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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34117
Experience:  Retired (mostly)
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I received a careless driving citation from a Cannon Beach

Resolved Question:

I received a careless driving citation from a Cannon Beach policemaN in downtown Cannon Beach but the citiation was about a period three hours earlier 20 miles or so away on highway 26 when I was headed to the coast earlier that day.

The officer told me that two different people called the police to complain about my wreckless driving. I asked him "what did I do wrong" but he declined to describe what I specifically did and would not answer any more questions. I told him I am not a careless driver and I had no situation with other cars other than passing some cars that were going 10 miles or so below the speed limit or were weaving in/out in the lane.

The officer claimed he spoke to the two complainers and they did not know each number so he thought I was guilty for having two conplainers corroborate the information, two complainers he had never met and could smell for liquer breath or physical/ mental conditions, or roadworthioness of theior cars fro the heavy rainfall.

I was not able to ask if he had checked the phone numbers they called from to confirm they were not two people making two calls in the same car.

I was not able to ask any questions about the two callers about the cars thy were driving because he wasn't there and never saw their carts or trucks.

The officer didn't know it their vehicles were road legal, had working wipers or working defrosters for the windshiels./

I was not able to ask the officer if he asked about the tread condition of the two cars tires and the whether their vehicles where sliding and having traction losses on the we highway with the strong downpour.

It is most probable that the officer got verbal complaints from two people who were already fearfull about driving in the heavy downpour. They became angry at me when I legally passed them and unintentionally splashed them in the heavy downpour. I did pass a few people on a stretch of highway 26 that had dashed striping that allowed passing legally.

I believe that I was allowed to pass these slower cars as I had full control of my heavy Mercedes ML430 that had new Michelion Pilot top-of-the-line tires with very good wet traction, good windshield wipers with new blades and a robust window defroster.

I never lost traction, I never lost control of the car and I never challenged any other drivers whom ever they were. Over the total 70 mile trip I passed four cars who were either going much slower than the speed limit or were having difficulty staying in their lanes which always worries me for safety reasons.

THE OFFICER WHO WROTE THE CITATION THREE HOURS AFTER I DROVE TO THE BEACH DID NOT SEE ANYTHING AT ALL AS HE WASN'T THERE IN EITHER TIME OR SPACE!

I DON'T KNOW IF HE HAS ANY IDEA OF THE ACTUAL OFFENSE CAUSED BY MY CLAIMED CARELESS DRIVING. HE APPEARED TO BE UNABLE OR UNWILLING TO DESCRIBE WHAT I LITERALLY DID WRONG, LIKE NOT STAYING IN MY LANES, PASSING WHERE NOT ALLOWED WITH DASHED STRIPPING. HE SEEMED TO NOT KNOW ANY DETAILS.

I GUESS HE ACCEPTED THE HEARSAY STATEMENTS OF THE TWO COMPLAINERS WITHOUT KNOWING IF THEY WERE ACTUALLY INDEPENDENT AS HE DID NOT MAKE ANY ATTEMPT TO INDEPENDEBTLY CONFIRM THEIR CLAIM OF NOT KNOWING EACH OTHER (LIKE TRACING THE SOURCE TELEPHONE NUMBERS TO INSURE THEY WERE INDEED DIFFERENT).

HE CERTAINLY DID NOT TELL ME THAT HE EXPLORED IF EITHER OR BOTH DRIVERS WERE ALREADY FEARFULL ABOUT THEIR DRING CONDITIONDS BEFORE I PASSED THEM.

tHE ONLY THING i AM REASONABLE SURE OF IS...

IF SOMEONE WAS FEARFULL OF DRIVING IN THE HEAVY RAIN AND POSSIBLY HAD DIFFICULTY WITH WIPERS, DEFROSTERS OR TRACTION OF WORN TIRES, THEY WOULD GET MORE FEARFUL BY THE SPLASH OF MY PASSING THEM, REGARDLESS OF THE FACT THAT MY PASSING THEM WAS LEGAL AND THAT I WAS IN FULL CONTROL OF MY CAR.

I DON'T BELIEVE THAT THIS MOST LIKELY SITUATION JUSTIFIES ISSUING ME A CITIATION FOR CARLESS DRIVING. THIS OFFICER HAD FEW IF ANY ACTUAL FACTS AND HAD NEVER SEEN THE TWO COMPLAINERS NOR KNEW IF THEIR VEHIVLES WERE LEGAL TO BE DRIVEN IN A HEAVY DOWNPOUR.

CAN YOUR FIRM THINK ABOUT WHAT I SHOULD/COULD DO TO KEEP THIS CITATION OFF OF MY DRIVING RECORD.

THE CITATION MUST BE RESPONDED TO BY OCTOBER 10TH SO i MUST QUICKLY DECIDE ON ASKING FOR A TRIAL OR NOT.

I HOPE i HAVE BEEN CLEAR ENOUGH TO GET YOUR THINKING GOING.

I AM A RETIRED COMPUTER EXECUTIVE WITH A MASTER'S DEGREE. MY LAST POSITION BEFORE RETIRING WAS AS CEO AND PRESIDENT OF A PUBLIC COUNTRY BASED IN PORTLAND.

MY WIFE AND I OWN HOUSES IN CANNON BEACH AND IN PORTLAND WE BOTH DRIVE BACK AND FORTH QUITE FREQUENTLY. SHE STAYS IN CANNON BEACH AND I STAY IN PORTLAND.... l.o.l.

PLEASE RECOMMEND WHAT TO DO.

SINCERELY,

MICHAEL SIMON
Submitted: 11 months ago.
Category: Legal
Expert:  socrateaser replied 11 months ago.
Hello,

I assume from your allegations that the charge is ORS 811.135 (careless driving).

In order to convict you, the witnesses must appear and testify. The police officer's testimony is entirely inadmissible, because he has no personal knowledge of the alleged offense. You can object to the officer testifying to anything other than the fact that he stopped you and cited you, and that he interviewed the witnesses -- but you can object to the officer testifying to anything that the witnesses said, because that is inadmissible hearsay without the witnesses testifying in court.

The chance that either of the witnesses will appear for trial is small. In fact, there is no procedure for notifying those witnesses to appear in court, because the district attorney is not notified of a traffic offense.

Consequently, if you ask for a trial, there is a high probability that there will be no witness against you at the trial, and even if the police officer appears, you can object to all of his testimony about your alleged violation, and then ask the court to find you not guilty, because there will be absolutely no evidence in the record of your having committed any offense.

The only way that you are likely to lose this case is if both of the drivers who complained about your driving appear at trial to testify. So, the odds are with you -- especially given that those witnesses are not likely to want to waste their time in court.

Please let me know if my answer is helpful and if I can provide further assistance.

And, thanks for using justanswer.com!
Customer: replied 11 months ago.

If I accept your answer as being a correct interpretation of the law and act on that, am I protected that you did not make a mistake and send me to the hearing to find out that I did not correctly understyand the law.... abd am found guilty.


 


I am under the impression that if I hire a lawyer to give me advice, his/her practice insurance guarantees me that I am protected if I go to court and use his advice to protect myself.


 


So.... do I get some sort of protection if I accept your advice and


compensate you for it?


 


Thanks for your response,


 


Michael Simon

Expert:  socrateaser replied 11 months ago.
Have you read the disclaimers provided to you by the website before you read the answer?
Customer: replied 11 months ago.

You may thin this is a silly what if....


 


What if I rely on your answer and go to a court hearing on the citation and the Judge tells me....


 


the officer is correct in assuming my guilt because he has electronic recordings of his telephone interviews and can represent what he learned from those two drivers to substantiate the citation based upon two unrelated


people accusing you of Careless Driving.


 


What do you say if the judge then throws the proverbial book at me?.

Expert:  socrateaser replied 11 months ago.

I don't think you're silly at all.

The Oregon Evidence Code is in force for any trial of a traffic violation. If you visit this website for the City of Tigard, you can see that it confirms substantially what I have explained. Similarly, the Official Justice Court Rules Gen. Ord. 2009-1(3) in Tilamook County provides that the Oregon Evidence Code is adopted in full.

ORS 40.315 Rule 602 provides, "Subject to the provisions of ORS 40.415, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness."

In Brown v. JC Penney Co., 688 P. 2d 811 (1984), the Oregon Supreme Court held that witness statements reproduced in a police report is inadmissible hearsay, "if the purpose was to prove the truth of the statements of the various complainants of criminal activity."

 

A voice recording is a "writing," no different than any other. The recording is admissible to prove that a recording was made by the police officer. But, it's not admissible to prove the truth of the statements made by the persons whose voices are heard on the recording. Those voices could be manufactured by the police officer to corroborate his testimony. It's inadmissible hearsay.

I could go on, if you like -- but, if you are looking for an ironclad statement of law that provides that you cannot lose your case at trial, then I cannot possibly accommodate that request -- because, if nothing else, traffic court judges are highly disposed to rule against driver defendants, and they bend over backwards to find ways to avoid having to play be the regular rules of evidence.

So, I can't say you will win. If you really want to win, then hire a lawyer, because my experience is that, generally speaking, laypersons always lose in court (except small claims, where the courts are expected to give laypersons an edge).

It's really all up to you. I know that the officer cannot testify to what the witnesses said -- it's inadmissible hearsay. And, the officer cannot testify to your committing the crime, because the officer never saw you commit the crime. So, if the witnesses don't show up, then there will be no one to testify to any of the evidence of the crime, which means you must be found not guilty.

That's the academic argument. In a real traffic court, the judge could ignore the rules of evidence and find you guilty -- no doubt about it. But, that's something beyond my control. In the end, it's entirely up to the judge to uphold the incorruptibility of the legal system.

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34117
Experience: Retired (mostly)
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