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$160 Frosty window ticket!

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f'dinwisconsin

Junior Member
What is the name of your state? Wisconsin

I received a citation violating Wisconsin Statute 346.88(4) Motor Vehicle windows not reasonably clean. The cost of the citation is $160.80. I have chosen to contest this citation and am taking it to trial. At the time I was issued the citation, my front windshield has very minor frost build up. While the windshield was not completely clean, it was not impeding my ability to safely see the road. I am looking for anybody who has had any experience or any ideas on how I can successfully contest this citation. This is a case where it is my word against the officers. The only possible angle I have identified is that after I was released the officer added a note on the citation that said when he asked me why I didn't scrape my window I replied "because I was in a hurry". This is not true. He never asked such question and I never gave such response. I was on my way to work that morning and I was not late (at that time), if I can prove through my payroll report that I was on time that morning, perhaps I can prove that I would not have stated that. I am really grasping here, but I have no idea what other angle to take. Any input would be greatly appreciated. Thanks in advance.

PS, I am a college student and cannot afford to pay $160 for a frosty window:(
 


seniorjudge

Senior Member
Ask for a diversion.









Standard answer

Here are some hints on appearing in court:

Dress professionally in clean clothes.

Do not wear message shirts.

Don't chew gum, smoke, or eat. (Smokers...pot or tobacco...literally stink. Remember that before you head for court.)

Bathe and wash your hair.

Do not bring small children or your friends.

Go to court beforehand some day before you actually have to go to watch how things go.

Speak politely and deferentially. If you argue or dispute something, do it professionally and without emotion.

Ask the court clerk who you talk to about a diversion (meaning you want to plead to a different, lesser charge), if applicable in your situation. Ask about traffic school and that the ticket not go on your record, if applicable. Ask also about getting a hardship driving permit, if applicable. Ask about drug court, if applicable.

From marbol:

“Judge...

You forgot the one thing that I've seen that seems to frizz up most judges these days:

If you have a cell phone, make DAMN SURE that it doesn't make ANY noise in the courtroom. This means when you are talking to the judge AND when you are simply sitting in the court room.

If you have a ‘vibrate’ position on your cell phone, MAKE sure the judge DOESN'T EVEN HEAR IT VIBRATE!

Turn it off or put it in silent mode where it flashes a LED if it rings. AND DON'T even DREAM about answering it if it rings.”

(Better yet, don’t carry your cell phone into the courtroom.)”


Here are six stories that criminal court judges hear the most (and I suggest you do not use them or variations of them):

1. I’ve been saved! (This is not religion specific; folks from all kinds of religious backgrounds use this one.)

2. My girlfriend/mother/sister/daughter/wife/ex-wife/niece/grandma/grand-daughter is pregnant/sick/dying/dead/crippled/crazy and needs my help.

3. I’ve got a job/military posting in [name a place five hundred miles away].

4. This is the first time I ever did this. (This conflicts with number 5 below, but that hasn’t stopped some defendants from using both.)

5. You’ve got the wrong guy. (A variation of this one is the phantom defendant story: “It wasn’t me driving, it was a hitchhiker I picked up. He wrecked the car, drug me behind the wheel then took off.” Or, another variation: “I was forced into it by a bad guy!”)

6. I was influenced by a bad crowd.

https://forum.freeadvice.com/showthread.php?p=854687#post854687

Public defender’s advice

http://newyork.craigslist.org/about/best/sfo/70300494.html


Other people may give you other advice; stand by.
 

f'dinwisconsin

Junior Member
I already had a pre-trial conference with the prosecuting attorney and he made me an offer. The offer was to plead guilty and get a reduced fine of $135. He said that the state of Wisconsin have calculated costs for certain violations and that was as low as he could reduce the fine. I would only save $25. $25 is still $25, but I do not believe that the officer was justified in giving me this citation. I told the PA that I want to go to trial.
 

wirry1422

Member
First off, if the officer who issued the cite does not show up, make an immediate motion to have the case dismissed due to lack of evidence. If the prosecutor tries to have the case continued, object by invoking your right to a speedy trial and the unneccessary time required of you to appear in court yet again. (however, in wisconsin, the officer usually always shows up, so that probably won't be an issue.)

Here is the complete text of the statute, 346.88(4), you were cited under: "The windshield, side wings and side and rear windows of
a motor vehicle shall be kept reasonably clean at all times."

As for the trial itself, you need to attack the basis for the citation being written. As both the defendant and the representative of the defendant, you will have the right to cross-examine the officer in court after the prosecutor questions him. You should ask the officer, "In your opinion, was my driving adversely affected by the windshield condition?" most likely, the officer will respond in the affirmative. If he says no, then ask "so then what exactly led to your conclusion that the windshield was not reasonably clear?"
If he does say yes, then ask "What specific driving manuevers or actions did i take that led you to believe that my windshield was negatively affecting my driving ability?" After he gives an example of your erratic driving, then ask the officer "If I did in fact perform that improper driving maneuver (insert driving infraction), then why did you not cite me for that actual driving infraction, nor mention it as a cause to believe that my windshield was unreasonably frosty up until this point."
Also, if the "in a rush" comment comes up during the prosecutors questioning, make sure you are prepared to respond, as you have mentioned already, with payroll receipts, etc. Ask then officer to recite verbatim from memory your exact comments regarding being in a rush. Then ask the officer to describe the shirt or coat you were wearing at the time of the citation, or the color of your eyes.
In your closing arguments, simply state that "There is no direct evidence to support that my windshield was unreasonably obstructed by frost, there is only the subjective testimony of the officer, who never actually drove my vehicle nor viewed the windshield from the driver's seat persective. Nor did the officer himself ever actually cite me for any alledged driving irregularities. I drove for "insert miles" without incident before being stopped."
You get the idea. Put on the table every scrap of evidence or reason that shows that the condition of the windshield was within "reason" for purposes of driving safely, as required by the statute.

Good luck, and let us know the outcome.
 

CdwJava

Senior Member
Your argument has been tried by DUI drivers, too ... it doesn't work there. It MIGHT work in traffic court, but if there was any moderate amount of frost on the window it IS an impediment to vision and to the safe operation of a motor vehicle. The fact that someone drove X miles without any REPORTED problems is not relevant. A DUI driver could also get so lucky and make it home without a hitch ... the does no mean that the ability to safely navigate the tons of machinery were not impaired by the condition of the driver - or, as in the case at hand, the windshield.

- Carl
 

sukharev

Member
Not a moving violation?????

So I guess every car parked in Wisconsin on that day would have qualified :D

My advice - go to court, and if the procedure allows take a stand and testify. If not, then simply explain your case to the judge. By the way, if you have been driving for at least 5 minutes, frost should have melted. So, you can try to argue that way. Anyhow, be the first in line (meaning coming to court well before the time scheduled). This way you have a 50% coin toss that the judge is in good mood and will let you go. Be polite, respectful to both judge and officer, and acknowledge the need to ensure public safety. If you get a chance to cross-examine the officer, ask what standard for "reasonably clean" does he use (meaning exact characteristics of the amount of dirt he allows as reasonable). State that you would not have driven unless you also felt that the windshield was "reasonably clean", and that your perception was different from the officer's (with all due respect). Then, hope for the best, and expect the typical - judge finding you guilty or slightly reducing the charge because you are a poor student.
 

wirry1422

Member
The particular violation as cited, IS a moving violation and will result in three points on the license (on a 12 point annual scale), therefore, insurance rates will be affected.

To Carl regarding this argument having been tried in DUI cases, with all due respect, that is an incorrect analogy. In DUI cases, the officer first observes some evidence of erratic driving (however small) which is noted and documented in the report as probable cause to initiate a traffic stop. They then must perform a field sobriety test, which must be failed in order for the stop to progress to an arrest. The person then is tested formaly for alcohol via a breathalyzer or, in the case of a serious crash, the more accurate blood before formal DUI charges are filed. If the level is below the limit, then lessor charges are filed. The frosty window driver reported no erratic driving and no specific evidence of "unreasonable" frost.
The law itself could even be considered unconstitutionally vague as written, due to the various possible permutations of the word "reasonable", which is not specifically defined in the statutes. But even in the loosest possible definition, "reasonable" would seem to mean "safe", which barring report or evidence to the contrary, the driver's reported behavior was not consistent with a finding of "unsafe" or "unreasonable" frost buildup.

In Wisconsin, moving violations are considered quasi-criminal offenses as opposed to purely civil offenses, and are, as such, held to the standard of "reasonable doubt". All facts or lack thereof considered, this case would seem to contain enough reasonable doubt for a complete dismissal. BTW, officers carry with them a device which is calibrated to detect percentage of window tint, for compliance with the percent required under wisconsin statutes (can't remember exact percentage). However, this officer, if he were so sure of this frost being unreasonable, could conceivably have used this device for measurement of amount of light penetrating the most frosted area of the windshield for irrefutable evidence in court. After all, if estimation of tint is no longer good enough to satisfy evidentiary requirements in court for window tint (solely an equipment infraction), then why should estimation withstand the test on this weak cite written under an even weaker statute with stiffer consequences. To the OP, this case is full of doubt.
 
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Jim_bo

Member
Wirry,

I think that is great advice!!! I agree 100% with your suggested arguments to use in court. I have successfully argued cases in court against a cop who wrote me a ticket and it really isn't that hard. I get a bit frustrated when someone comes here and says that they got a ticket and everyone tells them "plead for mercy!" I think what the OP was looking for is a viable defense. What you gave him is just that. If the OP follows your advice, this will not be a "my word against the cop's". It will be directly impuning the cop's tetimony and introducing reasonable doubt. Exactly what your defense should do.

I also agree that the DUI analogy is wrong. In a DUI case, the max blood-alcohol content is set by statute and is not subjective. In this case, the amount of frost on the window being unreasonable was PURELY subjective.

Good luck OP... let us know how it works out.

Jimbo
 

CdwJava

Senior Member
wirry1422 said:
To Carl regarding this argument having been tried in DUI cases, with all due respect, that is an incorrect analogy.
Actually, it isn't. The statement I took issue with was:

"What specific driving manuevers or actions did i take that led you to believe that my windshield was negatively affecting my driving ability?"

DUI does not require an observation of poor driving. Neither does an obscured windshield. The subjective elements of an offense like the one in question are subject solely to the opinions of the officer, the driver, and - most importantly - the judge. The FSTs are specific, articulable observations that articulate objective symptoms of impairment.


- Carl
 

Jim_bo

Member
OK... whatever. I still think he has an excellent defense if he chooses to use it. However, you and I have disagreed on viability of defenses before. I'm sure we will again.

Jimbo

P.S. Hey, Carl... it is almost February. Isn't it about time to change the Christmas signature??
 

CdwJava

Senior Member
Jim_bo said:
OK... whatever. I still think he has an excellent defense if he chooses to use it. However, you and I have disagreed on viability of defenses before. I'm sure we will again.
I never said the defense wasn't viable. In the end it comes down to who articulates what, and what the judge thinks.

P.S. Hey, Carl... it is almost February. Isn't it about time to change the Christmas signature??
Yeah. I've been trying to find an appropriate one. I think I'll go for Easter.

- Carl
 

f'dinwisconsin

Junior Member
Wirry, so it took so long to repsond, but thank you very much for the advice. And I thank everyone else for their responses as well. The past couple of weeks have been hectic with school starting back up. I received my notice of hearing on Saturday and the trial date is scheduled for March 15.

I had infact previously thought of the device used to check degree of window tint. I am not sure what this device is called but it does in fact determine if the window tint is beyond the legal limit.

With school going full steam that takes up a great deal of time. I also work full time (38hrs a week). In my free time I am trying to do as much research on this case as possible. I have a month and a half to prepare. Thanks again everyone for your contributions and if you think of anything, and I mean anything, by all means please post. I can use all the help I can get.
 

justalayman

Senior Member
Carl, I believe the argument of observing erratic driving would be applicable, not as a total defense but as a determination as to the fact the window was "reasonably" clean (therefore able to be seen through) so as to not cause erratic driving.

The spirit of the law would be to require no impairment of visibility to cause erratic driving or an unsafe condition due to inability to see ones surroundings. The fact the OP did not drive erratically would go to show there was no impairment. Not a total defense but it does go to show the lack of impairment, which is part of what the law is trying to require.


I believe OP should tackle the definition of "reasonable". The officer would have to give his interpretation of what "reasonable" was and what makes it reasonable. It will also require the officer to describe how "unclean" the windows were. With that, one could ask that at what point he would have considered things to be reasonably clean. Chances are he is either going to say the entire windshield must be clear or explain what are his reasons for allowing anything less that perfectly clean.

If he goes for the "totally clear" thing, it can be argued that is not reasonable. If the law required the windows to be totally clear, the statute would have stated such and so the officers opinion is more stringent than the law intended.

If he tries to explain what he determined to be acceptable, he then puts himself in the precarious position of describing what level of obscurement is acceptable, probably by how much of the view is obscured. Unless he did sit in the vehicle to actually determine what was obscured by the frost present, he cannot testify as to what was and what wasn't obscured therfore he could not determine "reasonable" by his own admission.

As well, he may not be able to testify how "unclean" the windows were in defined enough terms to prove his subjective opinion. Frost that appears to obscure ones view from the exterior often does not actually do so. Not sure Carl will understand this due to his geographical location and possible lack of experience playing in the snow:D :D If you want to research this first person, Carl, we just had between 12 and 20 inches of snow around my area. I would be glad to host your research into the situation. Bring your "woolies". It's supposed to stay below 20 for the next week.
 

CdwJava

Senior Member
justalayman said:
Carl, I believe the argument of observing erratic driving would be applicable, not as a total defense but as a determination as to the fact the window was "reasonably" clean (therefore able to be seen through) so as to not cause erratic driving.
I can close my eyes and still drive my car straight. The fact that my window has frost on it does not mean that I am driving erratic. What it does is severely restrict my ability to observe and react to a change in driving conditions.

I drive in an area where winter frosts are common and I know that it does not take a whole lot to obstruct the view from a window.

My guess is that the officer will likely say that he could not see the driver through the windshield, and that conversely stands to reason that if he could not see IN then the driver could not very well see OUT. The officer is not likely to have to answer what his definition of "reasonable" is since that is not apparently an element of the offense. All he would have to articulate is that the vision was obstructed or obscured as described in the code.

Having seen these in court, it really comes down to what the officer can articulate and what the judge's personal opinion is.

Not sure Carl will understand this due to his geographical location and possible lack of experience playing in the snow:D :D
CA has every type of climate that the rest of the country has. I have lived in snow, but currently live only just below the usual snow line. However, we get regular winter frosts and I have had to defrost my windows regularly for the last few weeks each morning.

If you want to research this first person, Carl, we just had between 12 and 20 inches of snow around my area.
I love the snow - but not that much. The wife and I are gonna go play in the snow next weekend, though. Leaving the kids behind ... just her and I. :)

I would be glad to host your research into the situation. Bring your "woolies". It's supposed to stay below 20 for the next week.
Sure! Where do you live again? I have a lot of vacation time saved up, and I love the winter weather! My wife, on the other hand, is a beach girl (blonde hair and a tan, even). She tolerates the snow because she loves me. :D

- Carl
 

justalayman

Senior Member
The officer is not likely to have to answer what his definition of "reasonable" is since that is not apparently an element of the offense. All he would have to articulate is that the vision was obstructed or obscured as described in the code.
well it would seem somebody would have to define it. The statute, after all did make that a requirement.

"The windshield, side wings and side and rear windows of
a motor vehicle shall be kept reasonably clean at all times."
That is why I believe the officers definition of reasonably would be important, or at least the judges. The statute obvioulsy allows frost, at some level, to be on the windows. Somebody would have to decide at what point it is too much. The point of the erratic driving was only to give weight to the fact that the driver could in fact see adewuately to drive. The distance the OP was observed before the stop would make a great difference if this has any value or not. I have my doubts you are going to get a mile or two without your eyes open, but again, it is only to give some value as to the level or lack of obstruction. By itself, it would be worthless. It is only a part of a defense.



Same reason a drunk driver is observed over a distance. It can prove impairment altough I do agree it cannot prove lack of impairment, merely possible lack of impairment due to no evidence of impairment based on this. That's all I was after with that.

Of course, we are not privy to how frosted the glass was so it is impossible for us to determine how obscured the view might have been or if the officer could or could not see the driver.

I have seen folks that actually had a spot a couple inches by a couple inches right above the defroster as the only clear spot on the windshield driving down the road. I'm sure they would testify they could see just fine, right up to the point they ran into somebody.

Sure! Where do you live again?
Ever hear of the University of Notre Dame? If it weren't for the trees between me and the golden dome, I would be able to see it from my front window. It's really pretty on a clear sunny day. They just reguilded it last year.

I do want to get back out to Mt. Hood (Oregon) again though. I miss the hills. Now that is a combo that is fun. Those hills and snow covered roads. Only an idiot would consider driving with a frosted winshield where I was. One wrong turn could mean a veeerryyyy long ride down a hillside. I think homeguru (from the unmentionable place) is from around there. He said something about meeting at Timberline Lodge for a drink. Maybe we could all meet up there and break our older bones on the slopes.:eek:
 

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