Negligent Driving Second Degree in Washington

Hello
received a ticket for Negligent Driving 2nd Degree this past weekend.
THe office said he clocked me first at 86mph then 90mph at the bottom of the hill, and wrote 90mph on the ticket. This was in a 70mph zone.
While I don't remember exactly how fast I was going, I'm quite sure I was not going 90mph. Further, definetly not driving negligently as I was only drving in a straight line no swerving or anything of that nature.
If he gave me a ticket for speeding only then so be it but a $550 ticket for negligent driving I feel is unfair.

I want to contest this, however, have a few questions

1)Is it best to pay an attorney to represent me in court? I am not very profecient with legal jargon.

2)I am contesting the fact the officer said I was driving negligently. However, if the court rules in my favour, would they still charge me for speeding?

3) What are the things I will need to look out for to challenge this ticket? any suggestions on missed processes, wrong procedures that would have this case dismissed?

thankyou

sorry guys, I will repost in another forum as 2nd deg. Neg Driving is not a criminal offence

RCW 46.61.525
Negligent driving — Second degree.


(1)(a) A person is guilty of negligent driving in the second degree if, under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.

(b) It is an affirmative defense to negligent driving in the second degree that must be proved by the defendant by a preponderance of the evidence, that the driver was operating the motor vehicle on private property with the consent of the owner in a manner consistent with the owner's consent.

(c) Negligent driving in the second degree is a traffic infraction and is subject to a penalty of two hundred fifty dollars.

(2) For the purposes of this section, "negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.

(3) Any act prohibited by this section that also constitutes a crime under any other law of this state may be the basis of prosecution under such other law notwithstanding that it may also be the basis for prosecution under this section.

[1997 c 66 § 5; 1996 c 307 § 1; 1979 ex.s. c 136 § 86; 1967 c 32 § 69; 1961 c 12 § 46.56.030. Prior: 1939 c 154 § 1; RRS § 6360-118 1/2. Formerly RCW 46.56.030.]

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You can ask for discovery (I dont know if you can defer this one??) .. and you have the right to conduct an investigation in WA (see discovery rules). You do not have the right to depose the cop.

But you can interrogate (and video tape?) the cop in an investigation .. and if they do not cooperate, I think a motion to dismiss would be in order.

Nice to see its an affirmative defense ... I would motion to dismiss just on this ground .. that the ticket itself is proof of a violation .. not exactly innocent until proven guilty is it?

Also, the law is vague. Motion to dismiss on these grounds.

You can see an attny if you do not feel up to battling it out in "court".

Begin with discovery ... or seeing an attny

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Quoting apex188

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1)Is it best to pay an attorney to represent me in court? I am not very profecient with legal jargon.

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That depends. Fighting this won't be much different from fighting a speeding ticket. But, an attorney would charge somewhere near $500 for the case.

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Quoting RCW 46.61.525

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(1)(a) A person is guilty of negligent driving in the second degree if, under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.

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If the officer fails to prove that you were speeding, the case should be dismissed. As, what are speed limits for?

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Quoting apex188

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2)I am contesting the fact the officer said I was driving negligently. However, if the court rules in my favour, would they still charge me for speeding?

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If the court rules in your favor, no. Unless you contest on the wrong basis. In law, you fight from the ground up. That is, how did the cop determine you were driving negligently? By your speed. If you fight the case on the speeding aspect, then you have a chance. If you fight the case on what you're saying: "I was driving in a straight line," you might as well just pay the fine, because you will be convicted.

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Quoting apex188

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3) What are the things I will need to look out for to challenge this ticket? any suggestions on missed processes, wrong procedures that would have this case dismissed?

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The answer to that question lies in this thread.

When you're done with that thread, read this one.

If you're still confused, come back and ask questions. Be sure to read the threads thoroughly.

Brendan

Thanks for the response.
The office only wrote "Neg Driving 2nd", then "PL1352/1429F"
any idea what this would mean?

I understand that I should fight it from the ground up, however, I'm still not sure why he gave me a negligent driving ticket instead of just speeding. If I was going over 80mph, is that considered negligent?
I was thinking of fighting it on this basis that speeding does not equal to negligence. Or is this a very weak argument?

Is it true that I can contest it first then once I receive the discovery request then have the option for mitigation if I choose?

your comments are much appreciated.

Arguing speed does not equal negligence is a legal argument - you could argue this prior to trial with a motion to dismiss. Search out case law to see if any support is shown for the argument - I cannot find any case law that says that speeding by itself is grounds for the charge. You should check into this further -- I checked back only 10 yrs.

You would be wrong in your defense that "speeding is not negligent." Speeding is negligence. That's why there are speeding laws. Your argument isn't even an argument at all. An officer could write you a neg driving 2 ticket for being 2 mph above the speed limit. You have to read the statute to understand what you're charged with.

If the officer didn't write the RCW, then you can tell the court that you haven't been properly charged and can most likely get the ticket dismissed.

Your last question is confusing, to say the least. Yes, you can choose to contest the ticket and then change your hearing, but you can not argue the case, then mitigate it after words.

Brendan

Thanks Brendan.
yes he did write on the Statute code/ RCW 46.61.525.

I do undestand that negligence is pretty much anything breaking the law. Looks like whether an office gives a ticket for speeding or one for negligence is really up to the officers preference at the time. It would be his statement against mine which I know who the courts favour.
Looks like it would be pretty hard to argue unless I look for a procedural error etc.

I was just hoping to check off the box to contest it, request the discovery requests, then see what the officer's statement say. If it looks like I have no way out then I request a mitigation before the hearing.

Brendan is correct, speeding is negligent; but that by itself would not support the charge of negligent driving 2nd degree. Thats what I meant to say. Much much more has to be proven for the 2nd degree charge.

Cases involving 2nd degree include:

2001 Wash. App. LEXIS 1615,*
STATE OF WASHINGTON, Respondent, v. RORAY JANES LAROUCHE, Appellant.
No. 47326-3-I COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2001 Wash. App. LEXIS 1615
July 23, 2001, Filed

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At the time Trooper Sterkel followed Mr. Walden off the freeway and observed the Camaro park behind the sandpile, the trooper had probable cause to arrest Mr. Walden for negligent driving. RCW 10.31.100; RCW 46.61.525; State v. Nelson, 81 Wn. App. 249, 251-52, 914 P.2d 97 (1996). The purpose of the negligent driving statutes is to allow police to arrest and remove from public streets those persons engaged in dangerous conduct. Id. at 252. An arrest under the negligent driving statue is discretionary. 81 Wn. App. at 251-252.
******* from below:
2000 Wash. App. LEXIS 753,*

KATHLEEN BARBARA RICHESON, Individually and on Behalf of the Estate of James Robert Richeson, Deceased, GREGORY GLEN RICHESON, TRENA RICHESON RICHARDSON, and JEFFREY SCOTT RICHESON, Appellants, v. THE STATE OF WASHINGTON - STATE PATROL; KEN WADE and JANE DOE WADE, and the Marital Community Thereof; MEL STERKEL and JANE DOE STERKEL, and the Marital Community Thereof; and MATHEW SCOTT WALDEN, Respondents, A. OLIVAS and JANE DOE OLIVAS, and the Marital Community Thereof, Defendants.
No. 18399-8-III COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL SEVEN 2000 Wash. App. LEXIS 753 May 11, 2000, Filed



2000 Wash. App. LEXIS 282,STATE OF WASHINGTON, Respondent, v. BILLY I. MEYER, Petitioner. No. 23656-7-II COURT OF APPEALS OF WASHINGTON, DIVISION TWO 2000 Wash. App. LEXIS 282 February 18, 2000, Filed


None of the cases I see have just low level speeding being cause for 2nd degree neg. driving.

Of course, we dont know exactly what the officer says in his statement yet.

90 in a 70 is fast but by itself, I dont see it being negligent per se.

(1)(a) A person is guilty of negligent driving in the second degree if, under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property

I would request discovery and post it up here, before you get an attorney......we may be able to help!

thanks Colemac65,
I would like to request disovery but first I'm trying to determine whether to contest or request mitigation on the ticket.
I was hoping I could contest it, get the discovery, and then change it to a mitigaton hearing only IF I feel I have no real chance of winning. However, I'm not sure this strategy is possible from the above comments.

apex188 should get the discovery and see what facts are presented. apex's strategy seems sound

That strategy is possible. And done quite a lot.

very good, thanks. I will return the ticket to contest and then post up the discovery when I get it.

http://img213.imageshack.us/i/discov...estnegdriv.jpg

Finally got my discovery request for the above violation. (see above link).the officer's statement looks pretty solid though, I can't see any cracks in it as there really isnt' much written and they have the radar gun seemingly covered off.
The courts must be busy as the infraction was in August and my court date isn't till early Dec.
any suggestions or comments on how I can fight this ticket?
IS it better to write a letter or show up in person?

I don't see a filing date. Did you call the Clerk and ask when the NOI was filed? If not, please do so.

Personally, I don't see where the officer has presented ANY evidence of "negligent" driving. Remember, in the statute, "negligent" is defined as:

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Quoting RCW 46.61.525 (2)

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...the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.

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Plus, the statute says, "AND endangers or is likely to endanger any person or property". The officer did NOT indicate, describe or even imply HOW you were endangering anything. Is he saying that a "reasonably careful person" NEVER exceeds the speed limit? If so, why is there a provision in RCW 46.61.425 that:

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Quoting RCW 46.61.425 (1)

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... a person following a vehicle driving at less than the legal maximum speed and desiring to pass such vehicle may exceed the speed limit....

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That means that, since the legislature has condoned "speeding" in this instance, "exceeding the speed limit" -- ALONE -- is NOT evidence of "negligence".

Furthermore, the officer SPECIFICALLY states that you were in ONE lane -- not "weaving" in and out. So, IMHO, while a "speeding" ticket MIGHT have been supported by the officer's sworn statement, NEG-2 is NOT.

But, I do not want to mislead you. This will be VERY hard to beat. Your "presentation" will determine whether the judge listens to your arguments -- as a pro se. It is an unfortunate fact that the same argument, presented by a pro se will fail, but when presented by an attorney, will be successful. It's just a fact of life.

Good luck,
Barry

Thanks for the response. I think it's just a case of writing up the maximum fine because the officer can, like you said, it's a tough one to fight I understand.
what if the reason was because I was accelerating in the outside L3 lane to over take a car in the middle lane? is it true that in the midst of overtaking you are allowed to increase speed to complete the pass, and since it was medium to heavy traffic, this would be possible?

I will call the clerk to find out when the NOI was filed and post answer I get. thanks agai.

Sorry, I didn't mean to mislead you. I should have provided a link to RCW 46.61.425 so you could read it in its entirety. It states:

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Quoting RCW 46.61.425

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(1) No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law: PROVIDED, That a person following a vehicle driving at less than the legal maximum speed and desiring to pass such vehicle may exceed the speed limit, subject to the provisions of RCW 46.61.120 on highways having only one lane of traffic in each direction, at only such a speed and for only such a distance as is necessary to complete the pass with a reasonable margin of safety.

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I was simply using this as an example to show that speed alone cannot be considered "negligent". But, no, you cannot use your passing as an excuse for speeding. But, you must remember, you're NOT being accused of "speeding". You are being accused of "negligent" driving, per RCW 46.61.525. THAT'S what the evidence must show.

Sorry,
Barry

Thanks, no need to apologize, any info for me right now is good to know.
I"m just not sure how I would be able to fight this in court as I would have to prove my case to the courts that I was not negligent in my driving, which seems to be based on the courts interpretation of the officers statement.
In your opinion, (i won't hold you to it) would I have a better chance of limiting the financial daage in changing the hearing to a mitigation instead of a challenge?

Does anyone know the process to request mitigation hearing if I've already requestedand have been assigned a date for contested hearing?
It seems that without legal representation it would be difficult to be succesful in contesting the Neg.Driving violation, so I may opt to go for a mitigation.
thanks!