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  1. #1
    Join Date
    Nov 2008
    Posts
    1

    Question Using Due Care

    My question involves a careless driving ticket from the State of: TN

    I came upon an accident at which there were 3 patrol cars and two fire engines. I was stopped on a 4 lane highway right about 50 yards from the accident. A fireman waved me to proceed which I did very slowly. After traveling about 20 yards I saw an officer in the middle of the 4 lane who was not looking my direction. I decided that he wasn't aware that the traffic had been waved through by the other fireman and quickly stopped. I was at least 30-40 feet from the officer. I was on my cell phone at the time but I was paying close attention. Another officer who was on the other side of the highway came running across screaming at me to pull off the road. He proceeded to yell at me saying that I almost hit the officer. I didn't. I was paying close attention. It was through paying attention that I realized that the officer didn't know that the fireman had let the traffic through. Still the other officer gave me a ticket for Due Care and gave me 2 citations. He was very angry so I was contrite and didn't say anything to him other than I was sorry. I think that his adrenaline was up. I have NEVER had a ticket in my life OR been involved in an at fault accident and I am 54 years old. Should I fight this in court. I think it is very unfair that he gave me 2 moving violations. The only thing marked on the citation is "Other 1" Then the officer wrote in TCA 55-8-136 Due Care.

    Do I have a chance of fighting this in court?

    BB

  2. #2
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,013

    Default Re: Using Due Care

    Given that you were talking on your cell phone at the time, the officer could easily argue that you were not "paying close attention" at all, his own lack of attention notwithstanding.

    Consult with an attorney to help sort out your options. You may have a rough go of things on your own when it's noted that you were on the phone at the time of the citation. The courts don't look too favorably upon what my favorite local judge calls "yapping and driving".
    I'm not a lawyer, but I play a researcher on the internet!
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  3. #3
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,576

    Default Re: Using Due Care

    I think I'd fight it. The statute you are accused of violating reads:
    Quote Quoting TCA 55-8-136
    Notwithstanding the foregoing provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.
    You obviously did NOT collide with "any pedestrian" and you, therefore, MUST have exercised "due care" in avoiding it. In fact, you did NOT even feel it was necessary to sound your horn. I suppose that the prosecutor could argue that the officer was "confused or incapacitated".

    We had a law similar to this in WA, however, it was struck down for being unconstitutionally vague.

    Good luck,
    Barry
    Where am I going? And why am I in this handbasket?

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