User Tag List

Reply
 
LinkBack Thread Tools
  #21  
Old 09-20-2009, 04:33 PM
cdswans's Avatar
Senior Board Member
Join Date: Feb 2007
Location: Sparks, NV
Posts: 725
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by Rev.Vassago View Post
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 . .
__________________
START FRESH. GET INVOLVED LOCALLY. SEND A CLEAR MESSAGE. NO INCUMBANTS. VOTE THE BUMS OUT!
Reply With Quote
  #22  
Old 09-20-2009, 05:17 PM
Rev.Vassago's Avatar
Guest
Board Icon
Join Date: Apr 2006
Location: The other side of the coin
Posts: 9,368
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

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.
Reply With Quote
  #23  
Old 09-20-2009, 05:27 PM
cdswans's Avatar
Senior Board Member
Join Date: Feb 2007
Location: Sparks, NV
Posts: 725
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

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.
__________________
START FRESH. GET INVOLVED LOCALLY. SEND A CLEAR MESSAGE. NO INCUMBANTS. VOTE THE BUMS OUT!
Reply With Quote
  #24  
Old 09-20-2009, 05:41 PM
cdswans's Avatar
Senior Board Member
Join Date: Feb 2007
Location: Sparks, NV
Posts: 725
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by Rev.Vassago View Post
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.
__________________
START FRESH. GET INVOLVED LOCALLY. SEND A CLEAR MESSAGE. NO INCUMBANTS. VOTE THE BUMS OUT!
Reply With Quote
  #25  
Old 09-20-2009, 06:21 PM
Rev.Vassago's Avatar
Guest
Board Icon
Join Date: Apr 2006
Location: The other side of the coin
Posts: 9,368
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by cdswans View Post
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.
Reply With Quote
  #26  
Old 09-20-2009, 11:26 PM
01WS6's Avatar
Rookie
Thread Starter
Join Date: Apr 2009
Posts: 47
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

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
Reply With Quote
  #27  
Old 09-21-2009, 09:23 PM
cdswans's Avatar
Senior Board Member
Join Date: Feb 2007
Location: Sparks, NV
Posts: 725
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by 01WS6 View Post
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.
__________________
START FRESH. GET INVOLVED LOCALLY. SEND A CLEAR MESSAGE. NO INCUMBANTS. VOTE THE BUMS OUT!

Last edited by cdswans; 09-21-2009 at 09:35 PM.
Reply With Quote
  #28  
Old 09-21-2009, 10:10 PM
Rev.Vassago's Avatar
Guest
Board Icon
Join Date: Apr 2006
Location: The other side of the coin
Posts: 9,368
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by cdswans View Post
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.
Reply With Quote
  #29  
Old 09-22-2009, 02:27 AM
SickRick's Avatar
Board Regular
Join Date: Apr 2009
Posts: 210
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

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
Reply With Quote
  #30  
Old 09-22-2009, 02:59 AM
cdswans's Avatar
Senior Board Member
Join Date: Feb 2007
Location: Sparks, NV
Posts: 725
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Mentioned: 0 Post(s)
Tagged: 0 Thread(s)
Default

Quote:
Originally Posted by Rev.Vassago View Post
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.
__________________
START FRESH. GET INVOLVED LOCALLY. SEND A CLEAR MESSAGE. NO INCUMBANTS. VOTE THE BUMS OUT!

Last edited by cdswans; 09-22-2009 at 04:24 AM.
Reply With Quote
Reply





Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On



All times are GMT. The time now is 11:02 AM.


User Alert System provided by Advanced User Tagging v3.3.0 (Lite) - vBulletin Mods & Addons Copyright © 2024 DragonByte Technologies Ltd.