failure to yield entering a highway

What is the name of your state? Iowa

I was invovled in an accident on an onramp to an interstate. A construction worker wearing no uniform at all stepped infront of my vehicle. I swerved to avoid hitting him and in the proccess, hit another vehicle. Complaints were filed by me and officer. I still received a failure to yield entering a highway, which makes it my fault. I spoke to a lawyer and he said I could sue "Mannatts" the construction crew to pay for my damage ($3,500), but it would cost me several thousand to do so. I have a $500 deductible so it is not cost effective. Now, I have to go to court for the ticket because it was in a construction zone. Do I plea guilty and just take it, or not guilty, which is true? I cannot afford a lawyer and have been told I should just pay the fines rather than fight the ticket. What do I do? PS I have court in 2 days...HELP!?!

Brandon

[abezon]

Contest the ticket. *Assuming you were not speeding in the constr zone or otherwise driving recklessly*, your argument is that a pedestrian walked outside the construction barriers directly in front of you. You did not have time to stop, so your choice was to hit the pedestrian or swerve and hope you didn't hit a car on the highway. If you have to hit something, it's better to hit a car than a ped, since a car provides much more protection. The ped would have been badly injured; the car just sustained body damage.

This is essentially a defense of "necessity". As long as you can show you didn't do something illegal to put yourself in the position of having to choose between hitting a ped or a car, you can argue that you had to swerve left because even a jaywalking ped has the right of way.

A note regarding the state's burden of proof and the rules of evidence: the state has to prove that you failed to yield to the other car. The state must provide witnesses who saw you move left into the other car. The police officer can only testify regarding what s/he personally saw & what YOU told him/her. If the cars were moved to the side of the road before the officer arrived, the officer cannot say where they collided or who moved into whom. In fact, the officer cannot even say the cars collided. As far as the officer knows, all the car damage was pre-existing. (This is why you should not talk to an officer after an accident unless is absolutely was not your fault.)

Anything other than what the officer saw & what you said to him/her is "hearsay" and is inadmissible. When the state tries to enter the officer's report or testimony, you say, "I object, your honor. That's hearsay." If the officer's report is not clear as to the source of the officer's info, it's hearsay. EX: "bmacc said he moved left to avoid a ped" is not hearsay because you said it. "bmacc moved left to avoid a ped" is hearsay because we can't tell who told the officer this version of events.

If the officer testifies in person, ask to see a copy of the officer's report that s/he used to refresh his/her memory for trial. If the report says "bmacc moved left to avoid a ped", the officer is "bootstrapping" the hearsay evidence in the report by presenting it to the court as if you said it. In fact, the officer does not recall what you said & what others said & is relying on his report.

To recap: first try to get this tossed on based on the rules of evidence. If you fail, argue the defense of necessity and emphasize that you were obeying the construction zone laws when the ped suddenly stepped in front of you & you had to swerve or hit him.

abezon,

Thanks a lot for your reply. I probably need to add some information after your response. First of all the construction worker said he thought "I was going to fast and he was trying to slow me down". That there makes it sound like I was speeding. I honestly don't think I speeding but, I was accelerating to merge onto highway by the time he saw me. There was SUPPOSEDLY a "be prepared to stop sign" at the base off the onramp right were you get on so that also makes it seem I'm at fault.

The right lane off the highway was closed so it was only one lane, (the left), cones merged you into that lane. I saw it was busy so I tried to take an open spot in traffic to merge into. The cop said I should have been yielding for the truck I hit. I originally was going to go in front of him and had plenty of time to do so. It was when I braked for the worker, the truck caught up with by the time I enetered the highway.

There are two witness', one being the worker, who I know caused it, and a car behind the truck I hit. The guy in the car claims he only saw me merge onto the highway and hit the truck, nothing on the ramp. That seemed to also hurt me in the cops decision.

If I fight this, is it going to be difficult? And, is it going to end up costing me more for court costs?

Thanx for any reply.

Brandon

Well, I had court today, thought it was tommorow, I took the advice and entered my plea of NOT GUILTY. I will be representing myself in court as far as the ticket goes. I will just "take it" as far as the insurance deductible goes. Any more advice to me about what to ask/say in court anybody?

Thanks,

Brandon

[abezon]

On the merits, the issue seems to be whether you were wrong to be trying to get to that vacant space. If you were driving appropriately, then you can argue necessity. Was there a speed limit posted? Does Iowa law require you to match speed with traffic before merging? (Oh how I wish WA drivers would learn to do this.)

So, how was this construction person planning to slow you down? Leap in front of the car? Was he the flagger?

Go to the library & get a book on defending traffic tickets. and practice your hearsay objections. Like I said, you want this tossed on the rules of evidence so you don't have to argue the merits.

Also, practice your arguments for why a continuance would be prejudicial to you. (Your honor, the State had ample opportunity to subpoena witnesses with admissible evidence. Its failure to do so is not sufficient reason to grant a continuance and make me come back to court. I'm a working man & this day is costing me $xxx in lost wages. I shouldn't have to lose another day's income just so the State can have "two bites at the apple." [That's a phrase from double jeopardy case law.[)