Should I fight this WV ticket?

What is the name of your state?West Virginia was where I got the ticket, though I am a resident of Ohio.

I'm 45, have been driving for 29 years, and have never seriously thought of arguing a traffic citation in court until now. I'd appreciate any advice and/or comments.

Last Wednesday night, 1:00 a.m. in heavy rain I am driving along a four lane, undivided highway. There is no other traffic. The speed limit is 50 MPH and I am going 50. There are flashing lights ahead. A front-end loader is working on the opposite side of the road, scooping mud and rocks out of the ditch.

A police patrol car is parked roughly in the middle of the road, a little closer to me than is the loader, with its lights flashing as well. I am in the extreme right lane as I see it, and my lane is clear for as far ahead as I can see.

As I get alongside the police car, there is an officer giving me the "slow down" sign - his hand extended at about waist level, his hand moving up and down. He's wearing a reflective vest, but in the rain I do not see him until I am right by his car. Until that time he had the flashing lights behind him, from my vantage point.

I see him, but there is not even time to touch the brake pedal before I am past him. I continue on to the next little town where my motel is.

The officer comes after me, and gives me a ticket for "failure to obey traffic control instructions." I explained to him that I did not see him in the rain until I was right by him - too late to slow down - and that despite the working loader my lane was clear and I was going the speed limit. He was mad and in no mood to discuss things. The loader working wasn't close to me - he was mad that I went past him, probably 6 or 8 feet from him, at 50 MPH.

I'm wondering if a judge would see my side of it. The judge might say, "You should have slowed down anyway - work was going on, patrol car lights flashing, etc., and you couldn't see if there were pedestrians to the side in the rain." If so, then it's not worth me arranging to go to court, etc.

I do feel I have some case, though - my lane is clear, there is no other traffic, and I'm going the speed limit.

Thanks for any comments.

Doug

"The judge might say, "You should have slowed down anyway - work was going on, patrol car lights flashing, etc., and you couldn't see if there were pedestrians to the side in the rain.""

That is exactly what the judge will say...and he will be right.


"I do feel I have some case, though - my lane is clear, there is no other traffic, and I'm going the speed limit."

100% irrelevant; that has nothing to do with the charge.

Hi SeniorJudge,

Thank you for the reply. We shall see.

Best,

Doug

Post back with the results.

You were lucky that you were not arrested for resisting arrest by fleeing!

I told a magistrate that I wish to plead not guilty. There will be a hearing, first, before any trial.

The applicable parts of West Virginia traffic law, the Official West Virginia Code, as I see it, are:

17-C-3-4 Obedience to traffic-control devices; official signs to be in proper position, etc.

The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic of police officer.

No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that signs are required, such section shall be effective even though no signs are erected or in place.

This establishes the idea of "proper position" and what can be seen "by an ordinarily observant person." I maintain it is not reasonable to expect the obeying, before entering the work area, of traffic-control instructions if the officer giving them is in an improper position -- in this case standing very close to the work itself, and immediately in front of bright flashing police car lights, and having no light in his hand nor on his person at night.

17C-3-4a Obedience to traffic-control instructions at site of street or highway construction or maintenance.

The driver of any vehicle shall obey the traffic-control instructions of any law-enforcement officer or persons authorized by the commissioner of highways or by proper local authorities to operate traffic-control devices, act as flagmen or operate authorized vehicles engages in work at or near the sire of street or highway construction maintenance work, for the purpose of regulating, warning or guiding traffic.

17C-3-4b Traffic violations in construction zones; posting requirements.

At each and every location where street or highway construction work is to be conducted a sign shall be posted at least one thousand feet from the construction site, or as close to one thousand feet fro the construction site as is practicable given the location of the site when workers are present, notifying all motorists as to the speed limit and displaying the words "construction work."

There were no signs at all, nor any cones, flares, barricades, etc. Nothing but the police car with flashing lights some 50 feet from the working front-end loader. I am hoping this alone will be grounds for dismissal of the case. I was cited under 17C-3-4a, which is "at construction site," and there was no signage, etc., as required to establish that per the Code.

If not, then I'm going with the fact that I could not see the officer giving hand signals until I was very, very close to him and the work, and that I did attempt to obey once I had seen him, and hoping this would be reasonable doubt that I am guilty.

Doug

PorkLoin said:

If not, then I'm going with the fact that I could not see the officer giving hand signals until I was very, very close to him and the work, and that I did attempt to obey once I had seen him, and hoping this would be reasonable doubt that I am guilty.

Doug

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Doug,

A recent law in Texas (possibly something in effect in other states) requires that drivers in the lane adjacent to where an emergency vehicle or police vehicle is located and with flashing lights must reduce speed to 20MPH under the posted speed limit. It may not be the hand signal to "slow down" that is referenced in the citation, but just the flashing lights on vehicle. Something you might want to research.

"...I told a magistrate that I wish to plead not guilty. There will be a hearing, first, before any trial...."

Pre-trial hearings are exceptionally rare in these kinds of cases.

Make sure you understood the magistrate correctly.

seniorjudge said:

"...I told a magistrate that I wish to plead not guilty. There will be a hearing, first, before any trial...."

Pre-trial hearings are exceptionally rare in these kinds of cases.

Make sure you understood the magistrate correctly.

Click to expand...

Seniorjudge, I had not heard they were rare, but this is absolutely the first time I've had anything to do with such. In WV you can choose a jury trial if desired, and that is dealt with at the hearing.

If there is opportunity to plead to a lesser charge, I'm presuming it would come then -- it's hard for me to think that the prosecution really wants to go to trial.

Doug

PoppaKeith: >>A recent law in Texas (possibly something in effect in other states) requires that drivers in the lane adjacent to where an emergency vehicle or police vehicle is located and with flashing lights must reduce speed to 20MPH under the posted speed limit. It may not be the hand signal to "slow down" that is referenced in the citation, but just the flashing lights on vehicle. Something you might want to research.<<

PoppaKeith, good idea, and thanks. In my home state of Ohio there are signs to that effect, though no MPH reduction is specifically posted. The wording is something like, "Drivers must slow down for police officers and emergency personnel."

I'll check on the deal in WV.

Best,

Doug

Doug,

From the WV law that you cited, sounds like you have a good case.

Only thing is, from what I've heard, everyone in West Virginia is related. There's a good chance that the magistrate could be the cop's first cousin, ...AND father.

PorkLoin said:

Seniorjudge, I had not heard they were rare, but this is absolutely the first time I've had anything to do with such. In WV you can choose a jury trial if desired, and that is dealt with at the hearing.

If there is opportunity to plead to a lesser charge, I'm presuming it would come then -- it's hard for me to think that the prosecution really wants to go to trial.

Doug

Click to expand...

Please post back with the results. Based solely on the facts you gave us, you appear guilty of what you were charged with: "...I explained to him that I did not see him in the rain until I was right by him - too late to slow down - and that despite the working loader my lane was clear and I was going the speed limit...."

I would like to know what happens to you in court.

CASE DISMISSED

Love it. I had received a notice for a court date of Feb. 3, 2005. You were right, SeniorJudge -- there was no pre-trial hearing. The trial itself is called a "hearing" here.

Yesterday I filed a motion for continuance in order to give me more time to build my case, to research applicable case law, relevant decisions, the annotated code, to familiarize myself with courtroom procedure, etc. Though not stated, my intent was also to let more time go by, hopefully dimming the police officer's memory.

Today I went back to the magistrate court to file another motion, this time for a jury trial, and the assistant of the magistrate who was scheduled to hear my case came out and told me that the prosecution had sent over a motion to dismiss this morning.

Had I just paid the fine and accepted getting the points tacked onto my license, they certainly wouldn't be giving me a refund today.

By no means was I sure of winning. To a significant extent it would come down to the officer's word against mine, and that's a tough deal if you're the defendant, even with the prosecution having the burden of "proof beyond a reasonable doubt."

I wasn't given any specific reason why the prosecution dropped the case. All I know is that it would have no happened had I not pled not guilty and proceeded from there.

Doug

"...Today I went back to the magistrate court to file another motion, this time for a jury trial, and the assistant of the magistrate who was scheduled to hear my case came out and told me that the prosecution had sent over a motion to dismiss this morning...."

Prosecutor: Porkie filed a motion for a jury trial.

Secretary: Yep.

PA: What's my calendar look like for the next three months?

Secretary: (Looks at calendar.) Bad. Full. Lots of trials.

PA: Holy crap! Ah...heck with it. Ain't nothin' but a little traffic ticket.

Secretary: Standard dismissal?

PA: Yep.


(If anyone ever wanted to bring the criminal court system to a complete halt, all that would be necessary is for about 10% of the people charged with crimes to plead not guilty and ask for a jury trial.)

Every state gives you the right to a jury trial.

Remember?

Sixth amendment?

United States Constitution?

American Revolution?

It was in all the papers and we sent you a memo on top of that!