Should You Fight Your Traffic Ticket?
By Aaron Larson
- Know the Charge
- Do You Need A Lawyer
- Know Court Procedure
- Criminal Charges
- Fact-Based Defenses
- Technical Defenses
- Will The Officer Appear In Court?
- Your Conduct In Court
- Your First Ticket
- Insurance Issues
While many people instinctively want to "beat the system" after receiving a traffic ticket, there are some factors which should be considered before deciding whether or not it is worth the effort to fight a ticket - or how a ticket should be fought.
Please note up front that many people are disappointed by their first experience with traffic court. It is not uncommon to hear people complain that the magistrate overseeing the traffic court did not listen to a single word of their defense, or that the officer lied and got away with it. When you consider fighting a ticket, be aware that it is usually an uphill battle.
The most important initial consideration is to know what you are being charged with. A traffic ticket will indicate, usually through a code, what offense the driver committed. There are statutes and ordinances which correspond to every traffic violation.
The most important initial consideration depends upon whether you are charged with a "civil infraction" - a traffic offense that carries only a fine and the possibility of "points" on your driving record - or a "traffic misdemeanor", which is a criminal offense. If you are charged with a traffic misdemeanor, it is a very good idea to consult with a lawyer before deciding how to proceed, as conviction "as charged" will result in your having a criminal record. Often it is possible to "plea bargain" a traffic misdemeanor down to a civil infraction, but it will benefit you to know local policies and practices before you approach a prosecutor with a request for such a deal.
If you are considering fighting a ticket, research the law to find out the elements of the violation, and whether you in fact violated the law. Sometimes it turns out that the conduct observed by the officer cannot support the ticket.
It is always beneficial to consult with a lawyer, and almost always a very good idea to hire a lawyer, when you are charged with a criminal offense, including a traffic misdemeanor (e.g., reckless driving, drunk driving, or driving with a suspended license). Even for a civil infraction, if you are from out of town it may be easier and cheaper for you to hire an attorney to appear in court on your behalf than to return to the jurisdiction to fight the ticket. For civil infractions, most jurisdictions will allow an attorney to argue on your behalf or to enter into a plea bargain, even when you aren't present.
It is usually beneficial to consult with a lawyer if you have a prior record of driving offenses, and are concerned about keeping your license. Such a consultation will give you a good idea of whether you should retain a lawyer's services to help you defend against the ticket.
Under most circumstances, it is not necessary to retain a lawyer for your first minor traffic offense, or if license is not at risk as a result of the offense, and if your insurance premiums are not likely to rise significantly as a result of conviction. Please note that for traffic misdemeanors, even if you have a spotless record you will usually benefit from retaining counsel.
In most jurisdictions, civil infractions are handled in a manner that mixes some of the elements of a civil action with some of the elements of a criminal action. Typically, you will have the opportunity to enter a plea by mail, or to schedule a court date to appear before a judge, magistrate, or hearing officer in relation to the ticket. There may be an opportunity to plead "guilty with an explanation", whether by mail or in court.
In some courts, a prosecutor will be present from the start to handle any hearings that might be necessary. The prosecutor will typically review your file and driving record, and may offer you a deal if you plead guilty to a particular traffic offense. Some deals are better than others - for example, if you have been issued two tickets, and the prosecutor offers to dismiss one if you plead to the other, the deal may have little effect on your fines and no effect on the "points" you will receive. On the other hand, "dismissal on costs" or the taking of the ticket "under advisement" can be a tempting offer even where you have a very strong defense. In a "dismissal on costs", after you pay a fine and court costs the ticket is dismissed and you don't get any points. Where a ticket is taken "under advisement", if you don't get any more traffic tickets within a particular period of time the ticket will be dismissed. (Note that not all jurisdictions permit traffic tickets to be taken under advisement.) In some jurisdictions, it may also be possible to attend traffic school in order to avoid a conviction on a traffic ticket.
If you are charged with a traffic misdemeanor, such as "reckless driving" or drunk driving, you will have additional rights as a defendant, as you will be facing actual criminal charges. The first court hearing on a misdemeanor is typically an arraignment, where the charge is read to you and you are asked to enter a plea. It is a bad idea to plead guilty "as charged", as it is frequently possible to work out a plea bargain to a criminal charge which will either reduce the charge or limit the possible penalties. If you plead "not guilty" or "stand mute" and have the court enter a not guilty plea on your behalf, the next hearing is ordinarily a "pretrial" where a prosecutor will be present. The purpose of a pretrial is to determine whether a case should be scheduled for trial, and how much time should be allotted by the court for trial.
If you are offered a very good deal by the prosecutor, such as having the criminal charge dropped if you plead to a particular civil infraction, you may wish to consider that offer so as to rule out the possibility of a criminal conviction. If you are not sure about the offer, you can tell the prosecutor that you will probably accept it, but would like to first speak to a lawyer. Most prosecutors will be amenable to scheduling a subsequent "plea hearing" where you would be able to accept the plea offer. Otherwise, the matter will be scheduled for trial.
Please note that it makes sense to consult with a lawyer before talking to a prosecutor about the charge. Even if you have to pay for a consultation, a lawyer can help you anticipate the type of offer you should receive, and whether or not you should accept a particular plea bargain. You don't necessarily have to hire a lawyer to appear in court with you - but it will usually benefit you to have a lawyer's advice.
If you are charged with a felony offense which involves your motor vehicle, always consult with a lawyer. If you cannot afford a lawyer, request court-appointed counsel.
The charge against you may involve a subjective evaluation of your driving conduct by the officer. For example, if you are charged with "careless driving", the officer will have to describe conduct which was in fact "careless". It may be possible to counter with an explanation for your driving conduct, based upon events beyond the officer's awareness - and which may even be consistent with what the officer has described. For example, if you are accused of making a sudden and dangerous lane change, almost striking another car, you may be able to reply that the car in front of yours had suddenly applied its brakes for no apparent reason, and you were responsing in the best possible manner to avoid an accident. If the officer was behind you, you can point out that the officer's view of these events was obstructed by your vehicle, and by the other vehicles in front of the officer's car.
If at all possible, back up your version of the events with witnesses or documentary evidence (photographs, diagrams, etc.) Note that you should not count on winning a "swearing contest" - if it is your word against the officer's, unless you can provide the court with compelling reasons to believe that the officer is lying, the officer's word will probably be taken over yours. Why? Because the officer doesn't know you from Adam, and has no apparent reason to lie. You, on the other hand, would directly benefit from misrepresenting the facts by having your ticket dismissed. While unfair, this holds true even where you are being completely honest and the officer actually is lying about what happened.
If you are going to claim that there was a physical problem at the location where you received the ticket, which resulted in such problems as the officer confusing your car with another due to an obstructed view, or foliage in front of a speed limit sign, it will help enormously if you take photographs from the relevant vantage points to document your defense. Such photographs should be taken as soon as possible after the ticket is issued, ideally under the same general weather and lighting conditions that existed at the time the ticket was issued.
Sometimes your defense may depend in whole or in part upon public records or police reports. Although it may be necessary to submit a formal written request and to pay a copying fee, public records of this sort are generally available as a matter of course from the agencies which keep them. You should obtain any records necessary to establish your defense in advance of your court date.
Depending upon your jurisdiction, you may be able to engage in more formal discovery with the prosecutor's office or police agency, or by obtaining a court order or subpoena for certain evidence. If you are charged with a traffic misdemeanor, the prosecuting authority will be required to make certain reports and evidence available to you upon request.
Many websites advise that you take detailed notes regarding the circumstances under which you were stopped, presumably so you can challenge the officer's memory of the traffic stop. Unfortunately, courts are very much aware that in a typical traffic stop the officer will have little or no actual memory of the stop, and that the officer's memory is "refreshed" on the basis of the traffic ticket or police report from the incident. The fact that the officer cannot remember various precise details, such as what you were wearing, is not likely to carry any weight with the court. (If there were elements of your traffic stop which make the officer sufficiently concerned to record such details, or to specifically remember the minutia of the stop, the odds are that you or one of your passengers engaged in conduct that was particularly obnoxious or put the officer in fear of his safety - neither of which will help you in court.) At the same time, taking detailed notes may help you remember exactly what happened, and may help you later figure out the best defenses to the charge, so it can still work to your benefit to follow that advice.
Sometimes you will be able to defend against a charge by pointing out that there was a problem with the signage regulating driver conduct, or some other technical issue which renders the charge against you invalid. Note that some jurisdictions offer a great many more technical defenses than others. You may wish to check for any resources specific to your state or jurisdiction, which outline available defenses which arise from your local laws.
Virtually every jurisdiction is subject to stringent regulation as to road design and signage, and violations of those regulations can provide a defense to a traffic violation. State rules are usually available at a reasonable price from the agency which issues them, and may be available for review at a local government office (such as a city attorney's office, or a county road commission office).
Sometimes your defense will mix technical and factual issues. For example, if following a storm a speed limit sign was obscured by a fallen tree branch, the presence of the tree branch is a factual issue, and the legal effect of having the sign obstructed is a technical issue. Keep in mind that virtually every maintenance action made by a government agency is a matter of record. From the time a fallen tree branch was reported to the time it was removed, there should be a paper trail indicating when the report was made, when the work order was issued for the removal of the branch, and when the branch was removed.
Much advice on the Internet focuses on how to minimize the chance that the officer who issued your ticket will appear in court on the day of your hearing. The reason for this is simple: If you are charged with a civil infraction and the officer does not appear, in most jurisdictions the ticket will be dismissed. In fact, most victories in traffic court result from the failure of the officer to appear. However, you should still be prepared for the probability that the officer will appear in court, and should either be prepared to work out a plea deal or to defend your case if the officer appears. (Please note that some jurisdictions will adjourn a case when a prosecutor fails to appear, or schedule an initial pretrial where the officer is not required to appear before scheduling a second formal hearing to resolve your challenge to the ticket.)
To reduce the chance that the officer will appear, you can attempt to obtain an adjournment (or "continuance") of your first scheduled court hearing. The possibility increases that the officer will have other duties on the date of the adjourned hearing, and will not be able to appear in court. An adjournment can be requested by contacting the clerk of the court. Depending on local rules, you may be required to send in a letter or a more formal request documenting why you need the continuance. Please be sure to confirm whether or not the continuance was granted before you neglect to appear in court for the hearing - your request alone is not enough to adjourn a court date.
Please note that if you appear in court to contest a ticket, you should dress for the occasion. Dressing appropriately (think "in your Sunday best") sends the court the message that you take the charge seriously, and that you respect the court. Some courts impose dress codes which, although typically not excessively rigid, should not under any circumstances be violated - if you don't intend to dress for the occasion, at least find out what will get you sent home to change your clothes. Don't under any circumstances wear shorts, sleeveless shirts, halter tops, or miniskirts to court. Such clothing almost invariably will violate any dress code that is in place, and sends the message that you have no respect for the court. Do not wear a hat in the courtroom.
Also, do not attempt to record court proceedings unless you first verify with the court that it is allowed. Most jurisdictions forbid you from making any type of electronic recording, and people have been held in contempt of court for making unauthorized audio recordings of judicial proceedings. In most states, an official record of proceedings is available from a court reporter.
If you have plans to make your ticket the "trial of the century", you may be in for an unpleasant surprise. Traffic court matters are often short and cursory. You may have to be quite assertive in order to convince the court to permit you to present your full defense, and may find the magistrate or hearing officer to be quite impatient with your questioning of witnesses or the officer who issued the ticket. Try to avoid being intimidated, and be prepared to explain to the court the significance of the evidence you seek to introduce, or what you anticipate learning from a particular line of questioning. If the court simply won't allow you to pursue a line of questioning you believe is necessary, state on the record the defense you are trying to establish, and explain how the court's limits will prevent you from establishing that defense. In a best case scenario, you will be permitted to continue. In a worst case scenario, you have made a better record for appeal.
The easiest ticket to fight is yoru first ticket. Once you have a record of traffic violations, everybody from the officer who issues your next ticket through the prosecutor who evaluates your case for a plea bargain will know of your prior offenses. At the same time, even if you are unquestionably guilty, the chance of getting a really good plea offer are best when you have a clean record. Similarly, the odds of getting a break or a warning the next time you are pulled over are much better if you manage to keep that first ticket off of your record. Thus, even if you fully intend to take responsibility for the violation if no offer is made, it makes sense to schedule a court date and speak to the prosecutor about the possibility of a deal before you plead guilty to that first violation. (This also lets you benefit from the small chance that the officer will not appear in court, possibly resulting in dismissal.)
If your traffic court hearing falls within a critical time for your insurance (e.g., right before your policy is up for renewal), you may wish to obtain a continuance to delay the hearing until after you have renewed your policy. While insurance companies do not always verify driving records before renewing policies, they frequently do. Thus, delaying the court hearing until after renewal can give you a reprieve on any increase in your premiums that would follow from conviction.
While you have a right to appeal a conviction in traffic court, the technical process of perfecting an appeal can be onerous the first time a person attempts an appeal. Also, it is very difficult to prevail on appeal, as the presumption is ordinarily that any reasonable inference of fact is to be made in favor of the appellee (in this case, the prosecution) - after the initial conviction, there is no presumption of innocence. If you wish to appeal, it makes sense to consult with an attorney about the viability of the appeal and the technical process involved.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.