How traffic cops can defend against 3 common attacks on a traffic citation

Whatever violations you’re enforcing — or crimes you’re investigating — think about possible common defenses and address them up front so you and the prosecutor won’t be surprised by them in court

As a prosecutor, I learned the best defense in court against defendants — or defense attorneys —was a good offense. Anticipate what the defense might do and head them off at the pass.

For an officer, this means knowing common defense attacks and addressing them in your report and on the stand during direct examination.

Here are three common defense strategies for traffic tickets and how to beat them.

1. The officer’s subjective conclusions cannot be relied on
Some tickets involve a subjective judgement — for example, whether a driver made an unsafe turn. A common defense is to try and raise a doubt about the officer’s “opinion” by suggesting the officer was not in a good location to accurately view what happened or was busy doing other tasks — like driving 55 miles per hour in heavy traffic.

Address this in your report. Specifically describe the surrounding conditions and how they did not interfere with your ability to accurately observe, note, and recall the defendant’s driving behavior  for your report .

Do the same in your testimony on direct examination.

2. The officer’s observations cannot be relied upon
In cases based on an officer’s objective observations — like failing to stop at a red light — the defense may try to raise a doubt about the observations. Be prepared for:

  • Multi-tasking — such as driving in or observing heavy traffic — can also be used to attack the officer’s objective observations. This often takes the form of suggesting the officer stopped the wrong car. Address this as outlined above.
  • Photographs of intersections, stop signs and road conditions that try to show conditions like obscured stop signs or other physical evidence that backs up the defense case. These are most often taken under different circumstances and angles than the officer’s view at the time of the violation.

Rather than task officers with taking photos in every traffic case, the officer can ask the defendant on the scene whether any road or other physical condition contributed to the violation and report this question and the defendant’s response. The officer can then testify to this on direct examination.

  • For intersection offenses like right of way, stop sign, or traffic light violations, expect to face a diagram prepared by the defense in court. Take a couple of moments to draw your own diagram at the scene and include it in your report. Show where your vehicle and the defendant’s vehicle are in relation to key locations and objects — like the intersection, traffic signals or signs and other relevant vehicles. Use your diagram to support your testimony on direct examination.
  • Statements of witnesses. Be alert at the scene to potential witnesses the defendant may try to contact after the incident. Passengers are the most obvious. Note that state law differs as to whether an officer can require identification from a passenger during a traffic stop. If you don’t know, contact a local prosecutor to determine the law in your jurisdiction. However, nothing prohibits an officer from asking.

Consider saying, “As a passenger you may be a potential witness in this matter for [the driver] or myself. Would you mind sharing your name and contact information?”

The passenger(s) can always refuse, which you will note in your report, along with a physical description of the individual(s). Refusal at the scene may undermine their credibility should they later show up and offer testimony for the defense in court.

If the witness does agree to identify themselves, ask if they have any observations they’d like to share that might be relevant. Note their response to this in your report as well.

3. The driver’s conduct was justified
This defense doesn’t rely on attacking the officer. Examples might include allegations that:

  • The driver swerved into a different lane without signaling to pull over because a wasp flew in through an open window.
  • The driver had sudden and severe chest pain and safely exceeded the posted speed limit to get to the doctor, whose office was only one half-mile away.
  • The driver was boxed in on the back and the left side by speeding cars. The driver exceeded the posted limit to avoid colliding with a car entering the highway from the right.
  • There was a car to the driver’s right so she briefly sped up to avoid being rear-ended by a big semi that was tailgating her.
  • The driver crossed a double yellow line to avoid hitting another vehicle, pedestrian, animal, or other unexpected obstacle. If she had failed to take an evasive action, she risked being involved in an accident.

You can eliminate such defenses by describing the driving behavior you observed and asking the driver if there was any reason that might explain it. Note your question and the response in your report and testify to both on direct examination.

Whatever violations you’re enforcing — or crimes you’re investigating — think about possible common defenses and address them up front so you and the prosecutor won’t be surprised by them in court.

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