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  1. #1
    DeeDeeDee is offline Junior Member
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    Ticket for driving on the shoulder

    What is the name of your state? Dee from CA

    There was a major accident on highway 4. The traffic was slow and as it began to go to normal speed, I was near my exit. A police car had drove in front of me and veer off the freeway to the right shoulder. Since the traffic was still crowed and he was in front of me veering, I ended following him which of course place me on the right should as well. When I realized what happened and was trying to get back on the crowed road, he began to flag me down. I explain to him what had happened except for the part that he was in front of me and I followed him. He said that I should of stayed and followed the other cars and gave me a traffic ticket. The ticket states 21755 V.C. shoulder passing prohibited. I was not trying to actually drive or the shoulder, let alone trying to pass anyone. What legal right do I have in fighting this. I have never been stopped by a police officer before.
  2. #2
    Zigner is offline Senior Member
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    How do you intend to FIGHT it? According to your own post, you DID, in fact, drive on the shoulder.
    Ask for traffic school.
  3. #3
    xylene is offline Senior Member
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    21755. The driver of a motor vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the paved or main-traveled portion of the roadway.
    Unless you can somehow argue you thought the policeman's action were to direct you to permit such movement in safety, you don't have much to go on.

    Or unless you did not overtake anyone.

    Those are the two main possible defenses; not none.
  4. #4
    Hey There is offline Member
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    Post Information is served .The ball is in your court.

    1-21-08

    DeeDeeDee

    Pass on Right Safely
    21755. The driver of a motor vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the paved or main-traveled portion of the roadway.

    In CA. a driver can request a copy of the officer's notes, a copy of the front and back of the traffic ticket, a copy of the video if one was made, and other written evidence the officer plans to testify to in court. Information on how to request Discovery can be found by typing in Discovery for Traffic Tickets on Google.
    A Google search to Help! I Got A Ticket! gives a concise description of Discovery as well as a form that can be downloaded. This website also describes the court process from start to finish and there is an E:mail address to ask for advice about your traffic ticket.
    A book published by NOLO on fighting traffic tickets in CA. has complete information from Discovery thru the court system as well as forms which can be copied. This book and is likely available at a local library.

    A Trial by Declaration can also be filed which is best filed after Discovery is received. The driver states why he isn't guilty, the officer states why he is and the judge decides. If the judge finds the driver guilty, the driver can request a new trial with a different judge.
    Instructions on A Trial by Declaration can be obtained from the website above, the book published by NOLO, or by simply typing in Trial by Declaration on Google.

    If Discovery isn't answered within 15 days after receipt by the D.A.
    the driver can request dismissal of his case. It the officer fails to appear in court, then the case is normally dismissed for lack of prosecution. If a trial isn't held within 45 days after arraignment then the driver can request dismissal because he wasn't granted a speedy trial.

    From your post you indicate that this was an unusual, temporary
    position you were in, caused by the confusion of a serious accident and a patrol car which veered off on the shoulder. You state that you weren't deliberately passing cars on the right shoulder( which VC21755 is meant to prevent) and once you followed the officer it was unsafe for you to get back on the crowded road.

    Some lawyers will consult for free once or charge a modest fee
    ($50.00?). to advise the driver of his options.

    The Law of Necessity has been upheld as a valid defence in certain situations as shown by a case where the driver violated a vehicle code, but was found not guilty because what she did was a safer choice than adhering to the strict wording of the law.

    An excerpt from this case follows:

    "The elements of the affirmative defense of necessity are that: (1) the person claiming the defense was without blame in occasioning or developing the situation, and (2) the person reasonably believed that his conduct was necessary to avoid a greater public or private injury than that which might reasonably have resulted from his conduct. [citation.] This defense is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable [citation], and the conduct chosen must promote some higher value than the value of literal compliance with the law [citation]." People v. Janik, 127 Ill. 2d 390, 399, 537 N.E.2d 756, 760 (1989).
    Total text can be found by --Law of Necessity as it pertains to traffic tickets--typed in on Google Search /then clicking on
    FindLaw for Legal Professionals - Case Law, Federal and
    State ...During deliberations, the jury posed the following question: “Necessity Defense--is there a law that says it is acceptable to drive car [sic] under the
    This is a Illinois case but the Law of Necessity applies to ALL states.


    A driver also has the option of traffic school to remove points from his ticket whether or not he chooses to fight the traffic ticket because he thinks it was unfairly given &/or he wants his day in court.

    Best Regards,
    Hey There
  5. #5
    Zigner is offline Senior Member
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    Quote Originally Posted by Hey There View Post
    Pass on Right Safely
    21755. The driver of a motor vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the paved or main-traveled portion of the roadway.
    She violated that portion of the law

    From your post you indicate that this was an unusual, temporary
    position you were in, caused by the confusion of a serious accident and a patrol car which veered off on the shoulder. You state that you weren't deliberately passing cars on the right shoulder( which VC21755 is meant to prevent) and once you followed the officer it was unsafe for you to get back on the crowded road.
    OP was almost at the exit and decided that, if the cop could do it, she could too. You sure read a lot in to things...
  6. #6
    The Occultist is offline Senior Member
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    Hey There, I think perhaps you are misunderstanding the story. The OP did not swerve out of the lane to avoid a collision, but instead was stuck in traffic that resulted from the collision and was attempting to hasten the process of getting around the accident (read: impatient), so the Law of Necessity cannot be applied to this situation.
  7. #7
    JIMinCA is offline Member
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    DeeDeeDee,

    Pay attention to Hey There. Your right to discovery should be exercised. The request should be made to the DA. If he provides the discovery you requested, you may get a few nuggets from the officer's notes that will bolster your case. If he doesn't provide discovery (which he probably won't), you have grounds to request a dismissal.

    Discovery is a "no-loose" proposition. Worst case scenario is that you are no better off than you are now.
  8. #8
    Zigner is offline Senior Member
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    While Jim is correct...please keep in mind that you MAY lose the option of traffic school if you plead not guilty and go in to court about this.
    Discovery may be useful in some situations, but I really don't see how it would be in this situation (except as a delaying tactic)
  9. #9
    JIMinCA is offline Member
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    Quote Originally Posted by Zigner View Post
    While Jim is correct...please keep in mind that you MAY lose the option of traffic school if you plead not guilty and go in to court about this.
    Discovery may be useful in some situations, but I really don't see how it would be in this situation (except as a delaying tactic)
    Discovery is a great litmus test of the prosecution's resolve to prosecute a ticket. If the DA's office is ambivilant, they will ignore the discovery request (which is what normally happens). In this case, a defendant has justification to request a dismissal for failure to prosecute.

    Pleading not guilty and going to court does NOT jeopardize your chance of traffic school. While traffic school is at the discretion of the Court, that discretion cannot be swayed by a conviction as per VC 42005 and People v. Wozniak, which stated:

    both the present language of Vehicle Code section 42005 and People v. Enochs... require trial courts to consider the merits of a defendant's request for traffic violator school whether that request is made before or after conviction.
  10. #10
    garrula lingua is offline Senior Member
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    Be sure to use double-ply paper for that discovery request.

    Also, calculate your hourly wage and how many hours you will spend fighting this.
    Also, consider that you can probably do traffic school (now on the net in most jurisdictions).

    Most Dep Dist Attys in CA do not appear in traffic court or respond to discovery.
    Discovery requests are usually returned/flushed.

    I look at it this way. If I know I was wrong, I'm not going to lie about it to get around the consequences.
    Too many liars out there who think it's great and commendable to lie, to avoid responsibility.
    I'd rather suck it up and be able to look at myself in the mirror.
    It's just not worth the fight for a traffic ticket (esp when you know you were wrong).

    Hey there and Jim - are you guys truckers that you get so many tickets ????
    If not truckers, how many tickets can you possibly get ?!?
    How bad could your driving be ?
  11. #11
    JIMinCA is offline Member
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    Quote Originally Posted by garrula lingua View Post
    Be sure to use double-ply paper for that discovery request.

    Also, calculate your hourly wage and how many hours you will spend fighting this.
    Also, consider that you can probably do traffic school (now on the net in most jurisdictions).

    Most Dep Dist Attys in CA do not appear in traffic court or respond to discovery.
    Discovery requests are usually returned/flushed.
    Which is a good indicator that the prosecution doesn't want to pursue the case... therefore a dismissal is in order.


    I look at it this way. If I know I was wrong, I'm not going to lie about it to get around the consequences.
    Too many liars out there who think it's great and commendable to lie, to avoid responsibility.
    I'd rather suck it up and be able to look at myself in the mirror.
    It's just not worth the fight for a traffic ticket (esp when you know you were wrong).
    I have NEVER lied with respect to a traffic ticket, nor have I ever suggested someone else should lie.

    Hey there and Jim - are you guys truckers that you get so many tickets ????
    Nope.... not a trucker.

    If not truckers, how many tickets can you possibly get ?!?
    How bad could your driving be ?
    Why do you assume that exercising my rights as provided by State law and the U.S. Constitution equates to getting excessive number of tickets? If you are suggesting that people should just concede guilt without requiring the State meet its prosecutorial burden, then I'll just accept your criticism and consider the source.
  12. #12
    DeeDeeDee is offline Junior Member
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    Thanks for the respond

    Thanks everyone for responding to my question.

    Also special thanks to HeyThere for all the info.

    I will be using that information.

    I just want to make clear that I am not by any means trying to get out of paying a ticket. I strongly feel that he was wrong. I feel that it's worth a try to plead my case because he was in front of me on the freeway, near the exit, and he pulled over to the right shoulder. I followed him, thinking he also was exiting. Within seconds I discovered I was on the RT shoulder. There was actually time for me to pull right back into traffic but the police was waving and hurrying to my car that I thought something was wrong. Well it was just a good opportunity for him to give out an easy ticket.
  13. #13
    VeronicaLodge is offline Senior Member
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    Quote Originally Posted by JIMinCA View Post
    DeeDeeDee,

    Pay attention to Hey There. Your right to discovery should be exercised. The request should be made to the DA. If he provides the discovery you requested, you may get a few nuggets from the officer's notes that will bolster your case. If he doesn't provide discovery (which he probably won't), you have grounds to request a dismissal.

    Discovery is a "no-loose" proposition. Worst case scenario is that you are no better off than you are now.
    no-lose not no-loose, I can't even imagine what no-loose would mean.
  14. #14
    JIMinCA is offline Member
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    Quote Originally Posted by VeronicaLodge View Post
    no-lose not no-loose, I can't even imagine what no-loose would mean.
    Good catch Veronica... sometimes my fat fingers work faster than my brain.
  15. #15
    VeronicaLodge is offline Senior Member
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    Quote Originally Posted by JIMinCA View Post
    Good catch Veronica... sometimes my fat fingers work faster than my brain.
    I have friends who are constantly dieting and they are always loosing weight and it makes me CRAZY

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