Swerved to avoid animal then charged with Careless driving

o2atoman
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Swerved to avoid animal then charged with Careless driving

by: o2atoman on
Tue May 18, 2010 7:07 pm

Hi all,

I just joined today and I've been reading some of the post here and it's been very helpful. However, my situation is kinda different.

I picked up my wife from work (night shift 12:00am), and as I was making a right turn to our street, a raccoon appeared on front of me and my initial instinct was avoid it and next thing I knew I hit a Telecommunication box. I called 911 and after waiting for 45 minutes a cop arrived. After reading some of the post here, I realized that I should have not given a written statement, but because it was too late in the evening all I wanted was to go home and rest so I was very cooperative, and the police did not caution me.

All I've written in the statement is same as the above and I was running less than 30KM/H. The car needed to be towed because it was leaking some transmission oil, and the box I hit was smashed and was replaced.

After the the ticket was handed to me, he explained that I should fight it and when the trial date come, he will help me reduced or even eliminate the demerit points.

I would like to know what do you guys think? Is this a winnable case? Will the cop really help me or should I hire a paralegal? I'm really confused, this is my first ticket in 5 years of driving in Ontario. I just feel that I'm not really careless and I wasn't paying attention when in fact I tried to avoid something in front of me. Next time I'll just run stray animals over.

And another question, will my insurance go up even the charges was dropped and no demerit points given?

Thank for all your response.


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by: Simon Borys on
Tue May 18, 2010 8:05 pm

You have to understand that the demerit points are non-negotiable. They are automatically attached to whatever offence you are convicted of. Neither police, prosecutor or judge have control over this. If you plea to a different offence with less points then you get those points.

The police officer will not help you when it comes to court, that's not his job. Not to say that he can't or won't be nice to you but officers are generally don't you advice when it comes to court, since it can be viewed as an inducement and they have no authority to make deals.

Careless is a serious charge and you might want to consider hiring a paralegal to assist you.
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by: Traffic Law on
Thu May 20, 2010 5:07 pm

If you get convicted of the Careless Driving charge most insurance companies will place you in a high risk category that will cost you thousands of dollars increase in insurance premium.

Your statement will play a major role in this prosecution. However, there are defences available. You should consult with legal representative to increase your chances.


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by: Radar Identified on
Sat May 22, 2010 1:20 pm

Your insurance might still be affected if the charges are dropped, just because you did crash your car, even if it was to avoid an animal. However, it won't be affected as outrageously as if you get the careless driving conviction. I'd recommend getting professional help with this charge. It carries huge consequences.
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by: beleafer81 on
Mon May 24, 2010 11:20 am

In most cases swerving to avoid an animal is not the best idea.

If you stay in your lane and hit the animal you can put damages through insurance as a comprehensive claim and no wories about deductable and is also not an at fault accident.

If you swerve you better hope you can miss it and not lose control of your car. If you do swerve and hit a tree or another car or something, that will be an at fault accident and you can expect an increase in premiums unless you have accident forgiveness from your company or something. Not to mention the police lumping on a charge like careless.

My wife used to work in insurance and told me about this. Now more proof when just last week my in-laws hit a racoon on the 401 that cost $1800 in damages.

Same thing if some goof swerves into your lane and you try to aviod him and go in the ditch or something. If he didn't leave a paint scrape, and like most goofs, flees the scene your at a loss when the police get there.

Good luck with beating the charge. I think you can do it.
Last edited by beleafer81 on Tue May 25, 2010 10:33 am, edited 1 time in total.




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by: Radar Identified on
Tue May 25, 2010 8:24 pm

beleafer81 wrote:In most cases swerving to avoid an animal is not the best idea.
Generally, the rule of thumb is this: Stop straight if able. If unable, if the animal is "below the hood," (e.g. raccoon, squirrel), do NOT swerve. Unfortunately, the small animal will get hit. If the animal is "above the hood," (e.g. moose, buffalo), swerve. Otherwise, your hood will take the large animal's legs out, causing it to ride up the hood and onto your lap.
Last edited by Radar Identified on Wed May 26, 2010 12:38 am, edited 1 time in total.
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by: admin on
Tue May 25, 2010 8:45 pm

I once ran over a Canadian Goose. And it wasn't a nice experience. All the feathers went up in the air.

My time reaction was in the seconds, as the Goose just walked right into my lane path, and it froze in place, as it was probably terrified.

I was going about 80 km/h and tried to look around so I could change lanes.

There were cars beside me and behind me.

I had no choice but to run over the Goose.

If I had tried to swerve, I think it would have been a disasterous situation.

I agree with trying to swerve for larger animals like deers because they can go through your windshield and kill you, but not for smaller animals unless you can safely do so.

Risking your life and others for a Racoon or Goose etc.. isn't a good idea.


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by: Radar Identified on
Wed May 26, 2010 12:41 am

admin wrote:I agree with trying to swerve for larger animals like deers because they can go through your windshield and kill you, but not for smaller animals unless you can safely do so.
That's what I was saying. Previous post edited for clarity.
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by: Biron on
Sat May 29, 2010 10:03 pm

What you describe is quite common. You should have not been charged and, in my opinion the police officer acted negligently. There is Supreme Court case law directing that police officers may be liable for damages when charging someone and failing to conduct a proper investigation.

What they expect is that you go to court and 'plea bargain' to amend the certificate (ticket as filed in court) to a lesser and included offence through a process called resolution. By 'they' I mean the provincial offences officers and the city prosecutor or the Crown as the case may be)

The prosecutor will usually offer you to plead guilty to an offence that may carry fewer demerit points and a lower fine.

I have successfully defended many careless driving charges because the burden of proof is heavy on the prosecution. They have to prove all of the elements of the careless driving offence, which in most cases it simply impossible for them to do, just like in your case.

If you understand the process and the charge, you may not need a representative but if you can afford it, by all means hire one. HOWEVER, not to seek resolution, but to get the charges dismissed ENTIRELY, which in your case it would be a walk in the park, otherwise you would be wasting your money.

Under s. 199 of the POA you must give a report to an officer if asked, or to a 'collision reporting center' if directed to do so. However, legally, your statements can not be used against you at trial, unless you were cautioned otherwise before giving the statement.

Never, ever, ever take legal advice from a police officer.

Go to trial; you have nothing to fear. :D

Cheers.


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by: Simon Borys on
Sun May 30, 2010 1:16 pm

Biron wrote:What you describe is quite common. You should have not been charged and, in my opinion the police officer acted negligently. There is Supreme Court case law directing that police officers may be liable for damages when charging someone and failing to conduct a proper investigation.
Why should he not have been charged? How did the officer not conduct a proper investigation? Not watching the edge of the road for animals so that you are forced to swerve to avoid it and then end up causing a collision is arguably "without due care and attention".

You say you have defended numerous cases, so I'm assuming you're a paralegal. If you are, I don't think you should be giving advice to people to ignore the resolution and take it to court with nothing to fear. Especially for a serous charge like careless. You haven't spoken directly to the defendant or seen the dislosure. If somebody acts on your advice, especially if you've stated that you're a paralegal, aren't you partially liable for the adverse results of their actions based on your advice?[/i]
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by: Radar Identified on
Sun May 30, 2010 4:49 pm

Simon Borys wrote:You say you have defended numerous cases, so I'm assuming you're a paralegal. If you are, I don't think you should be giving advice to people to ignore the resolution and take it to court with nothing to fear. Especially for a serous charge like careless. You haven't spoken directly to the defendant or seen the dislosure. If somebody acts on your advice, especially if you've stated that you're a paralegal, aren't you partially liable for the adverse results of their actions based on your advice?
+1
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by: Biron on
Wed Jun 09, 2010 2:50 pm

Hi Simon Borys and Radar Identified;

Sorry I didn't reply to this post earlier. I am new at this and I guess I didn't mark the Notify me when a reply is posted option and I was not aware of your comments until now that I am browsing through my old posts. I will mark that option now.

Here it is:
Simon Borys wrote:
Biron wrote:What you describe is quite common. You should have not been charged and, in my opinion the police officer acted negligently. There is Supreme Court case law directing that police officers may be liable for damages when charging someone and failing to conduct a proper investigation.
Why should he not have been charged? How did the officer not conduct a proper investigation?
There is not a single shred of evidence of careless driving. On the contrary the report provided by o2atoman makes it clear that it is NOT careless driving. Where did this police officer get the idea of careless driving? It is pure laziness and negligence. I would love to cross-examine him/her
Simon Borys wrote:Not watching the edge of the road for animals so that you are forced to swerve to avoid it and then end up causing a collision is arguably "without due care and attention".
This makes absolute no sense or whatsoever. Even if it did, which does not, where is the evidence that o2atoman was not watching the edge of the road for animals? It's not even a proper inference the he did not. And how can that make the offence of Careless Driving?
Simon Borys wrote:I don't think you should be giving advice to people to ignore the resolution and take it to court with nothing to fear[/b]. Especially for a serous charge like careless. You haven't spoken directly to the defendant or seen the dislosure. If somebody acts on your advice, especially if you've stated that you're a paralegal, aren't you partially liable for the adverse results of their actions based on your advice?[/i]
I think you misread my post or perhaps it's not clear.

I never said to ignore the resolution. Here is what I said:
Biron wrote:If you understand the process and the charge, you may not need a representative but if you can afford it, by all means hire one. HOWEVER, not to seek resolution, but to get the charges dismissed ENTIRELY, which in your case it would be a walk in the park, otherwise you would be wasting your money.
To answer o2atoman's question: "Will the cop really help me or should I hire a paralegal?"

My advice is to hire a paralegal, but to get the charges dismissed entirely. Don't hire one to get resolution. I thought it was clear from my post.
Simon Borys wrote:... You haven't spoken directly to the defendant or seen the dislosure. If somebody acts on your advice, especially if you've stated that you're a paralegal, aren't you partially liable for the adverse results of their actions based on your advice?[/i]
The police officer was not a witness, there is nothing he can state in disclosure or in court that can prove the Careless Driving charge. I do not need to speak with him, he has been very clear on what happened and, if he is telling the truth, which I think he is, I stand by what I said.

Would I be partially liable for adverse results? Advising someone to hire a paralegal if he can afford it, it's sound advice. Paralegals are now licensed by the Law Society of Upper Canada -I am one of them- and there is a level of competency required of them. Many things can go wrong, but as I said, I stand by that advice any time.

I know that most of you are police officers or ex-police officers and we hold an adversarial role in court, but shouldn't we try to help people here and not try to look smart?

Now here is the real challenge:

I will represent o2atoman's and if he is convicted I'll do it for free. If I get the charge dismissed -which I think it will be be a walk in the park for me- you pay my fees and expenses and, if I get the charge dismissed on a non-suit motion, you pay double.

I put my money where my mouth is. Will you?

Cheers.


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by: Simon Borys on
Wed Jun 09, 2010 3:18 pm

I don't disagree with you that this is a weak case for careless, however I think that the officer had grounds to lay the charge. Remember, he doesn't have to consider possible defences or the reasonable prospect of conviction.

I think there can be a very liberal approach to what constitutes careless driving (at least in terms of laying the charge), but of course that is one of the purposes of the resolution meeting, to see if there is a more appropriate charge to plea to, or whether the matter should just be withdrawn all together.

In my view I consider R. v. Beauchamp (1953 – Ontario Court of Appeal) to be rather instructive on careless driving. There they defined the standard meaning of careless driving, that the words without “due care” mean “care owing in the circumstances”. Therefore factors must be considered, including the conditions of the road, visibility, weather, and traffic, the determining factor is what the average, careful person would have done in the circumstances.

I think there is a case to be made (again, just in terms of grounds to lay the charge) that if someone is driving at night on a road with no fence at the edge, where there is likely or possibly the risk of animals crossing the road that they ought to be watching for that and driving at a speed at which they can reasonable brake or otherwise take action to avoid a collision if an animal does cross in front of them. I would suggest the evidence in this case that the person was not watching adequately or driving to the conditions is that there was, in fact, a collision.

Like I said, it's a weak charge and it could most likely be beat in court (and I hope that it is being fought) but I don't necessarily fault the officer for laying the ticket. That's the point I was trying to get across in my earlier statements.

Also, with regards to the resolution meeting, I didn't suggest that he should go there with the intention of pleaing to a different charge, but the resolution meeting is also an opportunity to advocate one's case and perhaps persuade the crown that the case should just be dropped all together. I don't think there's a need to avoid the resolution meeting just because you don't intend to plea. It might save the court and everybody else some time if the crown was just going to withdraw it on the first court date.

I respect if you disagree with my interpretation of this - that's the nice part about our system, that we can agree to disagree and let the judge sort it out :) - but based on my experience and training, that's what I think.
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by: Biron on
Wed Jun 09, 2010 8:00 pm

...
..
.
Simon Borys wrote:...Like I said, it's a weak charge and it could most likely be beat in court (and I hope that it is being fought) but I don't necessarily fault the officer for laying the ticket. That's the point I was trying to get across in my earlier statements.
I still think the charges should have not been made. Notwithstanding, I think you make a good point because once the certificate is filed by the officer, the case depends on the court clerk and finally on the prosecutor.

The prosecutor should reviewed disclosure as soon as practicable and decide if there is a reasonable prospect of conviction, as per policy, and then decide whether or not continue with the matter.

Simon Borys wrote:Also, with regards to the resolution meeting, I didn't suggest that he should go there with the intention of pleaing to a different charge, but the resolution meeting is also an opportunity to advocate one's case and perhaps persuade the crown that the case should just be dropped all together. I don't think there's a need to avoid the resolution meeting just because you don't intend to plea. It might save the court and everybody else some time if the crown was just going to withdraw it on the first court date.
Well, render unto Simon the things which are Simon’s. You make an excellent point here.

Cheers.

.


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