Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement
An "error of law" is exactly what it sounds like. For example, IRLJ 2.2 (d) states that an NOI must be filed within 5 working days -- absent good cause shown. Well, suppose you go into your hearing and state that the officer filed the ticket after 7 working days -- without ANY excuse. The judge says, "Well, I don't think you were prejudiced by the extra two days, so I'm going to deny your motion for dismissal." The law says, "In the absence of good cause shown, a notice of infraction not filed within the time limits of this section shall, upon motion, be dismissed with prejudice." There is NO leeway, the is no room to exercise discretion -- "shall" is always construed as "must". That is an error of law.
You case is NOT so simple. In your case, the judge COULD and DID exercise "discretion". On appeal, the appellate court cannot overturn a discretionary ruling absent "manifest abuse of discretion." In other words, you must show that, given the facts of the case and how it was presented, ANY reasonable person would have ruled otherwise. There are thousands of cases on the issue. Put another way, the rule is "A manifest abuse of discretion is discretion that is exercised on untenable grounds." In your case, the judge's refusal to even consider your motion -- and to basically deny it BEFORE it was presented -- is in my humble opinion, "untenable". That's why I think you've got a good case -- thanks to the judge's "help".
Where am I going? And why am I in this handbasket?