Ticket issued after accident, officer did not witness

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Latest post Sun, Nov 9 2008 5:38 PM by Ford. 15 replies.
  • Mon, Oct 20 2008 11:59 AM

    Ticket issued after accident, officer did not witness

    Hi all,
    I am a law student so I've been doing some extensive educational reading on Westlaw for this ticket I received about a month ago. I'm going to the arraignment today to plead not guilty.

    I was involved in an accident that was not witnessed. Minor fender-bender, but the other driver and I disagree on what happened, and neither of us saw each other before the crash. The officer showed up, listened to both stories, and gave me a ticket. He likely based his decision on the layout of the intersection - it's a three-lane road where the far right lane is required to turn right by signage (despite lack of pavement markings and the road continuing 3 lanes after intersection) and the middle has the option of continuing straight or turning right. She claimed I was in the right lane and failed to turn, and I claimed that I was in the middle lane and she merged into me from the left in a quick motion. The officer did not examine the roadway; he only took pictures of the damage and issued me the cite (O.R.C 4511.33(3)).

    I have a few questions:
    1. Because the officer didn't witness the accident and only used the story of an interested witness for determining fault, is there any grounds for a motion to dismiss here? "Reasonable minds could not believe...?" Interestingly enough, I can't find any case law where the officer issued a cite based on hearsay.

    2. When is the proper time to file a motion to dismiss? Have I missed the window? I think I remember seeing that one must file a demurrer before the arraignment, so that's moot.

    4. Scott v. Yates, 71 Ohio St.3d 219, requires an officer have accident reconstruction training in order to testify as to the cause of an accident. Other cases have found this rule to apply in criminal traffic cases. This'll be good for the trial, but could it be used to make this go away in pre-trial since the prosecutor very likely has no plans to retain an accident reconstructionist to testify?

    3. The Ohio Manual of Uniform Traffic Control Devices specifies that any thru lane that turns into a mandatory turn lane MUST be painted with "turn" pavement markings in addition to signage. According to Ohio case law, it is an affirmative defense to show that the sign posted is not in compliance with the OMUTCD, even if it is visible and the driver was aware. The statutory exception quoted in these cases refers directly to signs, but there are other tort cases that state that any provision of the OMUTCD that uses the word "shall" must be followed. I'm thinking that because that refers to tort actions against the government, it's not applicable in criminal traffic defenses. Am I right?

    Getting this ticket thrown out is of reasonable priority for me, because it plays into the accompanying insurance claim. Any help is appreciated.
  • Mon, Oct 20 2008 2:37 PM In reply to

    Feedback [*=*] re: Ticket issued after accident, officer did not witness

    " Interestingly enough, I can't find any case law where the officer issued a cite based on hearsay."

    Ok, since you are a law student, I'm going to hope you haven't taken the evidence course yet. If you have taken evidence, you get an F on your use of the term "hearsay" here. Hearsay is a rule of evidence that bars the use of an out-of-court statement at trial to prove the matter asserted. However, your statements about what you did and what you saw are NOT hearsay; nor are the other driver's statements about what he did or what he saw. Thus, the cop was not relying on hearsay in listening to the two of you state what you did and what you saw. Nor would it be hearsay for a judge or jury to hear you testify at trial about what you did and what you saw. Now, if the cop were to testify in court as to what you TOLD him you did and saw, that would be hearsay and not admissible unless an exception to the hearsay rule applied (and there are a bunch of exceptions)--instead, to get in that evidence you'd likely need to testify yourself as to what you did and what you saw.

    The cop didn't see the accident; they rarely do. They can, however, issue citations based on reasonable cause after reviewing the evidence, including the statements of the persons involved. If you disagree with the citation, you challenge it with the evidence you have in court.

    "2. When is the proper time to file a motion to dismiss? Have I missed the window?

    That's an issue of your state's law, and I don't think any OH attorneys participate here right now. What would be your basis for seeking dismissal? If you'd be guilty of the charge if the other driver's version of events was correct, then that's generally enough to beat a motion to dismiss. The state's burden for filing the charge and pursuing the prosecution is generally quite low. The higher standard of beyond a reasonable doubt only applies at trial.

    "This'll be good for the trial, but could it be used to make this go away in pre-trial since the prosecutor very likely has no plans to retain an accident reconstructionist to testify?"

    Not likely. The prosecutor doesn't necessarily need the cop to make his case. He can call the other driver to testify. If the other driver's testimony is believed, that can be enough for a conviction.


  • Mon, Oct 20 2008 3:12 PM In reply to

    • Ford
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    • Joined on Thu, Mar 16 2000
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    Feedback [*=*] Cops don't witness murder either . . .

    but it still gets prosecuted.

    "1. Because the officer didn't witness the accident and only used the story of an interested witness for determining fault, is there any grounds for a motion to dismiss here?"

    Likely not. The other driver can be called as a witness. There could be other witnesses who have come forward.

    What you are raising is a factual issue. Facts are why we have trials. The jury/judge is the finder of fact, even if it doesn't reflect reality.

    "Interestingly enough, I can't find any case law where the officer issued a cite based on hearsay."

    Because almost nobody appeals from infractions or really minor misdemeanors.

    "2. When is the proper time to file a motion to dismiss?"

    Depends entirely on state law and court rules.

    "4. Scott v. Yates, 71 Ohio St.3d 219, requires an officer have accident reconstruction training in order to testify as to the cause of an accident. Other cases have found this rule to apply in criminal traffic cases."

    That regard expert witness testimony. In my state that is chapter 7 of the Rules of Evidence.

    "This'll be good for the trial, but could it be used to make this go away in pre-trial since the prosecutor very likely has no plans to retain an accident reconstructionist to testify?"

    An accident reconstruction would probably require that the event have been documented a bit more in detail before everyone left the scene.

    "3. The Ohio Manual of Uniform Traffic Control Devices specifies that any thru lane that turns into a mandatory turn lane MUST be painted with "turn" pavement markings in addition to signage. According to Ohio case law, it is an affirmative defense to show that the sign posted is not in compliance with the OMUTCD, even if it is visible and the driver was aware. The statutory exception quoted in these cases refers directly to signs, but there are other tort cases that state that any provision of the OMUTCD that uses the word "shall" must be followed. I'm thinking that because that refers to tort actions against the government, it's not applicable in criminal traffic defenses. Am I right?"

    I didn't catch what you were cited for. Almost nothing about signage and such would be relevant to something like a failure to yield cite. For instance, if someone is going the wrong way on a one-way road, you don't get to crash into them just because they are there and you are obeying laws applicable to you.

  • Mon, Oct 20 2008 3:32 PM In reply to

    re: Ticket issued after accident, officer did not witness

    Based on what you have written I don't think it makes a difference what lane you were in.

    If you were making a right turn from either lane and failed to yield to a vehicle coming from your left and got hit, you are very likely at fault.

    I'm a little surprised that you got cited for that lane and sign statute when a failure to yield might have been more appropriate.

    Even if you manage to beat the ticket on a technicality you're insurance is likely to pay for the other vehicles damage.

    Anyway, what I've written above is my first impression.

    If you'd care to reveal the city and the names of the intersecting streets I can take a look at the aerial view on google earth and think about it some more.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, Oct 20 2008 5:54 PM In reply to

    • Ford
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    • Joined on Thu, Mar 16 2000
    • Posts 12,797

    Note [#=#] I read it differently...

    I think they were in adjoining lanes, going the same direction. Other driver expected poster to turn right, but he proceeded straight, as allowed, and she moved into his lane.
  • Tue, Oct 21 2008 12:55 AM In reply to

    re: Ticket issued after accident, officer did not witness

    >>If you'd care to reveal the city and the names of the intersecting streets I can take a look at the aerial view on google earth and think about it some more.

    The streets are Fairhill and Kemper, Cleveland, Ohio. The intersection in question is the one eastbound on Fairhill.

    The last poster is right about the layout of the intersection. The right lane is a mandatory turn lane, and the middle lane is an optional right/straight lane. Left lane is a straight only lane. There's a stoplight.

    The only problem is that I wasn't in the lane that the citation says I'm in. I was in the middle lane. The other driver wasn't paying attention and broadsided me after she hit her brakes and tried to get into the middle lane in order to make her turn.

    I realize that it seems slightly more likely that her side of the story happened. I presume this is why the cop gave me the ticket. Now my task is to try to rebut the city's case which was presented to the court. Speaking practically, it just seems to me that there is a great deal of reasonable doubt flying around here. But it seems to me so far that traffic courts do not abide by the presumption of innocence...

  • Tue, Oct 21 2008 1:06 AM In reply to

    re: Ticket issued after accident, officer did not witness

    >>If you'd care to reveal the city and the names of the intersecting streets I can take a look at the aerial view on google earth and think about it some more.

    Haven't! I'm a first year.

    >>If you disagree with the citation, you challenge it with the evidence you have in court.

    This is really what's getting me.
    The evidence I can present is that in the totality of the circumstances, the officer shouldn't have issued a citation at all for want of evidence. Maybe I should have used "direct evidence" instead of 'hearsay'?

    It seems to me that I'm coming down to a reasonable doubt defense here as my only option. I can show that the witness was an interested witness who would have received a citation herself if she would have corroborated my story and therefore is not credible. Since this case has no other physical evidence involved (besides accident damage, which goes either way), the state's case has to hinge on this witness.

    I suppose I'm really skeptical about the procedure at these traffic trials. I have heard horror stories about magistrates who don't allow counsel to give closing statements, rule in favor of prosecution despite clear evidence against, etc.
  • Tue, Oct 21 2008 1:09 AM In reply to

    re: Ticket issued after accident, officer did not witness

    ">>If you'd care to reveal the city and the names of the intersecting streets I can take a look at the aerial view on google earth and think about it some more.

    Haven't! I'm a first year."
    LOL! I pasted the wrong sentence to respond to. I meant to respond to the comment about evidence class...I haven't taken it yet.
  • Tue, Oct 21 2008 5:07 AM In reply to

    Feedback [*=*] re: Ticket issued after accident, officer did not witness

    "I can show that the witness was an interested witness who would have received a citation herself if she would have corroborated my story and therefore is not credible."

    The problem there is that she can say the same thing about you--if you backed up her story, you'd be the guilty party. Thus, that comes out as a wash.

    "Since this case has no other physical evidence involved (besides accident damage, which goes either way), the state's case has to hinge on this witness."

    Lots of cases, even murder cases, get resolved just on the basis of testimony of witnesses who were there. You'll need to get over the idea that many in the public have that the state needs some kind of physical evidence or a video recording of the event to make its case. That is simply not so. That's one of the things that you'll learn as you go through law school.

    "I suppose I'm really skeptical about the procedure at these traffic trials. I have heard horror stories about magistrates who don't allow counsel to give closing statements, rule in favor of prosecution despite clear evidence against, etc."

    Don't go by rumors you've heard from people who don't practice before traffic court judges. In one of the jurisdictions in which I practice, opening and closing statements are not permitted in traffic court under the rules--apparently they were considered unnecessary and thus would eat up valuable time in a busy traffic court. If a judge does something clearly wrong, that is what appeals are for.
  • Tue, Oct 21 2008 2:40 PM In reply to

    • Ford
      Lawyer
    • Top 10 Contributor
    • Joined on Thu, Mar 16 2000
    • Posts 12,797

    Feedback [*=*] re: Ticket issued after accident, officer did not witness

    "The evidence I can present is that in the totality of the circumstances, the officer shouldn't have issued a citation at all for want of evidence."

    That's an opinion. Moreover, that's not how it works. The standard for issuing a citation should be 'probable cause to believe a traffic violation occurred.' The standard for a conviction would be 'beyond a reasonable doubt' or possibly something lesser if this is just an infraction/civil event, like 'preponderance of the evidence.'

    "I can show that the witness was an interested witness who would have received a citation herself if she would have corroborated my story and therefore is not credible."

    Tracers work both ways. Your testimony is also self-serving, therefore not credible. Doesn't work that way either.

    I think a better issue might be her changing lanes in the middle of the intersection. If I understand your event correctly, other driver is saying that you failed to turn in the turn only lane. That still doesn't give her the right to change lanes in the intersection, maybe. In my state you cannot change lanes in the intersection.

    You should have left the vehicles as they were and snapped a few photographs. Disposable cameras are awesome.
  • Tue, Oct 21 2008 4:13 PM In reply to

    re: Ticket issued after accident, officer did not witness

    I'll offer a suggestion. I am not a lawyer.

    I think you are barking up the wrong tree when you talk about road signage. The fact is that you were in the middle lane, and the other driver stated to the police officer that you were in the right lane, thus, she believed you would turn right as was required for that lane. Based on that, you got a citation for going straight in a right turn only lane.

    My suggestion is that you would know, better than she would, which lane you were in. Obviously you were not turning right, as if you were turning right you would have continued on parallel paths and not collided. You collided because you were going straight and she turned right, into your car.

    My suggestion is to go to court and state that you were, in fact, in the middle lane. Your intention was to go straight, thus, you were in a legal lane for straight traffic.

    My next question, in court, would involve at what point did the other driver see you at all? Did she see you in the right lane, say to herself "He must turn right there, thus, I can, too.", or did she only imagine seeing you in the right lane?

    If she actually saw you in the right lane, did she also see you do the things typical of a right turn? Did she see your blinker? Did she see you slow down? Did she see you look over to the right to make sure the coast was clear over there? Or did she see no blinker, no slowing down and you looking straight ahead? Since your intention was to drive straight ahead, then she would have observed the latter had she observed you at all. Then, having observed the actions of a driver who plans to go straight ahead, why did she "trust" in the right-turn only lane and expect you to turn, thus, avoiding a collision?

    There is a similar intersection near my house. I have to make a left turn across oncoming traffic. The oncoming traffic has a right turn only lane. I often see people driving in the right turn only lane, slowing down, with blinkers on. Do I trust them and start a left turn? No, I do not. Not until I actually see the car initiate a turn do I trust them. I know that people sometimes drive with blinkers on for miles, unknowingly. I know that people might slow down to look at a road sign, then drive on straight if it's not the road they want. I can easily imagine a scenario where someone looking for a road, unaware of their blinkers on, goes staight through the intersection when I am depending on them to turn right as I turn left.

    Thus, I wait until I see an actual right turn happening (tires turning, etc) before I start the left turn. I don't mind waiting a few more seconds.

    My suggestion to you is to go to court and show that the accident could have been avoided if the other driver would have been more aware of your actions. Her side of the story doesn't add up. How could you be in the right lane? You were not driving slowly, as a person would do if they were turning. Your blinker was not on. She should have realized something was wrong and taken appropriate action.
  • Tue, Oct 21 2008 6:42 PM In reply to

    re: Ticket issued after accident, officer did not witness

    >> My suggestion to you is to go to court and show that the accident could have been avoided if the other driver would have been more aware of your actions. Her side of the story doesn't add up. How could you be in the right lane? You were not driving slowly, as a person would do if they were turning. Your blinker was not on. She should have realized something was wrong and taken appropriate action.

    Your suggestion is exactly what I was thinking, right on point. Regardless of which story the court believes to be true, the other driver couldn't have been paying attention, which is why we had a collision.

  • Tue, Oct 21 2008 9:09 PM In reply to

    re: Ticket issued after accident, officer did not witness

    I looked at the aerial view of the intersection.

    Seems to me that your bottom line here is to prove which lane you were in.

    Were there no witnesses?

    Looks like sidewalks on both sides of Kemper and along the eastbound side of Fairhill along with numerous multi-unit buildings.

    I'd consider posting notices in those buildings' common areaa (bulleting board, mailroom, etc) to see if any witnesses come forward.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Oct 23 2008 10:12 AM In reply to

    re: Ticket issued after accident, officer did not witness

    No, nobody stopped. There's hardly any foot traffic in the area, just cars.

    That's a good idea, though. It's a long shot, but if there is anybody out there it would certainly help.

    I obtained the police report. The officer described the intersection wrong (used "left" instead of "right turn lane") and also wrote that he issued the citation because I said that I wasn't sure what lane I was in. I definitely didn't say that, though he may have thought that I implied it when I pointed out the lack of lines at the intersection.
    He also wrote that he investigated the scene of the accident and found no debris, which is also untrue (the investigation, not the debris.) The whole time, he was talking to us and examining the cars, which was about 500 ft down the road to the east. He never walked over to the intersection, even when I told him about the unmarked lanes.
  • Sat, Nov 8 2008 12:48 PM In reply to

    re: Ticket issued after accident, officer did not witness

    My niece had an accident recently and her father is a Police Officer. I've been discussing the fact that she got a citation after the accident with him as well.

    I don't understand how an officer can issue a citation without a victim or witness asking for it in infraction situations. Officers can't even cite or arrest for a misdemeanor that is not committed in their presence except with very few exceptions like DUI and certain domestic situations.

    How is it that an officer can show up on the scene, be TOLD what happened, and issue a moving violation infraction citation?
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