Why Hire a Traffic Lawyer? Accidents.

I was making small talk with another lawyer the other night. We were discussing the kind of work we do. She had clerked for the Court of Appeals (the highest court in NY) and now is employed by a very fancy law firm, where she is an associate in the medical malpractice department. In contrast, I worked as a carpenter nearly full time when I went to a law school and other than a stint for a firm, I have been a solo practitioner handling mostly traffic and DWI cases. I was feeling, well let's say a little low class, but we ended up having a lengthy and very interesting conversation.

At one point the lawyer told me about the one traffic case she handled and how she felt bad for the client because she could not get him a deal, and he paid a grand for the service. The client was a doctor who was ticketed for allegedly "failing to yield the right of way" resulting in a minor personal injury accident. The prosecutor offered to "reduce" the charge to a "failure to obey a traffic control device" or NY VTL 1110(A). The lawyer said she took the "deal" because if her client was convicted of the failure to yield right of way offense, the conviction would be offered as evidence against him at a personal injury trial. I'm still confused why this lawyer thought that a guilty plea to the 1110(a) charge would be any different. The 1110(a) is a moving violation that carries two points. In my opinion, this lawyer essentially pled her client guilty to the charge. In any case, if the offer is plead to the charge, there is no offer and you have nothing to lose by going to trial, and something to gain by the chance of winning the trial.

In the case of this doctor and the accident, the cop who wrote the ticket did not see the accident himself. Unless the cop is an accident reconstruction expert, he can't testify about something he did not see. The burden is on the people at trial to establish a prima facie case and without a witness testifying from personal knowledge, that will be tough. Maybe the people have witnesses who saw the accident. Well if it's the people in the other car, and they are there to testify, why not at least cross examine them? They are probably biased and have a motive to lie.

I believe there is a general notion that any attorney can handle a traffic case, and it is generally true that any moderately competent attorney can negotiate as decent plea bargain. However, it does not follow that such an attorney will have the skills to actually defend a traffic defendant. That is because a real traffic attorney is a trial lawyer first. There are traffic lawyers who are excellent deal makers but when the chips are down, they will plead a client guilty to the charge because they do not know how to fight.

Why Hire a Traffic Lawyer?

As part of an effort to make the Saratoga Lawyer Blog more useful and informative, this post will be the first in a series that illustrates the important work traffic lawyers do with real word illustrations from my cases and experience. Too often, people rely on lawyers who do not specialize in traffic with the misguided belief that any lawyer can handle a traffic case. Too often I get the call to straighten out the legal mess resulting from the mishandling of a simple traffic case.


I recently took a case referred to me by an attorney who is a friend and an estate planner. The client is the son of a client of my friend's law firm. The son is being charged with Aggravated Unlicensed Operation 3rd degree or AUO 3rd. This is a very common offense in New York State and it is a misdemeanor, like a real crime. If you are caught driving on a suspended license, you get the AUO 3rd. Most cops allow the defendant to drive home. Sometimes, people are actually arrested and have to post bail. I had a client who did seven days in county jail for this offense. So it is a serious charge, and it happens to all kinds of people; lawyers, doctors, teachers, etc.

People generally find themselves facing an AUO3rd because they did not know their license was suspended. The typical case is that the driver failed to appear for a previous traffic ticket and the issuing court suspends their license. In the meantime, the driver moves but does not notify the DMV of their address change, (which happens to also be a V&T violation), so they never get actual notice of the suspension. Lack of knowledge is generally not a legal defense.

I can generally get an AUO 3rd dismissed or reduced by showing the prosecutor that my client has addressed the underlying suspension issue. In the case at bar, I offered to take care of the matter for the client in the court that suspended him, but he said he wanted to use the lawyer who he initially hired for that case. I though it was very odd that my client was hiring the lawyer who caused his current problem, but I did not protest. I later learned that the lawyer was my client's relative who happens not to be traffic lawyer.

One thing I have learned is to never, ever, trust that a client really knows what is going on with his or her case. In the case at bar, as soon as I was retained, I called the court that issued the AUO 3rd and learned there was a warrant out for my client's arrest because he missed his court appearance. Had my client been pulled over, or for some reason interacted with law enforcement, he would have gone to jail. A decidedly unsavory experience for a naive college senior.

It is important to hire an experienced traffic ticket lawyer for more reasons than simply "getting a deal". A good traffic lawyer must be diligent in following up on his or her cases because of the AUO 3rd. Many Courts are very quick to suspend the driver that is ignoring his or her obligations to the Court resulting in big problems for the client down the road.

The little things

I was surprised about how annoyed I got at something silly today. As a criminal defense attorney, you generally get used to all the frustrating things that come with working with and against the government. While it is true that my relationship is adversarial with government, we still have a job to do and that is to get cases resolved as efficiently as possible. I deal with many cases that I consider minor and resolving them depends on clear communication with the other side. Some District Attorney office's are examples of outstanding professionalism, they return phone calls, and they are reasonable and polite. Sadly professionalism is often the exception to the rule.

Here is the little thing that bothered me today. (Keep in my mind, I am totally overreacting to this because I feel like ranting a bit). I have a client who was given a traffic ticket for an equipment violation that simply did not exist with her vehicle. There is a VTL section that deals with license plates that are obstructed, or too dirty to read. My client's car has the always added dealer frame surrounding her plates. I have one on my car. My car's frame says "Saratoga Nissan" and has a little horse on it, your's probably displays the name of your dealer.

There is no question that my client is innocent of the charged offense. I read the statute (NY VTL 402(1) and there is no violation. Furthermore, if the plate frame was in violation of the law than most NY State drivers are currently violating the law.

So I sent a very polite letter to the DA's office which happens to be in a county a couple hours from my office. I included pictures of the client's car and asked the DA to dismiss. Today I get a response which consisted of the the letter and pictures with a post-it note attached. The post-it note contained the following message: "This would be a matter for trial-not for a reduction here. If your client wishes to go to trial, that's fine. Without sworn testimony, and the officer's story, we won't dismiss."

First of all, I am relieved the Assistant District Attorney who penned this note thinks it is "fine" for my client to go to trial if she wishes. Second, a post it note? No letterhead, no contact info, no "truly yours"?

My first reaction was that it was my fault for not including a sworn affidavit from my client. My second reaction was that the ADA who took the time to scrawl out a message on the post-it note has zero respect for me, and that is rude.

As a lawyer, it is important to be professional. That means being courteous. That means understanding that other lawyers' time is precious and valuable and should not be wasted on trivial matters. Am I going to drive four hours round trip to try a case where the fine is probable less than $50? Actually, I will if I have to because the principle is more important to me than the waste of time and gas.

I put a call in to the post-it note lawyer to discuss this matter. Today is Thursday, if I get a call back by Tuesday I will be shocked. I'll update this story later.

Texting While Driving or TWI

I knew it wouldn't be too long before legislatures everywhere created the new offense of "texting while driving". As a traffic ticket and criminal defense attorney, I'm a little intrigued. First of all, this new offense is completely unnecessary. It's not going to prevent people from texting while driving, just as the driving while using your cell phone law has not modified that behavior either. By the way, what about those 4x6 DVD displays people have in their dashboards? It won't be long until the new offense of "watching tv while driving" is created.

Lawyers love new laws. Sooner or later I'll get a client charged with the new offense. I can't wait until the cross examination. "Officer, you never actually saw my client type in text, did you?"

Plaintiff's lawyers like this law too. If someone is injured an a car accident by a "texter" and they are convicted of the texting offense, proving negligence will be easy.