Are you one of the approximately 35 million people who receive a traffic ticket each year?
Of the 5% that are actually contested, one half are dismissed. The remaining half usually enjoyed reduced fines or other plea bargain arrangements that were less than the original mail in fine amount. Since you are reading this you may be one of the small and silent minority who successfully fights a ticket each year.
Unless you get a contempt of court charge for some outrageous behavior, your fine will be exactly what you would have mailed in originally. You will only be out your time invested. Remember, it’s not just the fine but also the increased insurance premiums you’re trying to save with your time investment.
A recent study by an attorney specializing in traffic tickets showed that 60% of his contested cases were won. Of that amount, over 40% were won by lack of prosecution – No Officer = Not Guilty. An additional 25% were won through the inability to prove the charges.
As you can see, just by going to court and contesting your ticket, the odds are swinging in your favor.
It is important to remember that traffic laws and codes differ from state to state and are constantly changing. You must do your homework to insure that you are current in all matters relevant to your particular situation. In addition, the information in this Guide is intended as basic strategies and tactics. Consider this Guide as your game plan, but you still need to get in there and pitch. This Guide is NOT LEGAL ADVICE.
When the officer approaches your vehicle he will likely ask you one of two standard questions:
- Do you know why I stopped you? — Your response is, “No officer, I don’t.”
- Do you know how fast you were going? — You have three levels of response: 1) “I’m not really sure.” 2) “The speed limit, I think.” 3) “I wasn’t speeding and I checked my speedometer right before you stopped me.”
The key element here is not to admit anything. You have a right to remain silent but the officer isn’t required to advise you of this right (Mirandize). Do not respond by saying, “Well I think I was doing about 62 when you know you are in a 55 mph speed limit. This is called admitting your guilt!
When the officer asks for your license, registration and proof of insurance tell him where they are located and ask to get them before reaching for anything. If you are in a state which allows concealed weapons, by all means notify him of the weapons location. If your documents are in the glove box or console, get them and close the compartment. This way the officer isn’t worried about you reaching in for an illegal weapon while he is writing your citation.
This brings us to the request for a vehicle search. If the officer asks permission to search the vehicle he doesn’t have any probable cause. Under no circumstances agree to this search. If he threatens to get a search warrant, politely tell him to go ahead and get one. The crucial element here is probable cause. The officer must have probable cause prior to the search. If your vehicle has smoke pouring out and smells like a Cheech and Chong reunion, he will search without asking. The same is true if you have alcohol on your breath. In either of these cases you have some other serious issues that you are about to come face to face with other than your speeding ticket.
It is also important to remember that this is not the time to plead your case or argue the issue. You are trying to stay low profile and arguing or giving some lame excuse that the officer has heard 200 times is not getting you anywhere. You should realize that as soon as his pen hits the ticket book he is committed to issuing the citation. He can’t void out the ticket and say he made a mistake. Once he starts to write, the citation is yours to keep.
While the officer is writing your citation (usually back at his vehicle) it is time to start your defense process. Begin to assimilate as much data as possible. Small details are essential. These are the kind of things that the officer will not remember when it comes time to appear in court. Some of the basic information you should be trying to gather is as follows:
- Make, model, license plate number and unit number of the officer’s car.
- Note your exact location and try to determine the distance between where you stopped and where the violation occurred.
- Even though your citation will list the basic weather conditions, make note of all the weather conditions such as temperature, wind, cloud cover, etc.
- Note any passenger names and be sure that your passengers remain totally silent during the entire stop unless they are asked a specific question.
- Make note of your shirt or coat color.
- Make note of any distinctive characteristics about your vehicle such as any noticeable dents, two tone paint, mag wheels, etc. Again, you are after as many small details as possible.
- You also need to remember and note everything the officer said during the stop. If he talks on his personal radio during the stop, try to note these items as well. A lot of times the officer who stops you will not be the officer who was running the radar unit. It is crucial to your case that you establish this point.
- Note the current traffic conditions and remember the surrounding traffic at the time you were pulled over. If you were surrounded by a sea of traffic try to remember anything and everything about that sea of traffic.
When the officer returns with your citation he will generally ask you to look it over and sign it. This signature, as the officer will explain to you, is not an admission of guilt but an acknowledgement of actually receiving the citation. Before you sign the citation, ask to have your court appearance moved to the county seat. This option is not always available but should be pursued. If the officer refuses, politely ask him to note your request and his refusal on the citation. If he again refuses, sign the citation and keep quiet. You can make your own notes later.
After you sign the citation, ask the officer if you can see the radar read out. The officer isn’t required to do this due to your own safety. The police department doesn’t want you run down by a passing motorist while you were heading back to the squad car to look at the radar. If the officer allows you to view the radar, make no comments whatsoever. Do try to make a note of the manufacturer or model number. Under absolutely no circumstances should you ask to see the calibration fork. That is a major red flag that you know the ins and outs of radar and you are going to fight the citation. You have now moved into the memorable category and that’s counterproductive to your case. After the officer returns to his car, stay at the scene making notes for no more than two minutes if he remains at the scene. He will usually be making notes on the back of his copy of the citation. Again, do not make yourself memorable by staying at the scene until the officer leaves. Your fight has just begun and there will be plenty of time to prepare your case without waiting at the scene. It is accessible 24 hours a day for you to study.
As you pull away from the scene, do so calmly and safely. Spinning tires and slinging gravel across the officer’s hood are not a good ideas. Head out with the confidence that you will likely never see the officer again since the odds favor him not showing up at your final court date. Then again, there is also the satisfaction of knowing that the next time you face the officer it will be in a courtroom with him under oath answering your questions. If you adhered to the information discussed above, you will be no more than another of a string of citations he wrote in the past month. Smart money bets he darn sure won’t know what color shirt you had on or how windy it was.
Fight, Plea or Pay
Now that you have your citation in hand it is time to decide if you are going to Fight, Plea or Pay. Remember, even if you fight and lose, your fine is no higher than you would have paid initially. You also need to weigh the fact that you will be paying the fine plus the added insurance premiums. If you’re still in doubt, here a the most common reasons why people choose to fight their citation and have their day in court:
- I can’t afford or don’t want to pay the fine.
- I don’t want the ticket on my record.
- I can’t afford the points on my license.
- I didn’t do anything.
- OK, I did do it but everyone else was doing it too.
- The officer was a major jerk and I want pay back in court.
If you fit into one of these scenarios, it’s time to move forward and start your long trip down the halls of justice.
What should I plead?
There are typically four types of pleas you can enter for a traffic citation:
Guilty – I’m a bad boy and here’s my money. Please raise my insurance.
Guilty with an explanation – I’m a bad boy but let me tell the court why before I pay my money and you raise my insurance.
Nolo Contendere – Latin for No Contest, otherwise known as I’m guilty but don’t want to say so. Here’s my money, go ahead and raise my insurance.
Not Guilty – This is the plea you are interested in if you want to save money.
It is important to remember that Not Guilty, by law, does not necessarily mean you didn’t commit the alleged offense. What it means is the prosecutor now has to prove beyond a reasonable doubt that you did commit the offense. The burden of proof is now on the prosecution and not you. If the officer doesn’t show up at your trial, that is the prosecution’s problem and your salvation. The extent of your defense is a simple motion to dismiss due to lack of a prosecution witness. One last item concerning the not guilty plea: If you have to emotionally fight the moral issue of a not guilty plea, you don’t have the conviction (no pun intended) to see the fight through to the end. You probably don’t even have any real fight in you. In this case, you would be best served by paying the fine and clearing your conscious. Then again, you might want to decide if your conscious can be cleared by time spent in driving school rather than paying the fine out right.
Should you hire a lawyer?
The only true test in deciding if you need an attorney or not is whether jail time is a possibility in your sentence. Any citation, such as:
- DWI / DUI
- Driving on a suspended license
- Hit and run accident
- Any felony involving the use of your vehicle (drug or weapons possession, manslaughter, robbery, etc.)
If your case involves any of the items listed above, you definitely require the services of an attorney. If not, you then need to weigh the cost of the attorney’s fee against the fine and insurance premium increase. There are some attorneys who specialize in traffic ticket dismissal and generally charge between $50 and $100 for their services. These attorneys typically specialize in obtaining continuances, arranging for probation sentences or, in a worst case, arrange for a driving school plea bargain. These are all options that you are quite capable of handling without an attorney. The advantage with these services is they have ongoing relationships with the prosecutors and are usually able to work within the system better than a stranger. If the price is right and it appears that you could get an arrangement other than driving school, you might consider one of these traffic ticket specialists for the pure convenience. Similarly, any attorney brings with him his knowledge of the law and legal system, his trial experience and his fee. Once you hire an attorney you lose control over the case. Unfortunately you have the most knowledge of the actual particulars and details that your attorney does not possess. You also need to remember that this case is not going to land your attorney on the cover of the latest legal journal; therefore, his attention span to this case is going to be somewhat limited. One industry statistic shows that unless you testify on your own behalf and inadvertently convict yourself during that testimony, 90% of all traffic case would not have benefited from the services of an attorney. If you still feel compelled to use an attorney, you should consider joining the National Motorist Association. The NMA offers a variety of resources (see additional information in the section titled “Additional Resources”) including an attorney referral service. This service maintains a database of attorneys, by region, who specialize in traffic ticket defense.
Driving School and Other Pleas
The most popular form of plea bargain available is usually referred to as Driving School or some other variation of the same theme. In this situation the defendant agrees to attend and provides a certificate of completion from a school that is licensed by the local jurisdiction. In exchange for your attendance, the charges against you will be dropped. This option is generally a once a year arrangement. In some states you can even qualify for an insurance discount with your certificate of completion so long as you don’t let it slip that you actually attended due to a speeding citation. Generally speaking, this scenario is a painless way to eliminate the charges against you. Many schools work in a comedy theme and try to make the ordeal as enjoyable as possible. The only other factor is cost. A typical driving school will cost between $35 to $50, You might also have to pay a court cost charge in addition to the school’s fee. The total cost is still likely to be less than your fine would have been. You might want to seriously consider this option if your case appears weak and unlikely to be dismissed. On the other hand, if you have a fairly strong case, save the driving school option for another time and place since it is usually a once a year type option.
Necessity of Speed Defense
Simply put, the Necessity of Speed defense says that while you admit that you were speeding, you had mitigating circumstances that forced you to exceed the speed limit for your own safety. One such instance might be when all the traffic around you is doing 70 mph in a 55 mph zone. To do the posted speed limit actually creates a dangerous situation while the ebb and flow of traffic attempts to go around you. Another scenario might be when you have a driver tailgating you combined with another car immediately adjacent to the left of you while yet a third car is attempting to merge into you from the right. Clearly you had to blast the accelerator up to 80 to get out of this harmful situation. The odds of the defense working are extremely small. Do not base your hopes for a dismissal solely on this defense. In fact, this defense is best left alone.
New York DMV Transit Adjudication Board
The State of New York offers a unique challenge for successfully fighting traffic tickets. Actually this challenge exists in Albany, Buffalo, Rochester and New York City. If you receive a citation in these cities you are essentially doomed. These cities utilize the DMV Transit Adjudication Bureau. This facility is not a real court. You have no right to discovery, you don’t get a supporting deposition, you cannot plea bargain and you don’t even get a real judge. Appeals are virtually non-existent and according to a recent report, the Bureau is required to maintain a 65% conviction rate in order to maintain revenues. The only positive is that the Administrative Law Judge doesn’t have the power of incarceration so you won’t end up in jail.
The only hope for a small measure of success in this venue is to file as many continuances as possible and hope that the officer finally doesn’t show for your appearance date. This is the only way you will manage to beat a citation in this skewed excuse for a court system. As hard as it is to believe, this system is legal and constitutional. Continued efforts to revise this system have been vetoed by the governors at the time since it is realized that this system is a money machine. The best advice is not to get a ticket in any of these locations.
Proper Planning Prevents Poor Performance
Now that you have decided to stand up and fight, there are a few things to check on as you get started in the preparation of your defense. Some of the more important items are:
- Check with your auto insurance agent to see what effect your conviction would have on your insurance policy.
- Contact the Department of Motor Vehicles (DMV) to determine your current point status and how many points your possible conviction will carry.
- Dispense with any automotive administrative work such as registration renewal, inspection, etc. These issues should all be resolved before the trial.
- Resolve any outstanding “Fix It” or parking tickets before your trial.
- Determine if you are eligible for Driving School.
- Review your upcoming schedule so you can have an idea about what possible conflicts might exist with your likely court date.
Once these administrative matters are resolved, or in the process of being resolved, it is time to start preparing your defense strategy.
Setting the Court Date
In order to have a need for a defense strategy you first have to enter a plea and set your trial date. There are three typical methods for entering your plea with the court:
- Personal appearance at the Court Clerk’s Office to request a trial date.
- Appear before the Judge and enter your Not Guilty plea combined with a request for a trial date.
- Mail in a COPY of the citation along with your request for a trial date.
During all three of these scenarios you will likely need to post bail in the amount of the fine. Be prepared and check with the court ahead of time to insure that you have the proper amount and proper method of payment. Now that you have posted bail in the amount of the fine you have two things in your favor. First off, you have essentially paid your fine up front. If you lose your case in court, you have already paid your fine and will not be out any additional money. Secondly, if you are unable to appear on the trial date your bail is forfeited and there will be no additional fines. However, if you do not post bail and do not appear for your trial a Bench Warrant for Failure to Appear will be issued and you could be subject to arrest. Now instead of just a simple traffic citation you have an additional misdemeanor charge pending. Do not let a simple case turn into a complex case by missing your trial date.
Once you have a trial date, you need to be aware that the Constitution guarantees “a fair and speedy trial.” Speedy trial is accepted to be 45 days from the date of arraignment (date which you enter your plea). It is important to monitor this time line very carefully. If the prosecution or the court contact you about changing your trial date you will have to waive your right to a speedy trial. The only advantage to waiving this right is that the longer the trial date is from the actual citation date, the better the odds are that the officer won’t be able to remember the details.
On the other hand there are several disadvantages to not waiving your right to a speedy trial. The court can now assign any date for the trial it deems appropriate within the 45-day time frame. This date might pose a real schedule problem for you and could force you into forfeiting your bail and the entire trial. In addition, the case details are likely fresher in the officer’s mind and you have the added pressure of getting ready for the trial at a faster pace. If you are not ready for your trial in 30 days you will not be ready in 60 days. As for the officer, you best hope is the officer not appearing at all. His notes are the main source of his memory since he likely wrote several citations on the same day your citation was issued. The bottom line is do not waive you right to a speedy trial.
One variation to the trial date scenario occurs when your citation includes the officer’s vacation dates. This information is usually included as courtesy to the court but can often be used to your advantage. The first step is to pick a date right in the middle of the vacation period. Next, count back 40 days from that date and be sure that this day doesn’t fall on a weekend, court holiday or, most important, after your scheduled appearance date. Presuming you meet all those criteria, you want to use that date as your day to appear at the clerk’s office and enter your not guilty plea. As you can see this scenario relies on two critical elements: You need to have a citation that includes the officer’s vacation dates and you have to be able to just walk into the Clerk’s office to enter your plea.
Now you will need to wait for your trial date to be set. The trial date is set about 40 days from the day you entered your plea in about 90% of all cases. If all goes according to plan, you will enter the courtroom for your trial about the same time that the officer is enjoying sunshine and palm trees. All that remains is a simple motion to dismiss due to no prosecution witness. This is an extremely optimistic outcome. What will likely happen is the court will notice the error and contact you to postpone the trial or simply send you a letter with a new trial date. If the court contacts you, refuse to waive your right to a speedy trial. If the court simply reschedules your trial and the date is more than 45 days from your arraignment date, you have a mistrial situation.
Before going to court on the newly assigned date, you need to research local case law. You are trying to establish that an officer’s vacation time is not “good cause” for the purpose of continuance. This will prepare you for the time in court when the judge or prosecutor attempt to save face by explaining to you that the court had “good cause” to continue your trial. At that point you will politely cite your case law findings and again make a motion for a mistrial. If the judge overrules you, proceed with your case and immediately file an appeal if you are found guilty. The case will always be overturned on appeal.
Now that you have entered your not guilty plea and set the wheels in motion it is time to start assembling the facts and data needed to build your defense case.
Department of Motor Vehicles
Every state has a Driver’s License Bureau of some form or fashion. Most are known as the Department of Motor Vehicles and they control every aspect of your right to operate a motor vehicle in your state. These departments all have a method of monitoring your driving record and deciding when you have become enough of a hazard to the public to suspend your license. This usually involves a system that assigns points to various violations. Once you accumulate enough points, you become a pedestrian for a specified amount of time. A normal moving violation will affect your driving record for three years in most states. Some states will hold a moving violation on your record for five years and nearly all states leave a DUI / DWI on your record for seven years.
As you start to prepare your defense you need to verify the status of your driving record. You might also obtain a list of the entire point system. Most Departments of Motor Vehicles can provide you with a print out of your driving record for a small fee. Hopefully you won’t be facing a suspended license for this current citation. If so, you might want to consider your case worthy of an attorney. For those of you in a normal situation, a check of your driving record will confirm that you will be safe from suspension but will still have a three-year mark on your driving record and, more important, your auto insurance record.
You are probably aware that most courtrooms are, to say the least, rather ominous and oppressive. This is so you will have no doubt as to who is in charge and the seriousness of your situation. Despite this overwhelming pall of authority, you still have certain undeniable rights. The problem is that traffic court is usually a place where these rights are glazed over in an effort to get you to plead guilty and pay your fine. It is crucial that you are fully aware of your rights as you approach your trial date. These six basic rights should be ingrained in your mind as you enter the courtroom.
- You have a right to a speedy trial. See the discussion on Court Date above.
- You have the right to a court trial. Normally this is with a judge and not a jury. Some states will allow you to request a jury trial but you will have better luck with a judge than a jury of your peers in most traffic cases.
- You have the right to an attorney. In traffic case you must provide the attorney at your cost unless your offense could be subject to jail time.
- You have the right to subpoena witnesses or documents. Use this right to your advantage. Do not subpoena the officer who was in the passenger side of the police car. The only subpoena items you are interested in are those documents listed in the Public Records and Discovery sections of this Chapter.
- You have the right to cross-examine any witnesses against you. This is typically the officer who wrote the citation. This is why no officer, no case, no conviction.
- You have a right to remain silent. DO NOT forget this right as you get into the courtroom. You do not have to testify against yourself; therefore, unless the situation clearly warrants, do not take the stand for the defense. As we move through the defense preparation and actual trial proceedings you will see how important these rights are to your case. Write them down in some prominent place where you will be reminded of them during your trial.
Public Records Request
The issue of public records is important in two areas. The first is to look up the actual vehicle code section your are charged with violating. You need to be aware of the exact verbiage of this code article and any relevant case law attributed to the code. Secondly, you may need to utilize the public records provision to obtain the necessary documents to help you prepare your defense. Your local vehicle code can be reviewed at the local library or, even better, a local law library. You need to look this code up in an “annotated code” book so that you will not only get the actual code but also the relevant case law. Review the various case laws and copy anything that is supportive of your likely defense. In addition, you should also study any case laws that you would use if you were prosecuting your case. As for the actual code itself, here is an example from the California Vehicle Code with an analysis of what the prosecution will need to prove in order to obtain a conviction:
CVC 22350 – Unsafe Speed
“No person shall drive a vehicle” (You will need to be identified as the driver and the prosecution witness will need to have seen you actually driving the vehicle) “upon a highway” (This is subject to a broad definition but the prosecution must establish where the violation occurred) “at a speed greater than is reasonable or prudent” (What is reasonable or prudent? This is open to opinion.) “having due regard for weather, visibility, the traffic on, and the surface and width of, the highway” (These are the parameters used to establish the reasonable and prudent issues) “and in no event at a speed which endangers the safety of persons or property.” (Did you endanger a person or someone’s property?)
As you can see, most codes are lengthy and grammatical nightmares. You will need to break the code down into manageable pieces and establish all the points that the prosecutor will need to prove against you. If he does not prove all of these points you should have grounds for dismissal after the prosecution rests their case.
You can also use the right to public records as an avenue to obtain background documents to help in the preparation of your case. These items are listed out in the next section that discusses the Discovery process. The Public Records request is made to the Chief of Police in the form of a letter. You should check with the local law library or the States Attorneys office before hand to determine the specifics of your state’s public records laws. Keep in mind that there is no specific time frame for the delivery of these materials. There is nothing to prevent a police department from delivering them after your trial date. This is why the actual request for documents should be done by subpoena as shown in the next section on Discovery.
The Discovery process is a right of the defendant as a part of the trial procedure; however, some states severely limit this right to discovery in traffic cases. Again, this limitation is part of the court’s efforts to get you to plead guilty, pay your fine and go home. You need to remember that the discovery process is a constitutional right.
You will need to check with the local court clerk’s office to establish the actual procedure for the discovery subpoena. You need to be sure that the request stipulates that the items are needed prior to trial. The list of items typically needed for a radar speeding ticket are as follows:
Radar – Repair records, manufacturers manual and specifications, calibration log and the Department’s FCC License to operate the radar unit.
Tuning Fork – Certificate of accuracy and repair or calibration records.
Police Officer – Arrest record (day of offense and last three months prior to your date of offense), daily log for the date of your offense, radar training record and operator’s certification and copies of both sides of your original citation.
Patrol Car – Speedometer calibration certificate, repair and maintenance records along with the repair and service records for the actual patrol car.
You need to be aware that the prosecution could counter this request with a “motion to protect” which will attempt to deny you access to the discovery documentation. If this happens you need to appear at your trial date and make a motion to dismiss the charges. This may or may not work. At the very least you should ask just what the prosecutor is trying to hide by denying you access to these documents. This should be followed with a motion for continuance to allow you ample time to prepare your defense after the materials are delivered. If access is still denied by the Judge you have excellent grounds for a reversal of a guilty verdict during the appeal process. The next section will discuss what to look for in the actual pieces of documentation you received in response to your request.
Review of the Evidence
In the last section we reviewed the list of documents that should be requested by subpoena for the preparation of your defense. In this section we are going to presume that the prosecution was forthcoming and has delivered all the requested materials to you. Now let’s look at this big stack of papers and see if we can find anything that will help us win our case.
Radar repair records should be reviewed for frequent repairs or total lack of repair. Frequent repairs, of course, would indicate that the unit has chronic problems. A lack of any repair records would indicate that the unit’s maintenance could possibly be neglected.
Radar manufacturers manual and specifications will indicate maintenance recommendations as well as operating procedures. These procedures will help to form the basis of your cross-examination. You also need to check the units frequency against the requested FCC license.
Radar calibration log will show how often and at what times the unit was calibrated (checked for accuracy). In two cases (Wisconsin v. Hanson and Minnesota v. Gerdes) it was established that calibration checking with a tuning fork should be preformed “within a reasonable time” after the citation is issued. In two other cases (Connecticut v. Tomanelli and New York v. Struck) it was further ruled that a tuning fork calibration should be performed immediately before and after a citation is issued. All of these cases have established that tuning at the start and end of the shift is not acceptable even though this is often the normal practice. FCC License to operate the radar unit is for a specific, or range of specific, frequency. You need to compare the frequency information in the manufacturer’s manual and specifications against the FCC license. This will verify that the officer was operating the radar unit legally. Keep in mind that only the department and not the actual officer need to be licensed by the FCC. Tuning fork calibration information is necessary to show that the radar unit has been calibrated to a “traceable standard.” Without the calibration certificate the tuning fork is immediately suspect as accurate for calibrating the radar unit. Police Officer’s arrest record may indicate a pattern of certain cars ticketed. It may also indicated a certain area that is a frequent target of the officer. If a favorite location is identified, this could be a location that has bad engineering, traffic control problems, bad signage, etc. which contribute to the frequent citations issued.
Police Officer’s daily log will indicate all citations issued that day. You want to look for any series that are issued for the same speed in the same location which would tend to indicate that the radar unit was locked and the same reading was used for several vehicles.
A Police Officer’s radar training should reflect 24 hours of classroom instruction followed by 16 hours of supervised field training. Most officers are actually department trained for a very brief period of time. The 24 / 16 hour criteria has been established by the National Highway Transportation Safety Administration and endorsed by the International Association of Police Chiefs. Police Officer’s copy of the citation (both sides) is informative since the officer will typically put his own notes regarding the incident on the back of his copy Patrol Car speedometer calibration should show that the speedometer is in proper repair and accurately calibrated. This is especially important if the patrol car was moving at the time the radar unit was used. The Officer must be able to compare the patrol car speed to a reading on the radar unit against the speedometer in order to guard against a radar shadowing error.
Patrol Car maintenance records will show any possible mechanical or, more important, electrical problems which could hinder the proper operation of the radar unit.
Return to the Scene
A return to the scene of your citation can serve several purposes. First, it may trigger some additional details that you forgot since the last time you were at the scene. Secondly, it will give you an opportunity to study the scene and situation in more detail. If you see that there are certain contributing factors at the scene you will need to prepare full documenting evidence for the trial. The evidence for the trial should be in the form of a large diagram of the entire scene that will document every thing that is relevant. This should include:
- All roads with lane markings and widths.
- All traffic controls (lights and signs).
- Location of the officer’s vehicle and your vehicle at the time he pulled you over. Also include the final locations after both vehicles stopped.
- All buildings, fences, walls, etc.
- All trees, hedges, bushes, shrubs, etc.
- Any other signage such as billboards, street signs, advertising banners, etc.
- All power lines, antennas, etc.
In addition to the diagram, you might also take some pictures from the driver’s perspective to illustrate any obstructed signage or other contributing factors. Your diagram and pictures should be of sufficient size to be easily viewed during the trial. The diagram should be poster size and the pictures should be 8” x 10” at a minimum. Only bring these items to the trial if they have a definite bearing on your case. Do not bring a diagram that basically shows everything that is on the citation. The prosecutor will thank you for helping his case! If the diagram and pictures do in fact show some serious contributing factor, show no one until the trial when you introduce these items as evidence for the defense.
Visit the Court
If time permits, you should take an hour or two to visit the traffic court that your case has been assigned to for some observations. The judge will be the same for your case but the prosecutor may or may not be who you are up against. During your visit you want to pay attention to the way the judge addresses any defense motions or objections. If you are lucky, you may get to see another concerned citizen as he blazes down the same path you are soon to travel. How prepared is his case in comparison to your case and can you learn from any mistakes he makes. You might also be fortunate enough to see a seasoned traffic defense attorney in action. What can you learn from his methods that will help your case?
You also want to study the relationship between the ADA / Prosecutor and the testifying officer. This relationship is usually indicative of the level of intensity that the prosecutors are used to working with. Remember, 95% of all traffic cases are paid and never see the light of the courtroom. What you see here will give a good reflection of what to expect when you step up to the plate. Finally, if the judge has a model of the guillotine on his desk and overrules every defense objection, you might want to see how to get a continuance immediately. Anything you can do to transfer courts will only help your case if it is apparent that you are going to have to appear before a hanging judge.
Pick Your Defense
Now that you have reviewed your evidence, returned to the scene and reviewed all of the supporting documentation, it is time to form a defense strategy for the trial. You should be aware that most traffic tickets are argued from two directions: A mistaken identity of the vehicle in question or a false radar reading.
Your defense strategy is actually comprised of several elements which increase in relevance as the trial progresses. These levels, from least intense on up, are as follows:
- Lack of prosecution witness – this is your first real hope for a cakewalk. No police officer, no prosecution witness, not guilty. It doesn’t get any easier.
- Prosecution fails to prove the case against you – this is where you need to be totally familiar with the specifics of the code you are charged with violating. If the prosecution doesn’t prove each and every item in the code section, a motion for dismissal is in order and likely to be awarded.
- Technicalities such as wrong jurisdiction, wrong code cited, wrong address on citation, etc. are worth trying but not likely to get you a dismissal except for a jurisdiction issue. The old adage of “Hey the cop spelled my name wrong so I can get off easy.” is simply not true. Do not rest your entire defense on this hope since you will be ill prepared when the judge overrules your motion to dismiss for a simple error.
- Finally, you come down to proving some factual error such you were not the driver, you weren’t driving at an unsafe speed, the radar reading was not accurate or not of your vehicle, etc. This can be through evidence such as the radar unit wasn’t calibrated or by proving an operating or procedural error on the part of the police officer.
As you can see this overall strategy has a layer affect to it. You start easy and build up to the harder levels. You need to walk into the courtroom ready to play the entire game by yourself. Keep a checklist handy. The officer showed up for the trail, don’t panic, move to the next defense level. The prosecutor has his stuff together and hit every point in the code, move to the next level. All you can hope for is to fight the best fight you are capable of and hope that all of your preparation will pay off. The only way to prepare a defense strategy is very similar to a military operation. You have to prepare contingency plans for every possible scenario and be ready to shift tactics at a moments notice. You will have preparation and an intense level of detailed knowledge of your case in your favor. It also won’t hurt to have the benefit of this document which has already prepared you for most contingencies.
Show Time – The People vs. You
As you hear the bailiff announce “The People vs. Your Name Here” you realize that you are about to become a stranger in a strange land. Your mouth is dry and your palms are sweating. You begin to wonder why you didn’t just pay the fine and be finished with this whole ordeal.
Take a deep breath and relax with the confidence that you have spent more time preparing for this moment than the prosecutor. You know the details of your case and you already have a good idea as to where the prosecution feels his case is weak. In reality, the prosecutor’s only strength is that he has a better understanding of the trial process. This Chapter will help to balance out the scales of justice.
A wise man once said that you never get a second chance to make a good first impression. Keep this in mind as you dress for your day in court. If you had a chance to visit the court before your trial, you can see the level of dress for your particular courtroom. Unless you’re in an extremely small jurisdiction, the normal attire will be a suit for men and a conservative business suit for women. Both sexes should avoid anything loud or flashy. It is just as important not to over dress as it is not to under dress. Remember, the judges first impression of you will be made before you even open your mouth. Be sure that he is impressed and not already forming a negative opinion of you based on your attire.
By now you should know who all the major players are in your upcoming trial. You should also have a good feel for their individual roles in the overall process. As a refresher, here are the main characters:
Defendant – This is you, our intrepid hero.
Prosecutor / ADA – This is the team captain for the opposition.
Judge – The final authority on everything from objections to verdict and fines.
Police Officer – This is the prosecutions star witness.
Bailiff – Master of Ceremonies as well as Sergeant of Arms for the Court.
Court Clerk – The judge’s administrative assistant.
The only other likely player for the prosecution could be any additional police officer who was involved in your particular case. If you were clocked by one officer and another actually wrote the citation, they will both need to be present for the prosecutor to make his case. If you don’t see the officer or officers involved in your case at the time it is called, you likely have a good chance for dismissal before you even get started. Keep in mind that the judge may decide to postpone your case until the end of the day to see if the officer shows up for the trial. Be prepared to wait the entire day.
Typical Trial Procedure
Here is the typical sequence of events for a traffic ticket trial:
- Bailiff Calls the Case
- Defense (that’s you) and the Prosecution respond with, “Ready, Your Honor.”
- Opening Statement by Prosecution
- Opening Statement by Defense (See the Section of Defense Case below for why not to make an opening statement)
- Prosecution Case
- Witness – Police Officer’s Testimony
- Cross Examination by the Defense
- Re-Direct by the Prosecution
- Physical Evidence – Citation, Diagrams, etc.
- Prosecution Rests
- Motion to Dismiss by Defense on applicable grounds
- Defense Case
- Witness – You or passengers
- Cross Examination by Prosecution
- Re-Direct by Defense
- Defense Rests
- Rebuttal Witness by Prosecution
- Closing Arguments
- Prosecution (Follow up and response to Defense Closing)
- Sentencing (If Guilty)
The Prosecution’s Case
The bottom line of the prosecution’s case is the need to prove, through the use of evidence and testimony, that you are guilty beyond a reasonable doubt. As we previously discussed, the prosecutor must prove all the elements in the specific vehicle code section that you are accused of violating. The typical prosecution case will attempt to prove that the officer made a visual estimate of your speed and then verified that speed with radar, laser or motor pacing. The prosecution’s equation is as follows: Since “A” is true and “B” is true then “C” must be true. In this example, “A” is the visual estimate of speed, “B” is the verification through mechanical means and “C” is that you are guilty.
You should be aware that the prosecution has a strong weapon in the case law of “Kentucky vs. Honeycutt” which ruled that an officer does not need to be an expert in radar operation. He only needs to be competent in the use of radar. It would help to have notes on the cases that you feel may come into play during your trial.
Your objectives during the prosecution’s presentation are twofold. First, you need to disrupt the speedy trial flow that the prosecutor and police officer are used to. The primary method for this is through objections. Object to anything that appears to be suspect. Review the next section for all the typical objections you have available to you. Even if the objection is over ruled, the prosecutor and police office have to break their rhythm while the judge makes a ruling on the objection. Your second objective is to ensure that any testimony or evidence introduced by the prosecution is admissible and relevant. Again, a review of the typical objections should give you adequate background as to what is admissible and relevant.
You should take thorough notes during the prosecution’s presentation. On one side of the paper make a brief note as to what was said. Opposite this note make a comment concerning your upcoming cross examination or list the objection you used. You also need to keep a running tally as to the specific points of the vehicle code in question. As the prosecution proves any particular point of the code, check that point off. This will make it easy to check if he has proved all points when the prosecution rests their case. If all the code issues are not checked off then your first course of action after the prosecution rests is to make a motion for dismissal. Always keep in mind that the prosecutor must prove all points in the code section beyond a reasonable doubt. Now let’s review the typical objections used in a traffic ticket trial.
The purpose of objections is to limit the evidence or testimony to that which is specifically relevant and admissible to the case. The judge has sole authority over what is admitted and what is not admitted to the trial; however, the judge can only invoke this authority if the evidence or testimony is challenged by objection. In other words, if you don’t raise a flag the judge will not salute you. When in doubt, object and let the judge rule as to whether the evidence or testimony is admissible. You need to walk a fine line with the objection tactic. Too many invalid objections are only going to anger the judge and put you in a position of a possible contempt of court charge. Too few objections and the prosecution will roll right over you. Here are the typical objections used in a traffic ticket trial, in the order you will likely have cause to invoke them:
OBJECTION, Independent Recollection As soon as the officer begins to testify, he will likely read from his copy of the citation. You need to immediately object to this since the officer is required to testify from “independent recollection.” You also need to ask to see what it is the officer is reading even if you received the officer’s copy of the citation through subpoena. The judge will likely allow the officer to use his notes to refresh his memory if the officer tells the court that he will require the notes to testify. This will now start the wheels in motion for a dismissal since the 6th Amendment to the Constitution guarantees you the right to be confronted with the witnesses against you. The officer and his testimony, not the citation, are the witnesses against you. If the officer has no independent recollection he is considered incompetent to testify. You need to establish that the officer is unable to testify without his notes to paint him as an incompetent witness. One other important point concerning the use of the officer’s notes. If his citation reads: “NBI45” then all he can testify to is NBI45 not North Bound on Interstate Highway 45. As you can see, the citation notes in this case will hurt the officer’s testimony and help your case.
OBJECTION, Narrative In this instance the officer is telling a story (or narrative) rather than answering specific questions from the prosecutor. You have a right to decide if a particular question would have an objectionable response. By simply telling his version of the events without questions, you have no opportunity to object.
OBJECTION, Foundation This is a situation where the officer, or any other witness, testifies to something that has not been established through evidence. For instance, if the officer testifies that his speedometer indicated a speed of 72 mph, the speedometer calibration should have been introduced as evidence in order to establish the foundation for this line of testimony.
OBJECTION, Speculation This is a case where the prosecutor asks the witness a question and their answer brings forth a statement that they could not possible know. Such as a comment that you clearly saw the speed limit sign on the side of the road. This calls for speculation since no one can testify as to what you actually saw.
OBJECTION, Conclusion This is when the prosecutor asks the witness for a conclusion that they have no basis to answer. For example, the prosecutor may ask the officer if the defendant saw the stop sign and chose to ignore it. This requires the officer to make a conclusion based on insufficient facts.
OBJECTION, Not Qualified Similar to a conclusion objection but in this case the witness testifies to something that they have no expertise in. One instance would be if the officer testified that the defendant’s muffler was defective. Since the officer is not a mechanic, he is not qualified to make that determination.
OBJECTION, Hearsay This is essentially anything said or written outside of the courtroom by anyone other than the witness. The police officer can not testify as to what a witness at the scene told him. The actual witness would need to testify for those statements to be admissible. The same holds true for the officer who wrote the citation testifying on behalf of the other officer who ran the radar unit. Both officer’s must testify and only to the extent of their involvment.
OBJECTION, Irrelevant These are things that may or may not have happened but have no bearing on the application of the law. One such instance might be the officer testifying that you had a hostile attitude towards him while he was writing the citation. Your attitude at the time has no relevance in the application of the law.
OBJECTION, Immaterial This can be considered a cousin to the previous objection. Immaterial testimony or evidence is something that has a remote connection to the facts at hand but still not close enough to be admissible. One example might be the defendant’s driving record. Prior traffic convictions have no bearing since you can’t be guilty of this offense simple from past performance. In other words, just because you have 12 other speeding convictions in the past three years doesn’t necessarily mean you are automatically guilty of this speeding charge.
The Preemptive Objection This is a case when you are desperate to slow down the pace of the trial or stop the officer just as he is about to drop a bomb on your case. The goal here is to stop the bulldozer from rolling over you long enough to disrupt their rhythm. Be advised that the court will not tolerate this tactic more than one or two times. If you abuse your objections then you will be restricted once you have a significant objection. This is very similar to the boy that cried wolf syndrome.
Cross Examination During the cross examination you are functioning as the defense attorney not as the defendant. Your objective is to discredit the officer’s (or any other witness the prosecution may introduce) testimony to create a reasonable doubt in the eyes of the court. Remember, the prosecution has to prove his case beyond a reasonable doubt; therefore, any discrepancies in the officer’s testimony serve to undermine the prosecution’s case. The key to finding any discrepancies in the officer’s testimony is to focus on details that the officer can’t possibly remember. You have two criteria for every question you ask. First, you should already know the answer to the question. By knowing the answer you are prepared for whatever the officer might say. In other words, his best answer will be what you already know as the facts. For example, let’s say you ask the officer the color of your car. The citation already says that your car is green, what you want to know is what shade of green. Let’s presume that your car is Arctic Pea Green. The officer will likely respond in one of three ways:
- If he tells you that the car is Arctic Pea Green – Move on to another topic.
- If he tells you he doesn’t know – He can’t remember the facts of the case.
- If he tells you it is brown – He doesn’t have a clue and can’t even remember what he wrote on the citation (great for you).
In the last example, you need to remember not to argue the case with the officer. You should only ask questions. The time for arguing your case is later during your motion to dismiss.
The second criteria for cross examination questions is, will this question help my case. You don’t want to ask a question that will open areas or details of the case that could hurt your defense. For example, you definitely don’t want to ask the officer why he only wrote you a ticket for speeding when in fact you had also ran a stop sign! You do want to ask some specifics such as, “Did you see the UPS truck in lane two?” You don’t want to ask, “Was there any other traffic around?” The difference in these two questions is night and day. It also doesn’t hurt to start most of your questions with the phrase, “Isn’t it a fact . . . “ This puts a huge burden on the officer since he is under oath. If he can’t totally remember the question as fact he will be forced to say he can’t remember. The more, “I can’t recall” responses you get, the stronger your case for reasonable doubt. In addition, do not let the officer elaborate beyond the required response of the question. As soon as this starts to happen you need to cut him off and tell the judge that the officer is being non-responsive. The judge should instruct the officer to limit his responses to the specific question.
During the prosecution’s direct examination you need to pay attention to the specific strengths and weaknesses of the officer’s testimony. If the officer testifies that he has had 24 or more hours of classroom instruction and 16 or more hours of field training in radar operations, leave this area alone.
Similarly, if he has not met those training criteria then hit this area hard during your cross examination. The same holds true during the prosecution’s redirect questioning. The areas that the prosecution stresses during the redirect are areas he is worried about and feels need shoring up for damage control. You will get one last chance at questioning the officer after the prosecution’s redirect. Go after all the areas that the prosecution tried to shore up.
Specific in depth lines of questioning will be covered in each specific ticket type Chapter (radar, laser and motor pacing). A few general questions that are useful during the cross examination are as follows:
- Did the officer always have a clear and unobstructed view of the defendant’s vehicle from the time of first contact until the defendant stopped?
- How far was the officer’s vehicle from the defendant’s vehicle at first contact?
- What where the traffic conditions during the entire pursuit time?
- What lane was the defendant’s vehicle in during first contact?
- What was the exact time of day that the offense occurred?
- What were the specific weather conditions?
- How many passengers were in the defendant’s vehicle?
- What is the color (specific) of the defendant’s vehicle?
- Does the defendant’s vehicle have factory hub caps or custom wheels?
As previously mentioned, the key is to discredit the officer’s testimony as much as possible. If you continue to get, “I don’t remember” and “I can’t recall” type responses, you are steadily building up the reasonable doubt towards the witnesses’ testimony. The next move by the intrepid defense team would be a motion for dismissal, which brings us to the next section.
Motion to Dismiss A motion to dismiss your case can be requested for several issues. In this section we will cover the various motions for dismissal you might use during your trial. With any luck, this is as far as your trial will proceed.
Motion to Dismiss due to denial of a right to a speedy trial. This would be used at the beginning of the trial if your actual trial date was more than 45 days from the date of your arraignment. Your date of arraignment is the day you appeared and plead not guilty. This would be a rare case and will cause great embarrassment on the part of the court and the prosecutor. Consider yourself lucky if you get to invoke this motion.
Motion to Dismiss due to denied access to evidence necessary to your defense. This would also be used at the beginning of the trial if your subpoena was ignored by the prosecution. The likely event in this case is the judge will delay the trial and order the prosecution to provide you with the requested information. Keep in mind that you don’t want to waive your right to a speedy trial but you might have to weigh that decision against getting your subpoenaed information. Chances are the judge won’t let the speedy trial clause slip by.
Motion to Dismiss due to insufficient evidence. This will occur immediately after the prosecution rests their case. This motion only applies if the prosecution failed to prove all of the required elements of the vehicle code you are charged with violating. This is why you keep a checklist of all the points that the prosecution needs to prove during the trial. The list will come in handy when you explain to the judge that the prosecution never identified you as the driver, never established what road you were on, etc.
Motion to Dismiss due to incompetent witness. This is the culmination of all of the officer’s “I don’t recall” answers during your cross examination. Again, this is solely up to the judge. He is not likely to rule against the officer unless he has been shown that the officer really doesn’t have a clue as to what actually happen on the day in question. This is why an extensive cross examination is necessary.
Motion to Dismiss due to inadequate procedures. This would be an instance where the officer committed some sort of procedural error. A good example might be calibrating the radar unit at the start and end of the shift. Use the case law to back up your claim of inadequate procedures.
Motion to Dismiss due to insufficient evidence, specifically a missing officer. This is when you have a case that involved two police officers. For instance, one officer ran the radar gun while the other officer pursued the suspect and wrote the citation. Both officers need to be present since one can not testify on the behalf of the other officer. This motion would also apply if the single officer involved is not present. You usually won’t have to make a motion if the primary officer is missing. Typically, the prosecution will drop the case since he knows he has no chance without the officer present.
The Defense Case
The defense strategy for a traffic ticket trial is basically a layered defense. This layered defense hopes for one of the following to occur:
- Officer, or officers, involved in the case do not appear.
- Right to a speedy trial was denied.
- Various motions to dismiss after the prosecution rests their case.
Once the above strategies play out it is time to move to the defense presentation. This is where you need to make some serious strategic decisions. First let’s review the process of introducing evidence, say for instance a diagram of the scene.
First the clerk will mark the document with a court identification usually defense exhibit “A”, “B”, etc. Next, the document will be shown to the prosecution so they can have the opportunity to object to this particular item. Next you will need to identify the document as a diagram of the intersection of A and B streets. You will then proceed to explain the relevance to your case. Finally, you will need to move that defense Exhibit “A” be introduced as evidence. Just presenting the diagram or any other document does not automatically make that document evidence.
Now that you have introduced all your evidence you come to a critical crossroads in your defense. The issue at hand is do you testify or not. You need to remember that you are under no obligation to testify. By not testifying you deny the prosecution the right to cross examine you under oath. You also need to consider what you will testify to. You can’t very well say you were doing 55 mph in a 70 mph zone when you a fully aware that you were doing 62 mph. To testify that you were doing 55 mph is perjury. You also can’t testify that you were doing 62 mph and the citation says you were doing 67 mph. Regardless of what the citation says, you just admitted your guilt and are now subject to a fine.
A couple of situations where you may still want to consider testifying is when you have a jury trial or you have a strong witness against the officer’s testimony. A jury will be instructed that you do not have to testify and that you can not have your lack of testimony held against you. Don’t bet on it. A jury will always want to hear your side of the story. If the prosecution gets too aggressive during the cross examination, the jury will begin to sympathize with you. As for a strong witness against the officer, this is a case where the two stories are totally opposite. Your hope is that your testimony combined with your witness with show the truth and out weigh the prosecutions case.
A third option is to testify to a specific area only. For example, you might want to add some testimony to the diagram you introduced as evidence. You will need to inform the court that you intend to testify on the limited area of, and add what specific item you will testify to. This limits the cross examination only to what you want to discuss. Be careful not to allow your testimony to wander too far off a main course or you will open the door for a more extensive cross examination. Remember, the cross examination is limited to areas that were discussed in the direct examination. If you wander too far during your testimony, you invite the prosecutor to follow up on all areas you mention.