Selective enforcement defense?

[Emperorzog]

I am a 30 year old male and live in NC. I was recently given a ticket for not switching into the opposite lane when passing by a parked police vehicle with their lights on. I was unaware that I had to do so, however, I do understand the need for such a law and out of a kindness I did move half way over into the other lane. My 62 year old mother was following directly behind me and made no move whatsoever.
The officer then got behind her, moved around her and came after me. I stopped and my mother then turned around and came back to our location to see what was happening. She was given no ticket, however, I was.
My thoughts are to argue selective enforcment based on a bias around my younger age and gender. To my understanding, even with the officers discrection, the officer is expected to select the more egregious offender, which my mother clearly was. Even in the event that I was the first person to pass him, when she came back he had every chance to give her a ticket as well but did not.
His mounted camera will verify my story as well as my mother's testimony. What are your thoughts? Thanks!

PS: I would also like to know that they can't bring up the charges against my mother now.

 

[racer72]

Selective enforcement is perfectly legal, it is not a defense. The officer has one year to issue tickets, you mom could conceivably still recieve a ticket but not likely.

 

[Emperorzog]

To my understanding it can and has been used as a defense. I have looked up a number of cases where it was used successfully and have seen on other sites when it is advised as a defense. The 5TH amendment protects us with equal protection under the law. Although prosecutorial descretion is both legal and expected, it is only so as it is used against the more egregious of offenders and not the lesser.
Further, to my understanding, when the officer has the opportunity to enforce the law against two equally guilty parties who committed the same offense at the same time in his/her presence but opts only to enforce the law against one person but not the other it is a violation of the 5th amendment.
Now I am no lawyer but I am a little confused because it seems you are saying that it is NOT a defense, rather than it is not a GOOD defense. I am confused because I have read many legal sources that say it IS a defense, although hard to prove.
????

 

[justalayman]

=Emperorzog;2863481]To my understanding it can and has been used as a defense.

then best of luck to ya.

So based on that defense, if 100 cars went by the cop, he could not ticket any of them unless he ticketed every one of them lest it be an illegal means of selective enforcement.

yep, good luck with that defense.

as to the 5th amendment; have you actually read the thing?

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I'm not seeing anything about an all or nothing requirement.

Further, to my understanding, when the officer has the opportunity to enforce the law against two equally guilty parties who committed the same offense at the same time in his/her presence but opts only to enforce the law against one person but not the other it is a violation of the 5th amendment.

again, go back and read the 5th amendment and let me know where you see anything like that in there.

 

[justalayman]

The amendment that is attempted to be utilized in such a manner is the 14th amendment, this section in particular:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

as another site states, it is nearly impossible:

Unfortunately, even though the Court prescribed the Fourteenth Amendment as a remedy, the Fourteenth Amendment argument has proven to be nearly impossible to litigate. Not being a viable means, the Court's prescribed remedy is rendered ineffective. This is because "[c]laims of selective prosecution brought under the Equal Protection Clause of the Fourteenth Amendment are hampered by the burden of proof .... To prove such a claim, plaintiffs must show both disparate impact and discriminatory intent." Proving disparate impact by conducting statistical surveys and analysis is possible, albeit time consuming and costly. But, proving discriminatory intent of the individual officer is nearly impossible.

 

[Emperorzog]

That sounded fairly snarky for a legitimate question... I only came here for help, not rudeness. I think I made it clear that 100 cars did not pass. Two passed and both stopped. The officer had a clear and present opportunity to enforce the law against us both but opted to arbitrarily enforce it against me rather than her. Your exaggeration of the 100 cars is an example of apples and oranges. You are giving a hypothetical example where it would be unrealistic to apply the law to all. That is why we have prosecutorial discretion. It is not however a means to pick when the law applies and when it does not.

 

[LillianX]

If you're so sure that you have all of the answers, and are merely going to argue with anyone who presents a legal opinion that you don't like because it doesn't favor you, why did you even bother posting here in the first place?

 

[justalayman]

That sounded fairly snarky for a legitimate question... I only came here for help, not rudeness. I think I made it clear that 100 cars did not pass. Two passed and both stopped. The officer had a clear and present opportunity to enforce the law against us both but opted to arbitrarily enforce it against me rather than her. Your exaggeration of the 100 cars is an example of apples and oranges. You are giving a hypothetical example where it would be unrealistic to apply the law to all. That is why we have prosecutorial discretion. It is not however a means to pick when the law applies and when it does not.

so, how many cars would be required to be involved before your argument is no longer applicable and mine is?

btw: I didn't charge you for the rudeness.

If I were you, I would run down to the police department and demand they issue a ticket to your mother. That will make everything right in your mind, right? Ya see, you do not have a valid defense to defeat your charges because they are valid so the only thing that would make this right would be to have your mother ticketed. What a nice son you are.

 

[CdwJava]

There are many reasons why an officer might chose to cite or not. It is called discretion, and is perfectly lawful.

The defenses you mention might come to the fore if one is making a claim that the officer only cites people of a particular demographic. Unlawful discrimination could result in a case being dismissed, but this does not appear to be the case here. Apparently he believed that you violated the law and opted to cite you and not to cite mom. Perhaps he has a soft spot for elderly folks. Perhaps he did not recall her transgression because he focused on you. Prhaps he did not realize she was the same car he passed to get to you.

In any event nothing you have posted here indicates unlawful discriminatory conduct. You are certainly free to raise it to a judge, but don't expect much from it. If I were you, I'd come prepared with an actual defense as opposed to that Hail Mary shot.

 

[Emperorzog]

Thank you CDW, that was polite and informative. I will further consider the issue with that in mind.

 

[Zigner]

Thank you CDW, that was polite and informative. I will further consider the issue with that in mind.

It's the SAME ANSWER you received in the first response.

 

[justalayman]

It's the SAME ANSWER you received in the first response.

but it wasn't snarky.


I guess they changed the name of the website to:


free AND POLITE advice

we promise no snarky responses

and I just didn't realize it.

 

[Emperorzog]

You actually have nothing better to do with your time then continue this with me? I obviously don't desire to hear from you anymore and you obviously don't care to help me. So, let us be adult and part ways. I invite you to leave. Or don't I have my answer and will be leaving myself.

 

[justalayman]

Emperorzog;2863568]You actually have nothing better to do with your time then continue this with me?

No, I really don't. It's still 90º outside and the dishes are done so I have nothing better to do.

I obviously don't desire to hear from you anymore and you obviously don't care to help me.

There is no help for you. The sooner you accept that, the sooner you will start to feel better.

So, let us be adult and part ways. I invite you to leave. Or don't I have my answer and will be leaving myself.

bye bye

 

[asiny]

I guess they changed the name of the website to:
free AND POLITE advice
we promise no snarky responses
and I just didn't realize it.

And this is why I love this site - people confuse snarky when the response is legally showing them what they think is right, is in fact wrong.