Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2008

Your least-favorite brother-in-law has been popped for speeding, and he wants you to represent him.

The problem — aside from the fact that you aren’t inclined to help him, especially at his special "family rate" — is that you don’t know anything about traffic offenses.

But you may want to learn, if not for his sake, then for your own.

"More and more attorneys are appearing in traffic court due to the legislature’s dramatic increase in fine amounts, limitations on judges’ ability to dismiss charges or discharge fines and the Department of Motor Vehicles’ progressive suspension program," says Gresham attorney Benjamin Johnston, one of the few attorneys in the Portland area who does a lot of traffic court work. "These changes have increased the likelihood that you may be called to appear in traffic court for one of your clients, his children or his associates."

Or even, although Johnston is too polite to say so, for yourself.

Enter "Traffic School," a light-hearted Oregon State Bar CLE that uses music by The Supremes ("You can’t hurry lights, no, you just have to wait…") and worst-driver videos to walk attorneys through the basics of traffic court.

Traffic is a court like no other – "sui generis," in the words of Traffic School speaker Steve Todd.

"Traffic violations are decriminalized crimes," says Todd, a Multnomah County pro tem judge who has the legal authority to preside over anything from felony cases to parking tickets but is more likely to be found in the county’s crowded downtown and Gresham traffic courtrooms.

Traffic courts handle violations, like speeding and careless driving, but not traffic crimes, like driving under the influence of intoxicants and reckless driving.

Like crimes, violations are prosecuted by a representative of the state: the citing police officer or a city or deputy district attorney if the defendant driver is represented. The defendant/driver has some statutory criminal rights, and criminal procedure laws generally apply.

Otherwise, says Todd, violations are essentially civil.

On the one hand, that’s in the driver’s favor; he can’t be arrested or jailed. On the other hand, it’s not: the burden of proof is only the preponderance of the evidence, not reasonable doubt, and the state doesn’t have to prove any culpable mental state.

The schizophrenic criminal/civil nature of traffic court isn’t the only thing that is unfamiliar to the attorney venturing there for the first time, says Todd.

For one thing, many defendants are upstanding citizens who resent having to be in court.

"Driving without a seat belt is a perfect example," says Todd. "Drivers don’t see it as morally wrong, and if they don’t see why something is wrong, they don’t see why they have to follow the law."

In addition, negotiations usually take place with police officers, not other attorneys.

"It’s hard to know how to negotiate with a non-lawyer," says Todd. "In a traditional (lawyer-to-lawyer) case, you’re trying to out bluff the other side. But you learn really quickly not to attack the officer. He’s holding four aces. He’s not necessarily arrogant, but he knows what he’s doing. The key is to find the soft spot."

Another difference is that in traffic court, the collateral consequences of a conviction may be stiffer than the actual sentence.

"Often, your client’s primary concern is whether his insurance costs will go up," says Johnston.

Finally, traffic court trials are, by other circuit court standards, swift and informal affairs.

"Attorneys hand me their wives’ (traffic) cases that they’ve worked up to the nth degree," says Johnston." They’re beautiful, they’re artful, but you’re never going to get all that in there."

Traffic School: A Checklist

Todd says that "The best thing a lawyer can do is give his client advice on how to represent himself because it’s generally not cost-effective to be represented."

Regardless of whether you’re representing your client or just providing advice, here’s Traffic School’s checklist of points to cover.

No. 1: Is the client charged with any related traffic crimes?
In the regular criminal world, a defendant charged with multiple offenses — such as robbery and assault — would have his charges pending in one court and be entitled to legal representation on all.

But with traffic, if a driver is cited for multiple offenses, i.e., having no license-plate light (a violation) and driving under the influence of intoxicants (a crime), the officer writes multiple tickets and the driver may get different court dates in different courts.

Ideally, says Todd, the attorney representing the driver on the DUII will also handle the violation, which carries no constitutional right to counsel. But that doesn’t always happen.

And, while that lack of dual representation may not hurt the state — which generally isn’t barred from prosecuting the crime if the traffic violation goes to court first — it may hurt the driver.

"I was hearing a traffic violation case, and this guy’s dad testified that ‘They can’t prove the car was stolen,’" says Todd. "I declared a mistrial — this was the first I knew that a stolen car was involved in the traffic offense — because the guy was going to incriminate himself. That’s one problem with the system; he had an appointed lawyer on the crime but not on the related violations."

Bottom line: find out if your client has been charged with a related crime and, if they aren’t pending in the same court, try to resolve all charges in the same proceeding. (Most municipal and justice courts do handle both traffic crimes and related violations.)

No. 2: Review the traffic violation citation
The uniform traffic citation (UTC) with which the driver is cited comes in four parts, of which the driver gets one (usually the yellow copy) that constitutes both a complaint and a summons to appear.

It must include: the name of the citing officer; the date, time and location for appearing in court; a reasonable description of the alleged offense, including the date, time, location and, where relevant, the driver’s alleged speed; and the amount of the base fine (formerly known as "bail").

It should be reviewed early because a motion to dismiss based on the omission of a crucial element must be made at or before the time set for appearance and entry of plea; otherwise, the judge may not allow an objection or may allow the officer to amend the citation at trial.

No. 3: Decide who will appear and how
The back of the UTC gives the driver the option of personally appearing in court on the date and time indicated or returning the citation prior to that date.

If the driver is not requesting a trial, he may mail or submit the citation to the court with "guilty" or "no contest" checked on the back, along with payment of the base fine amount and, if he wishes, a statement of explanation or mitigation.

According to Todd, approximately 80-90 percent of the drivers who receive traffic citations in Multnomah County deal with them in this manner.

"People who go to court usually are mad or want to vent or there’s something unusual about their cases," he says. "We have whole stacks of these mailed-in tickets and letters saying, ‘I’m a wonderful person; I deserve a break.’"

Todd says that even if the ticket was for a non-moving violation, such as parking, he starts by looking at the defendant’s driving record. "If he’s never had a ticket, he usually gets the minimum fine, no matter what he tells me in the letter," he says.

Sometimes, he says, the driver makes an argument that can’t be addressed without a court appearance.

For example, if he had no proof of license or insurance or defective vehicle equipment, he may claim the officer agreed to dismiss the ticket if he could produce the missing documentation or proof of repair.

"We usually have to have both people (the driver and the officer) in here," says Todd of such tickets, often known as "fix-it tickets." We have terrible ex parte problems."

And sometimes, says Todd, the driver’s letter actually doesn’t help his case.

"The stupidest excuse for speeding I ever got was, ‘My gas gauge was on empty so I was trying to get to the gas station in time,’" he says. "It was from a 17-year-old girl. I wanted to tell her, ‘You shouldn’t be around mechanical equipment.’"

If the driver is requesting a trial, he can do so at the appearance designated on the summons or by making an oral or written request — the UTC itself has an appropriate box to check — prior to the appearance date.

If you are representing the driver and the first appearance date is looming, Johnston advises having your client physically appear to avoid getting a failure to appear and faxing and mailing your notice of representation to the court.

If the case is set in municipal court, Johnston recommends calling the court clerk to learn its policy about appearances, including whether additional time can be allowed for making the first appearance.

"It also helps to ask the clerk, ‘This is what I’m thinking (in terms of a resolution); have you heard of this being allowed?’" says Johnston, who also presented at the Traffic School CLE.

In all cases, Johnston says, the court’s local rules (if any) should be consulted.

Doing nothing about the ticket, says Todd, is not a viable defense option, since it will result in a default judgment for at least the full amount of the base fine and suspension of the driver’s license.

No. 4: Discuss the incident with your client
The next step, says Johnston, is to discuss the following points with your client:

Where and when did the stop take place?

Was the officer wearing a uniform, and/or did he identify himself with a badge and official identification? (Unmarked police cars are ok, but proper identification is a necessary element that the officer must prove at trial.)

Why was your client stopped? (Pretext stops are legal, says Todd, as long as an officer — regardless of whether it was the officer writing the citation — observed any violation. The officer can cite for a different violation than the original purpose of the stop. However, the officer must have had probable cause, based on his or another officer’s direct observation, to believe that some traffic violation occurred or, in the case of a traffic accident, reasonable grounds, based on an officer’s personal investigation, to believe that a person committed a traffic offense in connection with the accident.)

Who wrote the citation, and who saw your client’s driving?

Did the violation occur on a highway or in an area, such as a store parking lot, that is open to the public? (Again, one of these must be proved by the officer at trial.)

Was your client alone in the vehicle? If not, who else was there; do they have any language or other potential difficulties as witnesses; and will they voluntarily appear for trial or need to be subpoenaed?

Did the officer ask your client questions, and what did your client say? (Look for admissions: If he told the officer he was going 60 mph in a 55 mph zone, that’s an admission.)

Was the exchange between him and the officer polite? "I had a client call an officer an ____ at the scene," says Johnston. "He was cited for six separate violations worth a few thousand dollars. Bad attitude is a critical mistake."

In addition, says Johnston, your client should obtain his driving record (copies covering the last three years are available from the DMV for $5). Thoroughly review it with him, discussing the risks if he goes to trial and is convicted instead of attempting to negotiate. These risks can include suspension of his driver’s license and an increase in the cost or even cancellation of his insurance. (See sidebar.)

"In addition to considering the case on its merits, says Johnson, "evaluate your client’s behavior. Listen to the anger and emotion behind the facts as he tells his side of the story, and evaluate whether you can control him and his outbursts during the trial. You must tell him that a court can raise the bail amount if his behavior is outrageous or if he was disrespectful to the officer at the stop. Contrast ‘preponderance of the evidence’ with the better-known criminal standard of ‘beyond a reasonable doubt.’ Explain that there’s no jury trial."

In sum, says Johnston, "Discuss fully the client’s primary concerns, objectives and consequences. This will help you determine whether his objectives can be achieved and whether it is in his best interest to have a trial."

No. 5: Attempt to obtain the discovery
Obtaining discovery in traffic violation cases can be, says Todd, "…a scavenger hunt. Who is the prosecutor? What is the local practice? Who possesses the information?"

The best option, says Johnston, is to send your discovery request to the court or, if the violation is pending in municipal court, to the city attorney’s office after verifying local practice.

Information to request, depending on the charge, may include: the "green sheet" portion of the four-part UTC, which often contains officer notes; reports and audio or videotapes made by the officer; DMV accident reports; records relating to the officer’s training, including to operate any laser, radar or other equipment used at the stop; records relating to the certification of the laser, radar, photo red light or other equipment being used to prove the charge and dispatch tapes or logs.

Despite a timely and thorough request, however, Johnston notes that the reality — at least in Multnomah County — is that you often won’t get the officer’s notes until trial. (See No. 7, below)

No. 6: Determine what kinds of resolution are allowed and try to negotiate, either before or on the day of trial
You may have heard the saying, "A good lawyer knows the law; a great lawyer knows the judge." For traffic court, that adage should be amended to say, "A great lawyer knows the judge and the police officer."

That’s because in jurisdictions that allow negotiated resolutions, most take place between the driver and/or his attorney and the citing officer, not another lawyer or before the judge.

Johnston says one of the advantages of doing a lot of traffic cases is that "You get to know the players in the game —the judges, the officers, and the philosophy of the court in terms of allowing resolutions. Certain resolutions will fly in Multnomah County that won’t fly in other counties."

In Multnomah County, says Todd, "There’s been a change in culture. Officers used to think of it as ‘us versus them.’ But the average traffic-ticket defendant doesn’t think he’s done anything wrong. In one situation, the officer wrote a ticket for a relatively unknown new law, but told the driver that if he’d get a copy of the law and have 20 people sign a letter saying they’ve read it, he’d dismiss the ticket. It shows the change."

But, as Johnston, notes, cultures vary.

"Many municipal courts have really, really increased fines to increase revenue," he says.

And some courts don’t encourage negotiated resolutions at all.

"Salem Municipal Court does not encourage this approach because of the potential for disparate treatment of persons in similar situations," says Salem Municipal Court Judge Jane Aiken. "However, the court does entertain motions to dismiss from the officer when a defendant has ‘corrected’ a problem (such as removing the illegal tint, repairing headlights, etc.)."

Where they are allowed, negotiated resolutions can save your client a considerable amount of money.

For example, Johnston notes that in 2003 the legislature raised fines and "significantly" limited judges’ ability to reduce them.

"Currently, the judge can only reduce the base fine written on the citation by 25 percent," says Johnston. (For a Class A violation, the base fine is $427; Class B, $242; Class C, $145 and Class D, $97.)

In 1999, the legislature also increased fines for violations that take place in a highway work zone, safety corridor or school zone, and the judge often cannot reduce them. But, notes Johnston, "You can sometimes negotiate with the officer to amend the citation to reflect that the violation didn’t take place in one of these zones."

In addition, Johnston says that "Courts generally don’t have the authority to allow drivers to attend a driving school in lieu of having a conviction on their records, but officers and attorneys who represent the state or city do."

Geting the result you want from an officer prior to trial depends on several things.

"Officers run the gamut," says Portland Police Bureau Sgt. Michael Villanti, a traffic training officer who supervises a night shift traffic team and, he says, "spends a portion of most days in court."

"Some send almost everyone to (traffic) school, some almost no one," says Villanti, who also took part in the Traffic School CLE. "It depends on where they are at in their careers and their lives."

Villanti also says that the nature of the charge is a factor. "If it’s something more aggravated — failing to obey a traffic-control device, following too close or at an unsafe distance — I typically will go forward on it," he says.

Some possible negotiated resolutions include:

Reaching an informal resolution, such as the driver attending traffic school. Johnston says he prefers the High Risk Drivers Course at Legacy Emanuel Hospital & Health Center in Portland, which costs about $45.

Amending the speed shown on the citation. This is critically important to truck drivers, for whom a conviction for driving 15 or more miles per hour above the posted speed is a serious violation.

Amending the citation so it doesn’t reflect that the violation took place in a highway work zone, safety zone or school corridor, whose fines can automatically double and, if so, can’t be reduced by a judge if the citation appears before him with this language on it.

Amending the citation to reflect a lesser-included charge, i.e., impeding traffic instead of failure to obey a traffic control

Dropping some of multiple charges.

Trying to get the case set over while the driver does something, i.e., getting his license reinstated or his equipment repaired
(a "fix-it ticket").

Asking for a sentence of discharge. Todd says that while suspended fines probably have not been authorized since the 2003 legislative changes to ORS 153.096, some judges believe that a sentence of discharge (no fine) is an option under
ORS 161.715.

Whatever resolution you pursue, Johnston notes that communicating with your client about what you are seeking and why is crucial.

"Do defendants blow it? All the time," he says. "You come up with a fantastic outcome. The officer’s willing to accept it. Then the client won’t follow through with traffic school, or writing an essay, etc. Or you’re standing in front of the judge, selling the solution, and the client stands up and says, ‘I don’t think I’m guilty,’ or ‘I don’t think I did that.’ You end up — if you’re lucky — going back out in the hall. Or the judge says, ‘I won’t accept it; you’re going to trial now.’"

No. 7: Appear on the date set for trial
If you haven’t resolved the case before trial and the judge allows negotiated resolutions, you can always seek one the day of trial.

Todd estimates that one-half of drivers who show up for trial in Multnomah County — most of them unrepresented — actually have trials.

In Villanti’s experience, the rate of settlement is affected by who the judge is.

"Some judges have a standard (pre-trial) spiel: ‘Your odds aren’t good here; talk to the officer about a resolution,’" he says. "Some allow a recess to talk. [In those courtrooms], about 80 percent [of the drivers] talk to you. It doesn’t mean all get deals. But some judges don’t say anything; they just start trials."

If you’re able to talk to the officer, and if your client antagonized the officer at the stop, Johnston says that negotiations are almost always more effective when the client is present.

"It gives him an opportunity to explain his behavior and humanizes him to the officer: ‘I might have been a little strident with you. This is what was happening on that day,’" he suggests. "He has to come in and apologize or, if he won’t or it will sound bad, you have to do it for him, try to mend that fence."

Villanti says, "I’ve had motorists apologize to me, and apologize to me in front of the judge. When I see a case where someone’s hired an attorney, I look at it like they know something went on. Typically they have their attorneys do the mediations. But
they (the drivers) need to be there. They need to show some sort of effort."

If negotiations fail, says Johnston, "Conducting a trial is generally a last resort."

Hopefully you’ll have prepared for this eventuality by filing any pretrial motions — which in Multnomah County, at least, often are heard the day of trial — and observing how your judge and your officer handle similar cases.

In addition to visual aids and other exhibits, you’ll have brought copies of any relevant statutes or other legal authority.

"Don’t make the judge look it up, and don’t let the judge ignore the law," says Todd.

Many times, says Johnston, the officer’s notes will not have been provided to you prior to trial.

"Generally, if the officer refuses to provide you with his notes, he won’t negotiate to resolve the case," he observes, wryly.

If this happens, he says, ask to see them prior to your case being called; if the officer won’t provide them, politely bring it to the judge’s attention and ask for a few additional minutes.

If the officer’s notes reveal new facts that may expose your client to an increased fine and/or license suspension, Johnston suggests requesting a continuance.

During the trial, keep your client on point.

"Defendants will put their feet in their mouths," says Todd. "Sometimes they’ll spot the wrong issue: ‘Yeah, I was speeding, but not that fast.’ I’ve found people guilty of going a lesser speed limit. And it’s certainly wise not to attack the officer. Judges don’t want to hear about people’s conduct during the stop. I had one defendant say, ‘The officer told me I was an --.’ So then the officer said, ‘I wasn’t going to bring this up, but I called him an -- because he spit in my face.’ Sometimes defendants open doors to all kinds of stuff."

Keep your cross examination concise, clear and non-confrontational. Todd says that short of not trying to negotiate with the officer, the biggest mistake he sees lawyers make is attacking the officer on the stand. "It just won’t work," he says. "They forget they’re in front of a judge, not a jury."

Johnston says the main mistake he sees lawyers make is over litigating.

"There are issues that need legal analysis and all the heavy lifting required to see if the law is applied correctly," he acknowledges. "But there’s a preconceived attitude about lawyers on the part of police, and a lot of it comes from lawyers who over litigate."

If your client is convicted, says Johnston, quickly explain any unique hardships he faces and any mitigating factors that were not relevant at trial but may be relevant to the sanction. Offer a resolution that addresses the state’s concerns but is still acceptable to the client. "Often, judges are willing to entertain some variations," says Johnston, even after a trial has taken place.

And, if you really want to get out of representing your favorite brother-in-law, even now that you’ve "attended" Traffic School, just tell him you can’t be objective.

"I’ve seen lawyers get in trouble representing relatives," says Todd. "They get really emotional."

"Traffic School" is available from the bar’s CLE Seminars Department. Copies of the Department of Motor Vehicles’ 2007 Vehicle Code Book, which contains all of the statutory authority related to traffic offenses and traffic crimes, may be ordered through the DMV website at www.oregon.gov/ODOT/DMV.


Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2008 Janine Robben

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