver or mail the following to the citing officer's agency, such as a police department, sheriff's office or the California Highway Patrol:

• Notice and Instructions to Arresting Officer (form TR-210)
• Officer's Declaration (form TR-235), the form for the officer's statement
• A copy of the Notice to Appear (your citation)
• A specified return date for receiving the officer's declaration

What Happens When the Officer Does Not Respond

The court clerk sets a return date for the officer's statement. When that date passes without one, the clerk sends the case file to the judge with the declarations and other evidence the court has received, and the judge decides the case (California Rules of Court, rule 4.210). That evidence can include the citation itself (Vehicle Code 40902(c)). The case may be dismissed, but that is the judge's decision and no result is guaranteed. If you are found not guilty or the charge is dismissed, any bail you deposited is refunded (Vehicle Code 40902(b)).

How Often Do Officers Fail to Respond?

There is no statewide published statistic on how often officers do not respond to a Trial by Written Declaration, and no statistic predicts the result of a particular case, so prepare a complete, factual declaration either way.

If the Officer Does Send a Statement

If the officer does submit a declaration, the judge decides the case on the written record: your declaration and evidence, the officer's declaration, and the citation (Vehicle Code 40902(c); California Rules of Court, rule 4.210). The rules do not set out a step for answering the officer's declaration, so your own declaration is where you give your version of events and include your evidence.

In most courts, if you disagree with the judge's decision, you can request a Trial de Novo, a new trial in court (Vehicle Code 40902(d)), within 20 calendar days after the decision is delivered or mailed (California Rules of Court, rule 4.210). Courts that offer online trial by declaration through MyCitations do not allow one; you can appeal instead. Contesting is not risk-free. If the judge finds you guilty, you have the same conviction and the same DMV points as if you had paid, and your bail deposit is applied to the fine, but the judge can set a fine higher or lower than the bail. Going to trial does not make you ineligible for traffic school, but after a guilty finding it is up to the judge.

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