Friday, June 15, 2012

Pitfalls of a NYS Speeding Ticket & DIY (Doing It Yourself)

I hear lots of stories, they keep me amused. Too many people after the fact want to hire a lawyer to "fix" their problem. I say after the fact because the timing of events is an essential component of legal strategy. This is especially true with traffic tickets.

I got a call from a guy with a speeding ticket. Stopped for doing 88 in a 65, so a six point VTL (vehicle and traffic law) 1180 (d). BTW six pointers trigger NYS DMV driver responsibility fees for three years.

His reason for the speed violation was interesting. He said his tires were bigger than those that come with the car. He had on 17s (wheels and tires) instead of the standard 15s (wheels and tires). This caused his speedometer to be inaccurate and unreliable.

So he takes pictures of the tires, gets info on online, writes a detailed letter to the District Attorney, took a lot of time and work, IMO.

DA writes back with a small reduction. He then calls me.

First mistake: tires (wheels) being too big or too small is NOT a good legal defense. WHY?

Because, speeding is not an intent crime. An intent crime requires a mental state, ie. that you intended to commit. We call that legally a "Mens Rea." In Latin, a guilty mind. For example, if your kid accidentally pockets some gum at the cash register while you are leaving a store that is NOT petty larceny. Why? Because you did not intend to steal that gum. Now if you told your kid to secretly take gum as you were leaving the store, and he put it in his pocket, then that is petty larceny (plus a whole bunch more).

With the violation of speeding, you are either speeding or NOT speeding. Exceeding the limit or NOT exceeding the limit. There is NO guilty mind requirement. Now there are the legal defenses of necessity to speeding, like your wife was in labor, or you were bleeding, or you were having a heart attack. There are also issues (factual defenses) with radar/laser and the technology of measuring speed whether by a device or a visual estimation. Those could be factually challenged in Court by cross examining the officer.

KEY Takeaway: There are always potential Factual challenges (did this happen) and Legal challenges (did the government act outside of their authority).

Second mistake: He never requested (demanded) a supporting deposition. 

This is a sworn statement by the officer, trooper, or deputy that states under oath the probable cause for the citation. They (the Court/law enforcement) must supply one (upon a written demand) within 30 days time or you can motion the Court for a complete dismissal of the charges. In this case he never received one, and he never demanded one. This would have been a KEY Legal Challenge in this case.

Third mistake: He never obtained or gave his driving record (history) as a reason for a reduction.

This is called an equity argument. To be reasonable or have anyone be reasonable, you need "REASONS." People want to know WHY? Why should you get something? Why should you be compensated? Why do you deserve leniency? Why should the Judge give you a lower fine? Or Why should he agree to a reduction? Seems simple enough. The funny thing is that it doesn't end there because how you present information is an art form.

So there are three things here: LEGAL, FACTUAL, AND EQUITY ARGUMENTS. These are part of the lawyer's tool box.

Law Practice (and many other professions) is both an Art and a Science

Trust me when I tell you I have tried to save people time and money by having them do it themselves and they invariably mess it up. I recently had a professor go into Court (by himself) on a simple traffic ticket. I gave him some free advice. I don't know if it was his attitude or something else but he could not "close" the Judge. Judges have to agree along with DAs to reductions (changes). He then turned around and blamed me.

In other words, he went in like I told him, I guess he said what I told him? but I don't know if he came across cocky or arrogant but he couldn't get anything reduced or changed. Yes, often a familiar and trusted (or at least respected) legal face can get done what you cannot. That's why I hate giving Free Advice.

Persuasion is less the words than the form. Just Saying I love You, and being sincere (and meaning it) are two entirely different things. Convincing a Judge and/or a Jury is much more than words. Sometimes the plumber or contractor can turn the wrench one less turn or add something (from their experience) that you cannot, that is the way of the world, not always fair but often true. DIY law is a play at your own risk game.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacadwi.com