Charged with incorrect section of 148 - How to fight it?
All of a sudden there was approaching traffic - they must have really been going fast because they approached at a tremendous rate and I just barely got in front of the car I was passing to avoid a head on collision (or more likely the approaching traffic having to brake way down).
Turns out the car approaching was a cop. He pulled me over, but was very unclear about the reasons. He asked me if my brakes were working, wrote me a ticket, and then sped off. I didn't fully understand what I was being charged with - I'd passed in a legal area and frankly I think the cop's high rate of speed resulted in our near miss.
So here's the issue: When I got home and looked at the charge and it's 148(8)(b) - Roadway must be clear to the left of the vehicle from overtaking traffic. I think he meant to charge me with 148(8)(a) - Roadway must be clear from approaching traffic.
There was absolutely no issue with overtaking traffic. Nobody was trying to pass me. There wasn't anyone behind me at all.
What's the best way to fight this? I had a friend in the car that can back up my story - the offence I'm being charged with didn't happen. There may have been an offence under 148(8)(a), but that's not what I was charged with.
Thanks!
Regardless, I would plead NOT GUILTY and request a trial with the officer present. Once you get your notice of trial, then you can request disclosure (copy of officers notes) and then better decide if there is a chance to beat it or not.
+++ This is not legal advice, only my opinion +++
The cop's notes on the ticket say "pass - roadway not clear overtaking traffic". So his wording matches the Section I've been charged under. But the fact remains that there was no issue with overtaking traffic. The lane beside me was clear when I pulled out to pass, and nobody was trying to overtake me from behind.
I've already got a date to meet the prosecutor for a pre-trial. Is there any point of discussing this? Does it matter that I had a friend in the car who will make a statement this didn't occur? Will it help me if the cop's full notes all relate to approaching traffic and don't at all match the Section I'm charged under? Is there a chance they might change the charge (can they do this after the fact?)?
Appreciate your advice here.
+++ This is not legal advice, only my opinion +++
Really? They are allowed to go back in time and change the charge? They can look at the cop's notes and say "actually we meant to charge you with X"? That seems a bit unfair....jsherk wrote:Just remember that when you show them they made a mistake, this gives them an opportunity to correct it. In my opinion, you should cancel early resolution meeting and say you plan to plead not guilty and want a trial date. Do NOT tell them about the mistake. On the trial date you and your friend can show up, and when the officer is on the stand giving their version you will be able to cross examine them and ask them questions and get them to say it is wrong charge.
Also, my friend lives out of town and it's unlikely he can come to court. Is it acceptable, or would you recommend having him type up and sign a statement?
thanks again!
For friend to testify, he has to be there in person. A typed statement will not be accepted.
+++ This is not legal advice, only my opinion +++
Is it worth meeting with the prosecutor to see what she's got up her sleeve? Maybe I'd get a chance to see the cop's notes?
If 6 months goes by can they still amend the charge?
Also, is there a chance by meeting with the prosecutor I might be able to plead down to something lesser? I have a perfect driving record.
thanks again
The charge can be amended at any time prior to the start of the trial, even if six months have passed. Once the trial starts, the prosecutor can no longer amend.
+++ This is not legal advice, only my opinion +++
A few questions: What are 11b points?
Also, if I move to have the trial, how do I get the disclosure? Do I need to apply for it or is it simply provided?
If the disclosure looks bad, is there still an opportunity to try and work a deal with the prosecutor? As you say, on the day of the trial?
thanks again
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