I was recently waiting in court for a client’s reckless driving charge. I overheard another case that shocked me.

A driver was charged with reckless driving by speed. The officer testified to the basics of the case. He clocked the defendant going X speed, it happened in Spotsylvania County, etc.

Then the driver’s attorney cross-examined the officer. He asked if the officer had calibrated his radar.

That was the wrong move. The attorney essentially invited the officer to put forth additional evidence against his client. He missed the opportunity to beat the charge completely. Let me explain.

In a traffic or criminal case, the Commonwealth first puts forward their evidence against the defendant. At the conclusion of their evidence, they must have alleged all the elements of the offense. For a reckless driving by speed case, two of the elements are:

A. The officer’s tuning forks were calibrated within the previous six months.

B. The officer checked his radar unit for accuracy before and after the stop in question.

If the Commonwealth rests their case and they’ve left out an element, the defense should move to strike the case. That is asking the judge to dismiss the charge because the Commonwealth hasn’t even alleged a required part of the offense.

In the case I saw, I didn’t hear the officer testify about his tuning forks or radar testing at all. I could have missed it, but I don’t think I did.

In a case like that, the best response from the defense attorney after the officer finished testifying would be something like: “Your Honor, I move to strike, since there is no evidence regarding the tuning fork calibrations or that the radar had been checked for accuracy.”

Not all judges will dismiss a case at that point, but they should. It’s the law.

I don’t mean this post to be critical of a colleague. I’ve certainly made plenty of my own mistakes; nobody will ever be perfect. And the case in question did end up being referred to driving school.

My point is that hiring an experienced traffic lawyer can be a huge advantage in your case. Be sure to hire someone who regularly handles traffic cases in the court where your charge is pending.

Photo by brizzle born and bred

Originally published at AndrewFlusche.com. © 2011 Andrew Flusche. Don’t Invite the Officer to Add Evidence

I was sitting in Stafford General District Court today when the judge called a case for “being a pedestrian on the interstate.” I honestly had never seen a case regarding that statute, so I was quite interested to hear what happened.

The Trooper testified that he saw two young ladies on foot in the middle of the interstate. They were attempting to stop traffic and retrieve a cell phone from the interstate.

Then one of the ladies took the oath and testified. Apparently they were not from the area. They were traveling through, using the cell phone’s GPS for navigation. They saw something they wanted to take a picture of.

“I held the phone out the window to take the picture, and it flew out of my hands.”

That’s a loose quotation, but I swear it’s what the lady said. Since they needed the phone to find their way, they stopped and tried to retrieve it.

What happened? She was found guilty. That’s simply not an excuse for trying to stop cars on the interstate.

I think there’s two morals to this story. First, don’t hold your cell phone out of a car window. Second, don’t walk around on the interstate.

Originally published at AndrewFlusche.com. © 2010 Andrew Flusche. Watch Out for Pedestrians on the Interstate

Today a banana was summoned to appear for a Stafford speeding ticket. Not quite like that, but it was still pretty funny.

I was sitting in the Stafford General District Court for my client’s reckless driving ticket. The judge was calling cases and hearing them just like a usual day in court.

Then a Virginia State Trooper started testifying for a basic speeding ticket. He said that the defendant was dressed as a banana. Yep, a big yellow banana. Apparently he had some type of school event that day that required the costume.

Moms always teach their children to wear clean underwear, in case they’re in some type of accident. I’m going to teach my kids not to dress like a banana, in case they get pulled over by the police.

Originally published at AndrewFlusche.com. © 2009 Andrew Flusche. Banana Receives Stafford Speeding Ticket

Lawyers are in court a lot. We get to hear many funny and odd comments. Here’s one of my latest ones from the Fredericksburg General District Court: “You’re innocent until proven guilty.”

The funny thing is that someone said this in civil court.

A debtor had shown up for court and was found guilty because she admitted that she owed the debt. Then I overheard someone else tell her: “but you’re innocent until proven guilty!”

That’s a true statement, but it’s a bit off. In the American legal system, criminal defendants are innocent until proven guilty. A similar concept applies in civil cases: the plaintiff must prove his case against the defendant. But civil defendants are not found “guilty” or “innocent.” The plaintiff either wins a judgment or not. That’s it.

The other important point is that this particular defendant admitted the debt. If you are sued and you admit that the plaintiff’s case is correct, the case is over. Done. Judgment is entered against you.

The moral of this story is this: if you don’t owe a debt, don’t admit it. If you’re in doubt about whether or not you have a defense, talk to a lawyer.

Originally published at AndrewFlusche.com. © 2009 Andrew Flusche. Overheard – You’re Innocent Until Proven Guilty