Fighting a NY State speeding
ticket – the burden of proof
Before you can wrap your head around defending
yourself against a speeding ticket in a New York Court of law you have to
understand some basic criminal precepts and constitutional rights we have
in New York State. Just because you were ticketed does not mean you are guilty.
Further, it is not your burden to disprove the allegation, but
the state’s burden to prove the allegation. Depending on the
court, the proof must be either beyond a reasonable doubt, or
by clear and convincing evidence.
Prosecution of a speeding ticket
– the players
The first thing you have to understand if you
are defending yourself against a speeding ticket is who the players are. There
is you of course, which is formally known as the “defendant.” There is of
course the judge, who is formally known as the “court.” And then there is
that entity that most pro se litigants tend to ignore to their
determent – the People of the State of New York. You see, it is not the cop
or the judge prosecuting you, but the people of NY State. The people are represented
by someone called a “prosecutor.” This prosecutor could be the county District
Attorney, the City, Town, or Village Attorney, a specially appointed prosecutor,
or the police officer who wrote the ticket – which is becoming rarer and rarer
these days. As for the cop, while you may feel it is you against him that
is not really the case. It is you against the state of New York. The cop is
merely a witness. And if you handle him right, he can be a great witness for
What you need to understand is a few things. First
and foremost, the judge is not your ally. The judge is not
there to give you legal advice, help you, or hear you drone on about how much
of a jerk the cop was. The judge is there to be a neutral arbiter of the facts
and the law. Think of the judge as a baseball umpire. Most NY traffic court
judges are part time local lawyers from the community. They have all been
elected. You may even know the judge – maybe he represented someone you bought
a home from or his kid may be on your kid’s little league team. Don’t be fooled
by this. He is not there to be your friend. He is not going
to listen to your stream of consciousness and then dismiss the ticket. Not
because he is a bad guy, but because that is not the way the system works.
The other party to this is the prosecutor. Although
it may look like it, the prosecutor is not an employee of the court. Enforcing
speeding laws and prosecuting cases is an executive function,
not a judicial function. Consequently, the prosecutor has been retained to
represent the people by either the jurisdiction where the ticket was written
or the county district attorney. Inasmuch as police officers are arms of the
executive branch, when they prosecute their own tickets they too fall under
the authority of the executive branch.
While on the one hand the judge is not there to
be your friend and advocate, he is not there to hurt you either. A judge has
to follow the law. Consequently, you must present your case and defend yourself
against the allegations in the language that the judiciary understands. For
example, it is not enough to say “I only sped up to pass another car.” That
will only get you convicted. However, if though cross examination and direct
evidence you articulate the affirmative defense of necessity, NY Penal Law
§ 35.05, then speeding up to pass another car could get the case dismissed.
However, you must study the law of justification so that you understand the
elements required to assert the defense of necessity, and how when asserting
the defense the prosecution must now prove a negative. Powerful stuff.
The elements of a speeding ticket
Every statute that affixes criminal or civil liability
either proscribes conduct or prohibits conduct. In the case of speeding, NY
Vehicle & Traffic Law 1180, the law prohibits conduct; i.e., operating
a vehicle over a certain speed. In addition, statutes have elements to them.
Elements are the series of events that each have to be proven by the aforementioned
burden of proofs in order for the speeding ticket defendant to be found guilty
It is critical that you, as a speeding ticket
defendant, pull the V & T Law and study not just the over arching section,
but the particular sub section you have been charged with and know the elements
by memory. This is because if a police officer fails to testify to an element
that is required by statute the case must be dismissed.
If you think this does not happen you could not
be more wrong. It happens all the time. For example, I bet you did not know
that the NY State default speed limit is 55 MPH unless otherwise posted.
Suppose you are charged with doing 50 MPH in a 30 MPH zone, but the officer
fails to say the magic words that the 30 MPH zone was posted
30 MPH. Guess what has to happen – you case has to be dismissed because the
state did not prove did not prove that the speed limit was anything but the
default speed limit if 55 MPH. If, however, you were given a ticket for doing
75 in a 55, then obviously it would not matter if the officer testified that
the roadway was posted 55 MPH.
Another way one can use elements to undermine
a speeding ticket case in chief is when charged with speeding in a school
zone or work zone. Often times, for both zones the speed limit is artificially
lowered. However, in a work zone case merely having a traffic pattern up and
signs out is not enough. The work zone must be an ACTIVE work zone
with workers actually in the zone working. There are also specific elements
for a school zone ticket as well. Failure to prove all of those elements,
by the aforementioned burdens of proof, will get the ticket either totally
dismissed or at least diminished to a non-zone ticket and possibly a lower
speed violation, which is a huge difference in points, fines, and insurance
Speeding tickets – where prosecuted
The next thing you need to understand is what
venue you are before. NY State speeding tickets are tried in 2 completely
different venues. If you received a speeding ticket in New York City (all
5 boroughs), Rochester, or Buffalo, your case will be heard in the NYS Department
of Motor Vehicles Traffic Violations Bureau. This is not a “real” court but
an administrative tribunal owned and operated by the NYS DMV. The judges are
not real judges in that they are not elected officials but administrative
law judges (ALJ) whom are employees of the DMV. Contrast, if you are before
any other of the over 1,400 courts in NY State outside of the aforementioned
venues, your case is being heard in a local city court, or town or village
The difference is like night and day. In the TVB
the burden of proof is the lesser by clear and convincing evidence standard.
In the city and justice courts the burden of proof is the greater beyond
a reasonable doubt standard. In the TVB court a defendant does not
have all the rights that a defendant is entitled to in a justice court. Specifically,
in the TVB courts the defendant does not have the right to:
The basic trial procedure
There are 2 different trial procedures depending
on the venue. The overarching framework is that both sides have the right
to an opening argument. Then the prosecutor puts his witnesses on, the defendant
cross examines, the prosecutor rests. The defense calls witnesses (but does
not have to), the prosecutor cross examines, the defense rests. Both sides
have the right to closing arguments, and then the judge renders a verdict.
In the NYC DMV TVB there is even less than that,
as there is no actual prosecutor. There is just the judge and the cop. You
as the defendant still have the right to make an opening statement, but the
judge may not allow it. The cop testifies and you can then cross examine.
You can then testify or enter evidence such as photographs. Since there is
no prosecutor often the judge jumps in and asks questions – of you or the
cop. Then, you can make a closing statement and the judge makes a decision.
Trials in the city and justice courts are much
more formal and the Criminal Procedure Law controls. Both sides make opening
arguments. Then the prosecutor calls the cop to the stand. The cop testifies,
and then you cross examine. Upon the close of the people’s case you should
move for a directed verdict, alleging that the people did not even make a
prima facie showing. The standards and burdens for this are
contained in the CPL. If the court grants your motion great – you won. If
not all is not lost. If the case continues then you can call witnesses, put
on evidence and testify yourself (although you don’t have to). At the close
of the defense case you should make a motion to dismiss. This is similar to,
but different than, a motion for a directed verdict. Again, it is contained
in the CLP so you really need to study it. Yet again if the court agrees you
won and if not all is not lost.
Lastly, you get to make closing arguments. Arguments
are different than motions to dismiss. Making a motion to dismiss you are
telling the judge that the prosecutor’s case is legally insufficient. Arguing
in a closing statement you are trying to persuade the judge that the people
did not meet its burden of proof by the requisite standard. This goes for
either venue – argue persuasively and speak to the burden of proof and how
the benefit of the doubt goes to the defendant.
Defense of a speeding ticket
common to both venues
Whether you are being prosecuted in a local city
or justice court or the NYS DMV TVB, what you must know common to both venues
are the elements of the infraction, the radar, equipment, visual speed estimation,
and how to cross examine on all of those things. We already went over the
elements, but I cannot stress how important it is to study, read, and know
the elements of a speeding allegation.
You must also
study how a radar works. There are 2 kinds of radars – doppler and laser.
A doppler radar emits microwaves, bounces off of objects, and calculates the
speed of the object by the difference of distance of the microwave returning
to the radar. The laser radar is also called a Lidar.
A Lidar laser radar relies on the principle of time-of-flight of two (or more)
short 905 nm wavelength. It calculates the differential between the time
of flight of the multiple wavelengths to determine the speed of the vehicle.
are entire books written on how these devices operate and their fallacies.
In order to properly cross examine a police officer about this element of
his case, you must do the research on the type of unit that was used in your
case. Whichever type of unit was used, before the state can enter evidence
of a radar reading they must first lay the foundation that the radar was accurate.
They do this by entering into evidence the most recent original certificate
of calibration. However in order to do this they must first lay the foundation
for allowing the certificate of calibration into evidence. And to do that
they must meet the standard of what is called he “business records exception
to the hearsay rule.” This rule is contained not in any criminal procedure
book, but in the Civil Procedure Laws and Rules, specifically CPLR § 4545.
the prosecution from entering in evidence of a radar reading gives you as
the defendant huge leverage in having the case dismissed, so you must object
to the calibration certificate coming into evidence. To do that effectively
however, you must know the elements to the business records exception to the
hearsay rule. So study and know cold CPLR § 4545. Also, often times the direct
foundational evidence is unclear, or you want to ask questions to undermine
it. If that is the case you tell the judge you want to “voir dire,” which
is a fancy way of saying you want to cross examine regarding the elements
of the business records exception to the hearsay rule. Foundational issues
of evidence often turn into mini trials within the trial.
must also understand visual estimation and how to cross examine the police
officer’s testimony regarding visual estimation. This is critical, because
case law holds that a speeding ticket must be proven by both evidence of radar
and visual estimation. Entire articles can be written about visual estimation,
and in fact I have a published detailed article in the 2007 Westchester Bar
Association Bar Journal. However, a quick tutorial is as follows:
x Time = Distance
determine rate, divide time into distance. In other words, if it took 3 seconds
to travel 300 feet the rate, in feet per second, is 100. That must be converted
into miles per hour, which is done by dividing the feet per second into 1.46.
In this example, you would get 68.5 MPH.
job is to elicit from the cop how long he watched the vehicle and how much
distance that vehicle traveled. Once you get those 2 values you can calculate
MPH. The great thing with cross examining on visual estimation is that it
does not matter what the cop testifies to or what the ultimate MPH is – there
is always a way to utilize the testimony to your advantage.
only for city and justice courts
speeding ticket defendant has much more rights in a city or justice court.
Most notably, a speeding ticket defendant is entitled to prosecution by information
only, however he must demand conversion by timely demanding a supporting deposition.
If the supporting deposition is not timely served, or served imperfectly,
or the contents of the supporting deposition fails to convert the complaint
(ticket) to an information then the ticket must be dismissed.
legal treatises have been written on the supporting deposition. The procedure
and rights to a supporting deposition are contained in NY CPL § 100 – 125,
and the right to dismissal is contained in CLP § 170. Many pro se
plaintiff’s fail to demand a supporting deposition because many cops now serve
them roadside with the ticket. However, don’t be fooled this is improper service,
so always demand a supporting deposition even if one was given to you. Also,
study the law on the difference between complaints and informations so you
know the elements for conversion. Failure to serve a proper and timely supporting
deposition is a powerful weapon, because it is a jurisdictional deficiency.
And if you receive a proper supporting deposition that is good too, because
you will need it to prepare your cross examination.
a supporting deposition is not served or improperly served while it is grounds
for dismissal you must move to dismiss in writing. Failure to move in writing
results in a waiver of your right to a supporting deposition and conversion
of the complaint to an information under the law. A motion to dismiss is more
than a letter and is a formal, ritualistic procedure. The law and procedure
for bringing a motions is contained in the Civil Procedure Law and Rules §
2200, so if you need to make any written motions read that section first.
defense is to assert your CPL § 710.30 rights. That is the law which prohibits
the people from using statements you made against you unless certain disclosures
were timely made. Often, this is not done in a traffic ticket trial, so you
need to know CPL § 710.30 so you will know when to object to prevent your
inculpatory statements you made to the cop on the stop from coming into evidence
trial defenses and techniques
addition to testimony, you can enter other evidence before the court. However,
for every piece of non-testimonial evidence you must lay the foundation just
as the prosecutor must lay the foundation for the calibration certificate.
For every different type of evidence is a different foundation. If for example
you want to enter into evidence photographs you must know how to lay the foundation.
If you fail to lay the proper foundation then your evidence is not allowed
before the tribunal to consider
should also study the case of People v. Rosario, which stands for the
proposition that if a recorded statement, such as a report or audio recording,
is not disclosed to the defendant prior to cross examination then that witness’s
testimony must be stricken from the record. This is powerful stuff considering
the state’s whole case is made on the testimony of 1 cop. Get his testimony
tossed = acquittal.
people must also turn over video evidence in advance of trial, but only upon
timely demand and only if you provide a DVD. The court has more remedies at
its disposal short of striking testimony, witnesses, or evidence, although
that could happen.
sure if you move to dismiss wait until the prosecutors first witness is sworn
in, because that is the time you are protected against double jeopardy.
have tried to make this as comprehensive yet brief as possible. However, there
are so many nuances to how to defend yourself against a speeding ticket case
that it cannot be told in 50 words or less. The major takeaways are as follows: