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Test a warning in court?

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theland

Junior Member
What is the name of your state (only U.S. law)? Michigan

A police officer gives a warning that something is against the law. The person who gets the warning disagrees the activity is illegal but stops never the less. If a ticket had been issued then the person could go to court and try to persuade a judge that the officer is wrong. Is there a way to do that without being cited for the infraction?
 


Dave1952

Senior Member
I'm not sure I understand your question. Someone believes that an act is legal? The authorities insist that it is illegal? No one has been arrested for this?
You can't "take it to the Supreme Court" until someone gets arrested, get's convicted, files an appeal, et c. To have a law overturned you must have standing to raise the issue, i. e. you must be convicted.
Rather than get convicted and go the legal route. It might be wiser to go the legislative route. Have your interpretation of the law made into statute. This involves convincing the authorities of your view and being very patient.

Good luck
 

theland

Junior Member
I'm not sure I understand your question. Someone believes that an act is legal? The authorities insist that it is illegal? No one has been arrested for this?
You can't "take it to the Supreme Court" until someone gets arrested, get's convicted, files an appeal, et c. To have a law overturned you must have standing to raise the issue, i. e. you must be convicted.
Rather than get convicted and go the legal route. It might be wiser to go the legislative route. Have your interpretation of the law made into statute. This involves convincing the authorities of your view and being very patient.

Good luck
May be you misunderstand. The officer and I may have opposing interpretations of an existing law. May be the law is new and some provisions are ambiguous, or there are extenuating circumstances the officer does not acknowledge because they are beyond his expertise or ability to verify. Can we agree that situations can arise where the officer's interpretation is well intentioned but different from what a judge would decide? So I'm asking if there is a process allowed by the courts to ask for a judges opinion or interpretation of the law without forcing the officer to cite me for a violation?
 

Isis1

Senior Member
May be you misunderstand. The officer and I may have opposing interpretations of an existing law. May be the law is new and some provisions are ambiguous, or there are extenuating circumstances the officer does not acknowledge because they are beyond his expertise or ability to verify. Can we agree that situations can arise where the officer's interpretation is well intentioned but different from what a judge would decide? So I'm asking if there is a process allowed by the courts to ask for a judges opinion or interpretation of the law without forcing the officer to cite me for a violation?
No. It will never go before the courts without the process. It starts with a citation. No citation. No process.
 

theland

Junior Member
No. It will never go before the courts without the process. It starts with a citation. No citation. No process.
A person can have a contract dispute with another person and start a civil action to clarify the disagreement. A trustee with fiduciary responsibilities can petition a court for guidance before taking an action that might be disputed. I'll be surprised if there is no equivelent option when there is a disagrement with local law enforcement.
 

>Charlotte<

Lurker
A person can have a contract dispute with another person and start a civil action to clarify the disagreement.
Yes, and when the respondent is served notice of the civil action, that starts the civil process. Likewise, when you are cited or arrested for whatever law you broke, that starts the criminal process. Both examples are brought forth by parties to actual cases that require a ruling by the court.

You're not going to get a hypothetical case on a court docket.

Keep doing it, get arrested for it, and when you have your day in court you can argue to your heart's content.
 

Isis1

Senior Member
A person can have a contract dispute with another person and start a civil action to clarify the disagreement. A trustee with fiduciary responsibilities can petition a court for guidance before taking an action that might be disputed. I'll be surprised if there is no equivelent option when there is a disagrement with local law enforcement.
Be surprised. You asked in the criminal law section about a criminal matter. If you want to ask about a civil matter, then ask on in the civil law section in this forum.
 

BOR

Senior Member
May be you misunderstand. The officer and I may have opposing interpretations of an existing law. May be the law is new and some provisions are ambiguous, or there are extenuating circumstances the officer does not acknowledge because they are beyond his expertise or ability to verify. Can we agree that situations can arise where the officer's interpretation is well intentioned but different from what a judge would decide? So I'm asking if there is a process allowed by the courts to ask for a judges opinion or interpretation of the law without forcing the officer to cite me for a violation?
In ways yes, but in your case no.

Say a state legislature passes a law effective in 90 days or whatever. One can file for a Writ of Mandamus or Writ of Prohibition to halt it's enforcement.

That was done in Ohio, at least once that I know of, and the OSC halted it's enforcement.

Also Courts rarely issue "advisory opinions" to decide a case before it is ripe.

In some cases a suit for a Declaratory Judgment can be filed, but usually this is after the fact, and in Civil cases.

TEST case is about right to challenge it's validity.
 

dave33

Senior Member
To oppose the officers view in criminal court you must 1st be charged. A charge is not needed to to pursue the matter in civil court. That being said, it does not sound like an appropriate civil matter. gdlck.
 

CdwJava

Senior Member
If this concerns a criminal matter, perhaps you can ask to speak to the local DA and ask for his or her interpretation. The DA's opinion may not sway the officer (especially since you'd be telling the officer that the DA says it is okay and the officer ain't likely to believe you), but at least you would know better where you stand on the issue.
 

Trickster

Member
Maybe it is just me but I find it difficult to find the substance of the question posed in addition to answers that appear to go all over the page. My opinion is, a "warning" cannot be challenged in court. However, if a person would like to clarify a law or argument concerning something such as "you" think the law interprets one way while an "officer" interprets it in another way, then perhaps a Declaratory Judgment is the viable answer. Sure, the judgment may be toothless but it can serve as a whit rock in sharpening the sword of justice. Study the Federal Declaratory Judgment Act and learn what the Act is all about then read the rule book on how to file it and go from there. Any first year law student can do this or in the alternative, a non-lawyer can do it. I am not a vehicle mechanic but my uncle was a good shade tree mechanic and I can fix lots and lots of engine troubles. Acting as one's own attorney is noble and educational. It is far from what old "honest Abe" said in that "a person that acts as his own lawyer has a fool for a client"...
 

justalayman

Senior Member
a declaratory judgment in a criminal case? Can you provide something to support that not only would the Federal Declaratory Judgment Act would apply to criminal law but along with that, applicable to state criminal law.

I cannot seem to find anything that would place a state criminal law under the purview of the Act.
 

theland

Junior Member
Maybe it is just me but I find it difficult to find the substance of the question posed in addition to answers that appear to go all over the page. My opinion is, a "warning" cannot be challenged in court.
The first amendment of the Bill of Rights says the people have "the right to petition the government for a redress of grievances." What branch of governmenet or petition is excluded from this? It defies common sense that a person must risk violating a criminal law, or any law, before getting a decision about how the law might apply to a situation where there might be reasonable differences of opinion.

For instance, there might be a difference of opinion between two parties about the terms of written agreements involving rights to use real property. One of the parties threatens a criminal trespass complaint if the other party uses the disputed property. The prosecuting attorney is asked if he would enforce such a complaint. He answers that he "might" do that.

The practical effect of this 'warning' is the same as a judge's decision on the merits. Are you saying law enforcement authorities can use their discretion this way and there is recourse, no appeal?
 

Isis1

Senior Member
Yes. Law enforcement CAN use their descretion this way. You object, to it? Go do it again. Right in front of the same officer. So he can cite you. Then come back and tell us whatt he cited you with.
 

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