passing in no passing -- forced

What is the name of your state? Alaska

I came upon a driver who was driving way under the speed limit. Roads were clear, 10PM at night, weather was good. No other traffic either direction. Even though I kept a safe distance behind (at 38 mph, I was about 2-3 seconds behind him), he kept putting on his brake lights as though either he was going to turn, or he wanted me to back off further. I slowed and followed at a constant speed behind him, but at another point, he turned on some blinding back lights on his cab (he had a Ford 150 truck or similar). I backed off further. Then he turned on his right blinker, and it was about 20 seconds or so before he finally started to turn off the road at a big turnout. As I began to pass, he came back on the road. Rather than jamming on the brakes, I finished the pass, over a double yellow line. 15 minutes later, 2 cop cars stopped me and cited me for passing in a no passing, and citing the witness as the person who called this in. The cop, before citing me, also asked if I knew the speed limit, which I said yes, and told him exactly where the 45mph speed limit sign was, and where the 35mph speed limit sign was (which was right where the guy started to pull off the road and I passed).

I've gotten one continuance already, and the court date is tomorrow. Does it seem like I have a decent chance here at reasonable doubt?

Both my wife and I felt a little afraid at this driver's actions and unpredictableness if we stayed behind him.

I've asked for any discovery notes or evidence, and all I've gotten were the front and back of the ticket, which only had the witness' (driver and passenger) names and addresses, and part of the back side blocked off so I couldn't read it all (?)...

Since you are going in tomorrow, not much you can do. However, one key hope is on your side - government needs a witness (the other driver), and if they would not have one at trial, you are free to go. Since the cop did not see you, anything he testifies to is hearsay, and you need to object to it immediately. Motion for dismissal based on lack of evidence. If motion is dismissed, ask for a description of the scene, etc.

Even if the witness is there, cross-examine him and ask how he identified you as a driver. Chances are, he could not. You don't have to say who was driving, just that there is no credible evidence against you. If he is certain it was you, make sure you testify, and state that you did not pass anybody, just avoided a collision with unsafe driver.

Look up Alaska rules of evidence in civil and criminal proceedings. Don't plead guilty. Good luck.

passing no passing

Yes, hoping that the witness doesn't show. Don't care if the cop shows as I'll plead hearsay.

Not sure if I admitted I was driving to the cop at the time, but I did describe to him that the driver pulled off and then on the road, forcing me to keep passing or jam on the brakes. I think the witness reported my license # to the cop, that's how they found me half an hour later, but I will ask him if he saw who was driving. What difference would it make if I admitted to the copy I was at the wheel?

Can I also ask for dismiss if they covered up some of the notes on back of ticket that I asked for at discovery?

rlevy said:

Can I also ask for dismiss if they covered up some of the notes on back of ticket that I asked for at discovery?

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Not really, but you could try. Was there anything more important missing at discovery (like 911 call center log and transcript)?

If the witness shows up, he should ID you, not the plate of your car. It does not matter what you said to the cop, unless he states it during his testimony. If he does, then you can still describe your maneuvre as not passing (look up definition of passing). I don't think crossing the double line is always passing. When you avoid collision, that's in fact prudent and proper. Keep your story simple, and to the point. However, if none of this comes up in testimonies, don't cross-examine, let prosecution rest and then ask for directed verdict from the judge, based on lack of evidence (no ID on you by witness, no evidence from officer). You can always do direct examination of hostile witness afterwards, but prosecution cannot reopen its case, introduce new evidence, correct prior testimony, etc.

passing avoiding collision

excellent points, thank you.

I didn't specifically ask for 911 transcript, but I did ask for anything that could be used as evidence or testimony. What good would the transcript do me?

<if none of this comes up in testimonies, don't cross-examine> if it doesn't come up, shouldn't I take the initiative and ask the witness if he saw me at the wheel?
Even so, the cop would ID me at the wheel when he stopped me, and I would think the judge wouldn't take it too seriously if I tried to show I wasn't at the wheel...

<you can always do direct examination of hostile witness afterwards, but prosecution cannot reopen its case> But if I ask witness, then prosecution gets to cross anyway...?

<(no ID on you by witness, no evidence from officer) > If judge asks me if I was driving, I can't deny it...
also, wouldn't the officer/prosecutor's evidence BE the witness testimony?

basically, seems like I need to level the playing field down to "he said, she said"?

>I didn't specifically ask for 911 transcript, but I did ask for anything that could be used as evidence or testimony. What good would the transcript do me?

transcript would have shown what was the license plate reported, and if there was any car description supplied, as well as description of the maneuvre itself.

> if it doesn't come up, shouldn't I take the initiative and ask the witness if he saw me at the wheel?

I think no, as this would allow you to ask for dismissal of the case due to lack of evidence. You are right, this may be overruled, but at least you have a shot.

>Even so, the cop would ID me at the wheel when he stopped me, and I would think the judge wouldn't take it too seriously if I tried to show I wasn't at the wheel...

If the judge is serious about his job (big if), he should consider your request. The cop did not see you do the passing, so the fact he saw you at the weel is irrelevant. You don't show you were not at the weel, just state that prosecution failed to prove beyond the reasonable doubt that you were the driver and you were the one who did the passing. Once again, ID should be on the driver, not the car. If you stick to it, this may work. I am not saying it will, but altogether you have a shot. As long as you are certain your actions were within the law.

> But if I ask witness, then prosecution gets to cross anyway...?

Yes, but that's after you have made a motion for directed verdict based on lack of evidence, if that motion was overruled.

> If judge asks me if I was driving, I can't deny it...
also, wouldn't the officer/prosecutor's evidence BE the witness testimony?

The judge cannot ask (he is the tryer of facts, not prosecutor), and you are not testifying yet. The only evidence they can have is the witness who can ID you as a driver, and they don't. Officer can only testify what he has observed, and anything else is hearsay.

>basically, seems like I need to level the playing field down to "he said, she said"?

Yes, that would be the level field (you and witness, not the officer). Just try to not play hadball, be nice and respectful to the judge and prosecutor.

Speaking of your testimony, you do not actually know whether what you have done is the same event as to what prosecutor is referring to. Have you considered the possibility that your passing was not the same as what the witness was describing (meaning, two different events)? And, lastly, the witness is not an expert and cannot make a determination as to how improper was your passing. Make sure you object immediately if he starts to claim it was. Also object as speculation to the fact you were behind the weel - he does not know it!

Good Luck, let us know what happens.

no passing

thank you so much. taking these notes with me to trial (abbreviated of course). Will let you know.

speaking of the judge not asking, just being a tryer of facts, I have seen them many times ask questions, to clarify the facts. does that mean if he asks, I can defer the answer somehow? even then, if the driver says he did see me at the wheel, I can't make him prove it...

rlevy said:

speaking of the judge not asking, just being a tryer of facts, I have seen them many times ask questions, to clarify the facts. does that mean if he asks, I can defer the answer somehow?

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This can happen, too, and then the rules are out of the window However, in proper proceedings, with prosecutor present, when judge asks a question like that, you can try objecting: "Your honor, with all due respect, I object to you acting as a prosecutor". And, once again, you are not testifying yet, so you can just state that fact. Be firm, but respectful.

rlevy said:

even then, if the driver says he did see me at the wheel, I can't make him prove it...

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Yes, in such case it's difficult but you can still try asking clarifying questions like "was I wearing glasses?", to establish that he does not have independent recollection of events. Let's just hope he testifies to license plate as only ID on the suspect. Then, prosecution rests its case and you motion for directed verdict. Good luck.

here's the verdict

OK, here's what happened. Officer showed up with 2 witnesses.

Witnesses never testified to license plate or me driving, just "gray van' (though they kept saying "he" was driving, which I objected to). Tried motion for directed verdict when they were done, judge wouldn't buy it, as "the police officer ID'd you at the wheel when he stopped". I countered with "officer wasn't there", but to no avail.

Witnesses contradicted each other's testimony. One admitted they pulled off the road at a large turnout to let me pass, and I passed. The other said he never pulled over. I used this at the end to argue enough reasonable doubt right there to dismiss.

Witnesses also kept trying to introduce observations that had nothing to do with the case (i.e. that they were helping the officer find another suspect vehicle, that's why they were driving so slowly; that they were stopped a gas station and saw me "speed" by; that I was tailgating (one witness said they were going 35mph and I was 5-6 feet behind them, the other witness said I was 20-30 feet behind)...

I argued that when they pulled over and then appeared to start pulling back onto road, I swerved to avoid collision. Magistrate's finding was that he was pretty sure I crossed the line, so that was enough. Then he added "but I'm still not sure if you swerved to avoid collision or you simply passed over the line". I said "isn't that enough reasonable doubt right there?". He said no.

He also said that unless I was going to the hospital or other emergency, that wouldn't justify crossing the line. I think I will argue that this misapplies and miscontrues the no passing rules, and ignores reasonable and prudent driving rules.

I will appeal based on these two main points.

Witnesses also described the road as having a double yellow line only after the turnout. I brought a picture in that showed double yellow line throughout the several miles this incident happened. I did this to testify that this is precisely why I didn't pass until they pulled over. And to show that their recollection of the facts is supsect.

Not sure if I can include the pic with the appeal, as I didn't officially enter it into evidence, but it was discussed and viewed by magistrate and witness at trial.

Sorry for the long post. Any observations/questions?

Ron

Thanks for reporting back with your story. Sorry to hear that you were tried by a cangaroo court, where no standards of evidence apply. That's a prime example of a flawed system, where you are automatically guilty.

One question I have about what you heard them say: "stopped a gas station and saw me "speed" by". Was that at different time?

Hope your appeal would be different. Good luck.

no passing

Both of us apparently had stopped at a gas station before the incident. It is confusing what they were trying to say, but I felt it was irrelevant to pursue. I think they were trying to introduce their idea that I was speeding out from the gas station, but they said something like they were ahead of me and watched as I sped out from the gas station. Whether they did this from their rear view mirror or somewhere in the parking lot, I wasn't going to pursue.

Any reason to? It would be in the transcripts. Still not sure if I want to order the transcripts before I appeal.

They tried to introduce all kinds of irrelevant info to bolster their weak case.

Since it's only $40 to bump it to Superior Court, I'll give it a try.