SITCIOT - Stick It to Click It or Ticket

I am pleased to announce that the right to have a trial a by jury of one’s peers has been re-established for violations of some Oklahoma traffic statutes. Furthermore, I have located arguments that may restore the right to trial by jury in ALL Oklahoma traffic cases. The best part is, in a couple of days I will have a chance to try the arguments out and see if this will work across all cases.

At a bare minimum, the right to jury trial has been established for violations of O.S. §47-11.310, following too closely. This occurred in State v. Kimmel, Cleveland County District Court, Case No. TR-2007-2026. In that case, I am charged with violating O.S. §47-11.310(A) and I have successfully gotten that case set for jury trial which is to take place on 01-28-2008 at 8:30 AM before Judge Ring.

Here is the law:

Oklahoma Statutes Citationized
Title 47. Motor Vehicles
Chapter 11 - Rules of the Road
Section 11-310 - Following Too Closely
Cite as: O.S. §, __ __

(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

(b) The driver of any truck or motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residential district and which is following another truck or motor vehicle drawing another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this shall not prevent a motor truck or motor vehicle drawing another vehicle from overtaking and passing any like vehicle or another vehicle.

(c) No vehicle which has more than six tires in contact with the road shall approach from the rear of another vehicle which has more than six tires in contact with the road closer than three hundred (300) feet except when passing such said vehicle.

(d) Motor vehicles being driven upon any roadway outside of a business or residential district in a caravan or motorcade, whether or not towing other vehicles, shall be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. The distance between such vehicles shall be a minimum of two hundred (200) feet under all conditions. This provision shall not apply to funeral processions.

As you can see, the statute - and my allegedly having violated it - is clearly subjective. Who is to say exactly what distance is “…reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” Of course, initially, its the law enforcement officer’s opinion. He thought I was following too closely, so he wrote a citation. Thats enough to sustain the indictment, but it might not be enough for a conviction. Also, take note of the fact that this particular section does not have its own penalty clause. For that, we go to O.S. §47-17.101 et seq.

Now, as we are all well aware, most states have decriminalized traffic statutes. The legislatures say they decriminalized them to save time and make prosecutions more efficient, I say they do it because they know damn good and well that it deprives the accused of several rights, including the right to trial by jury. Jury trials are expensive and the government likes to conduct as few of them as possible for this reason. They are expensive for the state and expensive for the defendants. This point is discussed in great detail elsewhere, such as A Public Defender. Some think that everyone should be entitled to a jury trial no matter what, a concept explored in depth by Prof. Suja A. Thomas at The University of Cincinnati College of Law. (See also Virginia Law Review, Vol. 93, p. 139, 2007) Jury trials are also easier to win, another reason why the state likes to have as few of them as possible.

Undoubtedly, the legislators really have this fact in mind when they setup decriminalized traffic statutes. Its a way to stack the deck against defendants and make cases a slam dunk for the prosecution. This is exhibited by the fact that many district attorney’s choose to use interns from local law schools to prosecute the traffic docket, since the cases are almost impossible to mess up - unless you get some pain in the ass like me in there who actually has a clue. Because as everyone is well aware, traffic citations have little to do with safety and everything to do with money. Essentially, they are a back door tax on motorists.

It also changes the standard of the burden of proof from “guilty beyond a reasonable doubt” to “by a preponderance of the evidence” in many states. While this may seem like a small thing, its a really big thing in traffic cases because the state rarely has evidence against the defendant other than the officer-complainant’s testimony. While sufficient to satisfy the “preponderance of the evidence” standard, it will not satisfy the “guilty beyond a reasonable doubt” standard. This is very important, because if we can start trying cases under the “guilty beyond a reasonable doubt” standard, traffic cases as they are prosecuted now - based solely on a cop’s word - will drop like flies.

As a general rule of thumb, one is entitled to a jury trial whenever an offense is potentially punishable by incarceration. (The district attorney’s traffic intern that was arguing my case tried to tell the judge that it was only triable by jury if I actually served the ten days in jail, which was quite a humorous argument to say the least.) The right to a jury trial has been later revised to apply only to “serious” offenses, but criminal defendants almost always have a right to a jury. And this is the key argument I am making. In this case, the offense is punishable by up to 10 days in jail, per O.S. §47-17.101(B) and is also a criminal offense (misdemeanor) under O.S. §47-17.101(A). I used this arguement to get the above-mentioned case set for jury trial.

Here is the law:

Oklahoma Statutes Citationized
Title 47. Motor Vehicles
Chapter 17 - Penalties
Section 17-101 - Misdemeanors
Cite as: O.S. §, __ __

A. It is a misdemeanor for any person to violate any of the provisions of this title unless such violation is by this title or other law of this state declared to be a felony.

B. 1. Every person convicted of a misdemeanor for a violation of any of the provisions of Sections 10-101 through 14-121 or Sections 16-101 through 16-114 of this title for which another penalty is not provided shall upon conviction thereof be punished by a fine of not less than Five Dollars ($5.00) nor more than Five Hundred Dollars ($500.00) or by imprisonment for not more than ten (10) days; for a second such conviction within one (1) year after the first conviction by imprisonment for not more than twenty (20) days; upon a third or subsequent conviction within one (1) year after the first conviction by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

2. Any person violating the provisions of Sections 10-101 through 14-121 or Sections 16-101 through 16-114 of this title, where a jail sentence is not mandatory may, in the discretion of the district attorney wherein the offense occurred, be permitted to enter a plea of guilty by written statement by the person charged to be presented to the court wherein the case is filed. A remittance covering the fine and costs may be considered and received with the same force and effect as a written plea of guilty.

C. Unless another penalty is in this title or by the laws of this state provided, every person convicted of a misdemeanor for the violation of any other provision of this title shall be punished by a fine of not less than Five Dollars ($5.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

D. Provided, however, notwithstanding any provision of law to the contrary, any offense, including traffic offenses, in violation of any of the provisions of this title which is not otherwise punishable by a term of imprisonment or confinement shall be punishable by a term of imprisonment not to exceed one day in the discretion of the court, in addition to any fine prescribed by law.

E. The conviction of any person, as prescribed in this section, when the offense occurred during a period when the driving privileges of the person were under suspension, revocation, cancellation, denial, or disqualification or the person had not been granted driving privileges by Oklahoma or any other state, shall result in the doubling of the appropriate fine, as provided for in subsections B and C of this section, and the doubling of all court costs and all fees collected by the court on behalf of any other entity, unless waived by the court.

F. One-half (1/2) of any fine collected pursuant to the provisions of subsection E of this section, shall be deposited to the Trauma Care Assistance Revolving Fund created in Section 1-2522 of Title 63 of the Oklahoma Statutes.

So now you understand the arguments used to get to a jury trial on following too closely violations. But can they be applied to other traffic violations? I believe that they can, an argument I will be trying out later this month in State v. Kimmel, Oklahoma County District Court, Case No. TR-2007-22791 - if that case even makes it to a trial. In this case, I appear to have been charged with allegedly violating O.S. §47-11.801(A), a statute which was repealed back in 2005. Its hard to read the ticket and OCIS has been off line all week, so I cannot download a copy of it from the Court. Obviously - if thats the charge - my first line of defense will be a motion to dismiss based on a defective summons and complaint.

But if the case does survive, I will be requesting a jury trial again based on O.S. §47-17.101(D). That statute says that ALL traffic cases are punishable by jail terms of one day, unless the law specifically says they are not. A cursory glance through the traffic code turned up no actionable violations that have such an exclusion written in. Its my belief that this opens the door to jury trials on all traffic tickets issued in Oklahoma. The other paragraphs of that same section make all traffic tickets into criminal cases (misdemeanors for most) and that means that under the United States Constitution, guilt must be proven beyond a reasonable doubt.

And all of this, my friends, is excellent news for traffic court warriors statewide. I will keep you up to date on this and maybe - just maybe - we can get one state back to the way it should be.

This entry was posted on Sunday, January 13th, 2008 at 1:14 pm and is filed under All Items, Courts, Jury Trial, Oklahoma, Procedures, Trials, United States. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.