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Alexia Esq.
Alexia Esq., Managing Attorney
Category: Traffic Law
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Experience:  19+ years of Legal Practice in Traffic law field.
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Hi. I was found guilty in my gen dist court case of Va. $46.2-830

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Hi. I was found guilty in my gen dist court case of Va. $46.2-830 - Failure to Obey Highway Sign. Policeman tracked me via his speedometer and said I was going 60 but only cited me for $46.2-830. However, there is no Speed Limit 45 sign anywhere (only in other direction). I appealed to Circuit court by myself and on 05/08/2013, the officer/witness stated there is a Speed Limit 45 sign. I informed judge that I challenge that since there was no speed limit sign and by 46.2-830, I should not be found in violation since it should not be enforced "against an alleged violator if. at the time and place of the alleged violation, any such sign, signal, marking, or light is not in proper position and sufficiently legible to be seen by an ordinarily observant person". Judge simply disregarding my reading of the statute and my testimony that no speed limit sign existed. Despite my argument, judge still said I was guilty and fined me $100. I did talk to 1 attorney who felt my appealing to the next possible level was not of value so it seems best way is to do a Motion to Reconsider. Any further advice would be appreciated as I have to submit by Wed since I think that is the last day of the 21-day period of which I can file a Motion to Reconsider. I know I would also list me in the motion that I am preparing as the defendant but what would I list for the plaintiff (would it just be "County of Arlington, VA")? Thank you very much for your help.
Submitted: 1 year ago.
Category: Traffic Law
Expert:  Alexia Esq. replied 1 year ago.
Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing Traffic law for 19+ years and look forward to assisting you. With regard to your post:

Hi. I was found guilty in my gen dist court case of Va. $46.2-830 - Failure to Obey Highway Sign. OK.

 

Policeman tracked me via his speedometer and said I was going 60 but only cited me for $46.2-830. That may have been kind.

 

However, there is no Speed Limit 45 sign anywhere (only in other direction). OK. I appealed to Circuit court by myself and on 05/08/2013, OK, where you had a new trial...

 

the officer/witness stated there is a Speed Limit 45 sign. OK, so it was his word against your word.

 

I informed judge that I challenge that since there was no speed limit sign It sounds like he felt the officer was more credible than you. Credibilitiy determinations are part of the duty of the factfinder, be that factfinder a jury or a judge.

 

and by 46.2-830, I should not be found in violation since it should not be enforced "against an alleged violator if. at the time and place of the alleged violation, any such sign, signal, marking, or light is not in proper position and sufficiently legible to be seen by an ordinarily observant person". Here is the problem I am seeing is that you did not prove the part of this rule that would prohibit enforcement - ie. you failed to prove the absence of the speed sign. You submitted evidence (your own testimony) and so did the prosecution (the testimony of the officer), the Judge found the evidence of the state to be more believable. It would have been helpful if you'd submitted proof that was not so easily rebuttable by mere testimony of another - such as video of the roadway you were traveling, showing a lack of signage, and/or the additional testimony of a very credible person who drove that road that day and could testify that NO, there was no signage -

 

Judge simply disregarding my reading of the statute and my testimony He need not regard a statute that doesnt apply to the determined facts. here he found via the evidence that there was a sign on that day. As such, your statute doesn't apply. (I am not saying that his finding was accurate, only that it was the court's finding.)

 

that no speed limit sign existed. Despite my argument, judge still said I was guilty and fined me $100. Unfortunately, that is his job. They generally do not believe everyone who denies committing an infraction - else we'd all get off.

 

I did talk to 1 attorney who felt my appealing to the next possible level was not of value He is probably considering whether you have any appealable issues, which there doesn't seem to be and possible the fact that even if you did have an appealable basis, would the cost of appealing be worth the $100 fine reversal?

 

so it seems best way is to do a Motion to Reconsider. I would tend to agree. Unfortunately, Recon generally does not allow for submitting new evidence, but of convincing the judge that he didn't look at it the right way, or missed something presented or failed to read the statute right, etc. What I'd love to see is you ability to go get that video and show it to him - but that likely won't be allowed.

 

Any further advice would be appreciated as I have to submit by Wed since I think that is the last day of the 21-day period of which I can file a Motion to Reconsider. Here is what I am thinking - perhaps you can argue that the state did not prove your guilt beyond a reasonable doubt. There was only two pieces of evidence on the element of whether a sign was visible: 1) the officer's testimony 2) your testimony. All else being even, did the officer's testimony so solidly prove that fact of signage beyond a reasonable doubt? If that officer's testimony was "more likely true than your testimony", that only means it is 51% likely that his version is accurate and yours is not. It leave 49% likelihood that yours is accurate - so close in likelihoods! That being the case, could it really be said that you were found guilty BEYOND any reasonable doubt? I'd argue that there IS reasonable doubt, even if from a court standpoint, for the sake of argument, it is more likely than not that the officer may have been accurate. This is a somewhat difficult concept at times to wrap one's mind around - but I'd probably be trying to convince the judge that the state's evidence simply didn't prove beyond a reasonable doubt, but only something far less, and that the VA law says it must be proven beyond a reasonable doubt, since this is not a mere civil matter.

 

I know I would also list me in the motion that I am preparing as the defendant but what would I list for the plaintiff (would it just be "County of Arlington, VA")? Thank you very much for your help. If you can find a caption heading, perhaps on a Judgment or Order of conviction, it may say, State of VA vs. YOU. Usually if the statute violated is a State statute, the prosecuting party is the state. As opposed to an alleged violation of a town ordinance, then it could be Town v. you.



Already Tried:
Found guilty in Gen Dist. Appealed to Circuit Ct by myself but found guilty on 05/08. In addition to what I stated already, the judge asked if I had "any more questions" for the other side. I had wanted to view the speedometer calibration certificate That is something that you should have asked for but if you didn't ask for it via a Discovery demand, if they didn't happen to bring it to court, you'd be out of luck. Rememember to always secure as much evidence before court, not in court.


but since he asked if I had any "questions", I didn't think my wanting to eventually look at the calibration certificate was proper out of respect to the court to mention at that time. Nothing improper about it.

 

He said I already had my chance and it was too late, guilty Hey, you gave it a shot, being inexperienced and not trained in what the standard is for proof and cross examination of that officer. If there is ever a next time, you will have learned from this experience, and everytime we learn, we get better and better.


I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.

Alexia Esq., Managing Attorney
Category: Traffic Law
Satisfied Customers: 11739
Experience: 19+ years of Legal Practice in Traffic law field.
Alexia Esq. and 6 other Traffic Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. It was a total surprise that the officer said a sign existed as it was discussed in the original trial in gen dist and therefore, it was a given to me that all parties knew no sign existed upon going to the appeal trial. Had I known, I would have tried to bring a video of my route showing no speed limit 45 sign at my appeal trial.


 


Any further thoughts? It is not an easy endeavor for me to get a video of the route, which like you said may now be moot, and I plan to state in my motion to reconsider that I would be under penalty of perjury if I falsifiedmy testimony

Customer: replied 1 year ago.

My point in my latest reply was that I really didn't know what I didn't know (that the officer felt a sign existed since, at the gen dist trial, it was understood by both parties that there was no sign). That was why it was such a shocker to me at the appeal trial and I had no idea that I had to prove that no sign existed. It is also hard to prove something isn't there (having to take a video or pictures from my camera phone while driving for 3 miles) as opposed to if something is there (a sign that may be worn out and illegible). How could I state this properly in my motion or do you think it is not something that I can argue?


 


Thank you again for your help.


 


Mark


 


 

Expert:  Alexia Esq. replied 1 year ago.
Hi again, Mark! and thank you for your follow up:

Thank you. It was a total surprise that the officer said a sign existed as it was discussed in the original trial in gen dist and therefore, it was a given to me that all parties knew no sign existed upon going to the appeal trial. That is not how it works. Remember, he could have felt that exact same thing - that you would have realized that there was the very sign he recalled being there, and you'd cancel this appeal. And if you didn't provide the state PROOF of what you claimed (signage), talk is cheap, free in fact, and so they had no reason to believe you were right.

 

Had I known, I would have tried to bring a video of my route showing no speed limit 45 sign at my appeal trial. That was a huge mistake, you are right. If the state had suddenly new you were right, it would likely have dismissed the charges. But if they didn't, and/or didn't think you could prove it, why would they?


My point in my latest reply was that I really didn't know what I didn't know That is what tends to happen when we try to do a job normally left to those trained to do it - we lack the knowledge of what we should even be asking.... so that we can learn what we need to learn.

 

(that the officer felt a sign existed since, at the gen dist trial, it was understood by both parties that there was no sign). Uh, know, clearly that was not understood by both parties, since the state presented evidence to the contrary - the testimony of an officer that was present at that time and location that testified under oath that there was a sign.

 

That was why it was such a shocker to me at the appeal trial and I had no idea that I had to prove that no sign existed. Really? Why did you think you didn't need to prove your defense? it sounds like the State AGAIN proved there was a sign, same way it did in the first trial. Unless you improved on your evidence showing its evidence did not sufficiently show there was a sign, usually if you do something exactly the same way twice, you get the same result twice. If A+B=C today, then usually A+B+C tomorrow also. You see?

 

It is also hard to prove something isn't there (Not really, sorry to say) (having to take a video or pictures from my camera phone while driving for 3 miles) as opposed to if something is there (a sign that may be worn out and illegible). Video is my favorite and it is not hard in this day and age. Yes, it might mean having a friend drive you, but that is what we do if we want to prove our case. If you have no friends or family, you can hire a college kid for $20 to drive you down the road for 5 min.


How could I state this properly in my motion or do you think it is not something that I can argue? I definitely don't see an argument in what you are saying - you must argue LEGAL error, typically. You can't say, but hey, I have a feeling that everyone knew there was no sign, even though they all said that it was there, so please overturn this conviction based on my gut feeling. Rather, you need to show there was a legal wrong at that latest trial that led to a wrong result, such as as I described above. Let me know if that prior post is unclear, and how, and I will try to further explain.



Thank you again for your help. You are welcome. Sorry it isn't easier Mark.



 


Any further thoughts? It is not an easy endeavor for me to get a video of the route, which like you said may now be moot, and I plan to state in my motion to reconsider that I would be under penalty of perjury if I falsifiedmy testimony

Customer: replied 1 year ago.

Thank you again. It is hard to explain, I had no intention of debating the non-existence of a sign upon going to my appeal trial. Didn't think any difference between me and the officer on this fact and as was mentioned at gen dist trial. I was hoping I might get lucky and find that the officer didn't show up at trial or that he didn't have his speedometer calibration certificate info. I changed strategy when I heard his incorrect testimony about a 'speed limit 45' sign on my route. He either disremembered or assumed a sign existed based on signs that do exist but in the opposite direction than I was going.

 

I bet the officer has gone back now and checked and will realize his incorrect testimony. I have called the county in hopes they can verify no sign exists on the path I took back in August 2012 but, as I think you stated earlier, it may be moot to the judge now.

 

Another thought just occurred to me that during my trial when I challenged the officer saying a sign existed, I asked the officer where is the sign because I stated that there is no sign along my route from point A to point B. He never did answer the question and I would have thought the judge should have stepped in and ordered the officer to answer my question which would have definitely clarified everything since the officer would have realized that no sign existed (unless he wanted to make one up and perjure himself).

 

Regarding your point about the video, even if I did get a video after my gen dist trial and brought it to the appeal trial on May 8th, couldn't the judge say 'well, how do we know a sign didn't exist back in August 2012 since your recent video only shows no sign exists now?'

 

Any final thoughts? if not, no problem and your advice is much appreciated.

 

Mark

 

 

 

 

 

Expert:  Alexia Esq. replied 1 year ago.



Thank you again. So welcome.

 

It is hard to explain, I had no intention of debating the non-existence of a sign upon going to my appeal trial. And that was your mistake - that was your opportunity to prove the fact you were claiming - that was what the trial was for - to present proofs.

 

Didn't think any difference between me and the officer on this fact Remember, an officer is working with the State, as is the Judge. They typically know each other and I find that judge's typically believe the officer's honesty and reliability unless there is a reason not to. He doesn' t know you and so you don't come pre-existing with a layer of credibility, if that makes sense.

 

and as was mentioned at gen dist trial. I was hoping I might get lucky and find that the officer didn't show up at trial yes, that would have been helpful!

 

or that he didn't have his speedometer calibration certificate info. I changed strategy when I heard his incorrect testimony about a 'speed limit 45' sign on my route. He either disremembered or assumed a sign existed based on signs that do exist but in the opposite direction than I was going. Exactly right - very possible he presumed, but again, he is stating what he believed. You could have (I would have) crossed him with regard to bringing out that he really didn't remember SEEING it that day, only that he presumed for whatever reason. If he did say he saw it, I'd have asked him to describe with specificity exactly where - for instance, at what mile marker? Any natural markers as to where this was? He likely would not be able to state any (because even if he was right, who remembers those details), but you could use that lack of specific knowledge to undermine not his honesty or character, but his accuracy as to location, the reliability of his perception.

I bet the officer has gone back now and checked and will realize his incorrect testimony. Could be, if he actually doubts himself - OR, it has already been fixed and added there.

 

I have called the county in hopes they can verify no sign exists on the path I took back in August 2012 but, as I think you stated earlier, it may be moot to the judge now. Yes, again, you are to present your evidence AT trial (and/or before) not after you forgot and lost the case. They don't allow two bites of the apple.

Another thought just occurred to me that during my trial when I challenged the officer saying a sign existed, I asked the officer where is the sign because I stated that there is no sign along my route from point A to point B. He never did answer the question and I would have thought the judge should have stepped in and ordered the officer to answer my question which would have definitely clarified everything since the officer would have realized that no sign existed (unless he wanted to make one up and perjure himself). You are forgetting that the Judge is not permitted to do your job for you. If YOU, as your own lawyer, felt that the witness did not answer the question, it is up to you to request the judge ORDER the witness to answer. The witness could then very well have said, "well, I'm not sure exactly where it is." That would have been awesome and I would have STOPPED questioning him there because you got what you wanted - his admission that he really doesn't know where he may have seen a speed limit in that general area - and this could knick away at that "beyond a reasonable doubt" business. But because you stopped asking the question too early - you didn't make it clear that he didn't know where it was, only that he never got around to answering a question before you moved on to something else. It is not so easy and takes much practice to move seamlessly (or remain seamlessly in) from an area of questioning, to the next, when the smart cross examining move. It is probably the area that requires the most practice.

Regarding your point about the video, even if I did get a video after my gen dist trial and brought it to the appeal trial on May 8th, couldn't the judge say 'well, how do we know a sign didn't exist back in August 2012 since your recent video only shows no sign exists now?' Yes, and you would testify that the video taken May 1, 2013 accurately depicts the scene with regard to the way it looked in Aug. 2012, specifically with regard to the signage. That is how photos and videos come into play AFTER the fact. I.e. photos of dead bodies, photos of crime scenes after the fact, etc. Let's face it, no own usually has a picture of a crime scene minutes BEFORE the scene actually becomes a crime scene. But it is true that the closer in time to the date of the event in question, always the better. But that goes to the weight of the evidence, not the admissibility (good to know your evidence rules inside and out - they are the second most difficult thing to conquer in trial work!) Remember, the reason why we try to present as much evidence as possible, is because any one piece of evidence is usually NOT 100% conclusive of the fact we are trying to prove. For instance, a May video is NOT conclusive proof of an Aug. scene. However, helps. And when combined with testimony of someone not proved to be a liar who states that yes, they were both the same with regard to lack of signage (perhaps not as to weather conditions, foliage, etc., but those things are not what you are needing to prove, in this case). - then that video has some more evidentiary weight.

Any final thoughts? See above. if not, no problem and your advice is much appreciated. You are welcome. This takes some practice, and it is also helpful to read the treatises that have testimony examples of how to present, say, an after made video of a scene, how to refute an objection to same (i.e. what verbiage should be used), etc. It is almost mindboggling how much practice is needed (in front of mirror can help, lol) to get it down so you know WHAT to say or ask depending on WHICH comment or question is thrown at you, since you can't always know exactly which way it will go, you have to be prepared for ALL ways - and know your response like the back of your hand. Hours and hours of prep time, that is for sure. Next time, you can better prepare perhaps. BUT, your diligence is great - just have to do more reading of how to most persuasively present the evidence (and how to gather more evidence). Put it this way, we go to 4 years of college followed by 3 years of law school and generally can not try a case at that point. Usually we have YEARS of observation of our bosses showing their experience in court before we ever come close to getting it right. So don't feel bad if you didn't bang it out of the park on first/second try.

Mark

Sincerely,

Alexia Esq.

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