Written by Gregory Monte.
Driving too closely, commonly known as tail-gating, is pretty much an offense in all states. Because it is such a subjective charge, you would think that there is no real way to present a winning defense against it. Cop says you did it? Guilty as charged …
Maybe – but possibly not.
The key to beating this type of ticket is straightforward – you have to hope that the cop doesn’t specify exactly why he determined that you were driving too closely. As you will read in the specific court cases cited later on, defendants eventually won in court because the cop never provided the details required by statute.
The “Tail-Gating” Statute
I will specifically refer to TX, NY and GA, but the tailgating law basically reads the same for all states. Here is the typical language (this example is from the Texas Transportation Code Section 545.062):
“An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.”
Notice that several factor must be considered to determine if a motorist has violated the statute:
- “speed of vehicles”
- “traffic”
- “conditions of the highway”
As you will read in the cases cited later, if the cop does not provide support for his determination that you were following too closely by referencing those three factors, you will most likely be found not guilty.
Is Hope Enough?
But is it really worth your time to go into a courtroom when all you have is hope? What kind of strategy is that? Well, you can actually get an idea ahead of time if this is possibly going to work. Start with the citation itself. If none of the factors listed above are mentioned there, there is a possibility that the cop won’t bring them up in court. If this sounds far-fetched, just hold your skepticism until you review the three examples I discuss later.
One final thing to point out. It is not your responsibility to get the cop to provide this information. In other words, you are under no obligation to help out the prosecutor by asking for the details about why the cop thought you were driving too closely. If the prosecutor or cop fails to provide this information, too bad for them.
Case #1 – Texas
Ford v. State, 158 SW 3d 488 – Tex: Court of Criminal Appeals 2005
Mr. Ford was pulled over by Texas State Trooper Andrew Peavy for following another car too closely. During the trial, the following interchange occurred involving the officer. Notice that Peavy does not provide any details about how he determined that Matthew Ford’s vehicle was following another car too closely:
Q: And on September 2nd of 2001 did you notice something that caught your eye around 5:47 at night?
A: Yes, ma’am. I was patrolling and I saw a maroon utility vehicle following too close behind — I was patrolling 290 westbound. I saw a maroon GMC or Chevy utility vehicle following a white car, following too close.
Q: And where were you when you noticed this vehicle?
A: I was directly behind him.
Q: And at the time that you noticed this, what did you do?
A: I activated my emergency overheads and the vehicle pulled over.
…
Q: And when you were approaching the vehicle, what were your intentions before you approached the vehicle?
A: To talk to him about his violation he had committed.
Q: Which violation is that?
A: Following too close.
The judges had the following to say about this interchange:
“We do not quarrel with the notion that Peavy may have in fact believed that Ford was following another car too closely. Nor do we dispute that the trial judge is free to believe or disbelieve Peavy’s testimony. But without specific, articulable facts, a court has no means in assessing whether this opinion was objectively reasonable.”
Peavy won.
Case #2 – New York
People v. Anand, 2019 NY Slip Op 51875 – NY: Appellate Term, 2nd Dept. 2019
This quote from the decision says it all – no comment necessary:
“As correctly contended by defendant, the supporting deposition failed to set forth any facts providing reasonable cause to believe that he had violated Vehicle and Traffic Law § 1129(a) [following too closely] … as the complaining officer alleged no facts identifying in what way defendant had been operating a motor vehicle while following another vehicle more closely than was reasonable and prudent for the traffic conditions
Except to comment that Anand won.
Case #3 – Georgia
Strickland v. State, Ga: Court of Appeals 2019
“Antonio Strickland was charged by uniform traffic citation with following too … Strickland appeals, contending that the trial court … because the citation fails to allege the essential elements of the offense. For the reasons explained below, we agree and reverse.”
The judges emphasize that the police officer failed to provide a basis for his opinion that Strickland was following too closely:
“… the citation fails to allege any facts necessary to establish a violation of [following too closely] … the citation does not provide any details. It is unclear from the citation how the accident occurred, how many vehicles were involved, at what speeds the vehicles were traveling, and the approximate distance between the vehicles. The citation does allege that the weather was “clear,” the road was “dry,” and the traffic was “medium,” but this alone is insufficient to establish that Strickland violated [following too closely].”
Strickland won.
The Takeaway
If you get a ticket, only you can decide if it is worth fighting. This blog and the accompanying eBooks that I have written provide a method to individuals (like me) who get pissed off when they get cited for infractions that they consider unfair. After my son got a stop sign ticket for rolling through a sign when no other vehicle was within several hundred feet from the intersection, I got pissed off enough to find a way to beat that ticket.
It turns out that the strategy I discovered in researching his situation is useful for fighting all kinds of traffic tickets. All you need to do is find a “technicality” in the law and then search for cases to support this technicality. When it comes to traveling too closely, the technicality is the requirement for specific facts. Read your state’s actual law because there may be more required facts than the ones I have discussed. Then you need to go to Google Scholar and look for court decisions from your state (like the ones I cited) to show to the judge if he doesn’t believe that your “technicality” is legitimate.
My Free Resources
If you want more information about how to go about this process, check out my three free PDF’s. They specifically deal with Pennsylvania and its stop sign statute, but the strategy has universal application no matter the state or type of ticket.
Traffic Ticket Defense Blog 