NYS Traffic Lawyers
Fighting a New York State speeding ticket is much more difficult than it seems. It is not simply your word against the cops, and many of the defenses that people think are viable are often not only incorrect but confessions. For example, there is no defense in:
- I was going with the flow of traffic
- Other people were speeding faster than me
- I didn’t know the speed limit
- It was a speed trap
- I was only speeding because….
Fighting a NY State speeding ticket – the burden of proof
Before you can wrap your head around defending yourself against a speeding ticket in a New York Court of law you have to understand some basic criminal precepts and constitutional rights we have in New York State. Just because you were ticketed does not mean you are guilty. Further, it is not your burden to disprove the allegation, but the state’s burden to prove the allegation. Depending on the court, the proof must be either beyond a reasonable doubt, or by clear and convincing evidence.
Prosecution of a speeding ticket – the players
The first thing you have to understand if you are defending yourself against a speeding ticket is who the players are. There is you of course, which is formally known as the “defendant.” There is of course the judge, who is formally known as the “court.” And then there is that entity that most pro se litigants tend to ignore to their determent – the People of the State of New York. You see, it is not the cop or the judge prosecuting you, but the people of NY State. The people are represented by someone called a “prosecutor.” This prosecutor could be the county District Attorney, the City, Town, or Village Attorney, a specially appointed prosecutor, or the police officer who wrote the ticket – which is becoming rarer and rarer these days. As for the cop, while you may feel it is you against him that is not really the case. It is you against the state of New York. The cop is merely a witness. And if you handle him right, he can be a great witness for you.
What you need to understand is a few things. First and foremost, the judge is not your ally. The judge is not there to give you legal advice, help you, or hear you drone on about how much of a jerk the cop was. The judge is there to be a neutral arbiter of the facts and the law. Think of the judge as a baseball umpire. Most NY traffic court judges are part time local lawyers from the community. They have all been elected. You may even know the judge – maybe he represented someone you bought a home from or his kid may be on your kid’s little league team. Don’t be fooled by this. He is not there to be your friend. He is not going to listen to your stream of consciousness and then dismiss the ticket. Not because he is a bad guy, but because that is not the way the system works.
The other party to this is the prosecutor. Although it may look like it, the prosecutor is not an employee of the court. Enforcing speeding laws and prosecuting cases is an executive function, not a judicial function. Consequently, the prosecutor has been retained to represent the people by either the jurisdiction where the ticket was written or the county district attorney. Inasmuch as police officers are arms of the executive branch, when they prosecute their own tickets they too fall under the authority of the executive branch.
While on the one hand the judge is not there to be your friend and advocate, he is not there to hurt you either. A judge has to follow the law. Consequently, you must present your case and defend yourself against the allegations in the language that the judiciary understands. For example, it is not enough to say “I only sped up to pass another car.” That will only get you convicted. However, if though cross examination and direct evidence you articulate the affirmative defense of necessity, NY Penal Law § 35.05, then speeding up to pass another car could get the case dismissed. However, you must study the law of justification so that you understand the elements required to assert the defense of necessity, and how when asserting the defense the prosecution must now prove a negative. Powerful stuff.
The elements of a speeding ticket
Every statute that affixes criminal or civil liability either proscribes conduct or prohibits conduct. In the case of speeding, NY Vehicle & Traffic Law 1180, the law prohibits conduct; i.e., operating a vehicle over a certain speed. In addition, statutes have elements to them. Elements are the series of events that each have to be proven by the aforementioned burden of proofs in order for the speeding ticket defendant to be found guilty as charged.
It is critical that you, as a speeding ticket defendant, pull the V & T Law and study not just the over arching section, but the particular sub section you have been charged with and know the elements by memory. This is because if a police officer fails to testify to an element that is required by statute the case must be dismissed.
If you think this does not happen you could not be more wrong. It happens all the time. For example, I bet you did not know that the NY State default speed limit is 55 MPH unless otherwise posted. Suppose you are charged with doing 50 MPH in a 30 MPH zone, but the officer fails to say the magic words that the 30 MPH zone was posted 30 MPH. Guess what has to happen – you case has to be dismissed because the state did not prove did not prove that the speed limit was anything but the default speed limit if 55 MPH. If, however, you were given a ticket for doing 75 in a 55, then obviously it would not matter if the officer testified that the roadway was posted 55 MPH.
Another way one can use elements to undermine a speeding ticket case in chief is when charged with speeding in a school zone or work zone. Often times, for both zones the speed limit is artificially lowered. However, in a work zone case merely having a traffic pattern up and signs out is not enough. The work zone must be an ACTIVE work zone with workers actually in the zone working. There are also specific elements for a school zone ticket as well. Failure to prove all of those elements, by the aforementioned burdens of proof, will get the ticket either totally dismissed or at least diminished to a non-zone ticket and possibly a lower speed violation, which is a huge difference in points, fines, and insurance implications.
Speeding tickets – where prosecuted
The next thing you need to understand is what venue you are before. NY State speeding tickets are tried in 2 completely different venues. If you received a speeding ticket in New York City (all 5 boroughs), Rochester, or Buffalo, your case will be heard in the NYS Department of Motor Vehicles Traffic Violations Bureau. This is not a “real” court but an administrative tribunal owned and operated by the NYS DMV. The judges are not real judges in that they are not elected officials but administrative law judges (ALJ) whom are employees of the DMV. Contrast, if you are before any other of the over 1,400 courts in NY State outside of the aforementioned venues, your case is being heard in a local city court, or town or village justice court.
The difference is like night and day. In the TVB the burden of proof is the lesser by clear and convincing evidence standard. In the city and justice courts the burden of proof is the greater beyond a reasonable doubt standard. In the TVB court a defendant does not have all the rights that a defendant is entitled to in a justice court. Specifically, in the TVB courts the defendant does not have the right to:
- Supporting deposition
- NY CPL § 710.30 disclosure
- Speedy trial rights under NY CPL § 30.20
- The right to “Rosario” material
- The right to disclosure of all written and recorded information
- The right to make a written motion to dismiss
The basic trial procedure
There are 2 different trial procedures depending on the venue. The overarching framework is that both sides have the right to an opening argument. Then the prosecutor puts his witnesses on, the defendant cross examines, the prosecutor rests. The defense calls witnesses (but does not have to), the prosecutor cross examines, the defense rests. Both sides have the right to closing arguments, and then the judge renders a verdict.
In the NYC DMV TVB there is even less than that, as there is no actual prosecutor. There is just the judge and the cop. You as the defendant still have the right to make an opening statement, but the judge may not allow it. The cop testifies and you can then cross examine. You can then testify or enter evidence such as photographs. Since there is no prosecutor often the judge jumps in and asks questions – of you or the cop. Then, you can make a closing statement and the judge makes a decision.
Trials in the city and justice courts are much more formal and the Criminal Procedure Law controls. Both sides make opening arguments. Then the prosecutor calls the cop to the stand. The cop testifies, and then you cross examine. Upon the close of the people’s case you should move for a directed verdict, alleging that the people did not even make a prima facie showing. The standards and burdens for this are contained in the CPL. If the court grants your motion great – you won. If not all is not lost. If the case continues then you can call witnesses, put on evidence and testify yourself (although you don’t have to). At the close of the defense case you should make a motion to dismiss. This is similar to, but different than, a motion for a directed verdict. Again, it is contained in the CLP so you really need to study it. Yet again if the court agrees you won and if not all is not lost.
Lastly, you get to make closing arguments. Arguments are different than motions to dismiss. Making a motion to dismiss you are telling the judge that the prosecutor’s case is legally insufficient. Arguing in a closing statement you are trying to persuade the judge that the people did not meet its burden of proof by the requisite standard. This goes for either venue – argue persuasively and speak to the burden of proof and how the benefit of the doubt goes to the defendant.
Defense of a speeding ticket common to both venues
Whether you are being prosecuted in a local city or justice court or the NYS DMV TVB, what you must know common to both venues are the elements of the infraction, the radar, equipment, visual speed estimation, and how to cross examine on all of those things. We already went over the elements, but I cannot stress how important it is to study, read, and know the elements of a speeding allegation.
You must also study how a radar works. There are 2 kinds of radars – doppler and laser. A doppler radar emits microwaves, bounces off of objects, and calculates the speed of the object by the difference of distance of the microwave returning to the radar. The laser radar is also called a Lidar. A Lidar laser radar relies on the principle of time-of-flight of two (or more) short 905 nm wavelength. It calculates the differential between the time of flight of the multiple wavelengths to determine the speed of the vehicle.
There are entire books written on how these devices operate and their fallacies. In order to properly cross examine a police officer about this element of his case, you must do the research on the type of unit that was used in your case. Whichever type of unit was used, before the state can enter evidence of a radar reading they must first lay the foundation that the radar was accurate. They do this by entering into evidence the most recent original certificate of calibration. However in order to do this they must first lay the foundation for allowing the certificate of calibration into evidence. And to do that they must meet the standard of what is called he “business records exception to the hearsay rule.” This rule is contained not in any criminal procedure book, but in the Civil Procedure Laws and Rules, specifically CPLR § 4545.
Prohibiting the prosecution from entering in evidence of a radar reading gives you as the defendant huge leverage in having the case dismissed, so you must object to the calibration certificate coming into evidence. To do that effectively however, you must know the elements to the business records exception to the hearsay rule. So study and know cold CPLR § 4545. Also, often times the direct foundational evidence is unclear, or you want to ask questions to undermine it. If that is the case you tell the judge you want to “voir dire,” which is a fancy way of saying you want to cross examine regarding the elements of the business records exception to the hearsay rule. Foundational issues of evidence often turn into mini trials within the trial.
You must also understand visual estimation and how to cross examine the police officer’s testimony regarding visual estimation. This is critical, because case law holds that a speeding ticket must be proven by both evidence of radar and visual estimation. Entire articles can be written about visual estimation, and in fact I have a published detailed article in the 2007 Westchester Bar Association Bar Journal. However, a quick tutorial is as follows:
Rate x Time = Distance
To determine rate, divide time into distance. In other words, if it took 3 seconds to travel 300 feet the rate, in feet per second, is 100. That must be converted into miles per hour, which is done by dividing the feet per second into 1.46. In this example, you would get 68.5 MPH.
Your job is to elicit from the cop how long he watched the vehicle and how much distance that vehicle traveled. Once you get those 2 values you can calculate MPH. The great thing with cross examining on visual estimation is that it does not matter what the cop testifies to or what the ultimate MPH is – there is always a way to utilize the testimony to your advantage.
Defenses only for city and justice courts
A speeding ticket defendant has much more rights in a city or justice court. Most notably, a speeding ticket defendant is entitled to prosecution by information only, however he must demand conversion by timely demanding a supporting deposition. If the supporting deposition is not timely served, or served imperfectly, or the contents of the supporting deposition fails to convert the complaint (ticket) to an information then the ticket must be dismissed.
Entire legal treatises have been written on the supporting deposition. The procedure and rights to a supporting deposition are contained in NY CPL § 100 – 125, and the right to dismissal is contained in CLP § 170. Many pro se plaintiff’s fail to demand a supporting deposition because many cops now serve them roadside with the ticket. However, don’t be fooled this is improper service, so always demand a supporting deposition even if one was given to you. Also, study the law on the difference between complaints and informations so you know the elements for conversion. Failure to serve a proper and timely supporting deposition is a powerful weapon, because it is a jurisdictional deficiency. And if you receive a proper supporting deposition that is good too, because you will need it to prepare your cross examination.
If a supporting deposition is not served or improperly served while it is grounds for dismissal you must move to dismiss in writing. Failure to move in writing results in a waiver of your right to a supporting deposition and conversion of the complaint to an information under the law. A motion to dismiss is more than a letter and is a formal, ritualistic procedure. The law and procedure for bringing a motions is contained in the Civil Procedure Law and Rules § 2200, so if you need to make any written motions read that section first.
Another defense is to assert your CPL § 710.30 rights. That is the law which prohibits the people from using statements you made against you unless certain disclosures were timely made. Often, this is not done in a traffic ticket trial, so you need to know CPL § 710.30 so you will know when to object to prevent your inculpatory statements you made to the cop on the stop from coming into evidence at trial.
Other trial defenses and techniques
In addition to testimony, you can enter other evidence before the court. However, for every piece of non-testimonial evidence you must lay the foundation just as the prosecutor must lay the foundation for the calibration certificate. For every different type of evidence is a different foundation. If for example you want to enter into evidence photographs you must know how to lay the foundation. If you fail to lay the proper foundation then your evidence is not allowed before the tribunal to consider
You should also study the case of People v. Rosario, which stands for the proposition that if a recorded statement, such as a report or audio recording, is not disclosed to the defendant prior to cross examination then that witness’s testimony must be stricken from the record. This is powerful stuff considering the state’s whole case is made on the testimony of 1 cop. Get his testimony tossed = acquittal.
The people must also turn over video evidence in advance of trial, but only upon timely demand and only if you provide a DVD. The court has more remedies at its disposal short of striking testimony, witnesses, or evidence, although that could happen.
Make sure if you move to dismiss wait until the prosecutors first witness is sworn in, because that is the time you are protected against double jeopardy.
I have tried to make this as comprehensive yet brief as possible. However, there are so many nuances to how to defend yourself against a speeding ticket case that it cannot be told in 50 words or less. The major takeaways are as follows:
- Know the element of a speeding ticket
- Understand the venue and the burden of proof relevant to your venue
- School yourself on in depth knowledge of how radar equipment works
- School yourself on visual estimation and how to cross examine
- If your case is outside of the TVB system:
o Know the Criminal Procedure Law and how it pertains to:
- Supporting Depositions
- Motions for directed verdict and motions to dismiss
- Speedy trial
- CPL § 710.30 disclosure
o Know Article 45 of the Civil Procedure Laws and Rules for:
- How to lay a foundation
- The business records exception to the hearsay rule
- General rules of trial evidence
o Know Article 22 of the CPLR for how to make a motion
o Know Penal Law § 35 for justification defenses
o Know People v. Rosario