video version of how would you rule for new THOs 100211

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COMMON DEFENSES Presented by Brenda Di Ioia and Sara Blumberg

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I have a motion, Your Honor

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LET’S SEE WHAT YOU ALL THINK….. Get up out of your chairs….. Look around…. There is a wall marked “Granted” and a wall marked “Denied” We are going to show you a series of motions and you will tell us how you would rule by standing by the appropriate sign.

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HOW WOULD YOU RULE?

Robinson motion.: 

Robinson motion.

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Insufficient narrative

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No signature of defendant

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Insufficient certification

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Insufficient certification

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Insufficient certification

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Improper signature

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Insufficient allegations: alleges both seat belt and child restraint for children 4-5 years of age. Should be cited under seat belt statute and not child restraint statute. (1)(a) Every operator of a motor vehicle as defined herein, while transporting a child in a motor vehicle operated on the roadways, streets, or highways of this state, shall, if the child is 5 years of age or younger, provide for protection of the child by properly using a crash-tested, federally approved child restraint device. For children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer's integrated child seat. For children aged 4 through 5 years, a separate carrier, an integrated child seat, or a seat belt may be used.

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No direction of travel listed. No location of traffic stop. Does not say if driver was going straight, turning right or left when he allegedly failed to stop.

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Improper charging statute: “enabling clause” (2)(c) The Department of Transportation is authorized to set such maximum and minimum speed limits for travel over other roadways under its authority as it deems safe and advisable, not to exceed as a maximum limit 60 miles per hour.

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Wrong statute (316.189(2) (2) SPEED ON COUNTY ROADS.—The maximum speed on any county-maintained road is: (a) In any business or residence district, 30 miles per hour in the daytime or nighttime; provided that with respect to residence districts a county may set a maximum speed limit of 25 miles per h our after an investigation determines that such a limit is reasonable; and it shall not be necessary to conduct a separate investigation in each residence district. (b) On any other part of a county road not a business or residence district, as set forth in s. 316.183. However, the board of county commissioners may set speed zones altering such speeds, both as to maximum and minimum, after investigation determines such a change is reasonable and in conformity to criteria promulgated by the Department of Transportation, except that no such speed zone shall permit a speed of more than 60 miles per hour.

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Insufficient allegations under FRTC 6.445 RULE 6.445. DISCOVERY: INFRACTIONS ONLY If an electronic or mechanical speed measuring device is used by the citing officer, the type of device and the manufacturer’s serial number must be included in the body of the citation. If any relevant supporting documentation regarding such device is in the officer’s possession at the time of trial, the defendant or defendant’s attorney shall be entitled to review that documentation immediately before that trial.

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No serial number for laser device.

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Unconstitutional: Violation of freedom 0f speech.

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Loud soundmaking device Charge is unconstitutional

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No fingerprint on citation.

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316.646 Security required; proof of security and display thereof; dismissal of cases.— (1) Any person required by s. 324.022 to maintain property damage liability security, required by s. 324.023 to maintain liability security for bodily injury or death, or required by s. 627.733 to maintain personal injury protection security on a motor vehicle shall have in his or her immediate possession at all times while operating such motor vehicle proper proof of maintenance of the required security. Such proof shall be a uniform proof-of-insurance card in a form prescribed by the department, a valid insurance policy, an insurance policy binder, a certificate of insurance, or such other proof as may be prescribed by the department. (2) If, upon a comparison of the vehicle registration certificate or other evidence of registration or ownership with the operator's driver's license or other evidence of personal identity, it appears to a law enforcement officer or other person authorized to issue traffic citations that the operator is also the owner or registrant of the vehicle, upon demand of the law enforcement officer or other person authorized to issue traffic citations the operator shall display proper proof of maintenance of security as specified by subsection (1). (3) Any person who violates this section commits a nonmoving traffic infraction subject to the penalty provided in chapter 318 and shall be required to furnish proof of security as provided in this section. If any person charged with a violation of this section fails to furnish proof, at or before the scheduled court appearance date, that security was in effect at the time of the violation, the court may immediately suspend the registration and driver's license of such person. Such license and registration may be reinstated only as provided in s. 324.0221. Motion to dismiss because defendant is non-owner of vehicle charged with not having insurance pursuant to F.S. 316.646(2).

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Motion to dismiss because officer did not file citation within five days of issuance.

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Wrong statute number (316.074(1) or better statute to charge under. 316.074 Obedience to and required traffic control devices.— (1) The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter. 316.1515 Limitations on turning around. The driver of any vehicle shall not turn the vehicle so as to proceed in the opposite direction upon any street unless such movement can be made in safety and without interfering with other traffic and unless such movement is not prohibited by posted traffic control signs. A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

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Insufficient narrative

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If you’re presiding over an accident case, and all the civilian witnesses are present; but the officer is NOT present, do you try the case or dismiss it????

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No subsection provided

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Insufficient narrative for violation of special hazards statute

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Officer failed to sign the citation

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Traffic court is so interesting Here’s a toughie….If you are presiding over a trial in which the Defendant is charged with an infraction that occurred in a mall parking lot and the Defendant tells you that it is a private road; but gives you no supporting evidence of this fact, if the officer does NOT have documentation establishing that there is a written agreement between the private entity and the law enforcement agency, do you find the defendant not guilty???

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Defendant receives a seat belt ticket. She claims that she can’t wear a seat belt due to recent breast cancer surgery. Does it make a difference if defendant does not have a note from the doctor?

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Defendant was issued a citation for driving in the HOV lane during HOV hours. Defendant claims that he was forced into the lane because of debris in the road

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Defendant is cited for “cutting through traffic” (leaving the highway to avoid a traffic control device). Defendant testifies that he was not “cutting through” but instead was going to buy gas at the gas station he cut through until he saw how expensive the gas was posted at the pumps and changed his mind .

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Burden of proof issues Defendant claims infraction occurred on a private road. Officer testifies that his agency has an agreement permitting them to patrol there but officer does not have the agreement in court with him. Motion for judgment of acquittal. Defendant claims the speed measuring device is not an approved device. Officer has nothing in court showing that it is other than his testimony. Motion for judgment of acquittal claiming no proof it’s an approved device.

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A Traffic Hearing Officer presides over a trial calendar. The THO calls the case and discovers that the officer is not present and dismisses the ticket. Later, after court is over, the Clerk realizes that their office made a mistake and never subpoenaed the officer to appear for the trial. The Clerk then resets the trial. You are the presiding THO for the “second” trial. The Defendant complains that he had to come back to court when his case was dismissed the last time he was here. What do you do?

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What do you do with the following types of motions? Lawyer requests dismissal post plea because they now have proof of insurance, registration, etc. Originating attorney requests plea be vacated because covering attorney wasn’t supposed to change plea to no contest….defendant wanted to go to trial. Lawyer requests plea be vacated because defendant was not the person issued the ticket. Does it make a difference if motion is sworn or not?

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Are there other traffic ticket motions you’d like to discuss?