Right Description, Wrong Statute

[voklust]

My question involves a traffic citation from the state of: New Jersey
My 16 yr old got a couple of tickets. One for rolling through a stop sign (failure to stop or yield) and one for operating moped w/o a license. The ticket for the operating w/o a license has the wrong statute# written in (the statute they have is for riding a moped with more than 1 person on it.) He was driving w/o a license and said his brake had failed causing him to roll through the stop sign. Can I request that the wrongly written ticket be thown out due to the indiscrepancy? Should I mention this to the prosecutor when I try to plea down the tickets?
THX

[M'sta Mikey]

Sure, you can ask that the ticket with the wrong statute be dismissed. But when you're asked as to what grounds you base your request for dismissal, be sure to tell the prosecutor that he was in fact driving without a license and not that he had an additional passenger! A driving without a license will always trump the riding with more than one rider. At least for the latter, the courts might assume his license was valid

I'm not trying to be a smart, just stating the facts based on what you posted.

[licensegrl]

My question is why this 16 year old already has been stopped twice by police. Sorry to not seem "innocent until proven guilty" on this one but really.....how long has the "CHILD" had his license. And yes, I mean to emphasize the word "CHILD". Just because they have reached the legal age to apply for a license by no means implies that they are actually responsible and mature enought to assume the responsibility of operating a 3,000 pound piece of steel with the power to kill. Only you, the parent can really judge that. Too many parents beleive that because the State issued a license or permit to the child, that they are therefore responsible enought to drive. Anyone can pass by luck. Talk to your child.....ride in the car with him and FULLY observe his actions.....then, if you TRULY believe he can handle the responsibility...defend his actions behind the wheel.

[voklust]

Man when I came on here it was to try to get some help, not parenting advise. My son made a mistake. He took his MOPED, (not a vehicle weighing 3000 pounds) to his workplace to get his check without his parents permission. He made a mistake of judgement and got caught. He was punished by ME (the bike is away for 3 months) and now the courts. I'm just trying to get some professional advice as to how I should handle the situation. God knows the cops and courts will try to get us on everything they can to collect their "fines". Believe me there's no coddling. The kid's a good kid, he works for his spending money, is on the honor roll and usually uses better judgement. The points assessed will punish ME when I go to pay for insurance. So back off Dr. Spock's of the world.

[blewis]

As far as your original question -- will the wrong statute be enough to get that ticket dismissed -- it's hard to tell. I'm not familiar with NJ law, but in WA it certainly is enough for a dismissal.

The "description" on the ticket is one thing, but the statute contains the actual "elements" that must be proven in order to get a conviction. In order to defend yourself, you must, therefore, know the elements. We have case law on the books that basically says that a defendant is NOT responsible for researching the law in order to determine the charges against him/herself.

Unfortunately, I don't know if it's the same in NJ, but it might be worth a shot. There's also a chance that the officer won't show up, which I think is a requirement in NJ. Lwpat or Mr. Knowitall might be able to provide better answers -- I'm on the other side of the country.

Good luck,
Barry

[ashman165]

My question is why this 16 year old already has been stopped twice by police. Sorry to not seem "innocent until proven guilty" on this one but really.....how long has the "CHILD" had his license. And yes, I mean to emphasize the word "CHILD". Just because they have reached the legal age to apply for a license by no means implies that they are actually responsible and mature enought to assume the responsibility of operating a 3,000 pound piece of steel with the power to kill. Only you, the parent can really judge that. Too many parents beleive that because the State issued a license or permit to the child, that they are therefore responsible enought to drive. Anyone can pass by luck. Talk to your child.....ride in the car with him and FULLY observe his actions.....then, if you TRULY believe he can handle the responsibility...defend his actions behind the wheel.

My read of OP's post is that it's two tickets arising from a single stop, not two separate stops - which makes more sense than your reading because we'd then expect to see two tickets for not having a license.

OP: if the officer wrote down the wrong statute, then you can reasonably argue in court that your son doesn't meet the elements of the offense the officer actually wrote down because of <insert reasons here>.

Don't listen to the morally indignant on here who clearly can't be bothered to read what you actually wrote and take away from it the logical implications. Your son is 16; like all teenagers, he's going to make mistakes like this. No one's child is without fault, so do what you have to with him but assert what legal rights you can in the court. Just because he's a "child" as someone put it doesn't mean that he doesn't have a right to the same process of law that this "adult" (the one who can't read and understand grammatically correct, properly constructed sentence) has.

Back to the actual court date: if they wrote him for having more than one person on the moped and he didn't, then you can use the officer's probable cause statement during the court proceeding to show that an insufficient accounting of the facts in this case supports the ticket. Namely that nowhere in the statement did the officer mention that there was indeed more than your son on the moped. And to the corollary, if the officer had meant to cite your son for not having a license, then he could have done so. However, the officer chose to cite him for having more than one person and the court, so you'd argue anyway, shouldn't involve itself in the process of trying to determine what was in the officer's head, but should instead restrict its analysis to the facts as they're actually presented.

Good luck.

[Mr. Knowitall]

Lectures about your parenting aren't helpful, and I'm not sure why people think they are appropriate, but it's no more helpful to let them get to you. Ignore them.

It would be helpful to have statute numbers. The New Jersey legislature has put the state's statutes online, but through a site that's horrible to browse or search.

The biggest question is, what offense could be charged for driving without a license and what are the consequences of that charge? If it escalates the case from being a traffic violation to a misdemeanor, escalates the penalty to involve a license suspension, or will put your insurance through the roof, it's worth questioning (as M'sta Mikey suggested) whether your challenging the mistake may end up making your situation worse - by getting the charge amended from a less serious traffic violation to a more serious and more consequential violation.

The fact that he had no passenger is a great defense to a ticket for unlawfully having a passenger, but if the charge is amended it provides no defense to driving without a license. The prosecutor will be aware of what the officer intended to charge, as it is written out on the ticket. With due respect to ashman165's speculation, odds are there's no such "probable cause" statement required above and beyond the issuance of a traffic ticket.

Obviously, before your son starts riding the moped again, the brakes should be fixed. That's a huge safety issue.

[ashman165]

Lectures about your parenting aren't helpful, and I'm not sure why people think they are appropriate, but it's no more helpful to let them get to you. Ignore them.

It would be helpful to have statute numbers. The New Jersey legislature has put the state's statutes online, but through a site that's horrible to browse or search.

The biggest question is, what offense could be charged for driving without a license and what are the consequences of that charge? If it escalates the case from being a traffic violation to a misdemeanor, escalates the penalty to involve a license suspension, or will put your insurance through the roof, it's worth questioning (as M'sta Mikey suggested) whether your challenging the mistake may end up making your situation worse - by getting the charge amended from a less serious traffic violation to a more serious and more consequential violation.

The fact that he had no passenger is a great defense to a ticket for unlawfully having a passenger, but if the charge is amended it provides no defense to driving without a license. The prosecutor will be aware of what the officer intended to charge, as it is written out on the ticket. With due respect to ashman165's speculation, odds are there's no such "probable cause" statement required above and beyond the issuance of a traffic ticket.

Obviously, before your son starts riding the moped again, the brakes should be fixed. That's a huge safety issue.

I was laboring under the assumption that even in her state officers are required to attach to a citation some statement of the facts which led them to believe x crime was committed as opposed to the standard of proof being simply that an officer said it happened. This is generally known as a statement of "probable cause" instead of a "I have said it happened, thus it has happened as the standard of proof in this state is merely that a police officer has said it happened" statement.

This is why it's sometimes better not to speak with the prosecutor before the case comes to trial. By doing so this parent introduces the serious possibility of bringing to the attention of the prosecutor a legally deficient error, the kind of which can get the charge dismissed. He might not otherwise note the infirmity of the citation and this parent's mere speaking to him would point it out for sure.

If it isn't pointed out to the prosecutor, there's a very real chance it will go unnoticed. Calling it to the attention of said prosecutor will remove any chance of this defense.

[Mr. Knowitall]

I was laboring under the assumption that even in her state officers are required to attach to a citation some statement of the facts which led them to believe x crime was committed as opposed to the standard of proof being simply that an officer said it happened.

Why? List the states where that is required in association with the issuance of a traffic citation.

This is why it's sometimes better not to speak with the prosecutor before the case comes to trial. By doing so this parent introduces the serious possibility of bringing to the attention of the prosecutor a legally deficient error, the kind of which can get the charge dismissed.

I don't think there has been any dispute by anybody that, if this citation goes to hearing and there's no evidence that there was in fact a passenger, the moped driver's not going to be convicted of riding with a passenger. But when contacted prior to the hearing or at the hearing, the prosecutor is going to read the words on the ticket ("operating w/o a license") and know the officer's intention. I don't see a way to defend against the ticket on the basis of the mistake without bringing the error to the attention of the court and prosecutor, raising the possibility of amendment, and thus raising the question of whether that will leave the driver in a worse position.

[ashman165]

Why? List the states where that is required in association with the issuance of a traffic citation.

I don't think there has been any dispute by anybody that, if this citation goes to hearing and there's no evidence that there was in fact a passenger, the moped driver's not going to be convicted of riding with a passenger. But when contacted prior to the hearing or at the hearing, the prosecutor is going to read the words on the ticket ("operating w/o a license") and know the officer's intention. I don't see a way to defend against the ticket on the basis of the mistake without bringing the error to the attention of the court and prosecutor, raising the possibility of amendment, and thus raising the question of whether that will leave the driver in a worse position.

The constitutional requirement is no longer that a defendant is entitled to know the evidence against him so as to prepare a defense?

All cases of this nature must have a statement of the facts or else they must be dismissed. Period.

But to answer your question, New Jersey is one such state that requires a signed attestation of probable cause, usually within 30 days. Its supreme court noted that lack of the attestation of probable cause (meaning the signature by the officer, not the actual statement of probable cause) isn't an absolute bar to prosecution because the officer can later sign his probable cause statement. But the statement of probable cause isn't optional; it's required.

But don't take my word for it. Read it yourself.