Fighting vs Paying a traffic ticket

Are you one of the approximately 35 million people who receive a traffic ticket each year?
Of the 5% that are actually contested, one half are dismissed. The remaining half usually enjoyed reduced fines or other plea bargain arrangements like traffic school or a defensive driving course.
A recent survey by showed that less than 40% of his contested cases were won. Of that amount, less than 10% are won by lack of prosecution - No Officer = Not Guilty.

As you can see, just by going to court and contesting your ticket you are taking a chance of losing. In addition many judges won't allow you to take a traffic school class once you contest your ticket.
The whole idea allowing you to adjudicate your traffic citation via taking some kind of a traffic school course is to keep you out of the court room and clear the calendar for more serious cases.
However, many states like California, Florida, New York… will only allow you to adjudicate with traffic school limited amount of times. So if you think that you may have a good chance of winning you may want to go for it. Just don't count on cop not showing up.

It is important to remember that traffic laws and codes differ from state to state and are constantly changing. You must do your homework to insure that you are current in all matters relevant to your particular situation. In addition, the information in this Guide is intended as basic strategies and tactics. Consider this Guide as your game plan, but you still need to get in there and pitch. This Guide is NOT LEGAL ADVICE.

When the officer approaches your vehicle he will likely ask you one of two standard questions:

1. Do you know why I stopped you?
Your response is, "No officer, I don't."

2. Do you know how fast you were going?
You have three levels of response:
"I'm not really sure."
"The speed limit, I think."
"I wasn't speeding and I checked my speedometer right before you stopped me."

The key element here is not to admit anything. You have a right to remain silent but the officer isn't required to advise you of this right (Mirandize). Do not respond by saying, "Well I think I was doing about 62 when you know you are in a 55 mph speed limit. This is called admitting your quilt!

When the officer asks for your license, registration and proof of insurance tell him where they are located and ask to get them before reaching for anything. If you are in a state which allows concealed weapons, by all means notify him of the weapons location. If your documents are in the glove box or console, get them and close the compartment. This way the officer isn't worried about you reaching in for an illegal weapon while he is writing your citation.

This brings us to the request for a vehicle search. If the officer asks permission to search the vehicle he doesn't have any probable cause. Under no circumstances agree to this search. If he threatens to get a search warrant, politely tell him to go ahead and get one. The crucial element here is probable cause. The officer must have probable cause prior to the search. If your vehicle has smoke pouring out and smells like a Cheech and Chong reunion, he will search without asking. The same is true if you have alcohol on your breath. In either of these cases you have some other serious issues that you are about to come face to face with other than your speeding ticket.

It is also important to remember that this is not the time to plead your case or argue the issue. You are trying to stay low profile and arguing or giving some lame excuse that the officer has heard 200 times is not getting you anywhere. You should realize that as soon as his pen hits the ticket book he is committed to issuing the citation. He can't void out the ticket and say he made a mistake. Once he starts to write, the citation is yours to keep.

While the officer is writing your citation (usually back at his vehicle) it is time to start your defense process. Begin to assimilate as much data as possible. Small details are essential. These are the kind of things that the officer will not remember when it comes time to appear in court. Some of the basic information you should be trying to gather is as follows:

1.  Make, model, license plate number and unit number of the officer's car.
2.  Note your exact location and try to determine the distance between where you stopped and where the violation occurred.
3.  Even though your citation will list the basic weather conditions, make note of all the weather conditions such as temperature, wind, cloud cover, etc.
4.  Note any passenger names and be sure that your passengers remain totally silent during the entire stop unless they are asked a specific question.
5.  Make note of your shirt or coat color.
6.  Make note of any distinctive characteristics about your vehicle such as any noticeable dents, two tone paint, mag wheels, etc. Again, you are after as many small details as possible.
7.  You also need to remember and note everything the officer said during the stop. If he talks on his personal radio during the stop, try to note these items as well. A lot of times the officer who stops you will not be the officer who was running the radar unit. It is crucial to your case that you establish this point.
8.  Note the current traffic conditions and remember the surrounding traffic at the time you were pulled over. If you were surrounded by a sea of traffic try to remember anything and everything about that sea of traffic.

When the officer returns with your citation he will generally ask you to look it over and sign it. This signature, as the officer will explain to you, is not an admission of guilt but an acknowledgement of actually receiving the citation.

After you sign the citation, ask the officer if you can see the radar read out. The officer isn't required to do this due to your own safety. The police department doesn't want you run down by a passing motorist while you were heading back to the squad car to look at the radar. If the officer allows you to view the radar, make no comments whatsoever. Do try to make a note of the manufacturer or model number. Under absolutely no circumstances should you ask to see the calibration fork. That is a major red flag that you know the ins and outs of radar and you are going to fight the citation. You have now moved into the memorable category and that's counterproductive to your case. After the officer returns to his car, stay at the scene making notes for no more than two minutes if he remains at the scene. He will usually be making notes on the back of his copy of the citation. Again, do not make yourself memorable by staying at the scene until the officer leaves. Your fight has just begun and there will be plenty of time to prepare your case without waiting at the scene. It is accessible 24 hours a day for you to study.

As you pull away from the scene, do so calmly and safely. Spinning tires and slinging gravel across the officer's hood are not a good ideas.

Fight, Plea or Pay
Now that you have your citation in hand it is time to decide if you are going to Fight, Plea or Pay. Remember, even if you fight and loose, your fine is no higher than you would have paid initially. You also need to weigh the fact that you will be paying the fine plus the added insurance premiums. If you're still in doubt, here a the most common reasons why people choose to fight their citation and have their day in court:

• I can't afford or don't want to pay the fine.
• I don't want the ticket on my record.
• I can't afford the points on my license.
• I didn't do anything.
• OK, I did do it but everyone else was doing it too.
• The officer was a major jerk and I want pay back in court.

If you fit into one of these scenarios, it's time to move forward and start your long trip down the halls of justice.

What should I plead?
There are typically four types of pleas you can enter for a traffic citation:
Guilty - I'm a bad boy and here's my money. Please raise my insurance.
Guilty with an explanation - I'm a bad boy but let me tell the court why before I pay my money and you raise my insurance.
Nolo Contendere - Latin for No Contest, otherwise known as I'm guilty but don't want to say so. Here's my money, go ahead and raise my insurance or send me to traffic school.
Not Guilty - This is the plea you are interested in if you want to fight your ticket

It is important to remember that Not Guilty, by law, does not necessarily mean you didn't commit the alleged offense. What it means is the prosecutor now has to prove beyond a reasonable doubt that you did commit the offense. The burden of proof is now on the prosecution and not you. If the officer doesn't show up at your trial, that is the prosecution's problem and your salvation. The extent of your defense is a simple motion to dismiss due to lack of a prosecution witness.

One last item concerning the not guilty plea: If you have to emotionally fight the moral issue of a not guilty plea, you don't have the conviction (no pun intended) to see the fight through to the end. You probably don't even have any real fight in you. In this case, you would be best served by paying the fine and clearing your conscious. Then again, you might want to decide if your conscious can be cleared by time spent in driving school rather than paying the fine out right.

Should you hire a lawyer?
The only true test in deciding if you need an attorney or not is whether jail time is a possibility in your sentence. Any citation, such as:

• DWI / DUI
• Driving on a suspended license
• Hit & run accident
• Any felony involving the use of your vehicle (drug or weapons possession, manslaughter, robbery, etc.)

If your case involves any of the items listed above, you definitely require the services of an attorney. If not, you then need to weigh the cost of the attorney's fee against the fine and insurance premium increase. There are some attorneys who specialize in traffic ticket dismissal and generally charge between $50 and $100 for their services. These attorneys typically specialize in obtaining continuances, arranging for probation sentences or, in a worst case, arrange for a driving school plea bargain. These are all options that you are quite capable of handling without an attorney. The advantage with these services is they have ongoing relationships with the prosecutors and are usually able to work within the system better than a stranger. If the price is right and it appears that you could get an arrangement other than driving school, you might consider one of these traffic ticket specialists for the pure convenience. Similarly, any attorney brings with him his knowledge of the law and legal system, his trial experience and his fee. Once you hire an attorney you loose control over the case. Unfortunately you have the most knowledge of the actual particulars and details that your attorney does not possess. You also need to remember that this case is not going to land your attorney on the cover of the latest legal journal; therefore, his attention span to this case is going to be somewhat limited. One industry statistic shows that unless you testify on your own behalf and inadvertently convict yourself during that testimony, 90% of all traffic case would not have benefited from the services of an attorney. If you still feel compelled to use an attorney, you should consider joining the National Motorist Association. The NMA offers a variety of resources (see additional information in the section titled "Additional Resources") including an attorney referral service. This service maintains a database of attorneys, by region, who specialize in traffic ticket defense.

Driving School and Other Pleas
The most popular form of plea bargain available is usually referred to as Traffic School, Defensive Driving or some other variation of the same theme. In this situation the defendant agrees to attend and provides a certificate of completion from a traffic school school that is licensed by the local jurisdiction. In exchange for your attendance, the charges against you will be dropped. This option is generally a once a year arrangement. In some states you can even qualify for an insurance discount with your certificate of completion so long as you don't let it slip that you actually attended due to a speeding citation.

Generally speaking, this scenario is a painless way to eliminate the charges against you. Many traffic schools offer an online option to make the ordeal as enjoyable as possible. The only other factor is cost. A typical defensive driving course will cost between $35 to $50, You might also have to pay a court cost charge in addition to the school's fee. The total cost is still likely to be less than your fine would have been.

Necessity of Speed Defense
Simply put, the Necessity of Speed defense says that while you admit that you were speeding, you had mitigating circumstances that forced you to exceed the speed limit for your own safety. One such instance might be when all the traffic around you is doing 70 mph in a 55 mph zone. To do the posted speed limit actually creates a dangerous situation while the ebb and flow of traffic attempts to go around you. Another scenario might be when you have a driver tailgating you combined with another car immediately adjacent to the left of you while yet a third car is attempting to merge into you from the right. Clearly you had to blast the accelerator up to 80 to get out of this harmful situation.

The odds of the defense working are extremely small. Do not base your hopes for a dismissal solely on this defense. In fact, this defense is best left alone.

Proper Planning Prevents Poor Performance
Now that you have decided to stand up and fight, there are a few things to check on as you get started in the preparation of your defense. Some of the more important items are:

• Check with your auto insurance agent to see what effect your conviction would have on your insurance policy.
• Contact the Department of Motor Vehicles (DMV) to determine your current point status and how many points your possible conviction will carry.
• Dispense with any automotive administrative work such as registration renewal, inspection, etc. These issues should all be resolved before the trial.
• Resolve any outstanding "Fix It" or parking tickets before your trial.
• Determine if you are eligible for Driving School.
• Review your upcoming schedule so you can have an idea about what possible conflicts might exist with your likely court date.

Once these administrative matters are resolved, or in the process of being resolved, it is time to start preparing your defense strategy.

Setting the Court Date
In order to have a need for a defense strategy you first have to enter a plea and set your trial date. There are three typical methods for entering your plea with the court:

• Personal appearance at the Court Clerk's Office to request a trial date.
• Appear before the Judge and enter your Not Guilty plea combined with a request for a trial date.
• Mail in a COPY of the citation along with your request for a trial date.

During all three of these scenarios you will likely need to post bail in the amount of the fine. Be prepared and check with the court ahead of time to insure that you have the proper amount and proper method of payment. Now that you have posted bail in the amount of the fine you have two things in your favor. First off, you have essentially paid your fine up front. If you lose your case in court, you have already paid your fine and will not be out any additional money. Secondly, if you are unable to appear on the trial date your bail is forfeited and there will be no additional fines. However, if you do not post bail and do not appear for your trial a Bench Warrant for Failure to Appear will be issued and you could be subject to arrest. Now instead of just a simple traffic citation you have an additional misdemeanor charge pending. Do not let a simple case turn into a complex case by missing your trial date.

Once you have a trial date, you need to be aware that the Constitution guarantees "a fair and speedy trial." Speedy trial is accepted to be 45 days from the date of arraignment (date which you enter your plea). It is important to monitor this time line very carefully. If the prosecution or the court contact you about changing your trial date you will have to waive your right to a speedy trial. The only advantage to waiving this right is that the longer the trial date is from the actual citation date, the better the odds are that the officer won't be able to remember the details.

On the other hand there are several disadvantages to not waiving your right to a speedy trial. The court can now assign any date for the trial it deems appropriate within the 45-day time frame. This date might pose a real schedule problem for you and could force you into forfeiting your bail and the entire trial. In addition, the case details are likely fresher in the officer's mind and you have the added pressure of getting ready for the trial at a faster pace. If you are not ready for your trial in 30 days you will not be ready in 60 days. As for the officer, you best hope is the officer not appearing at all. His notes are the main source of his memory since he likely wrote several citations on the same day your citation was issued. The bottom line is do not waive you right to a speedy trial.

One variation to the trial date scenario occurs when your citation includes the officer's vacation dates. This information is usually included as courtesy to the court but can often be used to your advantage. The first step is to pick a date right in the middle of the vacation period. Next, count back 40 days from that date and be sure that this day doesn't fall on a weekend, court holiday or, most important, after your scheduled appearance date. Presuming you meet all those criteria, you want to use that date as your day to appear at the clerk's office and enter your not guilty plea. As you can see this scenario relies on two critical elements: You need to have a citation that includes the officer's vacation dates and you have to be able to just walk into the Clerk's office to enter your plea.

Now you will need to wait for your trial date to be set. The trial date is set about 40 days from the day you entered your plea in about 90% of all cases. If all goes according to plan, you will enter the courtroom for your trial about the same time that the officer is enjoying sunshine and palm trees. All that remains is a simple motion to dismiss due to no prosecution witness. This is an extremely optimistic outcome. What will likely happen is the court will notice the error and contact you to postpone the trial or simply send you a letter with a new trial date. If the court contacts you, refuse to waive your right to a speedy trial. If the court simply reschedules your trial and the date is more than 45 days from your arraignment date, you have a mistrial situation.

Before going to court on the newly assigned date, you need to research local case law. You are trying to establish that an officer's vacation time is not "good cause" for the purpose of continuance. This will prepare you for the time in court when the judge or prosecutor attempt to save face by explaining to you that the court had "good cause" to continue your trial. At that point you will politely cite your case law findings and again make a motion for a mistrial. If the judge overrules you, proceed with your case and immediately file an appeal if you are found guilty. The case will always be overturned on appeal.

Now that you have entered your not guilty plea and set the wheels in motion it is time to start assembling the facts and data needed to build your defense case.

Department of Motor Vehicles
Every state has a Driver's License Bureau of some form or fashion. Most are known as the Department of Motor Vehicles and they control every aspect of your right to operate a motor vehicle in your state. These departments all have a method of monitoring your driving record and deciding when you have become enough of a hazard to the public to suspend your license. This usually involves a system that assigns points to various violations. Once you accumulate enough points, you become a pedestrian for a specified amount of time. A normal moving violation will affect your driving record for three years in most states. Some states will hold a moving violation on your record for five years and nearly all states leave a DUI / DWI on your record for seven years.

As you start to prepare your defense you need to verify the status of your driving record. You might also obtain a list of the entire point system. Most Departments of Motor Vehicles can provide you with a print out of your driving record for a small fee. Hopefully you won't be facing a suspended license for this current citation. If so, you might want to consider your case worthy of an attorney. For those of you in a normal situation, a check of your driving record will confirm that you will be safe from suspension but will still have a three-year mark on your driving record and, more important, your auto insurance record.