Negligent Driving Second Degree

My question involves a reckless driving ticket from the State of: WA

Hi!

Posted this in reckless driving; reposting here.

I was pulled over on I-90 and given a ticket for negligent driving second degree for doing a 95+ in a 60 zone. I had sped up to overtake another car but i am pretty sure i was not doing a 95.

According to the ticket the cop "paced" me at it.

What are my options? is there any way to get out of this ticket? My only other ticket to date was for doing a 10 over on a city street in 2003

Any advice would really be appreciated.

Thanks much!

Quote:

---

Quoting reallydumb

---

Posted this in reckless driving; reposting here.

---

Please keep it in one thread. Duplicate thread Negligent Driving Second Degree in Wa

get discovery and make sure the officer and prosecution and the court all comply with the IRLJ court rules.

Quote:

---

Quoting That Guy

---

Please keep it in one thread. Duplicate thread Negligent Driving Second Degree in Wa

---

Sorry - wasn't sure what the right forum was :(

Quote:

---

Quoting colemac65

---

get discovery and make sure the officer and prosecution and the court all comply with the IRLJ court rules.

---

How do i get a discovery - and to go thatroute do i check the mitigate box or the contest box?

The violation/statute code is 46.61.525.2

Here's what I would do: Call the Clerk of the Court listed on your ticket. See if you can get a deferral for "neg-2". A deferral means that you will pay an "administrative fee" -- usually around $150. Then, if you don't get any more tickets for the next year, this one is dismissed -- doesn't go on your record, doesn't affect insurance rates. Some jurisdictions, however, will NOT grant a deferral for neg-2, some will. If the court allows it, and it's something you wish to do, you can then chose EITHER contested or mitigation and ask for the deferral at your hearing.

If you CAN get a deferral, you may wish to go that way, since, the only other option for "getting out of it" is to contest and prevail.

If you wish to contest it, you MUST return your ticket requesting a contested hearing. At that time you will receive a hearing notice. You can then file a Discovery Request. I have posted an adaptable form which you can use. Just click "Free User". Then click the "Download" button, when it appears -- sometimes you have try a few times. Follow the instructions included.

When you receive your discovery materials, you will see the evidence against you -- the officer's sworn statement. You may have a possible technical defense, as well. You were cited for a violation of RCW 46.61.525.2, which states:

Quote:

---

Quoting RCW 46.61.525

---

(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.

---

I would argue that paragraph (2) "creates no citable traffic offense". (See STATE v. MacRAE, 101 Wn.2d 63, 676 P.2d 463 (1984).) Even if the judge allows the citation to be amended to paragraph (1), it will still be up to the prosecution, using the officer's sworn statement, to prove that you were operating "a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property." In other words, just saying you were going 95 in a 60 zone is NOT sufficient. But, that's the reason you need to submit a discovery request so that you KNOW what the officer wrote.

Anyway, I hope this helps you understand some of your options.

Good luck,
Barry

i was thinking about this too......paragraph 2 of the statute is not a way to be charged, it is a informational subsection about the word "NEGLIGENT" it is not a charge or an offense as 46.61.525.1 is. the officer has not charged this properly. subsections to the statutes consist of different ways to commit the alleged offense, exceptions for the offense and definitions of the offense. Basically the officer has cited you specifically for violating what i would argue is not a charge but a definition in the statute. HE SHOULD HAVE CITED YOU FOR 46.61.525.1a.....I90 means district court and in the times we are in right now, i have not seen prosecutors at contested hearings. Contested W/accident yes, but not contested traffic cases. Get discovery . I believe Barrys arguement above is spot on but i would suggest getting discovery as well, just to be on the safe side. Normally pacing affidavits are pretty easy to surpress...

Quote:

---

Quoting blewis

---

You may have a possible technical defense, as well. You were cited for a violation of RCW 46.61.525.2, which states:




I would argue that paragraph (2) "creates no citable traffic offense". (See STATE v. MacRAE, 101 Wn.2d 63, 676 P.2d 463 (1984).) Even if the judge allows the citation to be amended to paragraph (1), it will still be up to the prosecution, using the officer's sworn statement, to prove that you were operating "a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property."

---

Quote:

---

Quoting colemac65

---

HE SHOULD HAVE CITED YOU FOR 46.61.525.1a.....I90 means district court and in the times we are in right now, i have not seen prosecutors at contested hearings. Contested W/accident yes, but not contested traffic cases. Get discovery . I believe Barrys arguement above is spot on but i would suggest getting discovery as well, just to be on the safe side. Normally pacing affidavits are pretty easy to surpress...

---

This is for either of the persons quoted above.. what is the proper or correct way for the violation to be cited? For example, if the officer cited for 46.61.525 without specifying any additional paragraphs/subsections, would this effectively include everything (all subsections) contained within that statute code? Is a citation such as this procedurally correct? I have a Neg 2 citation I'm preparing for.

It depends State V leach requires all elements to be denoted and in the statute an element is a subssection. for example. If the officer note the general statute ie...46.61.525 there are different ways to commit the alleged charge and those ways are denoted in subsections. By not identifying the way he/she is charged, the state has failed to comply with state v leach

Well, unfortunately, that's NOT true for Neg-2. Here is the entire law:

Quote:

---

Quoting RCW 46.61.525

---

(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.

---

As you can see, ONLY paragraph (1)(a) defines an offense. All the remaining subsections are either informational or contain definitions.

Furthermore, I think your reliance on Leach is misplaced. Leach says that ALL the "elements" must be denoted in a "complaint", but makes no mention about the subsection -- except in the Elverston matter that was combined with Leach at the Supreme Court level. I am referring to STATE v. LEACH, 113 Wn.2d 679, 782 P.2d 552 (1989)

Elverston was charged under "11560201c", which apparently should have read "SMC 11.56.020(A)(1)(c)". The only description on the citation was "DWI". Elverston contended that without the "A" in the Municipal Code specification, the citation is invalid. Furthermore, she contended that "DWI" was an inaccurate description.

The court held that even though the "A", describing the subsection, was missing from the citation, and even though the description, itself, may not have been perfect, BOTH were adequate. In addition, Elverston failed to show how that lack of the subsection prejudiced her substantial rights. Lastly, the court concluded that there is a difference between being charged by "complaint" and being charged by "citation":

Quote:

---

Quoting Seattle v. Elverston (citations removed)

---

Although the constitutional requirement for adequate notice is the same whether that notice is given by complaint or by citation and notice, there is a logical basis for reasonably distinguishing between misdemeanor defendants issued citations and those served with complaints. Complaints must be more detailed since they are issued by a prosecutor who was not present at the scene of the crime. Defining the crime with more specificity in a complaint assists a defendant in determining the particular incident to which the complaint refers. Citations, however, are generally issued by law enforcement officers who have personal contact with defendants at the scene. Defendants charged by citation are necessarily aware of the particular incidents for which officers are charging them. They presumably know the FACTS underlying their charges.

---

Barry

i am going to have to look into this a bit deeper. I hearing Ms. Mucklestone at kcdc about 6 months ago. she was citing motion to dismiss state v leach violation....i will see what i can find out about this. With respect to this post the OP was cited for the statute plus subsection 2....makes no sense to me....I will research this argument and why exactly the courts in our area allow this motion to dismiss.....

However, your explanation above makes alot of sense if we look at it just as you put it...

I guess thats why you are the man, the myth and the legend when it comes to these darn things! :-)