I got pulled over by a opp police officer who stated that I was using the HOV lane on the QEW, he gave me a ticket 154.1 (3) improper use of HOV lane. I was never in the HOV lane to begin with. When the police officer approached my vehicle and asked me why I was in the HOV lane, I told him "I don't believe I was in the HOV lane" (says this in the disclosure) it is also indeed what I told him. He then told me he is going to give me a ticket for improper use of HOV lane and he also said that if I had admitted to the charge he would have just given me a warning. At that point I asked "ok if I admit will I get a warning?" he said no (wrote this in disclosure as well). When I was reading his disclosure it said he observed a black vehicle coming out of the HOV lane and entered the middle lane three cars behind him. My car is a blue car on his notes he claimed he observed a black vehicle but later on the notes when he was writing the description of the car he put in blue. What are my chances? I will be pleading not guilty as I find it is not fair for me to take a charge that I did not commit. I honestly believe he mistook me for another car the car is a blue Mitsubishi lancer 2013 (4 door sedan). I do not have any previous traffic offenses and I drive for a living. If I get convicted for this it will ruin my career and raise my insurance prices as well. Will him making a mistake in his notes where he got the color of my vehicle wrong initially in his first observation be any help towards my case? Please help me as I am unsure what to do, any help will be greatly appreciated.

Can you post a copy of the notes for use to read (with personal and officer info blanked out)?

jsherk wrote:

Can you post a copy of the notes for use to read (with personal and officer info blanked out)?

Hi thank you for the reply. I have added the officers notes as attachments.

Well if I could read them, I would probably have some suggestions.

Personally I would make another disclosure request and ask for "a typed copy of the officers notes as they are very hard to read and I can not properly prepare my defense without fully understanding the notes"

jsherk wrote:

Well if I could read them, I would probably have some suggestions.

Personally I would make another disclosure request and ask for "a typed copy of the officers notes as they are very hard to read and I can not properly prepare my defense without fully understanding the notes"

The officer read out the notes to me, I did request for a typed copy but the judge denied it.

Did you have trial already? Please explain in more detail what has happened so far as it seems you have been before a JP already.

Can you, to the best of your ability and recollection, type out what the notes say?

jsherk wrote:

Did you have trial already? Please explain in more detail what has happened so far as it seems you have been before a JP already.

Can you, to the best of your ability and recollection, type out what the notes say?

No I have not had a trial yet, today was my trial day but I did not have the disclosure so the judge moved it to June 3rd and said that she wont give me any more extensions and I have to plea on June 3rd. Ok I will try to type the notes out to the best of my ability.

Improper use of Hov lane 154.1(3). While on Qew (officer) in lane 2 of 3 at Cawthra observed a black MiL(mitshubishi lancer he did indeed say that was me) in lane 1 hov lane. Vehicle was behind me 2 to 3 cars and entered lane 2 at that point. I slowed down and went behind vehicle and we pulled into lane 3 shoulder and stopped at Dixie. I approached vehicle asked driver was their any reason you were in the HOV lane. He stated he didn't think he was in the HOV lane " I don't believe I was in the HOV lane". I told him if he had admitted I would have just given you a warning. He asked for a warning, I said no. Then when he was writing the description of my vehicle he wrote blue in that part. He also wrote in the notes that it was clear and sunny. This was the best I could do to read out his chicken scratch. Do I have any sort of defense since he got the color of the vehicle wrong? I mentioned this to the crown and she said she did not care about the color. I would also like to mention the car is a 2013 Mitsubishi lancer and they have been using the same model design for this car since 2004 or 2005 up until 2014.

The next question I have is "how busy was the road"? Was there other cars on the road? Were there 2 to 3 cars between you and him?

I am going to procced with advice below, assuming there were other cars on the road and there were 2 or 3 cars between you and him.

When the officer gets on the stand to testify, the prosecutor will ask him to read his notes to tell what happened, which the officer will do and the prosecutor may then ask some questions to clarify. When the prosecutor is done, the JP will ask you if you want to cross-examine the officer and ask him questions. This is NOT the time for you to get up and tell your side of the story. This is your time to ask the officer questions to try and bring reasonable doubt to things that he said that are relevant to the charge. The following are the main things I would focus on with cross-examination questions (I wrote them as if talking to the officer on the stand):

- Your notes state that you were in lane 2 (middle lane), correct?

- Your notes state that when you saw the car behind you, it changed lanes from the HOV lane into lane 2, and that it was black, correct?

- Your notes state that, after you pulled me over, my car was blue, correct?

- Your notes state that the car behind you moved from HOV lane into lane 2, the same lane you were in, and was 2 to 3 vehicles behind you, correct?

- This lane change took place behind you, so how did he see it? (From side mirror? From rearview mirror?)

- Did you stare in your mirrors and continually observe this car from the time you saw it move into the lane behind you, until you moved back beside it?

- Did you have to take your eyes off the mirrors at all in order to look forward so as not to hit anybody in front of you or swerve out of lane?

- Did you have to take your eyes off the mirrors at all in order to change lanes safely by checking your blind spot?

- When you saw this car move from the HOV lane into lane 2 behind you, was it 2 vehicles behind you or 3 vehicles behind you?

- And there were other vehicles directly behind you in lane 2, between you and this car?

- How many vehicles exactly were between you and this car?

- So you do not know whether there was exactly 2 vehicles in between or 3 vehicles in between?

- Seeing as there were other vehicles directly behind you, in between you and this car, and seeing as you had to take your eyes off the mirrors to look forward and check your blind spot, is it possible that you lost sight of this car at any point?

- So is it possible that the black car you saw moving from the HOV lane into lane 2 a few vehicles behind you, was not my blue car, and that you pulled over the wrong car?

I think you have a good chance of winning this IF you understand cross-examination and bringing reasonable doubt to officers testimony.

You need to understand how to play the "game of court", so read this thread:

http://www.ontariohighwaytrafficact.com/topic7039.html

And you need to understand how cross-examination works, so read this thread:

http://www.ontariohighwaytrafficact.com/topic7041.html

**SIDE-NOTE: While on the witness stand, if the officer starts to repeat anything that you said (whether from his notes or not), you can immediately object and say something like "objection, officer is not allowed to enter those statement". The prosecution would have to ask for a voire-dire (trial withing a trial) in order to get permission for officer to use anything you said in the statements (although nothing you said seems incriminating).

jsherk wrote:

The next question I have is "how busy was the road"? Was there other cars on the road? Were there 2 to 3 cars between you and him?

I am going to procced with advice below, assuming there were other cars on the road and there were 2 or 3 cars between you and him.

When the officer gets on the stand to testify, the prosecutor will ask him to read his notes to tell what happened, which the officer will do and the prosecutor may then ask some questions to clarify. When the prosecutor is done, the JP will ask you if you want to cross-examine the officer and ask him questions. This is NOT the time for you to get up and tell your side of the story. This is your time to ask the officer questions to try and bring reasonable doubt to things that he said that are relevant to the charge. The following are the main things I would focus on with cross-examination questions (I wrote them as if talking to the officer on the stand):

- Your notes state that you were in lane 2 (middle lane), correct?

- Your notes state that when you saw the car behind you, it changed lanes from the HOV lane into lane 2, and that it was black, correct?

- Your notes state that, after you pulled me over, my car was blue, correct?

- Your notes state that the car behind you moved from HOV lane into lane 2, the same lane you were in, and was 2 to 3 vehicles behind you, correct?

- This lane change took place behind you, so how did he see it? (From side mirror? From rearview mirror?)

- Did you stare in your mirrors and continually observe this car from the time you saw it move into the lane behind you, until you moved back beside it?

- Did you have to take your eyes off the mirrors at all in order to look forward so as not to hit anybody in front of you or swerve out of lane?

- Did you have to take your eyes off the mirrors at all in order to change lanes safely by checking your blind spot?

- When you saw this car move from the HOV lane into lane 2 behind you, was it 2 vehicles behind you or 3 vehicles behind you?

- And there were other vehicles directly behind you in lane 2, between you and this car?

- How many vehicles exactly were between you and this car?

- So you do not know whether there was exactly 2 vehicles in between or 3 vehicles in between?

- Seeing as there were other vehicles directly behind you, in between you and this car, and seeing as you had to take your eyes off the mirrors to look forward and check your blind spot, is it possible that you lost sight of this car at any point?

- So is it possible that the black car you saw moving from the HOV lane into lane 2 a few vehicles behind you, was not my blue car, and that you pulled over the wrong car?

I think you have a good chance of winning this IF you understand cross-examination and bringing reasonable doubt to officers testimony.

You need to understand how to play the "game of court", so read this thread:

http://www.ontariohighwaytrafficact.com/topic7039.html

And you need to understand how cross-examination works, so read this thread:

http://www.ontariohighwaytrafficact.com/topic7041.html

**SIDE-NOTE: While on the witness stand, if the officer starts to repeat anything that you said (whether from his notes or not), you can immediately object and say something like "objection, officer is not allowed to enter those statement". The prosecution would have to ask for a voire-dire (trial withing a trial) in order to get permission for officer to use anything you said in the statements (although nothing you said seems incriminating).

Thank you so much for your help. Very informative stuff wish me luck I will let you know what happened on June 3rd and I will use the questions you have prepared for my cross examination thanks again.

Quick question for you jsherk I read the post that you linked "game of court". So does this mean I should hire an attorney or should I still represent myself? If I represent myself and I lose I could always appeal and then hire an attorney or is it better to hire one now? Also to answer your question previously the road was very busy and their was definitely 2 to 3 cars between me and him could have been even more than 2 or 3.

I prepared a few questions myself that I would like to add to the ones you have already given me if you feel any of these are not proper please let me know.

1) Are you able to distinguish the difference between black and blue? If he says no I will ask are you legally color blind?

2) In your notes you wrote the vehicle you observed was black is this true?

3) You also wrote in your notes that it was a clear and sunny day is this true?

4) Would you agree that the Mitshubishi Lancer is a common car and many people own this vehicle?

5) Are you aware that the same model of this car has been the same design since 2003 - 2014?

From my questioning you could probably see that I am a rookie at this and are any of these questions valid and should I bother asking them? I really like the ones you have given me I will definitely use those I was just wondering if I should add any of these questions to the ones you have provided?

Johnny wrote:

jsherk wrote:

The next question I have is "how busy was the road"? Was there other cars on the road? Were there 2 to 3 cars between you and him?

I am going to procced with advice below, assuming there were other cars on the road and there were 2 or 3 cars between you and him.

When the officer gets on the stand to testify, the prosecutor will ask him to read his notes to tell what happened, which the officer will do and the prosecutor may then ask some questions to clarify. When the prosecutor is done, the JP will ask you if you want to cross-examine the officer and ask him questions. This is NOT the time for you to get up and tell your side of the story. This is your time to ask the officer questions to try and bring reasonable doubt to things that he said that are relevant to the charge. The following are the main things I would focus on with cross-examination questions (I wrote them as if talking to the officer on the stand):

- Your notes state that you were in lane 2 (middle lane), correct?

- Your notes state that when you saw the car behind you, it changed lanes from the HOV lane into lane 2, and that it was black, correct?

- Your notes state that, after you pulled me over, my car was blue, correct?

- Your notes state that the car behind you moved from HOV lane into lane 2, the same lane you were in, and was 2 to 3 vehicles behind you, correct?

- This lane change took place behind you, so how did he see it? (From side mirror? From rearview mirror?)

- Did you stare in your mirrors and continually observe this car from the time you saw it move into the lane behind you, until you moved back beside it?

- Did you have to take your eyes off the mirrors at all in order to look forward so as not to hit anybody in front of you or swerve out of lane?

- Did you have to take your eyes off the mirrors at all in order to change lanes safely by checking your blind spot?

- When you saw this car move from the HOV lane into lane 2 behind you, was it 2 vehicles behind you or 3 vehicles behind you?

- And there were other vehicles directly behind you in lane 2, between you and this car?

- How many vehicles exactly were between you and this car?

- So you do not know whether there was exactly 2 vehicles in between or 3 vehicles in between?

- Seeing as there were other vehicles directly behind you, in between you and this car, and seeing as you had to take your eyes off the mirrors to look forward and check your blind spot, is it possible that you lost sight of this car at any point?

- So is it possible that the black car you saw moving from the HOV lane into lane 2 a few vehicles behind you, was not my blue car, and that you pulled over the wrong car?

I think you have a good chance of winning this IF you understand cross-examination and bringing reasonable doubt to officers testimony.

You need to understand how to play the "game of court", so read this thread:

http://www.ontariohighwaytrafficact.com/topic7039.html

And you need to understand how cross-examination works, so read this thread:

http://www.ontariohighwaytrafficact.com/topic7041.html

**SIDE-NOTE: While on the witness stand, if the officer starts to repeat anything that you said (whether from his notes or not), you can immediately object and say something like "objection, officer is not allowed to enter those statement". The prosecution would have to ask for a voire-dire (trial withing a trial) in order to get permission for officer to use anything you said in the statements (although nothing you said seems incriminating).

After closer examination of his notes I have to add he did say it was 3 cars and not 2 to 3 cars. So basically all I have for my defense is that he got the color wrong and it was busy on the highway so he could have possibly mistaken me for another car.

Johnny wrote:

Quick question for you jsherk I read the post that you linked "game of court". So does this mean I should hire an attorney or should I still represent myself? If I represent myself and I lose I could always appeal and then hire an attorney or is it better to hire one now? Also to answer your question previously the road was very busy and their was definitely 2 to 3 cars between me and him could have been even more than 2 or 3.

You need to pick your best option for the trial. You can't represent yourself at trial, mess it up, appeal and have a new trial with a lawyer. An appeal only deals with an error or trial procedure and is not a second chance for the judge to hear the same arguments.

The key thing that you can use to bring reasonable doubt is that the officer lost sight of the car and then mistook your blue car for the black one he saw pull in. The color thing by itself does not help you, but if you can get officer to admit that he may have lost sight of car because it was behind with other vehicles in the way, then the color thing is a bonus which actually helps get that point across.

The question you added, 1 to 5, I would probably use 3 only. The problem with question 1 in particular is that you do not know how the officer will answer. You usually (not always) want to avoid questions when you do not know what officer will answer.

An appeal is not a new trial. When you go to an appeal, they only look at the evidence that was entered at trial and you can not add new evidence. The evidence entered at trial will be everything the officer says on the stand when questioned by prosecutor and cross-examined by you. So potentially if you do a good job with the cross-examination at the trial but still lose, a lawyer good find some good reasons to appeal and win. **SIDE-NOTE** In most cases I recommend people not take the stand and not testify, but in your case you could take the stand after the officer and give your side of the story because it will help bring more reasonable doubt to officers testimony. **END-SIDE-NOTE** Typically hiring a lawyer for appeal is much more expensive than a trial. Fort example they might charge $500 for trial but $1500 for appeal. If you really want to learn and you are willing to put in several hours a week studying the law and how the courts work, then you might have a chance at winning your trial. But again a lawyer/paralegal who is experienced at cross-examination would certainly have a much higher chance than you.

If you hire a lawyer/paralegal, you will want to find out exactly how they plan to defend you BEFORE you hire them. Meaning, do not give them your questions, but sit down with them and ask what their plan is and ask them if they see any ways to beat ticket based on disclosure (note that you should type out the notes for them so they can read it easier). What you want to hear from them is something like "the officer lost sight of the vehicle so we can work with that". Don't hire a lawyer/paralegal that will not review the disclosure and will not discuss it with you. The other option is to pay a paralegal to help you prepare to fight it yourself, so they would help you prepare the questions that you should ask.

Officers are allowed to lose sight of a vehicle. To suggest two different vehicles with different body styles made the old switcharoo while he checked his mirrors is grasping. It also happens frequently that an officer will write down black for a blue car or black for a dark brown car. There's a million different paint codes available and this argument doesn't go very far at a trial.

Good luck but you're probably going to need more.