Special and General Demurrers

What is a demurrer? A demurrer is simply a written objection by you, or a reply to an opponents charge or charges against you. In this case, you are objecting to the charges contained in your ticket as being defective.

IMPORTANT NOTE:

This is NOT the same as FATAL FLAWS as discussed in print books and on all other speeding ticket web sites. This is not about misspelled names, wrong tag number, wrong vehicle color, wrong gender, etc., as indicated on your ticket. The Georgia appellate courts have previously ruled that traffic ticket convictions will not be overturned due to minor mistakes on the citation. Therefore, you should not expect to have your ticket dismissed because of one.

There are two types of demurrers, General and Special. The legal definition of each follows.

Demurrer

1:	(law) a formal objection to an opponent's pleadings, (an allegation in legal form) to demur,
2:	(law) any pleading that attacks the legal sufficiency of the opponent's pleadings
3:	a defendant's answer or plea denying the truth of the charges against him;

General Demurrer: (Law), a demurrer, which objects to a pleading in general terms as insufficient, without specifying the defects.
Special Demurrer: (Law), a demurrer for some defect of form in the opposite party pleading, in which the cause of demurrer is particularly stated.

The Georgia Court of Appeals in recent opinions defines a General Demurrer as one where “the charges are so defective, you could plead guilty and still be innocent.” The defects as raised in a General demurrer are not specified.

We use General Demurrers in cases where you have been charged with the wrong code section. A real example of such has been included in the Georgia $peeding TICKETKILLER General Demurrer subfolder. This teaches you what to look for.

The Georgia Court of Appeals in recent opinions defines a Special Demurrer as one where the ticket “does NOT contain all the elements of the crime sufficiently enough for you to form a defense.” The defects as raised in a Special Demurrer are in fact specified.

A demurrer attacks the ticket as being fatally defective, and by you “demurring” to the charge, the UTC, the ticket, formally called a pleading, you are motioning for the court to “quash” the defective citation.

Most people charged with traffic violations are done so by a police officer issuing them a Uniform Traffic Citation, (the ticket). For this reason, the traffic citation is often defective.

Again, these defects should NOT be confused with so-called FATAL FLAWS such as wrong color of vehicle noted on the ticket, misspelled name, wrong tag number, etc.

In accordance with OCGA 40-13-54, the original citation and complaint shall be sent by the officer issuing it to the traffic violations bureau of the court within 24 hours of the arrest. The defendant named in the citation shall be given the second copy. The officer issuing the citation and complaint shall retain one copy for himself or herself, and the court may, by order, provide that an additional copy shall be made for the use of any municipality in the county or the Department of Motor Vehicle Safety.

The ticket is then forwarded to the prosecuting authority in that jurisdiction. At that point the decision is made to go forth with prosecuting you on just the ticket issued to you or instead prepare a formal accusation that will substitute for the ticket. Rarely if EVER does a court not proceed on the UTC in minor traffic offenses. Formal accusations are ONLY pertinently required in the Superior courts. Therefore, in the State, Juvenile, Constitutional City, Recorders, Municipal, and Probate courts, they universally go forth on the UTC alone in non-serious traffic offenses.

Once a UTC has been issued to you, it cannot be amended, unless you (the defendant) consent to the amendment (or you fail to object to the amendment). Always be watchful of what they are doing!

The UTC must fully apprise you of the crime in which you have been charged. Since many traffic laws can be violated in numerous ways, failure to specify the manner in which you violated that law makes most UTC’s defective, and subject to a challenge that is known as a special demurrer, or a (motion to quash).

Any time you are charged with a violation of state law, and that law can be violated in different ways, and the specific way you could have been charged has not been described sufficiently on your ticket, then the ticket is defective and subject to a special demurrer, or a motion to quash. This is why most UTC’s (tickets) issued by police officers are defective.

In the Georgia $peedingTICKETKILLER “Other Moving Violations” FILEFOLDER we list all the code sections that are applicable to challenges by Special Demurrers and include applicable Georgia Case Laws to back up the challenges. In other words, we have done all the homework for you.

Due process requires that a UTC sufficiently inform the defendant of the charges against him so that he may defend them at trial.

Important Points:

Once the ticket is sent by the police officer to the appropriate court, the prosecuting authority of that court will have to decide to go forth on the UTC itself or prepare a formal accusation instead.
Current Case Law suggests that only State and Superior courts can issue formal accusations. See State v. Rustin 1993.
If you are in a State Court, and the UTC is defective, a State Court can issue a formal accusation as long as it is supported by a valid affidavit of the police officer that issued the original citation. A state court will fix a defective UTC by filing a formal accusation if a special demurrer challenge is mounted by you.
If you are initially to be arraigned in a Probate court, and the UTC is defective, and you ask for a jury trial and are bound over to the Superior court, the Superior court will simply “fix” the defective UTC by filing an indictment against you. Superior courts NEVER proceed to trial on UTC’s. You can be tried only in a Superior court on any crime by an indictment. Rest assured, after the Probate court bounds you over to the Superior court for jury trial, and the formal indictment is issued, the defective UTC will have been fixed if you had filed a special demurrer.
Therefore, currently case law suggests that lower courts, where most traffic tickets are tried, your Probate, Municipal, and Recorders courts are “ripe” for special demurrer attacks when they proceed on a defective ticket, since these lower courts do not issue formal accusations or indictments.

Whenever you have been issued a uniform traffic citation that a lower court has jurisdiction over, special consideration must be given as to whether or not the UTC is subject to a special demurrer, a motion to quash.

Filing a demand for a jury trial or otherwise seeking to transfer your case to a State or Superior court will almost invariably result in the defective UTC being replaced by a “corrected” formal accusation. Therefore, you must weigh the likelihood of success at a bench trial utilizing the special demurrer attack versus transferring the case to a jury trial court (court of record); virtually assuring any defects in the UTC will be corrected at the higher court.

Special demurrer attacks against defective UTC’s must be made in writing, and at or before arraignment, when you go to plead NOT GUILTY.

You CANNOT attack the defective UTC by Demurrer after arraignment.

Thoroughly confused? You need not be. Included in the Demurrer FILEFOLDER is a sample special demurrer form. We have done all the work for you in every case we have found that a special demurrer is proper, have proven to be very successful and backed by current case law. We provide you the fill in the blank Demurrer forms. You only have to fill in all the sections highlighted in RED that are applicable to your circumstances.

You then file the form “in person” with the clerk of the trial court and ask for a stamped copy. This must be done at or before arraignment. It is recommended that you do this several days before arraignment.

You MUST obtain a ruling. ALWAYS wait to ask for a ruling (by asking for a motion to dismiss) until after jeopardy attaches. In non-jury bench trials, jeopardy attaches after the cop has been sworn in for the purposes of testifying at your trial. This will prevent future prosecution of the same charges on grounds of double jeopardy.

This is Trial by Ambush, trial by Surprise Attack. A good practice is to always let one or two questions be asked of the police officer, then “interrupt” and request to be heard.

Your honor defense requests to be heard. Your Honor defense has previously filed a timely Special Demurrer and requests a ruling on such. Defense specifically requests a motion to dismiss.

If your special demurrer motion is denied by the trial court, and the state proceeds on the defective UTC alone, OBJECT to any attempted amendment or modification of the UTC. All of this of course needs to be “on the record” for mounting a future appeal regarding the inappropriate actions of the lower court, hence the need for either a court reporter or use of a tape recorder to aide in recreating the events of an unrecorded trial. The detailed procedures on how to do this are explained in the Appeals FILEFOLDER.

Special Demurrers can be especially effective and should be considered in most other moving violations, when that moving violation can be charged in numerous different ways, and it is not described in detail on the UTC in which way you violated the law you have been charged with violating.

Almost all tickets written by police officers for violations of motor vehicle laws are defective and subject to an attack by a special demurrer motion. The reason for this is simple. Special Demurrers (motion to quash) are one of the most obscure defense tools in criminal trial practice. Most lawyers never use them or even understand them.

The same could be said for the police officers issuing the tickets. The police officers issuing the defective tickets are not even aware they are doing so.

When you file a special demurrer challenge against the UTC, it is a challenge to the sufficiency of the UTC, an attack against the form of the document itself asserting that it does not describe all the elements of the charge against you sufficient enough to allow you to prepare yourself to defend against it.

A timely filed special demurrer (motion to quash the citation), is a very powerful weapon. A weapon that should be used in all circumstances where it is applicable. Of course, this demurrer defense strategy is explained in complete detail in the Georgia $peedingTICKETKILLER Demurrer FILEFOLDER.

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