Articles Posted in TRAFFIC

In March 2010, Tilem & Campbell senior partner Peter H. Tilem took a passing a steady red light summons to trial in Ardsley Village Court here in Westchester County. The offense was videotaped by the video camera behind the patrol car’s rear view mirror. Yesterday, Ardsley Village Justice Walter Schwartz issued a written decision finding the motorist not guilty and dismissing the ticket.

The issue raised at trial by Mr. Tilem is under what circumstances a police officer may issue a ticket for passing a red light when the police officer does not view the same traffic light as the motorist but rather views that the light is green in the perpendicular direction. May the police officer infer that the light facing the motorist is red? It turns out that the answer is no, the Officer may not reach that inference and rather would be required to examine the light to make sure it was working properly.

In the Ardsley case tried last month, the police officer never inspected the light but rather testified in very conclusory terms that the light was “working properly.” In addition, the police officer attempted to bolster his case by claiming that he saw the shadow of the red light from his angle, but that testimony was called into question when he admitted, during cross-examination by Mr. Tilem, that the weather was clear, that it was mid-day and that the cylinders over the lights were designed to prevent motorists from seeing the light from the side and becoming confused.

New York criminal defense law firm Tilem & Campbell has noticed an increase in the number of client’s charged in New York City with Reckless Driving under Vehicle & Traffic Law 1212. Reckless Driving is a serious offense in that unlike most traffic offenses, it is a misdemeanor, punishable by up to 30 days in jail. In addition, the New York Department of Motor Vehicles will assess 5 points on your driver’s license and conviction can leave you with a permanent criminal record in New York.

It seems that these tickets are being given out for almost any conduct and judges seem reluctant to dismiss them. We are often seeing these tickets given in connection with a motorist that “squeals” their tires.

Tickets in New York City for Reckless Driving are returnable in the Criminal Court and not the DMV Courts that adjudicate traffic violations in the City of New York. While these tickets are extremely serious and not to be taken lightly, the lawyers at this firm have had overwhelming success getting these tickets reduced to non-point violations with small fines.

I previously discussed the New York Court of Appeals decision in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968) which held that an officer can issue a traffic ticket for a non criminal offense he or she did not witness. But the discussion does not end there. Unfortunately, many police officers, prosecutors and judges believe that Boback allows officers to issue tickets for non-criminal traffic offenses the officer did not personally witness that are as jurisdictionally sound as a ticket issued by an officer who actually witnessed the offense. This is simply not the holding of Boback.

The Boback decision noted that where an officer issues a ticket for a non-criminal traffic infraction that the officer did not witness, the ticket itself is insufficient to procure the defendant’s appearance before the court. The Boback decision noted that should the defendant/motorist choose to ignore the summons and not appear on the return date of the summons, the court must take testimony or have before it affidavits which would establish probable cause before issuing an arrest warrant. One could argue therefore, that if they were issued a ticket for a traffic infraction not witnessed by the officer, they need not appear in court and that court may not suspend their license or take any other action against them until that court is presented with testimony or affidavits establishing probable cause.

For example, in People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Jus. Ct. Town of Mendon 1992), the Court held that it was improper for an officer to arrive at the scene of an accident he or she did not witness, decide who was at fault and issue a summons charging a non-criminal traffic violation. The Court held that an action charging a non-criminal traffic infraction could not be commenced by the filing of a simplified traffic information where the officer did not witness the offense.

Generally, an officer may arrest a person when that officer has reasonable cause to believe that person committed a crime, whether in the officer’s presence or not. However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence. There are a limited number of exceptions to this law. (See CPL § 140.10).

This issue frequently arises when an officer arrives on the scene of an accident; interviews witnesses and determines that, for example, a motorist was speeding, traveling to closely, or changed lanes unsafely and issues a ticket accordingly. However, since speeding, traveling to closely or changing lanes unsafely are all non-criminal offenses (they are traffic infractions), can the officer issue a ticket even though the offenses were not committed in his presence?

I must say, I was surprised to learn that the answer is yes. First, the law says that an officer may not arrest for a non-criminal offense not committed in his presence. It says nothing about the issuance of a ticket. (See CPL § 140.10). Second, in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968), the Court of Appeals held that a traffic ticket may be based upon “information and belief”. That means that an officer need not have personal knowledge of the traffic infraction – he or she need not actually witness the traffic infraction.