The vast majority of speeding tickets in the counties where I practice are resolved by plea negotiations via the mail.  It saves money and time. The defendant doesn’t have to spend hours in court or pay a lawyer an hourly rate to attend. The DA can focus on more serious cases.  The courtrooms aren’t overflowing with people charged with only simple traffic offenses. The defense lawyer writes to the DA, includes a copy of the client’s driving record and makes an argument for reduction.  The DA replies and it usually resolves. 

But every once in a while the DA refuses to plea bargain.  A colorful driving record, a very high rate of speed, or an accident can be the cause of such a refusal.

In such a case, a defendant can be faced with pleading guilty, getting hit with lots of points and the resultant risk of loss of license, increase in insurance rates, and perhaps even jail.  Given the choice of falling on one’s own sword or taking a chance on winning at trial, the trial can become the better choice.

But what is there to try?  It seems simple. The police saw the driver whiz by as a blur.  She was tracked on radar or laser. Sally was clearly doing 96 mph in a 55 mph zone (music break….stop now and listen to Wilson Picket serenade Sally…. 

What is the point in taking such a cut and dry case to trial?  It appears simple, but not so fast…..(that was intentional).

In CASE 1 my client was charged with 97 mph in a 55 zone.  Steve McQueen (not really) already had 6 points. He received his ticket in a lightly populated but geographically large county in the Adirondacks.  There was no traffic in sight. No accident was involved. He drove past the Trooper on a lonely road while obviously thinking he only had to worry about deer, moose and Bigfoot. 

The DA refused to offer any reduction.   Pleading guilty would have meant a loss of license.  Steve lived on Long Island and had to drive to work. Having nothing to lose, he asked me to take his case to trial.

  In that town court the Trooper was allowed to act as the prosecutor.  After refusing any plea bargain, I thought the DA would at least show up to try the case.  He did not. The Trooper filled in for him. He took the stand and immediately began testifying.  I scribbled a quick note for later use: “Witness not sworn”.

The first point of contention was the radar reading.  To enter any evidence, a foundation must be laid. He needed to establish he was a certified radar operator.   The Trooper produced his certification card, but I renewed my objection. The Trooper seemed perplexed. The Judge did as well. 

I explained the radar is calibrated at the beginning of the Trooper’s shift using tuning forks.  I knew State Police Sargents didn’t usually let Troopers take the forks and related material out of the  barracks. This Trooper had not brought them to court. The calibration of the radar could not be proven.  Without the calibration, the radar device could not be accepted as reliable. The radar result was ruled inadmissible.

Next the Trooper attempted to testify to his visual observation of Steve’s speed.  I objected. No foundation. There are five factors which need to be referenced to lay the right foundation for a visual estimate.  In my experience, many officers don’t know them all:

1) The Trooper received proper training in this area at the police academy;

2) The Trooper has experience of visually judging the speed of moving vehicles;

3) The Trooper has spent considerable time on road patrol;

4) The Trooper has experience estimating speed and comparing those estimates to mechanically calibrated speed measuring devices;

5) The Trooper has a record of making visual estimates with a margin of error of only a few miles per hour.

After some guessing, the Trooper named all five factors.  His estimate was in evidence. A visual estimate alone is enough to establish guilt even without radar or laser.

The Trooper indicated he was done.  The Judge asked me if I had any questions.  I declined to cross. The Judge then asked if I had any witnesses.  I replied I needed to hear the Trooper say, “The People rest.” Once that was said, his case was over and I would proceed.

The Trooper obliged and said he rested.  I stood and moved to dismiss. The Judge looked at me like I was nuts.

“On what grounds, Mr. Mausert?”

“There is no evidence before you, Judge.”, said I.  “The Trooper took the stand and began testifying without having taken an oath.  He gave only unsworn, inadmissible statments. There was no sworn testimony. There is no proof before the Court.”

            The Judge hit her own forehead with her palm and said in a plaintive voice, “Oh!  That is my fault.”  

“It doesn’t matter whose fault it is, your honor.  The Trooper gave no sworn testimony.”

“Can’t we go back and swear him in?” asked the Judge.

“No, your honor.  His case is closed.  Jeopardy has attached.  There is no do over now that I have pointed out the People’s shortcomings. If there was, every prosecutor would want to re-open the case once the defense pointed out the weaknesses. ”

A senior supervising Trooper in the back of the room tried to jump in….”Can I say something?”

“No, your honor, he may not.” I interjected.  “He is not a witness. The People’s case is closed.  There is only one prosecutor here and it is the Trooper who issued the ticket.”  I could feel the glare from the veteran Trooper on the back of my head.

Sensing we were at a critical juncture, I continued:  “Even if he had been sworn, there was insufficient testimoney to convict.  The Trooper failed to testify as to the speed limit on the road. He failed to testify there were speed limit signs posted which conformed to the Codes, Rules and Regulations of NYS, § 212.3.  He failed to ask for judicial notice the road was a public way.  An essential element of proof is the driver was on a public road.  Without proving all elements of Vehicle & Traffic Law § 1180, there can be no conviction.”

“But Judge….!” implored the Trooper.  “We all know the state speed limit is 55 mph.  We all know that road is a public way.”

“Your honor….Civil Practice Law & Rule § 4511 governs judicial notice.  The Court can take judicial notice of commonly known or undisputed facts such as the road being a public way.  But the prosecution has to ask. He did not. As for what you know, you are prohibited by the Cannons of Judicial Ethics, 3 C (1) (a) from using your personal knowledge at trial.   You only know what has been proven in this trial.  Even if the Trooper had been sworn before his testimony, he failed to address critical elements of the statute.  He failed to prove necessary facts to establish those elements. But worse, he wasn’t sworn. There is no evidence before you.”

I was expecting most of the Trooper’s errors.  I go to speeding trials armed with a memorandum of law with the statutes and rules I quoted to the Judge.  Everyone in the room knew Steve was guilty. It takes a good Judge to follow the law and put aside a result oriented approach to justice.  It takes a fair minded Judge to understand the guilt of one defendant is not as important as protecting the fairness of the judicial system.  This was a good and a fair Judge. She dismissed the charge.

Then she asked me if she could have a copy of my reference memorandum of law.  I gladly made a photo copy for her.

          I told my client to set his cruise for 5 mph under the speed limit as he drove 5 hours back to Long Island. I cautioned him there might be a few Troopers on the look out for his license plate.

In CASE 2 James Dean (yeah, not really…..the real JD died driving too fast on Mulholland Drive in LA) was ticketed for driving at 96 mph in a 65 mph zone on I-87. The Trooper who wrote the ticket acted as the prosecutor.  He tried to establish a visual estimate, but I objected. I argued there needed to be a foundation of five factors established. The Trooper remembered four. Hearing so many, the Judge was inclined to let the fifth one slide.  I objected. The Judge asked me what the fifth factor was.

“Judge…..I promise I’ll tell you and show you the case law after the Trooper finishes testifying.  If I tell you now, the Trooper will testify to it.”  The Trooper gave up and no visual estimate came into evidence.

The Trooper had used a laser to measure speed.  I objected to testimony about the laser and asked to see his certification.  The Trooper produced a radar card which had an acronym on the back, “LART”. Thinking it might apply to laser certification, the Judge asked him if he knew what it stood for. The Trooper did not.  But needing to get the laser reading into evidence, he suggested he be allowed to ask the three other Troopers in the back of the courtroom.

“Judge, I object.  The prosecution should have been ready for trial.  This is not the time to consult with others.”

          “Kurt…..don’t worry.  The four of them together won’t be able to tell us what it means.”  The Judge was grinning as he said this. I thought the Troopers would be offended, but they were too  busy being embarrassed and bemused. The Judge was right. None of them knew. No laser evidence was admitted.

        The testifying Trooper indicated he was done.  The Judge asked me if I had any questions for cross examination.

          “Questions about what, your honor?  There is no evidence before the court.  The visual estimate was not admitted for want of foundation.  The laser evidence did not come in because there was no proof the Trooper was certified.  The court has nothing before it.”

Case dismissed.

CASE 3 was tried in the same court as CASE 2. It was almost a carbon copy.  No proof the radar had been calibrated.  No foundation for the visual estimate. No cross….just another dismissal.   Everyone in the place knew my client was guilty, but the prosecution did not come equipped to prove it.

The same group of Troopers were in the back of the courtroom.  I passed by them as I was exiting. One of the older ones said to me, “We’ll be ready for you next time.”  I stopped, smiled and replied, “I hope so. Unless you guys can successfully prosecute speeders, the roads will be more dangerous.  In the meantime, my job is to get you to do your job better.” He agreed and we shook hands.

Other CASES could be written about, but the ones I am thinking of are boring.  A trial date is set. I show up with my client and my memorandum of law.  The DA is there, but no officer appears. Absent having been called to an emergency, non-appearance by the ticketing officer is not excused.  The court should dismiss. Over my 32 years trying these cases, my estimate is officers fail to appear about 1/3 of the time.

If you have a speeding case in which the DA will not convey a decent reduction to your attorney, you always have the option of trying the case.  Many prosecutors underestimate the complexities of these cases. Many officers expect a slam dunk victory. There is no better way to lose a trial than to underestimate your opponent while overestimating yourself.  And that, dear readers, are a few ways you can win a speeding trial.