2007 California Vehicle Code Chapter 5. Defenses

CA Codes (veh:41400-41403)


SECTION 41400-41403

41400.  Whenever any person is charged with a violation of this
code, it is a sufficient defense to such charge if it appears that in
a criminal prosecution in another state or by the Federal
Government, founded upon the act or omission in respect to which he
is on trial, he has been convicted or acquitted.

41401.  No person shall be prosecuted for a violation of any
provision of this code if the violation was required by a law of the
federal government, by any rule, regulation, directive or order of
any agency of the federal government, the violation of which is
subject to penalty under an act of Congress, or by any valid order of
military authority.

41402.  No person shall be prosecuted for a violation of any
provision of this code when violation of such provision is required
in order to comply with any regulation, directive, or order of the
Governor promulgated under the California Emergency Services Act.

41403.  (a) In any proceedings to have a judgment of conviction of a
violation of Section 14601, 14601.1, 14601.2, 23152, or 23153, or
Section 23103 as specified in Section 23103.5, which was entered in a
separate proceeding, declared invalid on constitutional grounds, the
defendant shall state in writing and with specificity wherein the
defendant was deprived of the defendant's constitutional rights,
which statement shall be filed with the clerk of the court and a copy
served on the court that rendered that judgment and on the
prosecuting attorney in the present proceedings at least five court
days prior to the hearing thereon.
   (b) Except as provided in subdivision (c), the court shall, prior
to the trial of any pending criminal action against the defendant
wherein the separate conviction is charged as such, hold a hearing,
outside of the presence of the jury, in order to determine the
constitutional validity of the charged separate conviction issue.  At
the hearing the procedure, the burden of proof, and the burden of
producing evidence shall be as follows:
   (1) The prosecution shall initially have the burden of producing
evidence of the separate conviction sufficient to justify a finding
that the defendant has suffered that separate conviction.
   (2) After the production of evidence required by paragraph (1),
the defendant then has the burden of proof by a preponderance of the
evidence that the defendant's constitutional rights were infringed in
the separate proceeding at issue.  If the separate conviction sought
to be invalidated is based upon a plea of guilty or nolo contendere,
the defendant shall provide the court with evidence of the prior
plea, including the court docket, written waivers of constitutional
rights executed by the defendant, and transcripts of the relevant
court proceedings at the time of the entry of the defendant's plea.
These records shall be provided to the defendant without cost to him
or her, when the defendant is represented by the public defender or
counsel appointed pursuant to Section 987.2 of the Penal Code.
   (3) If the defendant bears this burden successfully, the
prosecution shall have the right to produce evidence in rebuttal.
   (4) The court shall make a finding on the basis of the evidence
thus produced and shall strike from the accusatory pleading any
separate conviction found to be constitutionally invalid.
   (c) If the defendant fails to comply with the notice requirement
of subdivision (a) or fails to produce the evidence required by
paragraph (2) of subdivision (b), the court shall hear the motion at
the time of sentencing in lieu of continuing the trial, unless good
cause is shown for failure to provide notice pursuant to subdivision
(a) or produce the evidence required by paragraph (2) of subdivision
(b), in which case the court shall grant a continuance of the trial
for a reasonable period.  The procedure, burden of proof, and burden
of producing evidence as provided in subdivision (b) shall apply
regardless of when the motion is heard.

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