Road Law - October 2018
What I want vs. what I need
Jeff McConnell and James Mennella
We talk to drivers and company owners every day, and the conversation usually starts with the driver or company owner letting us know about a traffic ticket. Once we’ve discussed the basic facts, we like to discuss the “procedural” facts of the case.
Those facts include these details:
Which state issued the ticket?
- Which specific court will the ticket be processed in?
- Does that particular court have a prosecutor?
- If there is no prosecutor, does the citing officer actually prosecute the case or does the judge simply decide?
- Is the judge in the particular court a lawyer or just a good person that was elected to the position?
So, although the physical facts of your case are very important, where your case is going to court and who is hearing your case is just as important. As always, we hope this information helps you.
Q. I got a ticket in Wyoming for speeding. The trooper said he clocked me at 66 mph in a 55 mph zone. There’s no way I was going 66 mph, because my truck is governed right at 55 mph. I don’t want this ticket on my record, but I’m from Florida and I don’t know when, if ever, I can go back to Wyoming. Can I hire a lawyer to go to court for me?
A. Of course you can hire a lawyer to go to court for you, and in many states a trial can be conducted without you being there. However, a lawyer may be limited in what they can actually do for you at trial if you are not there, so it is important to know the limitations of this scenario.
The biggest hurdle is that a lawyer can’t testify for you, so if all of the state’s witnesses appear, they can only be cross-examined as to their testimony, and your side of the case will not be presented without you there to testify should it be necessary.
If you really can’t appear at any point, the best course of action in your circumstance is to allow the lawyer to set the case for a pre-trial conference and try to negotiate the best plea offer. If there is not a decent plea offer, then you have the option to have the matter set for trial or to just pay the violation.
Q. I got a ticket in Oregon for swerving into the left lane. The trooper told me that he didn’t actually see me but that a “four-wheeler” reported it. I want this ticket dismissed, because it’s not true. I never swerved into the left lane, but I think the truck in front of me did and that’s what the four-wheeler was reporting. I called the court, but they wouldn’t let me talk to the judge. The court clerk told me I would have to come to court to talk to the judge, and I can’t do that because I don’t normally drive in Oregon. I want this ticket dismissed.
A. It is very uncommon in most courts around the country that you would ever be able to talk to the judge about your case before a court date. Further, most courts have a prosecutor whose responsibility is to prosecute or plea bargain the cases and most judges are not going to circumvent the prosecutor’s function. From a procedural standpoint, it usually takes a not guilty plea to get your case file in the system and transferred to the prosecutor’s office.
Once the case is in the system, it is much easier to discuss your case and try to work out a favorable disposition with the prosecutor.
From the facts you described, it sounds like you have a good case, and it’s a motorist complaint, so that is in your favor, because the trooper didn’t actually witness you swerving into the left lane. At a trial the trooper can’t testify to alleged facts that he didn’t personally witness and the complaining motorist must appear in order for the state to prove the case against you. Also, you are your own best witness, so it would be better for you to appear in order for you to have any opportunity to be found not guilty at trial. LL
Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; call 405-242-2030, fax 888-588-8983, or contact us via RoadLaw.net.
This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone’s legal situation is different. Consult with an attorney for specific advice on your situation.