Written by Gregory Monte.
The Case That Inspired This Post
There is a lawyer-based traffic ticket “help” website called AVVO. Back in 2013 someone posted a question about a ticket he received for allegedly delaying traffic in New Jersey, a violation of 39:4-56. Delaying traffic prohibited:
“No person shall drive or conduct a vehicle in such condition, so constructed or so loaded, as to be likely to cause delay in traffic or accident to man, beast or property.”
The “safety-minded” officer who issued the ticket was waiting in an exit lane and this individual apparently crossed over and got ahead of the rest of the cars waiting to exit …
“I did not cut anyone off, but the officer was in the right waiting to exit, along with others, and I passed them all and moved into left hand lane of exit which was completely open. He said I should have waited in line and because I did not, I delayed traffic.”
Because this particular offense is considered pretty minor in New Jersey (it costs $50 and there are no points), the questioner wanted to know if it was worth fighting. Five attorneys responded that it was a waste of time (see below), but none of them took the time to find out that this individual could easily have won his case had he done some very basic research.
“Advice” From the Lawyers
“This is one of those tickets it’s not worth fighting; the fine is very low and there’s no points.” – Steven Todd Keppler
“Almost certainly not worth fighting.” – Dean P Murray
“There is nothing lower that it could be dropped to. It is zero points and $56.00 fine if you go to court there will be $33 on top of it for court costs if you lose a trial or decide to plead guilty there.” – John George Ducey
“The chances of a prosecutor and judge believing your version over that of a police officer or state trooper is not great. Since it is a zero-point ticket with a minimal fee, I would not recommend fighting the ticket.” – James A. Abate
“It is a 0-point ticket. The fine is low but there would be Court costs if you contest and lose or if you go to court and do not plead guilty until you are there. Is it worth the time? – Mark M Cheser
Using the Law to Beat the Law
I often criticize traffic ticket advice websites because of their uselessness. Here are three examples:
The most common suggestion from these sites is to plea down to a lesser offense that costs more money but has no points. Very rarely do they provide information that you can use to actually fight an unfair ticket – and the ticket received by the questioner on AVVO was completely unfair. As I indicated earlier, the cop was pissed off that someone skipped ahead of him in line and took it out by using his authority to issue a ticket.
While most “good” citizens (sheep?) usually just accept their fate and pay the fine, I bristle with indignation when confronted with this type of arbitrary authority. In fact, that is why I started this blog – to help like minded citizens fight back. My advice is to always challenge a ticket as long as you have a decent chance of winning.
How do you know if you have a decent chance of winning?
Keep in mind what Attorney Abate (quoted above) says about judges – they are not going to believe your version about what happened. Because the judge almost always sides with the cop, your testimony is basically worthless. Instead, you have to use the law to beat the law. This means going to a website called Google Scholar to find cases that are similar to yours. If you can show that a previous judge’s opinion supports your version of events, you will have your ticket dismissed.
So, when I searched for cases related to delaying traffic, I quickly found two that would most likely lead to the dismissal of the case against that AVVO questioner.
How come none of those lawyers were able/willing to do this?
When a Delay is Not Necessarily a Delay
If you read the delaying traffic statute, you will notice that it refers to a delay caused by the way the vehicle is loaded – not just a general type of traffic delay. In State v. Brackin, NJ: Appellate Div. 2011, the lawyer for the defendant specifically mentions this:
“Additionally, counsel argued that, to the extent that Tobin claimed defendant’s conduct was delaying traffic, he had cited to the wrong statute, N.J.S.A. 39:4-56, which is applicable only to delays caused by the condition, construction or loading of a vehicle, not the conduct of its operator. The State argued that the Officer had merely cited to the wrong statute, and that the proper one was N.J.S.A. 39:4-67, which governed obstruction of the passage of other vehicles.”
Unless the vehicle of the questioner from AVVO was overloaded in some fashion, the police officer who gave him a ticket cited the wrong statute – just like in the Brackin case.
Why a Delay is Not Always a Delay
Although the following case goes way back, I still think it is helpful in understanding the purpose of that delaying traffic statute. As you read through this decision note that the legislature enacted numerous laws which highlighted the way a vehicle was loaded. These were written specifically to regulate tractor trailers, not standard vehicles.
State v. Patfol, Inc., 184 A. 2d 433 – NJ: Appellate Div. 1962
“Title 39 is otherwise replete with instances of specific legislative notice and regulation of vehicle load conditions deemed to require police-power control. See, e.g., sections 39:3-84.3 (violations as to weights and measurements of vehicles); 39:3-84.4 (damage to highways or structures by overweight vehicles); 39:4-27 (loading and operation of trailer); 39:4-28 (height limitations of certain vehicles); 39:4-56 (delaying traffic prohibited); 39:4-58 (driving with rear or side view obstructed); 39:4-77 (loading so as to spill prohibited). These provisions have a twofold significance. They evidence the legislative habit of dealing with vehicle-load problems in Title 39 in specific terms rather than by implication. And they show that the Legislature is attending to matters of policy with regard to regulation of vehicle-load hazards, thereby serving as a reminder of the canon that in construing statutes courts are mindful that jurisdiction over policy is peculiarly in the legislative province.
My General Method for Fighting Tickets
I started this blog after my son got an unfair stop sign ticket. I knew that the judge would never believe his version of events over the cop who gave him the ticket. This realization led to three months of internet research until I found every possible technicality in the laws governing stop signs. In court he argued that the stop sign he allegedly “rolled through” was not properly authorized and so it was not enforceable – and he won the case.
If you are interested in some more details about his case, check out my three free PDFs. They are specifically geared to Pennsylvania but the theory has a general application to any state.
3 thoughts on “Lame Advice From a Lawyer? You Get What Pay For …”
Several years back, I was helping a friend deal with a clerk, who was getting a lot of erroneous advice from the prosecuting attorney for the county. As I told my friend, since all the paperwork was his and he was a pro se, we would do something attorneys don’t.
We included a section explaining to her she would be liable for any damage resulting from her relying on erroneous advice from the prosecuting attorney, and her only recourse would be to sue him for the erroneous advice. We went on to remind her, unless the advice had been given in writing, the prosecutor could deny having given it, or claim she misunderstood and, as such, should request all advice be in writing. We went on to point out, if the prosecutor balked at giving the advice in writing, she should be leery of relying on it.
She fired the prosecutor and hired a private attorney for the next hearing.
I’ve also had friends who consulted with an attorney who told them they couldn’t win. They went on to use cites I provided and won.
In summary, and supporting your post, merely that someone has a bar card or works the public sector does not mean they know what they’re talking about in every situation occurring in their profession.
One of the highlights of my sons trial for his stop sign ticket was when I stood up in the gallery and made a comment about the law which the judge had no clue about. The sheriff officer in the court room almost kicked me out until the judge realized I was correct. Priceless
This topic can apply to relying on public defenders too.
A frail, eighty-five year old friend was being charged with domestic violence against his renter in the duplex adjacent to his.
Just for background on the veracity of the complaint, be aware:
1) The complainant/Supposed victim was a twenty-five year old, professional cheerleader.
2) A simple case search under her name revealed she made the very same complaint against a previous landlord too.
3) Domestic violence complaints DO NOT apply to renters. They apply to family, former mates and such, but could include room mates. Of course, another apartment adjacent to yours does not qualify as a room off your house or apartment.
My friend could have scraped up the money for an actual defense lawyer, but I suggested he go with a public defender, because their general incompetence would make it possible to monkey wrench the prosecutor’s case.
First, the court held and arraignment in which the judge demanded a plea, or would make a not guilty plea on the defendant’s behalf. It was at the arraignment an attorney was appointed my friend.
The public defender was put on notice of Supreme Court rulings stating arraignment was a critical part of the proceeding and individuals are entitled to representation at the proceeding because of that.
Of course, like most judges, fairness, justice and the law be damned, he went on with the arraignment.
As soon as the public defender was identified, “my friend” sent him notice of the issue of arraignment, and a notice of what was expected from him. That notice included things like:
1) Building a record on which an appeal could be had (the case file is NOT the record. The record is objections, introduced documents moved into the record, some discovery items, testimony and so on).
[reiterations of critical things]
2) He would make objections, including to statements not relevant to the case but which left unchallenged could damage his reputation, since the judge would prohibit the defendant from speaking and base his bias on that he was represented by counsel.
3) He would introduce policies, procedures and laws favorable to his client, including by way of introducing documents and MOVING them into evidence (NOTE: Judges, often, lie and say the file is the record and it’s unnecessary to make the record aside from that).
4) Perform meaningful discovery. That is, discovery beyond what the prosecution offers.
5) See CR11 sanctions, where appropriate (for behavior contrary the ethics rules).
6) Provide his Omissions and Errors insurance, in case he was negligent and it cause a damage or loss.
7) The friend had put up bail. The court held the bail. The court gave a chunk of the bail to the jail, to pay for his incarceration. In short, he was punished (they took his money, the bail would have been returned with his appearance). The required the cooperation of the judge and the sheriff to violate clear cut law. Of course, the appointed counsel was directed to point this out and deal with it.
SURPRISE! The public defender found a conflict of interest, which allowed him to withdraw from the case (and avoid defending someone, rather than pleaing them out, and to avoid the possibility of being sue for damages.
The lawyer didn’t ask the court for permission to withdraw until the next scheduled trial. At that time, the judge appointed the next attorney in line. Of course, he was from the public defender’s office too.
My friend, with a bit of coaxing, waited until the last minute, at the next hearing, to point out the Supreme Court declared one conflict in a law firm applies to all members of the firm, and the case he sited went on to say a public defender’s office was treated like a law firm.
Needless to say, the judge, then, had to pick from the public sector, out of their kitty. Too, the hearing was scheduled thirty days out again. That speedy trial thing was getting hammered, but he avoided mentioning it, until it was a done deal.
At the next hear, SURPRISE. Just like those before him, when the attorney was served with the above mentioned notice, he, too, found a conflict.
Seven attorneys in, the court was getting frustrated, but it didn’t dare show its bias by blaming him for their incompetence, or the conflicts the attorney found.
In the end, he assembled and filed another affidavit. It laid all these things out, including the speedy trial issue. It was attached to a complaint that the attorneys were not moving to dismiss procedural errors. Of course, they couldn’t, because they couldn’t represent him, while they had a conflict of interest.
In the end, the prosecutor found some other bogus reason to dismiss. Hey, a dismiss is a dismiss.