We should all thank Michael for a detailed and informative post.
Best regards,
Alan Lambert
--- En date de : Ven 14.1.11, Michael Liu <[email protected]> a
icrit :
De: Michael Liu <[email protected]>
Objet: RE: [alfa] citation issue (non-Alfa)
@: [email protected], [email protected]
Date: Vendredi 14 janvier 2011, 3h52
Hello Michael,
Unfortunately for your son, much of the advice you will be getting will be
too late to help. (Note: I'm going to use the terms "you" & "your" for
simplicity and clarity. Fill in the defendant of your choice.)
The best time to contest a ticket is BEFORE you go to trial... by preparing
a solid case in your favor! The two things you MUST do before trial are:
1. Collect evidence to support your case (and in traffic cases, that means
ASAP after the ticket). Without evidence, then it's simply the defendant's
word against that of the police officer, and we all know who will win that
battle.
2. Study the law that pertains to your case.
I am NOT an attorney, but I've successfully defended myself in both traffic
and civil matters. IMHO, most lawyers are overrated and not always as
helpful as we are led to believe (apologies to any lawyers on the digest);
they are all too happy to take your money, but at the end of the day, YOU
are the one who must face the music. IOW, no one will care more about your
case than you. I've found people tend to think that just by having a lawyer,
that they (the defendants) can just pass the whole thing off and not do any
work themselves. That's how they lose their case. The only times I would say
you MUST have an attorney is for a DUI or any case involving injury, death,
or serious property damage. But for "regular" traffic infractions, save your
money.
Regarding the appeal, there is good news for your son (provided he acted
quickly). In VA, you do have a right to appeal a General District Court
decision by requesting a trial de novo in the Circuit Court. A trial de novo
is a completely new trial and your son may introduce new evidence on his
behalf (unlike a typical appeal, which only reviews a decision for judicial
error). However, to get a trial de novo, the appeal must be requested within
10 calendar days of the General District Court conviction. The lawyer your
son talked to should have told him all this. (But I wouldn't be surprised if
he didn't. See my comments above.)
So, back to what your son SHOULD have done after he was initially cited:
STEP 1: When the officer hands you the ticket, review all the information
for accuracy BEFORE signing it. That means, date, time, weather conditions,
etc. This is not the time to get in a fight with the officer, but if
something is obviously wrong, it should be POLITELY brought to the officer's
attention. If the officer refuses to correct it, then one must consider what
to do next. Also, if you do not know where the officer was located at the
time he witnessed the infraction, ask him to tell you. You want to know not
just where he was, but which direction he was headed, was he stopped or
moving, etc. But again, you have to be careful and diplomatic in getting
this information.
[Sidebar: I once was issued a ticket by an officer and he wrote that the
road conditions were wet. When I politely and respectfully asked the officer
to show me where the pavement was wet (it was bone dry where we were
standing and as far as the eye could see in all directions), he threatened
to arrest me if I didn't shut-up and sign the ticket. So there was not much
I could do at that point. (Btw, this was in Virginia Beach and, as US Naval
Officer at the time, I was in full uniform. My guess is that this cop had a
grudge.)]
STEP 2: Immediately after being issued the ticket, fake a phone call or
something so the officer leaves. Then look for witnesses that might help
support your story. If so, give them a pen and paper and ask them to briefly
write down what happened (or they can dictate and you write). Make sure they
write and sign their name, write date and time, and provide some contact
information. After your finished with witnesses, take your note pad and
write down your complete version of what happened, including the date &
time, the position and motion of your vehicle, environmental conditions,
traffic conditions, etc. Write these details even if the same as what the
officer put on the ticket, but especially if different. Then sign, date, and
time that paper. Even if the judge ignores that as evidence, it will be very
useful to you in preparing your case. If for some reason you are not able to
do this immediately after the citation, then do it ASAP! But never fake the
date or time (or any other information) you put on that paper.
STEP 3: Collect evidence. Start by drawing a map of the area. Note the
position and motion of your vehicle and of the officer's vehicle. Next break
out the camera. The best exculpatory evidence is photographic, if you can
get some that's relevant to your case. Remember, a picture is worth a
thousand words! For example, if the officer claims you were fishtailing
around the corner (or squealing tires, etc), one would expect there to be
tire marks on the pavement to support that claim. If there are no marks,
then photos of the "clean" pavement will go a long way to diminishing the
officer's testimony. But even if you are not so lucky to have obvious
exculpatory evidence as I've just described, you still should photograph the
area and the approach to the area. Make sure you photograph any relevant
signs (speed limits, stop signs, etc.) and note their location on a map of
the scene. Also take photos from the officer's perspective. I would take
those photos both standing outside, as well as from inside a car similar to
the patrol vehicle (you don't want to take from a high-riding SUV when the
officer was driving a sedan). Additional evidence you can collect would be a
detailed weather report for the area and date/time of the citation. (In your
son's case, that could have been introduced as evidence to challenge the
officer's testimony that the weather was "clear".) Remember: even one piece
of HARD evidence that contradicts the officer's testimony will usually be
enough to get the case dismissed.
STEP 4: Prepare your case. Start by going to a law library and reading the
actual vehicle code the officer used to cite you. You may be surprised at
how voluminous the vehicle code is compared to the paltry information you
are given and tested on in DMV offices. Next, compile all your evidence into
a binder with an index and the beginning and each section tabbed so you can
find it quickly during the hearing. Also make "exhibit" copies of everything
(also bound, indexed, and tabbed) to give to the judge so he can follow
along (he may even review the case after the hearing before rendering a
decision, so that's another reason you want him to have copies of all your
evidence). Next plan your testimony. You may want to rehearse in front of
friends or family, especially if you are intimidated by public speaking. You
definitely want to review ALL the evidence of your case the day before your
court date so it's fresh in your mind.
STEP 5: Go to trial to win! Get a good night's sleep before trial. Eat a
decent meal. Dress and groom well. There's a reason why defense lawyers put
thugs and gang bangers in button-up shirts, sweaters, and slacks for court.
Arrive EARLY! Go to the bathroom beforehand. Sometimes, the docket is full
and you may be the last case called, so you want to be comfortable. Also, as
you sit and get nervous, you may get a dry mouth, so I like to bring some
bottled water in my brief case. Just be discrete and respectful in the court
room.
STEP 6: The officer will present his testimony first. Usually, it's a very
basic oral statement summarizing the events leading to the citation. It's
very rare that he will introduce any evidence against you. That is your
advantage. Pay attention to the officer's testimony and take notes,
especially if he says ANYTHING that you can contradict with hard evidence.
When it's your turn to address the court, hand the bailiff the prepared
exhibits to pass to the judge. Then offer your testimony, referencing the
exhibits you provided. For traffic cases, I like to use the court's
whiteboard or presentation pad to draw the map of the scene and then walk
the judge though the course of events, backing up your narrative with your
photographs, etc.
So there you go. It IS a lot of work, and I do not recommend it for a simple
speeding bust (you're probably guilty in those cases anyway). But if the
consequences of the citation are dire, this is your best way to get a
favorable ruling (assuming you really ARE innocent).
Good luck!
Michael Liu
'90 Alfa Spider
'69 FIAT 124 Spider
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