Monday, August 3, 2015

Winning your traffic trial

I've been an attorney for over 20 years.  One thing I've definitely learned, is that even if your case is a 100% winner for you, you can still lose.  Judges make bad or weird rulings.  Witnesses don't answer questions the way they answered them at deposition or in your office before trial.  The courthouse burns down the day before trial.

 [Photo from Wikimedia]

Stuff happens.

The best you can do is be prepared.  So even though I had a winner case because, altho I was texting while driving, that was NOT the code section I was cited for violating [see last week's post], I still tried to contemplate everything that might happen --

1.  Officer wouldn't show up - This is the easiest result, because the ticket would be dismissed without me having to say anything.

2.  Officer would show up and tell the truth - If the officer testified that he saw me texting, I'd need to be sure I got him to admit I was not LISTENING or SPEAKING on the phone.  So I had a paper with proposed questions:  (1) Did you see the phone near my ear?  (2) Did you see me speaking into the phone?  (3)  Did I appear to be listening?  (4)  Did I nod or shake my head?  Questions like that, to show he did not see me LISTENING or SPEAKING on the phone.  If the officer was telling the truth, he would only be able to say he saw the phone in my lap and I was typing on it.  But it would be best if I also obtained his testimony that he did not see me LISTENING or SPEAKING on the phone.  I would have to be careful NOT to testify myself, just ask him questions on cross examination.  If I admitted to texting while driving, sometimes judges will find traffic defendants guilty even if the infraction is NOT the one indicated on the ticket.  I made myself notes, and printed the People v Spriggs case which states the code section written on the ticket was ONLY for speaking and listening.

3.  Officer would show up and lie - This happens more often than I'm comfortable with.  So if the officer lied, the worst lie would be that he testifies he saw me listening or speaking on my cell phone.  I would have to testify that (1) I only have one cell phone, (2) here's a copy of my phone bill, and (3) it accurately reflects that I did not MAKE or RECEIVE a phone call during the relevant time and for about an hour before that time.  I dug out my phone bill and discovered I had not made or received any call since the day before, more than 12 hours previously.  That worked.  I made a copy of the bill to present to the court.  I made myself notes on what I could say and NOT say while I was testifying.

I arrived to court early, with my phone bill and notes and copies of the case and the code sections.  I herded into the courtroom with all the other traffic defendants, none of whom really wanted to be there.  The lady I ended up seated next to, had a huge book with her, it must have been 3-4 inches thick.  She had way more patience to slog thru a book than I had.

The officers all entered the courtroom and sat in the jury box.

Each of the defendants were called in alphabetical order.  My name is in the back half of the alphabet, so I had the privilege of watching the procedure, which I've seen before because for three years I was a temporary judge in X County and I presided over quite a few traffic trials.  Oddly, each court in X County conducted its traffic cases in its own way.

The clerk called each name.  If the defendant was not present, bail was forfeited for the failure to appear.

If the defendant was present and the officer was not present, the case was dismissed.  Bail would be refunded by mail in 8-10 weeks.

If the defendant was present and the officer was present, the clerk asked the defendant if s/he wanted to change the plea to traffic school, or speak with the officer.  Many defendants wanted to change to traffic school.  Some wanted to speak with the officer, which is what I do when I'm in court in attorney mode representing a defendant.  I try to plea down to a non-point offense, which the officer agrees to about 80% of the time.  But I didn't want to do that today, because a cell-phone violation is NOT a point offense in the first place, and I had a pretty good case anyway.

If the defendant wanted to go to trial, the case was called for trial once the roll call was completed.  This is the stack my case would go to, if my officer appeared.

I was raring to go.  I'd gone thru the potential trial several times over the preceding few days, trying to anticipate everything that might happen.

My name was called.  I stood.

Clerk:  Your officer is not present.  Your case is dismissed.

Oddly, I was somewhat disappointed.  It was kind of a let-down that I didn't get to fight the ticket.  My husband told me later that he thought the officer probably realized he wrote the wrong code section on the ticket.  He didn't appear so he wouldn't be embarrassed.  If that's true, that would mean he was an honest cop who would have told the truth.

At least there's that.

Stuff happens.

Here's more on how to fight a traffic ticket

How to act at a traffic stop


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