Written by Gregory Monte.
“… even though the arresting officer saw the defendant disobey that device, the charge against the defendant is dismissed.”
Winning on a Legal Technicality – Not Always Possible
As I have written on numerous occasions, the only sure way to beat your traffic ticket is to find a technicality in the law that a judge has no choice but to acknowledge. If all you expect to do is pit your testimony against that of a police officer, you are most likely going to lose.
The easiest technicality to use in court is that the traffic-control device you were accused of violating was never properly authorized. This is how my son beat his ticket. You can read the details about this in my 23-page eBook: How My Son Beat an Unfair Stop Sign Ticket in Pennsylvania. This strategy works in other states and can even be applied to speeding tickets. All you have to do is figure out how your state’s statutes relate to those in Pennsylvania.
While this technicality is 100% full-proof as a defense, it doesn’t always work because the majority of traffic-control devices are, in fact, properly authorized. But if you are “lucky” enough to live in a town or city that never took the time to properly authorize its traffic-control devices, they are not enforceable. This means you will prevail in court if you challenge the citation.
The State has to Prove That the Stop/Speed Limit Sign Exists
In my last blog post I introduced another type of “technicality” based on case law rather than statute.
I put the word technicality in quotes because this strategy is somewhat different from the previous one. This “technicality” is more subtle, because it is based on a judicial interpretation of a statute.
In New York (as in all states) stop and speed limit signs are traffic-control devices. Believe it or not, in New York, the state has to prove that the traffic-control device you were accused of violating actually exists.
Read on, because the remainder of this post will reference the case law to prove this.
Innocent Until Proven Guilty
Let me start with the idea that the defendant is innocent until proven guilty. A New York court case emphasizes this important point in relation to traffic citations:
“It is the People’s burden to establish beyond a reasonable doubt the essential facts of the case. The accused has no burden to sustain. He is presumed to be innocent.”
Prove the Sign Exists – Case Law Quote #1
Even if the judge is from the town and he personally is aware that the sign in question exists, this is not enough. Continuing the above quote from Cooper:
“In doing so the People must present evidence of sufficient quality as to the signs posted since the court cannot judicially take notice of the particulars of the sign even though the Judge may be personally familiar with the intersection …”
Prove the Sign Exists – Case Law Quote #2
According to a 2016 New York Appellate Court decision People v. GBADEBO, 2016 NY Slip Op 50200, the existence of the sign must be established by the People (the state of NY):
“However, in a case of failing to obey a traffic control device, such as the one before us, even if the traffic control device is a sign setting forth a maximum speed of 55 miles per hour, the People must establish that defendant had notice of the sign, generally, by testimony as to the location, description, and observability of the sign alleged to have been disobeyed …”
Prove the Sign Exists – Case Law Quote #3
Here is yet another New York case from 2016 which makes this even more clear. If the police officer doesn’t specifically testify about the sign that the defendant allegedly violated, the offense will be dismissed:
“At the trial, a police officer merely testified that there are signs posting a maximum 30 miles per hour speed limit at the entrance to the City of Rye, or along the border of Rye by Mamaroneck and Harrision, without any further elaboration … Consequently, the three judgments convicting defendant of failing to obey a traffic control device are reversed and the accusatory instruments charging those offenses are dismissed.”
Police Officer Testimony Not Enough
This quote (also from Cooper) is the most forceful example yet that the sign must be proved to exist, because even though the police officer “personally observed” the alleged offense, the court still didn’t accept it:
“It is clear that the trooper personally observed a vehicle driven by defendant making a left-hand turn from the southerly ramp off Route 308, … Since the People have failed to meet the burden of proof beyond a reasonable doubt as to the traffic device, even though the arresting officer saw the defendant disobey that device, the charge against the defendant is dismissed.”
How to Use This Information
As I indicated in my last post, it is important to understand that this defense is only usable on appeal. If you try to use it in traffic court, the judge could just ask the police officer to update his testimony and give more particulars about the traffic-control device that you allegedly violated.
You probably have to keep this in your “back pocket” as a final way to win on appeal to the next level of court. When you file a brief to the Appellate Court, you would just have to reference the cases that I just discussed in order to have your offense dismissed.
Using the law to beat the law – it’s a beautiful thing.