When Can You File a Motion to Dismiss in Traffic Court

[Standtall]

My question involves a careless driving ticket from the State of: MS. I was driving down an interstate on the south edge of Jackson when I noticed a cruiser coming up behind me. As I was watching the road and watching him, he was coming up on me fast. I checked my speed and I was doing fine, 65 was the limit, that's what I was doing. Driving at 65 the cruiser pulled up behind me so close that I could know longer see his head lights in my rearview. He tailgated me for at least a half mile. Keep in mind, this was happening at about 1am. He turned on his light and over we went. He vigorously searched my car from top to bottom and bumper to bumper, even opening my hood.
I received two tickets. One for not having my license on me and the other was careless driving. He stated that I had went over the dotted line. We were on a six lane. I was in the middle lane. The ticket for not having my license on me was dismissed after faxing a copy of my license.
Now for the problem. I received the tickets in the middle of Dec. 2009. My court date was set for Aug. 2010. As I was attempting to tell my story to the clerk, of the officers actions that night, she said that I would have to hire a lawyer and make my case. I hired what I thought was lawyer in MS. Now's a good time to tell you, I live in AR. and did so at the time of the tickets. The person I hired to represent me got things moved to Feb. 23, 2011. By the time of trail I just wanted to get the ticket dismissed and walk out. I traveled 450 miles and walked into a packed court room. Thy had just stared to see people. The first person was called up, went thought the motions and was dismissed. I was called next but was told that I didn't need to come to the bench. The prosecutor stated, I just wanted to make sure you were here, you can sit down now.
At that time my lawyer appeared out from behind her and asked me to step out to talk. He told me, I've been trying to reach you. He was trying to use a number that I had had three mouths pier. We had talked a few time between then. I think he was just trying to anger me. I asked if the officer was there. He told me he didn't know. I told him that I had to go out and move my car. He said go ahead, thy know your here. Ten minutes later I walked back in and set down. My lawyer was back in the prosecutors area and never attempted to continue and further conversation. Now's a good time to tell you during our last two telephone conversations, my lawyer made a point to tell me that if the officer didn't show, the judge would dismiss the ticket.
Within minutes I was summoned back to the bench. This time my lawyer stood up and motioned me forward. As we all came together the prosecutor presented the judge with a copy of the ticket stating she had a medical leave for the officer and she was asking for a continuance. My so called lawyer pointed out that I came from AR and ask for it to be considered. The judge granted the continuance, July 25, 2011.We stepped aside.
I asked my sidekick for a copy of the medical leave by the officer. He handed me a copy of the ticket that I had received that Dec. night. It now had in the explanation line: DRIVING OFF ROAD, with a bunch of scribblings at the bottom of the ticket. He pointed to one of the dates on the ticket, as there were 6 that I could make out. The one he pointed to was that days date, the date of trail, 2/23/11. He said that was the medical leave, I instantly ask for a motion of discover or responce to motion. He told me that all I would get was another copy of this ticket and that there was nothing he could do because the judge accepted it. Notable mention, as I was expressing my opinion of his performance he stated, Quote: What do what me to do, tell the judge the prosecutor lied. I'm sure it was, that is exactly what happened and he knew it. That was pretty much the end of our, if you want to call it, relationship.
My question, Do I file a motion to dismiss? file a Response to motion? File for discover? File a statement of the officers actions for tailgating me at highway speeds and take my statement to the bench. I know, his word against mine (aint scared). Or write the judge a letter telling the judge what a hardship it would be for me to make yet another trip to the fine state of MS. and ask for the ticket to be dropped?
Open to any opionins, ideas or suggestions.

Thank you

[davidmcbeth3]

Well, I have traveled to a courtroom 500 miles & had continuances 3 times. Its up the the judge to grant these or not; he did in your case (and in my case too, trice). I was not happy about them but I had decided to see my case out till the bitter end (I won my case on 4th appearance & trial).

What statue were you cited for? I don't see a motion to dismiss (or an argument to file one; unless you can find a speedy hearing issue-but that only applies to criminal cases). They do not have to give you a copy of the medical leave paperwork; I doubt they are lying about this ... a better lie would be that he is simply not available (the judge can still grant a continuance).

You could file for discovery but what would you ask for ... its a visual observation case.

Do not write the judge; go to your next hearing date. Prepare a defense for the statute you are being charged with. I don't see the statue noted.

If the statue cited is a civil offense and a request to admit is allowed in discovery for the offense then you may wish to serve the court & the prosecutor with a request to admit. In it, ask that they admit that you did not violate the statute listed on the ticket. If they do not answer in 30 days, then the request is deemed admitted ---- THEN you would have grounds for a motion to dismiss ... as there is no fact in dispute that you are not guilty of the charge. Chk and see what limitations on discovery (and if it is a civil or criminal offense you are being charged with) ...

If the speedy trial is an issue, then file a motion to dismiss -- it should not matter that the judge continued the case -- the prosecution offered no objection to the date I assume -- DEC 2009 is an awful long time ... if it is indeed a criminal case & not civil.

You have some google scholar research to do ... and learn how to properly serve legal documents with the court & prosecutor.

[flyingron]

Traffic cases are not adjudicated on the road side nor by the clerks. You can talk to them all you want but your options are to either plead guilty and pay the fine or take it to court. What's written on the ticket is by and large meaningless, it's what the officer will testify to in court. Your lawyer appears to be giving you the right information. If the judge didn't rule in your favor on dismissing the charge in lieu of the continuance, you'll have to appear (or perhaps have the lawyer appear) on the new date. Your speedy trial arguments went out the window when you continued the case (which most likely is why the judge allowed the officer to continue the case as well).

Being tailgated isn't a defense (and rather subjective anyhow). The standard method for dealing with tailgaters is to (smoothly) slow down. It gives them incentive and opportunity to go around you or if not, it increases the reaction times to avoid accidents if they persist.

[Standtall]

To the tailgating issue. The cop was tailgating me at highway speeds, I'm sure that's breaking the law. Endangering the life, comes to mind. I'm sure a ticket would be issued if the cards were turned. As to the speedy trail mention. The first court date on the ticket was 6 mouths form the date of the ticket. Speedy trail was already violated. We all know speedy trail is 90 days. The point I was trying to make is that the judge issued a continuance of trial without evidence of the medical release. There was no document presented by the prosecution. Am I to believe that the prosecutor can simply state a medical release without documentation to ask for a continuance of trail and get it? If so, do I not have a right to receive all information concerning my trail? I'm on my own, my sidekick lawyer has been fired.

As to the clerks abilities. As I had stated, a simple fax to the clerk dropped no license ticket. Did the clerk adjudicate? Yes!

[davidmcbeth3]

They are not going to show you his medical release nor do they have to...the court already ruled on the request anyway. The court did nothing wrong.

You should put the continuance behind you and focus on the next steps.

[flyingron]

Just because the cop broke the law doesn't mean you're not guilty of what you are charged with. Futher, if he testifies he was maintaining a safe distance you will lose anyhow. I don't know who "all" is who knows it's 90 days, it appears to be 270 days to me.

Yes, the prosecutor *CAN* just ask for a continuance. The judge may require justification, but he doesn't have to. It's entirely discretionary. You got your continuance on your lawyer's say so, why should the prosecution not be afforded the same lattitude? The medical state of the officer on the appearance day isn't relevant to your case at all.

No the clerk did not ADJUDICATE. If you're going to go it pro se, you'd better come up with a real defense rather than trying to invent loopholes that are meritless.

[Standtall]

Just because the cop broke the law doesn't mean you're not guilty of what you are charged with. Futher, if he testifies he was maintaining a safe distance you will lose anyhow. I don't know who "all" is who knows it's 90 days, it appears to be 270 days to me.

Yes, the prosecutor *CAN* just ask for a continuance. The judge may require justification, but he doesn't have to. It's entirely discretionary. You got your continuance on your lawyer's say so, why should the prosecution not be afforded the same lattitude? The medical state of the officer on the appearance day isn't relevant to your case at all.

No the clerk did not ADJUDICATE. If you're going to go it pro se, you'd better come up with a real defense rather than trying to invent loopholes that are meritless.

Your opinion is noted. Moving forward with my loopholes. Thank goodness for the constitution. I've taken the liberty of posting your opinions on another forum. The feedback is quite interesting. Have a good day.

[free9man]

Speedy trail was already violated. We all know speedy trail is 90 days.

Actually, it varies by state. In MS, it is 270 days from your arraignment...not 90. So the clock didn't start ticking until after your first appearance. If they entertained a speedy trial defense, they would also look at the reason for the delay and if it prejudices your case. In the event of a traffic ticket, a delay is likely to help the defendant and not harm them.
As for the clerk, they are normally required to take the necessary paperwork showing you had fixed the issue to a judge to sign off on it. A clerk cannot dismiss a ticket, they do not have that authority.

[Standtall]

Thank you for the respectful response. I agree with your info on the clerks powers. She basically did the leg work with the info I provided, giving the outcome of dismissal. I'm not concerned with the speedy trial issue due to the obvious, Time. My concern at this point are the actions taken in the resent continuance. I find it hard to swallow that motions can be granted without evidence of their claim. I'm looking into a few ideas as to my right to information and the rules applicable to the courts granting a continuance. Once again, thank you for your input. Look forward to any future chats.

[free9man]

My concern at this point are the actions taken in the resent continuance. I find it hard to swallow that motions can be granted without evidence of their claim. I'm looking into a few ideas as to my right to information and the rules applicable to the courts granting a continuance. Once again, thank you for your input. Look forward to any future chats.

It is unlikely that you will prevail on this matter. Oral motions are made in court all the time and the judge rules on them based on the explanation given by counsel requesting it. You are not going to get much movement on this by accusing the prosecutor and/or officer of lying. Courts tend to, absent evidence to the contrary, believe court officers and law enforcement officers. It is entirely possible that the officer was sick, although I'm not sure how a note scribbled on the prosecution's copy of the citation figures into that. You are likely not entitled to any information regarding the officer's health on the day you were in court as it is not exculpatory nor does it have a prejudicial impact on your case.