Q: If I was never physicality issued or notified of a traffic citation, can I be held liable for failure to pay or appear?
My son was involved in an accident the end of December 2019. He never physically received or was notified that there were any traffic citations as a result of the accident. Today, he received a failure to appear/pay notice and his driving record shows a probation violation because of this. If he was never given or notified of the citation, how can he be issued a failure to pay or appear? I am in Iowa. Any advice would greatly be appreciated. Thank you.
A: If he was never notified of the charges against him, never signed a promise to appear, etc., then this is clearly a violation of his rights under constitutional due process. Additionally, Iowa R. Crim. P. 2.55 requires that the defendant be served with a complaint that identifies the county, applicable court, known parties, a concise statement of the act or acts constituting the offense, including the time and place of its commission as near may be, and identifying by number the provision of law alleged to be violated.
Ordinarily, as a condition of not being arrested and brought before the Magistrate to be ordered to appear for release from custody (almost never happens for ordinary traffic charges), the officer has the defendant sign a promise to appear, which is not an admission of guilt, but a contract to enter a plea (paying is guilty plea) with the Court by a certain date, secured by an "unsecured" appearance bond that can be forfeited (reduced to judgment by the Court) if there is a failure to do so, which can result in a default judgment of conviction and sentence if there is not a timely response to the complaint in Court. This would be forwarded to the Iowa DOT, and if his driver's license is not Iowa, for most states the Iowa DOT would forward the conviction to the licensing state's counterpart to be added to his driving record there and treated as if the equivalent offense (if there is one) had been committed in the licensing state for purposes of civil/administrative license sanctions. If his driving record and the rules of that state were such that the acquisition of a conviction would violate probation, it triggered that process.
It sounds as though, if your son is correct, a complaint was filed, falsely certified to have been served upon him, and then due to lack of response the Court entered a default. Lack of or improper service of the complaint, especially for a criminal charge, is definitely a strong basis for a motion to set aside the conviction and default judgment. Unless the State responds and shows persuasive evidence that he did in fact get notice/service, the Court will almost certainly grant the motion. Once they do, he'd have to go through the hassle of getting the Clerk of Court to understand what happened (this is very unusual and they can be passive about actively monitoring the correct protocols on traffic cases at times) and that the effect of the Order setting aside means it's now their job to manually send a correction to the Iowa DOT rescinding the conviction. You'll probably need to be a squeaky wheel until they do so. Once they do, the Iowa DOT is *supposed* to forward that notice to the home state, but I've seen them and home states fail to match the rescindment notice with the conviction notice and this creates an inaccurate driving record. He'll have to monitor his driving record until this is fixed, and actively communicate with both the Iowa DOT and the equivalent in the licensing state to ensure this actually gets fixed.
There may be serious consequences from the conviction if it triggered a probation violation, the case on that itself will have deadlines for him to get a hearing to contest the grounds for revoking probation, and he needs to stay on top of this in parallel to ensure that tribunal also becomes aware this was a default conviction due to lack of notice/service that he's seeking to resolve in Iowa Court.
He should also be aware that so long as there is a conviction of a traffic offense pertaining to this accident, the facts that constitute the elements of the offense convicted will be deemed indisputably true as a matter of law and will not be able to be relitigated for defending any civil personal injury case. Further, if violation of a criminal statute proscribing conduct to protect against this type of harm caused the accident, that's deemed negligence per se as a matter of law. He now has serious implications for his civil liability at stake.
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