How to Attack the Required Elements of a Traffic Ticket Violation as a Defense



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This article is about the basic foundation of Criminal Defense Work that many people miss when they represent themselves in traffic ticket trials. Sometimes, just telling your story may not be enough for a Not Guilty verdict.

In order to beat a charge effectively, a defendant should attack one or more of the “Required Elements” of that charge. For a traffic court trial, you need to know which element you are going to attack in advance. This means you need to get prepared!

What are “Required Elements” of a traffic ticket violation? Well, in the US, you are presumed innocent of any criminal (or traffic court) charge, until proven guilty. Until they are proven up in court, a charge is simply an “Unproven Allegation”, not a conviction. And each unproven allegation has certain elements that must be satisfied before it becomes a “proven allegation”.

Every traffic violation charge comes from a “Statute”, which is the technical term for law written in a “Code” book. For criminal and traffic court violations, the statutes all list a number of required elements.

For example, to be guilty of speeding, there is a requirement that the government prove you were driving. Thus, “driving” is a required element of Speeding. No driving, no speeding.


You can extract the required elements of a charge from reading the statute carefully, and thinking about it. Whether it be the Penal Code or The Vehicle Code, all violation statutes list required elements in their text.

But a better place to get the required elements for a misdemeanor criminal charge, like a DUI, is the Criminal Jury Instructions which are used in court during trials to tell the jury what they have to look for.

Jury Instructions are published and free on line from the California Judicial Council. You can learn a lot from browsing them.

Here is an example we will use for the remainder of the discussion – it is a pot possession charge:

REAL JURY INSTRUCTION

The defendant is charged [in Count  ] with (giving away/
transporting) 28.5 grams or less of marijuana, a controlled substance [in violation of Health and Safety Code section 11360(b)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [unlawfully] (gave away/transported) a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance;
4. The controlled substance was marijuana;
AND
5. The marijuana was in a usable amount but not more than 28.5 grams in weight.

________

As you can see, the jury instruction actually lists and numbers all of the required elements of this offense. If any of them are missing or cannot be proven, the Defendant is not guilty by law.

To create and present a defense against a charge with these required elements, you need to pick out one or more that you feel are weak.

For example, a defense attorney fighting this charge might decide to go after element #2 at trial. That required element is that the “Defendant Knew of its Presence”. The prosecutor may try to prove the defendant knew by having the officer testify that he found the pot in the Defendant’s hat.

But the defense attorney can attack that required element by putting the defendant on the stand and asking him, point blank, “Did you know there was pot in your hat?”. If Defendant says “no”, you have a defense focused efficiently on a required element. When the final argument comes, you have something very real and focused to say:

The defendant testified that he did not know it was there. Knowledge of the presence of the pot is a required element. The charge does not fit, you must acquit!”

OK. Got it? You need to review the law or the jury instruction to identify the required elements of a charge. Get prepared for trial by picking out those elements that you can attack, and in court go after them. Make your final argument strong by stating “The required element of __________ is not proven, and therefore I ask the court to rule in my favor.” . . . or something like that.

Questions? Leave a reply. We try to answer them all.


About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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6 Responses to How to Attack the Required Elements of a Traffic Ticket Violation as a Defense

  1. frank says:

    Hi Christopher Dort! my name is frank I live in NJ. I’ve read all of your traffic tips and gotten many of my traffic violation dismissed in trial even though i knew i committed the offense. now I’m hoping you can help me with my most recent ticket. i got ticketed by a female police officer on a motorcycle. I overtook two vehicles that was stuck in traffic to the left to make a left turn. the road was wide enough but it was a double line and i had room to go by without crossing the double solid yellow lines. the officer site me for improper passing no passing lines if i take it to trial do you think i have a chance of winning & if so what must i say in court

    • Hello Frank!

      What a coincidence! Do you know Sally? I heard she moved away. Something about a flying robot with GPS. I’m not sure.

      Anyway, I am not licensed in NJ, so I cannot help you.

      But if I were licensed in NJ, I might remind you that you have the right to remain silent anywhere in the US.

      Sometimes silence is the best defense.

  2. Catbert says:

    I was ticketed for VC 21461(a) in California and the police officer meticulously didn’t tell me anything specific about the violation other than saying ‘Why did you disobey the traffic signal?’, basically the same wording as the very broad (blanket) statue itself. I smelled a rat and therefore I didn’t say anything committing to avoid being tricked into confession and planned to contest the ticket.

    In preparing my defense, I realized it’s impossible to lay down the specific elements of the charge because VC 21461(a) entirely depends on what traffic signals/signs are involved (their states if it’s a signal) and their interpretations, which was not hinted to me (the ticket says ‘Disobey signal’, nothing else). This looks like a fishing expedition that I’m supposed to fill in the blanks on the ‘charging sheet’ for the officer.

    Given that I can’t find Jury Instructions booklet concerning VC 21461(a) for that it’s an infraction, would you suggest a strategy that I should proceed with my defense? Who should I force to lay down all the specific elements of the charge point by point in traffic court if there’s no prosecutor? I filed a motion for bill of particulars but the court didn’t respond.

    Thanks.

    • Wat Up Catbert! Hoz Dogbert? & DilBert? Hear he got fired. Or layed off or something.

      Great comment!

      What you have is a complaint (citation) that although it lists a violation code, is UNCONSITUTIONALLY VAGUE AS IT APPLIES TO YOU

      BECAUSE . . . . .

      The charging document and the citation itself (same thing) do not provide enough information for you to be able TO PREPARE A DEFENSE (yes! you got it) BECAUSE IT DOES NOT LIST THE EXACT SIGN OR DEVICE that you ALLEGEDLY IGNORED.

      Without that information, you are unable to photograph it for a trial. You are unable to video how it works. You are unable to verify it actually exists. You are unable to verify that it complied with the laws regarding its placement, location, appearance, and ability to give fair notice to drivers. You are unable to cross examine the witness against you in any effective way (the cop), because you have no idea what he is accusing you of. That is a violation of your 5th Amendment right to cross examine witnesses against your law abiding freedom loving, tax paying, voting self, your 14th Amendment right to Due Process when faced with an Attempted Government Taking, and it is just plain FUNDAMENTALLY UNFAIR to the EXTENT THAT IT SHOCKS THE CONSCIOUS of an average person.

      Because of that, this court should rule, in advance of the trial (right before the trial starts) on your DEMURRER (pretrial motion) which is based on this UNCONSTITUTIONAL VAGUERY, CHICANERY, and general lack of fair notice and .. .

      ughhh .. running out of energy here.

      AND, FINALLY, BECAUSE the COMPLAINT FAILS TO STATE A VALID CAUSE OF ACTION on this basis.

      That is my best free preview Defense Attorney Script for you.

      _________
      Schedule an Attorney Conference Now (CA Problems only).
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      • Catbert says:

        Well, I went to court today with this argument (put in paper motion). They started off not allowing me to use my own pocket recorder (They only gave me the option of hiring my own court reporter)

        The motion about vagueness of the complaint was denied. The judge told me that it’s not constitutionally vague despite nothing was specified about which traffic signs was involved. He kept explaining to me that it is an infraction case, the State is not represented so it evens the playing field for fair trial, and said the truth will come out after the officer gave his testimony. I told the judge that there weren’t enough time to prepare a defense after I hear the testimony, and I asked for time to prepare and the judge gave me 1 minute to prepare my defense.

        The cop added vivid details (things he said and I said) that didn’t occur (I have the tape shared through discovery where he secretly taped me during the traffic stop to prove that), and I objected the false facts in my testimony but the judege didn’t act on it.

        When it boils down to my words against the cops words, he ruled me lost.

        There’s more technicalities I challenged as the officer’s notes (shared through discovery) said switched the map by 90 degrees and it should be referring to another intersection and the road change names. He’s told the judge that there’s local practice calling some roads EastWest instead of NorthSouth so the judge let him pick the one that favors him (the other one is a dedicated downstream so no stopping is necessary).

        I was a bit nervous when the judge denied all the motions and I should have done better. Nonetheless a good education about the inner workings of the criminal procedures and what happens in infraction trials.

  3. Angela says:

    Hi Christopher Dort! Unique posting and superior subject material. There are little question that excellent, unique articles and other content dependant on wisdom along with discernment of the subject matter is what everybody is interested in but, over the internet, is usually the most difficult thing to locate. Kudos for your own involvement and point of view.

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