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Revised 6-27-03, 11-10-04, 10-25-06, 7-23-07, 7-22-08, 1-4-10, 6-15-10, 7-24-11, 1-27-13, 2-14-14

This Page is About
  Challenging (Disqualifying) the Judge
&
Change of Venue
(Moving your Case to the County Seat)

Please note that filing a challenge or a Change of Venue does not relieve you of the obligation to contact the court by the "respond" date (or extended "respond" date).

A.  Challenging the Judge

If you want to get a different judge, there are three ways to do it.

Note:  When you have successfully gotten rid of a judge, you don't get to choose who - or where - the new judge will be.

(1)  If It's a Pro Tem...

The courtroom staff may announce that there is a "temporary judge."  A temporary judge could be a retired judge doing some part time work, or it could be a Pro Tem - a lawyer filling-in for the day.  If it is the latter, they will ask you to sign a waiver (they might pass it around the courtroom, on a clipboard, for everyone to sign), and you can get rid of that Pro Tem by simply refusing to sign the waiver.  Or, if you have already signed it, you can withdraw your waiver.  You don't need to use up your one Peremptory Challenge (described below - see the big heading) on him.  But it can be tricky.  Here is one defendant's story about dealing with a Pro Tem judge at arraignment:

After playing the recording of our rights, the bailiff announced that the regular judge would not be present and that a "temporary" was sitting in his place.  He told us we would have to sign a paper agreeing to sit before this substitute judge, waiving our rights to see the regular judge assigned to the case [this request for everyone to sign a paper is the best indicator that the "substitute judge" is a Pro Tem].   Three of us raised our hands stating we were not going to sign the paper.  One of us was an attorney representing himself and was told he couldn’t sit before the temporary judge.  [That's another indicator that you have a Pro Tem.]  I raised my hand and asked, “What is the difference between this temp and the regular?”  Both the clerk and the bailiff emphatically stated, “Nothing.  No difference.”  The bailiff went on to say how we would have to wait until ALL the other cases were heard and then the court would have to find us a judge to meet with sometime today — and it could be anytime — and that we could be there all day.  Clearly he was trying to dissuade us “defectors” from taking this route, but it didn’t work.  The three of us decided to proceed with waiting to see a judge.  (I wanted to see a judge because I read somewhere that only a judge has the power to issue a dismissal.) After the three of us were singled out and our paperwork was removed the bailiff announced, “If you are facing a red light ticket and you are here because it’s not you in the picture, show your ticket and your driver’s license and ask for a dismissal.”  [This Pro Tem's willingness to consider questions of identity is uncommon.  Most arraignment judges find some excuse not to do it, and "pass the buck" to the trial judge.] One of the “defectors” raised her hand and said, “With that new information, and now knowing he has the right to dismiss, I am willing to sit before the temp.”  I raised my hand and echoed that sentiment.  We were told to sit down and that it was too late. Before all the cases were even heard, the bailiff told the three of us to go to room 8.  There we met with a clerk, Marion.  She called the lawyer up first.  He, like the other two of us, was there for a red light ticket.  The clerk asked him his plea. He told her he wanted to see the judge and that he had a right to be heard in front of a judge.  The clerk told him that the judge sent her to get the plea and he would decide from there.  The guy insisted he get to enter his motion before a judge.  [Why was he so insistent?  He may have been concerned about losing his right to a speedy trial.  See FAQ # 28.]  The clerk was REALLY harsh with him.  She asked him, “Guilty or not guilty?  I need an answer now.”  He sputtered, “Not guilty—identity.”  She told him, “Okay, then here is your trial date.”  He stopped her again, stating his right to be seen before a judge.  The clerk put him off again, “The judge sent me out here to get your information, now where is your ticket?”  He told her he didn’t have a photo from his ticket.  Again she put him off, reiterating that she was just going to assign a court date.  The guy insisted on seeing the judge and she finally told him to sit down. Marion called the other girl.  First the girl explained that she was okay seeing the temp next door in Room 7 and told the clerk what the bailiff did.  I piped in and said, “Me too.  The bailiff said one thing, then gave additional information and removed our opportunity to see the temp.”  The girl was in front of the clerk and explained that the photo on her ticket clearly couldn’t identify her as the driver.  I told the clerk that I was in the same situation.  The clerk called me up and looked at my ticket and driver’s license.  Marion tried to call courtroom 7 to see if the temp would see us, but there was no answer.  She then took our tickets and our photo IDs into Judge John Warner’s chambers (he was a real judge).  Two minutes later Marion returned saying the judge dismissed both our cases on grounds of identity.

The story above demonstrates the complexity of traffic court:  Refusing to sign the waiver can result in a good outcome, but that same outcome could be available from the Pro Tem - if it's a good Pro Tem.

(2)  Peremptory Challenge ("PC")

(pronounced pur-emptory, not pre-emptory)

 Fight Your Ticket, says:

"You don't have to prove that the judge is unfair or biased, you just have to believe it.  You may have heard that a particular judge is unfair or rude, sides with police officers over defendants, metes out heavy fines, or worse."

In other words, it doesn't matter what your reason is; with a Peremptory Challenge the only thing that matters is that you did it on time.

In some circumstances (explained below) you can do a Peremptory Challenge at the very last minute (even verbally), just before your trial begins.

But do not file a PC before you've been given a court date (for an arraignment or a trial or a Trial by Declaration).  (If you are not 100% sure as to what is happening or what you are supposed to do on the date you have upcoming -- is it for an arraignment, a trial, or something else? -- read the big green Terminology Box near the top of the Handling Your Ticket section on the Your Ticket page.)

You're allowed only one Peremptory Challenge per case.

To get rid of a Pro Tem (a lawyer acting as a temporary judge), you do not need to use up your one PC.  You can simply refuse to sign the waiver form they pass around the courtroom when there's a Pro Tem on the bench, and they will move your case to a commissioner or a judge.  See the big heading, "If It's a Pro Tem," above.

They don't need a waiver from you for your case to be heard by a commissioner, so if your case is assigned to a commissioner, the only way you can get away from him or her is via a PC.  

A Peremptory Challenge form is available, way below, in the wallpaper area.

Where and How to File the PC Form

If you're doing it on the court date...

If you are making your challenge on the day of your court appearance, hand it to the bailiff when your case is called.  Or you can do it verbally - tell the judge that you move to disqualify him under 170.6.  But I have encountered a judge who says PC's can't be done verbally, so you may need to quote 170.6(a)(2), which says, "(2) Any party... may establish this prejudice by an oral or written motion..."

Be sure to do it right after your case is called, before any testimony is taken, because 170.6(a)(2) also says,

"In no event shall any Judge... entertain the motion if it be made... after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.  In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be."

You may be tempted to wait until after the officer has had a chance to voluntarily dismiss your case - some officers wait until the last moment to do that (when the photo is really blurry, or there is some other defect in the ticket).  But you are taking a chance, as the judge could say that the case has already begun and it is now too late to do your PC.   I saw one defendant (successfully) make his verbal challenge as he was walking through the gate - he didn't want to give the officer (who was already sitting up at the table) any chance to commence his testimony!

If you're doing it ahead of your court date...

If you are filing a written 170.6 before the date of your court appearance, give it to the window clerks at the courthouse.  You can do it in person, or by mail.  If you do it in person, ask the clerk to date stamp an extra copy.  Keep that copy, and bring it to your court appearance.  Why?  Read what one defendant experienced:  "I went to arraignment and the judge stated he did not see my challenge form in the file.  Thank goodness I had a copy with a file stamp."  If you file it by mail, do it by Certified Mail, Return Receipt requested, and also enclose an extra copy of the challenge, a stamped self-addressed envelope, and a note asking the clerks to return a date stamped copy to you in the envelope.  Bring both the green Return Receipt postcard and the date-stamped copy to your court appearance.
But do not file a PC before you've been given a court date for an arraignment or a trial.  (If you are not 100% sure as to what is happening or what you are supposed to do on the date you have upcoming -- is it for an arraignment, a trial, or something else? -- read the big green Terminology box near the top of the Handling Your Ticket section on the Your Ticket page.)

What Happens After You File

If you have filed a written 170.6 before the date of your court appearance, some judges may notify you by mail of their decision (denying or granting the 170.6).  Others may make you show up for your appointed court date, and tell you their decision only then.

If the Judge Denies Your Peremptory Challenge

The most common reason for a PC to be denied is that it was "untimely" - not filed on time.  But I have often seen judges deny PC's for other reasons having no basis in law.  Some examples:
1.   A judge told the defendant, who had made an oral PC at the beginning of her trial session, that PC's can't be verbal.  When she failed to produce a written PC, her request was denied.
2.  A judge told another defendant, also making an oral PC at the beginning of the trial session, that PC's are to challenge jurors and witnesses, not judges.
If a judge did that to me, I would immediately hand him a Challenge for Cause.  See Section (2) below.  And if that did not work, I would appeal the case.

Further Reading on Peremptory Challenge

 Fight Your Ticket has a detailed discussion of Peremptory Challenge and its deadlines, in Chapter 11.

For a very detailed discussion of Peremptory Challenge and its deadlines,  go to a law library and read Sections 17.13 through 17.16 in Chapter 17 , "Disqualification of Judge," in the CEB book California Criminal Law Procedure and Practice, by criminal defense attorney Alex Landon.

Advantages of Doing a Challenge

(Be Sure to Read This)

(A)  If you have heard* that the judge who would ordinarily hear your case never grants reduced fines and/or "Second Offender" 12-hour traffic school (assuming you need it, and your violation occurred before 7-1-11),  getting another judge will almost always improve your chances.  And since you are going to be appearing in court anyway (to ask the judge for the reduced fine and/or the 12-hour school), I suggest that you make that appearance a trial, not an arraignment.   Why?   At a trial, the police have to show up - see paragraph (B) below.  Also, at a trial, the judge will look at the photo of the driver, and maybe he won't be convinced, beyond a reasonable doubt, that it looks like you.  Case dismissed.

*One way to learn what a particular judge does is to go observe one of his trial sessions.  For suggestions as to what to do while you're there, see the purple box in Section 3 of the Your Ticket page.

(B)  Moving your trial to another judge takes away the economies of scale cities enjoy when prosecuting multiple red light camera cases during a single trial session.  It will cost them far more to send an officer to your lone trial session (especially if it's in a different courthouse) than they will get as their portion of your fine (should you lose), so maybe they will decide not to send an officer to your trial.  If an officer doesn't show up, you win - automatically.  (Note that on a red light camera ticket, any officer will suffice - it doesn't have to be the one who signed your ticket.)

(C)  If you asked for a trial and got a "Trial Date" letter or a "Notice of Trial After Written Plea" containing a statement similar to this one formerly found in a notice from the Long Beach courts,

(Don't worry, this isn't true!)

you should file a Peremptory Challenge.  And if it is too late to file a PC, you could try a Challenge for Cause - the prejudice being that by pre-determining your penalty, the court has pre-judged your case.   One pro tem expressed the proper stance for the court to take:  "After-trial traffic school is discretionary - depending upon what we find during the trial.  It won't be denied just because you asked for a trial - that would be discouraging your right to a trial."  (Judge Pro Tem Damon R. Swank, Culver City, 12-18-03).  For more info about traffic school, see the links at the bottom of the traffic school editorial on the Links page.

(D)  Moving your case to another courtroom may improve your chances of there being a stenographer present at your trial.

(E)  Also see "Possible Causes" in the "Challenge for Cause" subsection, below.

General Notes about Challenges

If you wish to use the forms below, you will need to add the name of the judge, the name of the court, and the division number.   If you are already in court and are making a Peremptory Challenge, you can do it verbally.

When you have successfully challenged a judge, you don't get to choose who (or where) the new judge will be. 

The general rule is that you get only one Peremptory Challenge per case, but you can Challenge for Cause repeatedly if during your trial the judge's behavior provides new "cause."

You can file a challenge before or at arraignment in order to get a different arraignment judge, but I don't recommend it if you are planning to plead not guilty and ask for a trial.  By keeping your one PC in reserve, if the trial judge turns out to be the same one who arraigned you, you won't be stuck with him!  170.6(a)(2) says,

"The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding, or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided."

It should be noted that if you have been given an "assigned for all purposes" slip prior to arraignment, you cannot wait until your trial date to file your Peremptory Challenge.

An "assigned for all purposes" slip given to you prior to your Trial by Declaration would raise another question:  Can you do a PC on the judge to whom your Trial de Novo is assigned?  I think so, so long as it is your first PC.  However, there is no statutory law (a section of the Penal Code, Code of Civil Procedures, etc.) or case law (published rulings made by an appeals court) addressing this unusual situation, so you will need to be prepared for an argument.  Perhaps you will make some case law!
And there may be an alternative - see Challenge for Cause, below.

What about two PCs?  Can you do two PCs, one of the judge to whom your Trial by Declaration was assigned, and a second one, of the judge to whom your Trial de Novo is assigned?  After all, they are two separate trials....  This is another unusual situation not addressed by statutory or case law. 
And again, Challenge for Cause may be an alternative.

See also the section (above) entitled: "Where and How to File the Form."

(3)  Challenge for Cause

If it's too late for you to file a Peremptory Challenge, you may still be able to file a Challenge for Cause, which can be filed at the last minute.  Challenges for Cause are governed by Section 170.3(c) of the Code of Civil Procedures.

In a Challenge for Cause, it does matter what your reason is - you will have to state it.  There is an example, way below, in the wallpaper area.

Possible Cause

An example of possible "cause" would be the showing of a police-produced public relations videotape about red light cameras, as has occurred before arraignment and trial sessions in some cities.
Another example of possible "cause" would be an announcement made by the judge to all in the courtroom, stating "traffic school is not an option after your trial," or a similar notice sent out to you in the mail, as formerly was done to Long Beach defendants who had pled not guilty  -  see Advantages of Doing a Challenge, above.  For more info about traffic school, see the links at the bottom of the traffic school editorial on the Links page.
And another example would be a judge who announces, to all in the courtroom at the beginning of the trial session, that he will not hear a particular defense.

Even if you're just planned to file only a Peremptory Challenge, you may want to take a blank Challenge for Cause form with you to court, just in case you need it.

The best time to file a Challenge for Cause is after you become aware of bias on the part of the judge, and before he takes any further action on your case.  They are often filed at the last moment.  You are less likely to succeed with a Challenge for Cause than you are with a timely-filed Peremptory Challenge.

Fight Your Ticket says that a Challenge for Cause is heard by a judge different than the one who has been assigned to your case.  If you are filing a Challenge for Cause ahead of time (not on your court date), file it at the clerk's window.  but if something develops on the day of your trial, or even during the trial session, you may need to file your Challenge for Cause with the judge who is hearing your case.  You can do it verbally, if necessary.  See also the section (above) entitled: "Where and How to File the PC Form."

For further reading on Challenge for Cause, read Fight Your Ticket, and go to a law library and read Sections 17.27 through 17.34 in Chapter 17, "Disqualification of Judge," in the CEB book California Criminal Law Procedure and Practice, by criminal defense attorney Alex Landon.

Forms for Challenges
To copy the forms below:

1.  Highlight the text of the form you want (for technical reasons, it's in the 'wallpaper' area below).
2.  Copy it into a blank word processor document [control-C, start Word, control-V],
3. If the resulting word processor document has a lot of short broken-up lines of text, try the following settings:
(a)  display at "full screen,"
(b)  fixed-width font such as Courier New, 10 points,
(c)  all four margins set at .5 [file, page setup].

(Scroll Way Down to into the "Wallpaper" for the Forms)

B.  Change of Venue ("COV")
(Moving Your Case to the County Seat)

Added 10-25-06, revised 7-23-07

If you live or work closer to the county seat (the city which is the capital of the county) than to the city that is the location of the court named on your ticket, CVC 40502(b) allows you to ask that your case be moved to a court located within the city limits of the county seat.

40502. The place specified in the notice to appear shall be any of the following:
(b) Upon demand of the person arrested, before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the court or other magistrate nearest or most accessible to the place where the arrest is made.

Example:  If you have a Fremont ticket and you live or work in Berkeley, you could move your ticket away from the Fremont Hall of Justice and to a court in Oakland, the capital of Alameda County. 

Example:  If you have an Hawthorne or Inglewood ticket and you live or work in Pasadena, you could move your ticket away from the Inglewood Courthouse and to one of the many courts within the boundaries of the City of LA.  You don't get to choose which courthouse it goes to.  Most often it will go to the big Metropolitan Courthouse at 1945 S. Hill Street in downtown LA.  ( Also please note that the Van Nuys Courthouse already is in the City of LA, so you cannot use COV to move a ticket away from there.)

Example:  If you have a Daly City or South San Francisco ticket and you live or work close to Redwood City or anywhere south of it, you could move your ticket away from the courthouse in South San Francisco and to the court in Redwood City, the capital of the county.

Example:  If you have a Millbrae or City of San Mateo ticket and you live or work close to Redwood City or anywhere south of it, you could move your ticket away from the little courthouse in the City of San Mateo and to the court in Redwood City, the capital of the county.

Rules of Court 4.150 - 4.155 also apply. ( Alternate link for Rules )

When a "live" officer has pulled you over and is starting to write you a ticket, right then is the time you are supposed to ask to be sent to the county seat.  But with a red light camera ticket, your first opportunity to make the request will be at arraignment*.  You could say:

"Your Honor, I plead not guilty, and, pursuant to Penal Code Section 1462.2 and Vehicle Code Section 40502(b) I request that this case be transferred to the County Seat.  I live [[[work?]]] closer to the County Seat than to this court.  This is an automated enforcement ticket that was mailed to me, not handed to me by a police officer, so my appearance before this court today is the first opportunity I have had to make this request.
If your honor won't transfer it now, I request the matter be set for my motion for change of venue."
Modified version of advice from Fight Your Ticket; the page numbers are listed on my FYT Addenda page.

The courts have held that once you make the demand, if you meet the residency or employment qualification, the jurisdiction shifts to the court at the county seat (Smith v. [Glendale] Municipal Court, 167 Cal.App.2d 534).

*I know of several defendants who submitted their requests for Change of Venue by mail - and they were granted!  See the suggested form, below, in the blue "wallpaper" area.  (If you are applying by mail, do not use the arraignment language, above.)

What if the local judge refuses to grant your request?  According to Brown, who cites Smith (above),

A non-county-seat judge who ignores a proper request for transfer of a case to the county seat has "no jurisdiction" to conduct the trial.
[Emphasis added by highwayrobbery.net]

It is grounds for appeal and, per Brown, "You don't have to prove that your case was compromised by this."  However, Brown warns, "if your conviction is reversed on this ground, the appeals court can order a retrial."

Drawbacks of Requesting Change of Venue

While Change of Venue can work in your favor (if, for instance you were flashed in Lancaster, far away from LA), it can also work against you. The judge can send the ticket to any court in the county seat (e.g., San Pedro or West LA instead of Van Nuys or LA Metro) per People v. Beltran, 124 Cal.App.3d 335.  (San Pedro and Van Nuys are neighborhoods within the City of LA, not separate cities.)

I can foresee that another drawback to doing a Change of Venue could be that you might not be able to combine it with a Trial by Declaration.  I know of no one who has tried such a combination.  At the very least it would be tricky - you would need to request the Change of Venue at least several weeks before the "respond to the court" date printed on your ticket (or any extension of it), and then hope that the court to which the case is re-assigned will send you a courtesy notice confirming the re-assignment and the due date. And you would need to make sure that no matter what, you submit your request for a TBD by the due date.

(General format of this Change of Venue section, and case cites, are from HelpIgotaticket.com.  Also, Fight Your Ticket has a number of entries about Change of Venue.  The page numbers are listed on my FYT Addenda page.)

Scroll down for examples.

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