Subpoenas: How to Get A Person to Come to Court or Get Records to Use in for Your Civil Administrative Or Criminal Case In Los Angeles
Here, Los Angeles Criminal Defense Attorney discusses very broadly on how to present your case in a Los Angeles Criminal or Civil Case or how to present your case in an Administrative hearing, such as the DMV.
If you are scheduled to have a trial or any other evidentiary hearing, you might have to present testimony of witnesses or documents to prove your case. The decision of what evidence, through testimony or documents, to present, if any depends on the facts of the case, the state of the law, and the burden of proof. It is best if such decisions are left to an attorney or other persons who know how the legal system works. For example, because in Los Angeles criminal cases (as in all US criminal cases), the burden of proof is the highest in any US legal system, many defendants do not present any evidence and instead argue to the court (or jury) that the prosecution was not able to prove their case “beyond a reasonable doubt”. We recommend that you call a Los Angeles attorney who can help you defend or prosecute your case.
If you are appearing for trial and the documents were not produced after a subpoena was issued or the witness did not show up after he was served with a subpoena, you must be prepared to show to the court the attempt to subpoena in compliance with the law. For example for administrative DMV cases:
A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law.
TYPES OF SUBPOENA
A subpoena can be for documents or for a personal appearance in court. The subpoena for documents is known as subpoena duces tecum or SDT. With some exceptions, most testimonies in court have to be done by live testimony, so if a police officer witnesses a bruise, you have to call the officer to testify in court that he saw a bruise, and a police report police officer prepared, ordinarily cannot be used without the officer being ordered to court. Sometimes you would want to subpoena records that are prepared in the course of running a business or operating a government office. These records can be introduced in court as long as the person in charge of keeping those documents provided a declaration certifying the record is accurate in compliance with Evidence Code §1561.
Subpoenas for personal presence and for record production have different time requirements and different procedures to use. Here are some of the issues that can come up when trying to subpoena records or persons for a court case in Los Angeles.
WHO CAN SERVE A SUBPOENA:
Any person can serve a subpoena in a civil case. See Code Of Civil Procedure section 1987 which in part (a) says:
The service may be made by any person.
However, in criminal case a defendant is not allowed to serve a subpoena. See Penal Code section 1328 which says:
“A subpoena may be served by any person, except that the defendant may not serve a subpoena in the criminal action to which he or she is a party.”
It is best to have a process server serve a subpoena to avoid any issued with the opposing side questing service when there is no compliance with the subpoena or when service of notice to consumer is requred (see below).
HOW TO SERVE A SUBPOENA:
Service of a subpoena in a Civil Case has to be done in person. See Code of Civil Procedure 1987 which in part (a) says:
“Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day’s attendance there”. (The exception above permits service of “subpoena control” in police office”)
But, here is an exception: In administrative cases, such as DMV cases, a subpoena can be served by first-class mail (See California Vehicle Code §14104.5 and California Government Code §11450.20). The best practice is to serve by certified mail, however, the DMV subpoena is often accepted by regular mail. Thus, Los Angeles DUI Attorney and Los Angeles Criminal Defense Attorney recommend using the certified mail return request requested if using first-class mail to comply with California Government Code 11450.20. Compliance with this section is required to obtain a continuance. Subpoena for DMV has to be done on the DMV form “DS 2000 P”. Because the DMV subpoena form itself does not reference “certified mail”, it is common to simply use regular first-class mail.
“A subpoena or subpoena duces tecum may also be delivered by certified mail return receipt requested (for DMV and administrative cases)”.
DO I HAVE TO PAY A FEE WITH A SUBPOENA:
For civil cases, yes, payment of travel expenses and a one-day witness fee is required if the witnesses ask for it. For police officers and other government employees, the current fee is $275.00
The amount of two hundred seventy-five dollars ($275), together with the subpoena, shall be tendered to the person accepting the subpoena for each day that the peace officer, firefighter, state employee, trial court employee, or specified county employee is required to remain in attendance pursuant to the subpoena. (Government Code Section 68097.2)
For criminal cases, the law requires the appearance of percipient witnesses without a fee. However, if you call an expert witness in a criminal case, you might have to pay a fee.
For subpoena duces tecum, most government agencies charge a $15 fee to start working on a subpoena and then bill for the remaining amount ($24 for 15 min of work) to complete and mail the subpoenaed documents to court or to a deposition officer. (Please see Evidence Code section 1563).
Thus, if you are serving a subpoena, include a fee for civil cases only in the amount of $275 for court appearances and $15 for SDT.
TIME TO SERVE SUBPOENA
Subpoena For Records in a Civil Case – within 15 days after the receipt of the subpoena, or within the time agreed upon by the party serving the subpoena and the custodian of records or witness. (Evid. Code § 1560(b)(2) and (b)(3).). In practice, it means that if you have a court date set, you must subpoena the records 15 days or more prior to court. This can be done on a Judicial Counsel Form SUBP-002
Subpoena For Records in a Criminal Case – within 5 days (Evid. Code § 1560(b)(1) and (b)(3) and Pen. Code § 1328(a)(3)(d) and (e).).
Deposition Subpoena: It is possible to use a subpoena for the record to be produced privately 20 days after issuance of the deposition subpoena, whichever date is later, in which to respond. (Code Civ. Proc. § 2020.410(c).). This subpoena is used for civil cases deposition but in practice, it means that you can get documents by issuing a subpoena and naming a deposition officer (there are companies that can be named deposition officers or an attorney can name himself a deposition officer).
NOTE: Deposition Subpoena for Records is a way to have access to the records, however, such a subpoena might not be used in court unless the custodian provides a declaration.
Subpoena for Personal Appearance in Criminal Court – 5 days after receipt of the subpoena or within the time agreed upon by the party serving the subpoena and the custodian of records or witness. (Evid. Code § 1560(b)(1) and (b)(3) and Pen.Code § 1328(a)(3)(d) and (e).). Thus in criminal court, if you want a person to be personally present in court, you have to serve them 5 days prior to the hearing.
Personal Appearance in Civil Court – 10 days (Civ Pro 1987(b) “The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time.”. Thus, if you want to have a police officer or anyone else present in court to give testimony, you have to serve them 10 days prior to the hearing.
Special Requirements: When Notice to Consumer Or Employee Is Required
If requesting SDT for records, when consumer or employee records are scheduled to be produced, the consumer or employee is entitled to notice. This notice adds 10 days to service if by mail (CCP 1013), which means that for a criminal subpoena for records, the notice to the consumer or employee has to be given 15 days from the court date and for a civil subpoena for records, 25 days from the court date and for deposition subpoena, the notice has to be given 30 days from the day of the compliance. Compliance with “NOTICE TO CONSUMER OR EMPLOYEE” is required in cases where a business or employer as a 3rd party is being asked to produce records and you are issuing a subpoena for such things as MEDICAL RECORDS, TELEPHONE RECORDS, EMPLOYMENT RECORDS, or BANK ACCOUNT RECORDS. Failure to provide notice to the consumer or employer should result in the business/employer refusing to comply because the consumer/employee had no chance to object to the subpoena. This requirement of notice is found in California Code of Civil Procedure sections 1985.3 and 1985.6 and you can use California Judicial Counsel form SUBP-025 to give notice (together with California Judicial Counsel form SUBP-002).
WHERE TO SEND SUBPOENA
If you are asking for a police report, you must deliver it to the police agency that made the report. For example, for the LAPD the subpoena for records must be delivered to:
LAPD – Risk Management and Legal Affairs Division
Public Records and Subpoena Response Section
Subpoena Duces Tecum Processing Unit
200 N. Spring St., Suite 1900
LA, CA 90012
But, for Los Angeles County Sheriff’s Department Records, the civil subpoena (including administrative, such as the DMV subpoenas) must be delivered in person to:
Los Angeles County Sheriff’s Department
Los Angeles Civil Process Branch
110 N. Grand Ave., Room 525
Los Angeles, California 90012
For any specific questions about record production, please contact Los Angeles Criminal Defense Attorney and Los Angeles DUI Attorney directly at 323-464-6424.