The $22k Joyride

Discussion in 'The Perfect Line and Other Riding Myths' started by Snivly Dweeb, Oct 15, 2013.

  1. jfman

    jfman Long timer

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    Civil law dates back to the Romans, and IIRC common law is when they merged all the different regions of England during feudalism and is used only in the old colonies (that includes the US). You might want to read a book before you post bs info. No wonder the rest of the world praises the Yanks for being smart and make good swift judgement calls on other nations because they know and understand them so well.

    ''I thought they was all Muslims?'' ;)
  2. jfman

    jfman Long timer

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    http://en.wikipedia.org/wiki/Presumption_of_innocence

    Roman law

    The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat<sup id="cite_ref-1" class="reference">[1]</sup>—"Proof lies on him who asserts, not on him who denies".<sup id="cite_ref-2" class="reference">[2]</sup> It is there attributed to the second and third century jurist Paul. When this rule is applied to criminal process (whether or not that was done in Roman law itself), it places the burden of proof upon the accuser, which has the corollary that the accused is presumed to be innocent.
    Common law

    In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit—"The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof."<sup id="cite_ref-3" class="reference">[3]</sup> As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat—"The proof lies upon the one who affirms, not the one who denies." <sup id="cite_ref-4" class="reference">[4]</sup><sup id="cite_ref-5" class="reference">[5]</sup> Then, shortened from the original, it is: Ei incumbit probatio qui—"the onus of proving a fact rests upon the man who".<sup id="cite_ref-6" class="reference">[6]</sup>
    Civil law

    The maxim or its equivalent has been adopted by many civil law systems, including Brazil,<sup id="cite_ref-7" class="reference">[7]</sup> France,<sup id="cite_ref-CPPprelim_8-0" class="reference">[8]</sup> Italy,<sup id="cite_ref-9" class="reference">[9]</sup><sup id="cite_ref-10" class="reference">[10]</sup> Philippines,<sup id="cite_ref-11" class="reference">[11]</sup> Poland,<sup id="cite_ref-12" class="reference">[12]</sup> Romania<sup id="cite_ref-13" class="reference">[13]</sup> and Spain.<sup id="cite_ref-14" class="reference">[14]</sup>
  3. Wraith Rider

    Wraith Rider Banned

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    No. Why should I? I'm on a motorcycle.

    So you don't like motorcycling at all?
  4. xymotic

    xymotic Long timer

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    I agree 'in principle' but boy oh boy it seems like it would be a tough sell to a Judge.
  5. xy500

    xy500 Loser

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    Uhhhhh... speak for yourself
  6. MotoTex

    MotoTex Miles of Smiles

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    In my experiences the judge played a very small role. The prosecutor was the person my dealings were primarily with, though this was in the presence of the judge, court reporter, tape recorder, etc.

    I always considered it odd how they scheduled my appearances when nobody else was in the courtroom. My first appearance was with the usual crowd in the traffic cattle call. They culled me out right away and asked if I would wait until they had processed the others. This gave me the feeling they knew from the get-go that I had them and they didn't want the other sheep there for shearing to get wind of this.

    In the end it seemed to me that it was the prosecutor who made the decision to not pursue the case further. Though my official notice of this came to me in the mail, about a year and a half after the third appearance in court.

    If the judge played an active role it wasn't while in my presence. He and the prosecutor may have discussed things after I had left.

    This was the "no DL" case.

    In the "Speeding" case I made one trip, submitted the affidavit to the clerk, was never invited back, and three years later received notice of dismissal in the mail.

    In neither case were any details revealed to me regarding the specifics of why the cases were dismissed.

    Maybe it was just my honest face. :D
  7. freetors

    freetors Long timer

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    MotoTex, this is really fascinating to read. I have heard of other people having similar conclusions about the law, specifically the "I'm not driving, I'm traveling" guy. I may have missed this, but did you say whether or not the posted speed limits apply to only those with a driver's license?

    If you don't mind I would like to save all of your posts from this thread for future reference :deal
  8. MotoTex

    MotoTex Miles of Smiles

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    I've seen a lot of the "patriot" arguments and I think they go over the top trying to figure out the reasoning for things. Always looking for conspiracies.

    It all seems pretty simple to me, as I look at things from a perspective of whether I have entered into a contract, or not. I guess this is what you talk about when asking if having a license makes someone obligated to the speeding citations. I don't think so.

    A couple of other affidavits I've placed in the record may have been as effective as the arguments spelled out so far, but whenever I've tried to share these the response is usually to label me a tin-hatter and not look at the information.

    Here's one thing that I feel is significant. Do the due diligence to qualify everyone involved. The rules of court allow things to proceed even if they aren't kosher. Let me provide an example.

    In most traffic cases the "injured party" is styled as "The State of ..."

    I've seen the injury described as "against the peace and dignity of the state," whatever that might be.

    Let's think about this. Who are the courts designed for? People, right? In law this is described as "persons" and includes "legal persons" which are corporations and associations, along with the flesh and blood variety.

    Of these, which is "The State of ..." best paired with?

    Probably not flesh and blood. So we strike that one right off. This leaves corporation or association. What are the defining characteristics of these? They are registered with the state.

    Well, I don't think that the state can register itself with itself, so this leaves a curious quandary. If it is a corporation or association it would have to be registered at the federal level. If that were so the court case would have to be in federal court, wouldn't it?

    Further investigation revealed that in court "a corporation may be presumed to exist even if it hasn't be registered with the state, unless this is denied" (paraphrased to the best of my memory).

    This means that The State can be listed as the plaintiff by pretending to be a corporation or association. As long as nobody calls the bluff.

    Another affidavit I had submitted in both cases denied the existence of "The State of ..." as a legal person.

    When the prosecutor asked what I expected him to do to rebut this I told him to either bring in the flesh and blood person or produce a certified copy of the charter that formed the corporation or association and includes the names of the signatories who created it.

    Nothing came of this. That affidavit was never rebutted. This could have been the key to the dismissal. There simply were not enough people showing up to the party to play the game. You have to have a judge, an accused and a plaintiff. If one is missing there is no case.

    I believe that when "The State of ..." is shown as a party to the case that it is a sham from the get-go, and the rules of court allow this sham to proceed, unless it is denied.

    As far as I can tell, "The State of ..." is a "Body Politic" and this is where I realized that when a traffic case goes to court you are playing the part of the accused and the accuser because the citizens of the state are also part of the body politic.

    Some clever attorney as a congress critter introduced this into the statutes originally to smooth the court process. Then someone realized that this could be used to generate revenue by preying upon those ignorant of such shenanigans. Trusting folks who expect public servants to be looking out for them.

    Eventually, it has become standard process and I suspect that many prosecutors may not even realize it, until someone like me comes along and points out the fly in the ointment. That's my theory. It is simply momentum based upon a flaw in the process. Others would go the full conspiracy ticket, but I just don't think that people are smart enough to design this purposefully this way.

    Fun, fun, fun.

    You can easily get very lost reading the statutes. "Keep It Simple Stupid" is a good guideline in these matters. Learn how to determine whether the basic foundation exists before going any further. Otherwise you might miss a remedy that the court is obliged by its rules to overlook if not brought to light.

    These foundational aspects are what I've illustrated in regard to licensing and speeding. There are others I've found regarding registration ("this chapter applies to vehicles owned by the state, or, a political subdivision of the state"), but that's another story.
  9. SgtDuster

    SgtDuster Long timer

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    I don't even understand why I continue to argue since you clearly don't want to understand something that would change your mind but anyway...





    What it means, is SIMPLE.

    You don't like my use of the latin "de facto" so let's use another term.

    You are AUTOMATICALLY guilty if a cop catch you doing over the speed limit. He don't have to bring it to court, you are AUTOMATICALLY guilty and cited. But if you think that you're not guilty according to the situation and conditions, the burden of proof is on YOU.

    VS a "conventionnal" crime where "the proof lies upon him who affirms" to cite common law principle.


    It doesn't mean that speed limits don't exist.


    Damn you seem to enjoy listening to yourself.
  10. SgtDuster

    SgtDuster Long timer

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    It's not the first time this guy is arrogant and filled with biases against us Quebecers.


    I don't know...maybe he's just an ass by nature or maybe he was dumped by a pretty girl from here and is now filled with hatred and bitterness against the whole "nation".
  11. MotoTex

    MotoTex Miles of Smiles

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    Your use of de facto was spot on.

    You just can't grasp that the term references the fact that it excludes what it references from law, not includes it.

    De facto means, "this is how we do it, even though we understand that it isn't authorized by law."

    Which is what I've been saying all along.

    It seems that on your planet the cop is also the court.

    Where I am, a "guilty" verdict is something that the cop doesn't get any say in.

    Here, we have the "Innocent until proven guilty" method. Obviously this is something unfamiliar to you.

    Now I can understand why you are so confused by all this.

    Well, that and the whole reading comprehension/application of logic business that seems to be a hurdle for you as well.

    As for this:
    Quote:
    A common usage of the phrase is the concept of a "prima facie speed limit", which has been used in Australia and the United States. A prima facie speed limit is a default speed limit that applies when no other specific speed limit is posted, and which may be exceeded by a driver. However, if the driver is detected and cited by police for exceeding the limit, the onus of proof is on the driver to show that the speed at which the driver was travelling was safe under the circumstances.
    Of course the "onus" is on the driver to prove. That is what I've been telling you. This is precisely why the driver would have to submit the affidavit stating it was reasonable and prudent. This is evidence to trump the de facto prima facie evidence. This is proof. It is sworn testimony.

    This is the way to place the onus back on the prosecution to then prove that the speed wasn't reasonable and prudent with some evidence a little more substantial than mere prima facie evidence.

    I can't figure out how to possibly make this any more clear to you.

    Are you part boomerang?
  12. SgtDuster

    SgtDuster Long timer

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    OK, I'm done with you.


    Damn it's energy consuming to argue with someone with half the intelligence of the average Joe. Worst, with someone who tries to compensate his lack of intelligence with 5 miles long posts full of circular arguments.


    SVP, criss moi une petite, toute petite, patience.
  13. MotoTex

    MotoTex Miles of Smiles

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    I know this feeling better than you. Believe me. :deal

    I've actually done the thing I describe. You haven't. Yet you argue with me that it isn't so. Yet I know from personal experience that it is.

    Really, who is working with half the marbles here, the guy that has done it, twice, or the one who argues that it just can't be done?

    :rofl

    Have a nice life. Thank you for playing. Pick up your consolation prize on the way out.
  14. joexr

    joexr Banned

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    Do you have self control or little abilty.:evil
  15. SgtDuster

    SgtDuster Long timer

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    Still, prima facie doesn't mean "no speed limits" like you said but like I said:

    You are AUTOMATICALLY guilty if a cop catch you doing over the speed limit. He don't have to bring it to court, you are AUTOMATICALLY guilty and cited. But if you think that you're not guilty according to the situation and conditions, the burden of proof is on YOU.
  16. windmill

    windmill Long timer

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    Mostly self control.............but I'll admit I suck at wheelies.

    Self control is having the judgment to ride within your abilities and enviroment so you don't loose control and do something unintended.
  17. MotoTex

    MotoTex Miles of Smiles

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    I thought you were done ... :deal

    Here in the USA the constitution provides that a person isn't guilty until they have had a trial (or have admitted guilt themselves).

    When the cop cites a driver this is a record of their determining that the vehicle was traveling at the stated speed. Nothing more, nothing less. It is an accusation supported by tenuous evidence. There is no aspect of this which requires a plea or a judgement in regard to the interaction with the cop. There is a little thing called Due Process which shall not be denied the accused ...

    However, as you say, if the driver feels guilty and has a desire to be punished which outweighs any desire they might have to prove innocence, then, it is within their right to consider themselves guilty at that point. This may be an indication of Masochistic tendencies, or, merely a knee-jerk response to what they consider a higher power. (maybe there is no difference between those)

    So, you aren't wrong, per se, as you have the unalienable right to declare yourself guilty. Heck, you can do that even before the cop cites you. But this choice on your part is really more about personal preference than it is about law.

    A successful Prima Facie defense is "rare," yet is not impossible. Mostly because the method to achieve it is rather convoluted when attempted by a person acting on emotion rather than coming armed with knowledge and fact. Most fail. A few succeed. This is how rare is defined. You get what you inspect, not what you expect. Most people expect the members of the court to feel sorry for them, or to cut them some slack, and because of this they present a flawed argument against the prima facie evidence. Nuff said.
    .
    .

    I hearby dub thee

    "SgtDuster The Guilty"


    may all posterity recognize you by this lofty title

    Go forth, Sir Knight, spreading your guilt far and wide across the great land. As is your want to exercise your right and obligation by circumventing due process, thus saving the courts countless time. Thereby relieving the clerk, prosecutor and judge of the burden of their vaulted positions while freeing up the docket for ner-do-wells to fight the good fight for personal freedom, liberty, and preservation of the rights of their fellowmen.

    May your slide down the slippery slope be a comfortable one.

    Huzzah! :1drink
  18. Handy

    Handy Sunburnt

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    Why can't a the citing officer issue and affidavit saying that your speed was not reasonable and prudent to counter your affidavit? The officer could be considered an expert in the matter so that would be evidence to contradict your evidence.
    What about legal proceedings where it is "The People Vs. Sgt. Duster", aren't the The People a person?
  19. James Adams

    James Adams non impediti ratione cogitationis

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    I think that what MotoTex is trying to say is that he's challenging the legal enforceability of the posted speed limit rather than the fact that he may have been exceeding that posted speed limit.
  20. MotoTex

    MotoTex Miles of Smiles

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    That is a good question. In my opinion, if the case were brought in the officer's name, as the injured party, this might be possible. But only if he had supporting evidence to clearly show his claim was valid. Video showing poor control of the vehicle, witnesses to dangerous or reckless driving, that sort of thing.

    I think he would have to show in what way the speed was unreasonable or imprudent. This would require sworn testimony to some specific act committed by the driver to illustrate how the speed would meet this claim.

    If the driver had no altercation with another road user, and the officer had no additional evidence to show how it violated "the peace and dignity of the state," (as the injury was described) I think that a cross examination of the officer could have him confirm this, and would undo any such a claim. Unless he lies while under oath. Then all bets are off.

    Personally, I don't think the prosecutor wants the cop in the courtroom if there is any possibility their testimony might jeopardize the outcome.

    Frankly, I was quite surprised that the officer wasn't invited to the sandbox on any of my visits. Though the prosecutor was unable to bring the case to trial, so I can see there was no need for the officer until the case reached that point.

    Oddly, in the case paperwork the citing officer's name wasn't even on the summons to the County court at all. In fact, some officer (perhaps a supervisor) whom I had no interaction with had their name on the summons as the citing officer. I thought it was kinda weird, but had a few other volleys to throw across the net before needing to address this distraction.

    As to the question of "The People" let's try to define this.
    Is "The People" a singular flesh and blood person?
    Are "The People" a registered corporation or association?
    If not, then "The People" are not a "person" in the legal sense.
    As with "The State of ..." they might be described as a "body politic" which wouldn't pass the test of being a legal person.

    In your example, Sir SgtDuster the Guilty would be a member of "The People" as well as being the accused. (except in this instance the accused would have already admitted guilt and not appealed to a court of record to deny the existence of the plaintiff)