Can I beat this ticket?

[cdswans]

Which means that it's up to the cop to decide whether you met the provisions of the law. And he has already said you didn't . .

It's up to the cop to render an opinion based on his observations and he did so by issuing the ticket. It's up to the judge to "decide whether you met the provisions of the law."

The law is vague and your lawyer shouldn't have any trouble making that clear. Vague is rarely construed to benefit the State. It's your advantage.

If the cop is writing tickets because he's scared by fast moving 18 wheelers passing within inches, he's in the wrong line of work. If he felt that you acted maliciously, carelessly or recklessly, he could have cited you for driving to endanger . . but I wouldn't bring that up . .

[Rev.Vassago]

But since the law is clearly written to be enforced by a subjective opinion, it's pretty much impossible to refute.

Cop: He didn't yield to an emergency vehicle on the side of the road

Prosecutor: And how did you determine this?

Cop: He was in the right lane, and travelling too fast.

Defense: How did you determine he was travelling too fast?

Cop: With my eyes, and the fact that he shook my vehicle when he passed me.

Defense: Can you readily determine how fast someone is travelling with your eyes?

Cop: Yes.

[cdswans]

This is a 4 page discussion with the other side's point of view . .

Move over law - Police Forums & Law Enforcement Forums @ Officer.com

The COPS like this law and they like enforcing it. Who can blame them? They also resort to a little chicanery which, while I don't like it, I still can't blame them for doing.

[cdswans]

But since the law is clearly written to be enforced by a subjective opinion, it's pretty much impossible to refute . .

You're arguing for the sake of arguing. If you'll agree, I'll bet a bottle of Petron on the outcome. Petron for you and Absolute for me. I doubt they'll ever get in front of a judge but for the sake of the bet, my position is no conviction.

[Rev.Vassago]

You're arguing for the sake of arguing. If you'll agree, I'll bet a bottle of Petron on the outcome. Petron for you and Absolute for me. I doubt they'll ever get in front of a judge but for the sake of the bet, my position is no conviction.

Normally I don't bet, but I will take this bet, based on a "guilty" or "not guilty" verdict. If he convinces a prosecutor to plead it down to a lesser conviction, then there's no reason to bet, as we won't know the TRUE result.

Based on the link to the police forum you provided, the "move over" laws haven't been contested all that much, and when they have, they tend to hold up. I am very curious on the outcome of this. Personally, I think the law needs to be more clearly defined.

[01WS6]

well ill be sure to let you all know the outcome of this, as i always do on here when i ask for help. The prosecutor and the cop have all refused a plea bargain with my lawyer, but that could change

[cdswans]

well ill be sure to let you all know the outcome of this, as i always do on here when i ask for help. The prosecutor and the cop have all refused a plea bargain with my lawyer, but that could change

Go to plol.org (it's free) and do a search under your statute #. You'll get plenty of results like this:

2004 Ohio 4990


State of Ohio, Plaintiff-Appellee,
v.
Carolyn Caplan, Defendant-Appellant.


Case No. 03 MA 91.


Court of Appeals of Ohio, Seventh District, Mahoning County.


Dated: September 17, 2004.

Her charge was the same as yours, she was convicted, she appealed and won her appeal. In her appeal, she raised two issues . .

Constitutionality of the statute because it is so vague . . the appeals court wouldn't address this because the issue was not raised at trial. Dumbass lawyering?

Weight of the evidence . . the court concluded she was right. All the details are in there. I found this to be of particular interest:

{¶18} The only absolute mandatory duty in the statute is to "proceed with caution." The duty to change lanes is a conditional duty that is dependent upon certain factors such as road conditions. Therefore, the key consideration here is whether or not it was possible for appellant-motorist to safely change lanes as contemplated by the aforementioned traffic provision. Appellant said she could not. (Tr. 16). The arresting officer said she could. (Tr. 9).


Her case was remanded back to the original court for a new trial. There is no information as to an outcome, if any, but I'd be very surprised to learn the prosecutor wanted to expend too many additional resources on relatively small potatos.

If you read it through, you'll get an idea of what's important to the court and how they see things. If your lawyer is any good, he's already aware of this (or similar) case(s) and can use it's outcome to help reinforce your case before trial.


I'd send you a link to make this easier but you have to register to get to this page. I've been registered here for over 2 years and have never received any spam, etc.

[Rev.Vassago]

Go to plol.org (it's free) and do a search under your statute #. You'll get plenty of results like this:

2004 Ohio 4990


State of Ohio, Plaintiff-Appellee,
v.
Carolyn Caplan, Defendant-Appellant.


Case No. 03 MA 91.


Court of Appeals of Ohio, Seventh District, Mahoning County.


Dated: September 17, 2004.

Her charge was the same as yours, she was convicted, she appealed and won her appeal. In her appeal, she raised two issues . .

Constitutionality of the statute because it is so vague . . the appeals court wouldn't address this because the issue was not raised at trial. Dumbass lawyering?

Weight of the evidence . . the court concluded she was right. All the details are in there. I found this to be of particular interest:

{¶18} The only absolute mandatory duty in the statute is to "proceed with caution." The duty to change lanes is a conditional duty that is dependent upon certain factors such as road conditions. Therefore, the key consideration here is whether or not it was possible for appellant-motorist to safely change lanes as contemplated by the aforementioned traffic provision. Appellant said she could not. (Tr. 16). The arresting officer said she could. (Tr. 9).


Her case was remanded back to the original court for a new trial. There is no information as to an outcome, if any, but I'd be very surprised to learn the prosecutor wanted to expend too many additional resources on relatively small potatos.

If you read it through, you'll get an idea of what's important to the court and how they see things. If your lawyer is any good, he's already aware of this (or similar) case(s) and can use it's outcome to help reinforce your case before trial.


I'd send you a link to make this easier but you have to register to get to this page. I've been registered here for over 2 years and have never received any spam, etc.

No, you don't need to register to get to it. I got to it quite easily:

http://www.supremecourt.ohio.gov/rod...-Ohio-4990.pdf

The dissenting view was particularly interesting, especially about how the appeals court gave more weight to the defendant's opinion than the law normally allows (this is an important point which is relevant in the OP's case as well, as the court will generally give more weight to the finder of fact - the officer - than they will a witness - the driver). This case you've cited seems to be an exception to the rule, and the dissenting judge states as much.

But this particular case, the ruling judges even give "special consideration" to this one case, rather than making it the rule of law (because of the location of the exit ramp, etc.), so it won't be applicable in the OP's case anyway.

It also does not address AT ALL section 2 of the statute, which states:



(2) If the driver is not traveling on a highway of a type described in division (A)(1) of this section, or if the driver is traveling on a highway of that type but it is not possible to change lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the speed of the motor vehicle, and maintain a safe speed for the road, weather, and traffic conditions.


And from what the OP stated, this is the section under which he was cited.

[SickRick]

The statutes in most of the states that I've checked seem to be as vague - mostly, by not specifying how much slower under the posted speed a driver has to reduce to - to be considered to be "maintaining a safe speed for the road".

With all the coppers that have gotten "picked off" while making traffic stops, it's quite understandable this offense would create a "soft spot in their heads" (so to speak), but nonetheless - a truck can still blow a smokey bear hat off someone's head on the shoulder and still be operating safely, below the speed limit, and conscious of the officers presence/safety and STILL get cited due the to vagueness of the law. Sure, most cops can visually tell the difference between 65 & 45 (since Florida law does state a 20MPH reduction, where Ohio's does not), and most judges are going to side with an officer on the SENTIMENT of this issue - but not necessarily on the LETTER OF THE LAW.

As cases get kicked back down from folks that can AFFORD TO APPEAL, the states are probably going to have to amend their statutes to be a little more specific. In the OP's case (from what he said), he really SHOULD HAVE seen the bubble-gum-machine on the side of the road in time to sufficiently slow down (or at least look like he was TRYING TO), since he didn't say; "I came around the blind curve, was "billboarded" by the van in front of me and didn't see him". If he was "otherwise distracted" and just wasn't paying attention and saw the cop at the last second - it's STILL ON HIM - as we're SUPPOSED TO BE PAYING ATTENTION. A well prepared attorney SHOULD be able to cast enough DOUBT in a judge/jury's mind, to beat the case regardless (again, if he's able to get past the sentimentality).

OTOH, the "cop forum" on the previously posted link, also shows that some cops are using the statute to create "revenue stream" and are specifically using a stopped unit (and RADAR) as "bait" to stop & cite offenders. Considering how much rubber-necking goes on whenever there's flashing lights on a road - you'd think folks would have slowed down enough to gawk, that traffic would be moving at a greatly reduced speed ANYWAY...

Rick

[cdswans]

No, you don't need to register to get to it. I got to it quite easily . .

I use the plol site because one search gets me into the courts of all 50 states. I start with the skin of the onion and work my way in. It's not unusual to find references to a statute from one jurisdiction or a higher court being used in another jurisdiction, especially if there is no case law in the home jurisdiction.

As to applicability, I think you under estimate the value of this statement, the ironic use of Absolute, notwithstanding.

The BIG COURT SAID . .

{¶18} The only absolute mandatory duty in the statute is to "proceed with caution." Their "PERIOD"; not mine.

I would call that definitive language. If OP's lawyer has half a brain he'll know how to use that language . .

"Yo, y'onna . . We are constrained by the court to it's interpretation of the statute."

By the way, the finder of fact is the trial court, not the cop.

As for the dissent, well, that's intense. First off, had the original case been tried in front of a jury, our speculative discussion would have ended already. In Ohio, a successfull appeal of a jury verdict would have required the unanimous consent of the three jodge panel. Since it was a bench trial, it required only a majority (2/3) and, in this case, it sucks being jodge #3.

[cdswans]

As cases get kicked back down from folks that can AFFORD TO APPEAL, the states are probably going to have to amend their statutes to be a little more specific . . ANYWAY . . Rick

Rick . . if this was just another "I F'd up" post, I might not have got involved.

I'm one of those drivers that has always moved over/slowed down, even before the signs came out. I certainly didn't have any problem when the signs came out but when I began to read how the law was being applied, I started to wonder if this wasn't a little bit like the seat belt laws . . It was perfectly legitimate but, in the way it was being enforced, it looked a lot like just another excuse to pull someone over. If you read the OUI cases, you'll see what I mean.

The OP states that, if he loses, he's going to be out of a job. So, I've looked a little deeper because I wouldn't want to lose my job to a screw that's had his hat blown off. My thinking is that, if I can help the OP to understand what he's up against, he can be prepared, win his case and avoid the cost of an appeal. If he's going to lose, he'll have a better idea of how he lost. In any event, we'll all have a few more Drivers who'll be a little more cognizant of how close they're following and what might lie ahead.

[Rev.Vassago]

I use the plol site because one search gets me into the courts of all 50 states. I start with the skin of the onion and work my way in. It's not unusual to find references to a statute from one jurisdiction or a higher court being used in another jurisdiction, especially if there is no case law in the home jurisdiction.

And like I said, I searched it on that site without registering.

As to applicability, I think you under estimate the value of this statement, the ironic use of Absolute, notwithstanding.

The BIG COURT SAID . .

{¶18} The only absolute mandatory duty in the statute is to "proceed with caution." Their "PERIOD"; not mine.

Ok, your point? The officer who cited the OP said that he wasn't. Now it is up to the OP to prove that statement incorrect. How exactly do you propose he is to prove that he was indeed "proceeding with caution?" Because he didn't kill anyone? That could have been dumb luck. As I've already said, answering that question is completely subjective. The officer says he wasn't, which is why he was given a citation. Even the OP states that he couldn't slow down more before encountering the emergency vehicle, which indicates a desire to. Now if the OP already felt he was "proceeding with caution," why would he want to slow down more? So that he can "proceed with more caution?"

By the way, the finder of fact is the trial court, not the cop.

No, the finder of fact is the prosecution, of which the officer is an extension. The court is the "trier of fact"

[navguy05]

Welcome to America, land of guilty till proven innocent. Looks like yet another driver falls victim to the "revenue stream" for Ohio. They can't get us for speeding so much anymore, have to get that all mighty dollar from truckers somehow. Maybe they're using the money from bogus tickets like these to get the cops all calibrated eye surgery so they don't need radar to tell exactly how fast I'm going. Wish I could look at a moving vehicle and tell how fast it was moving, I wouldn't even need a speedo in my truck anymore. Free up some dash space. They should get their own TV show, instead of Reno 911, and call it The Six Million Dollar BEARS. Anyway, sorry about your luck OP, getting caught up in this state-run money racket.

[cdswans]

Now it is up to the OP to prove that statement incorrect. How exactly do you propose he is to prove that he was indeed "proceeding with caution?"

'Nuf said. You have no idea what the heck you're talking about. The burden of proof is on the state.

[Rev.Vassago]

'Nuf said. You have no idea what the heck you're talking about. The burden of proof is on the state.

The state will prove their case with expert testimony from the cop. The defense then needs to prove that testimony to be wrong. This is basic courtroom procedure. If you honestly believe you don't need to disprove the prosecutor's case, then you clearly have no idea how a court works. "Innocent until proven guilty" is done the second the cop testifies. Then it's "guilty until proven innocent."

[Ridge Runner]

The state will prove their case with expert testimony from the cop. The defense then needs to prove that testimony to be wrong. This is basic courtroom procedure. If you honestly believe you don't need to disprove the prosecutor's case, then you clearly have no idea how a court works. "Innocent until proven guilty" is done the second the cop testifies. Then it's "guilty until proven innocent."

Good try, but NO! Just because he is a cop does not mean he is an expert. I'm not sure about Ohio but there is no where that I know of that has any training for an LEO to judge the speed of a vehicle with the eye that will stand up in court. As far as the driver staying in the right lane, can the cop show that the driver could have moved over? There is no way ( except for video from another car or an eye witness ). As far as "safe manner" goes, how can the cop prove unsafe? He didn't hit him did he?

If the OP puts up any kind of defense the charges should be thrown out. Now you have to admit I'm right because I ( was ) a cop and that makes me an expert in all matters of traffic violations. You have no defense unless you bring in another "expert" because my decision has more weight.


Sorry Rev. It don't work that way. The cop HAS to PROVE his case and only a small amount of the finding of the facts will poke holes in the cops case. I can think of only 2 or 3 questions that it would take to have the charges dismissed. Those questions DO NOT have anything with proving his innocence but to poke holes in the cops case. There is a big difference.

Follow me here: If you produce a GPS reading from the QC that shows that you were only going 35mph at the stated time then you are proving your innocence. If you ask the cop ( on the stand ) to show you his certification in judging speed with the necked eye, then you just blew his whole case.

[Rev.Vassago]

Good try, but NO! Just because he is a cop does not mean he is an expert. I'm not sure about Ohio but there is no where that I know of that has any training for an LEO to judge the speed of a vehicle with the eye that will stand up in court.

He wasn't given a citation for going a certain speed.

As far as the driver staying in the right lane, can the cop show that the driver could have moved over? There is no way ( except for video from another car or an eye witness ).

The cop witnessed it.

Sorry Rev. It don't work that way. The cop HAS to PROVE his case

No, the prosecutor needs to prove his case. He'll use the cop to do so.

and only a small amount of the finding of the facts will poke holes in the cops case. I can think of only 2 or 3 questions that it would take to have the charges dismissed. Those questions DO NOT have anything with proving his innocence but to poke holes in the cops case. There is a big difference.

Follow me here: If you produce a GPS reading from the QC that shows that you were only going 35mph at the stated time then you are proving your innocence. If you ask the cop ( on the stand ) to show you his certification in judging speed with the necked eye, then you just blew his whole case.

The OP already admitted to going past at 55 mph because he was incapable of slowing down more once he saw the cop. The reason for that is because he was following the truck ahead of him too closely (7 seconds according to the OP). I'm sure the court has a definition of what constitutes "yielding" under the law. If they don't, then the OP won the case. If they do, and can show the OP didn't do those things, then he lost. The fact that he was so free with the information here (that he couldn't slow down in time because of the truck in front of him) leads me to believe he also disclosed this, at least in part, to the cop.

[01WS6]

Actually Rev I didnt tell the cop anything other then i couldnt get over and said i was sorry i shook his car. Either way i expect to lose when i go to court in early november. ill let you know

[01WS6]

And as a side note Interstate Trucker told my employer about this ticket. Safety called me last week about it. Luckily im NOT getting fired over it even though it will be 4 points if convicted.

[Rev.Vassago]

And as a side note Interstate Trucker told my employer about this ticket. Safety called me last week about it. Luckily im NOT getting fired over it even though it will be 4 points if convicted.

Good news. Hopefully Interstate Trucker does a better job for you than they did for me.