My daughter received her first citation for speeding (41 in a 25 mph zone). She has lived in this suburban south Worcester county town for all of her life but like all teenagers who turn 18, graduate from high school and then receive their first citation all within 2 weeks – feel they are industructable!
So off to the magistrate in Uxbridge District Court we go. Prior to this however, I came across the MA NMA site and it has a wealth of information to reseach and add to one’s argument. With a looming $150+ fine and years of surcharges it is worth the time to review and research.
What I personally found invaluable was the differences in approaches and insights.
In our particular case, we needed to determine whether or not the citation that indicated radar, estimated and posted speed were as straightforward as cited. The “police advocate” simply read the notes listed on the citation along with the cruiser’s mounted radar was calibrated and essentially it was a pretty open and shut case.
As the “police advocate” was reading “his” version of the citation, I found myself wondering how does anyone contest information on a citation where the cop involved is not present. Thus the strategy unfolded…but let’s not get ahead of ourselves…
The NMA site pointed me to the Mass Highway, where I wrote under the freedom of information act for all roads in this town that are “fully compliant” with Chapter 90, section 18. The general counsel was more than happy to respond: “upon assemblage you will be notified of the fee for asssembling and producing the copies. Upon acceptance of your check payable to the Comm. of Mass. in the required amount, the requested documents will be copied and relased to you.” When requesting the above you also supply your email address, so when the response came via email I took the liberty to strike up a dialogue regarding scanning the documents to lessen the expenses.
It worked, I was sent to a very knowledgable manager who was more than happy to supply at no expense, the scanned documents. The key to this is to be cogenial and not confrontational. During our excanges we determened that the road in question that also passed into another town had also speed signs that “should not be posted, have not been approved and thus are not enforceable” in both towns.
The Clerk Magistrate wanted to know who I was and what information I had since I was not the defendant as he clearly indicated. I drew back on many presentations and training sessions I had conducted for executives to rank and file and from those lessons; you tell them what you are going to tell them, tell them and then tell them what you told them. A very simple approach but the NMA site has such an abundance of information, where to start?
That was easy, as the Clerk magistrate after the “police advocate” reading did not want to hear from me but rather from my daughter, the person cited. In that instance it is good to practice something simple that you are going to state and as I have found over the years – once you admit to going over the speed limit – typically case closed.
However, the clerk wanted to know what I had to add. I told him what I was going to tell him; “We are going to request your finding of Not Responsible based on mitigating factors, as well as…” I was interuppted at that point “What mitigating factors?” I choose however to finish the statement with “…as well as factual and a small procedural problem with the citation.”
I had read a number of responses and felt that while Chapter 80 sections 2, 17, and 18 had relevance the need for something “personal” could be accepted as mitigating factors. I choose to present my daughter’s age, the fact that there had not been any prior citations, just graduating and having a part time employment, and the financial impact if found responsible.
Toward the latter end of the hearing, the clerk pummeled my kid, “with why should I give you a break? Did you see that person who just left? They have driven for 50 years and have not had a ticket in Mass or RI. You have been driving for 18 months so why should you be given the same consideration?” I would suggest you think long in advance to your response should such a question be asked of you.
But before that I presented quite factually the problems with the citation. First and foremost, I indicated since the officer (don’t use cop as my kid did. She was immediately corrected – Police Officer) in question was not present it would be difficult to debate the radar and estimated but what was problematic was that the citation indicated MGL 90-17 but when you check that statute it refers to 50, 40 and 30 mph. So I immediately switched to MGL 90-18 and in the words of Mass Highway – the speed signs should not be posted, have not been approved, and as a result were not enforceable.
But what do do about MGL 90-17 as that is a primary argument and the clerk can easily ignore it (as I noticed on the NMA reports on a number of occassions). I obtained an online copy of an assessor’s map of the location as noted on the citation. While one argues the merits of speed limits according to MGL 90-17, I indicated to the clerk what’s important is whether or not this are was a thickly or not thickly settled and/or a business district area. There is no argument with the assessor’s view of the area; It wasn’t thickly settled and was not a business overlay.
For that matter, the map supported this argument with a major frontage of undeveloped area as well. There could not be much debate that this road could easily be listed at 40 as well as 30 but it would take professionals such as Mass Highway to do a speed analysis.
Speaking of the latter, in one specific piece of documentation, I found that a speed analysis had been done on my road back in 1986. It was interesting as it did not appear complete and had a road surface listed as tar and gravel. The vehicle assessment only had 6 cars in a period of 4 hours listed and most likely concluded it was not enough.
Back then 3 cars on a Sunday would be considered a parade. What was interesting, as I pointed out to my Mass Highway Correspondent, that besides being an incomplete speed study was the use of tar and gravel as a typical surface used by then Highway Superintendent to pave the road with. Any “speed limit studies” were sure to be incorrect as vehicles would fail to travel at their normal speed due to the conditions of the road. I never did get a response from him but still ponder this scenario.
As I handed the Mass highway conclusion along with the assessor’s map to the clerk who in turn provided it to the police advocate (I couldn’t help but notice that he thumbed thru the other citations and I presume was looking for similar ones), I also addressed the estimation from an MGL 90-17 perspective. That is, at 30mph its 1/8 of a mile and at 40 1/4 of a mile. Translating it into a visual it equals 220 yds at 1/8 of a mile, or nearly the equivalent of two football fields.
Since, the assessor map clearly had added value to the presentation as I indicated it would be pretty near impossible for someone to estimate the speed while traveling in the opposite direction, on this road. I further indicated that it was more likely than not that it was within 50 – 75 yards based on the location and terrain.
I concluded with the “tell ’em what you told ’em” and indicated that based on the factual errors in concert with the mitigation items – we would request that a not responsible be granted.
Before the Clerk magistrate spoke, I added the additional procedural item of not being asked nor signing the citation is a violation of chap 90 section 2 but I did not feel this brings a lot of weight to the argument as although required it seems to be a forgotten practice.
The thinking here is simple, one must appreciate what arguments have real merit in the eyes of the clerk while also demonstrating your view of reasonability.
Earlier the Clerk said “your dad has done a good deal of work on your behalf. Or perhaps his behalf, since it could become expensive and most likely out of his pocket.” I injected that it will still be coming out of her pocket – part time job or not. The Clerk then inquired as to when she had graduated or was she still in school. Had she gone to the local school or not… All questions to sum up the individual’s character and remorse.
Also what was important was ensuring that there was some proper dress. Since my kid had no idea as to most of what I was saying she was only reprimanded once by the clerk for biting her fingernails with “take your fingers out of your mouth”. Of course as everyone who has been in that chair it can be an anxious time, but do watch your mannerisms.
The clerk based on the information provided then asked the police advocate if he had anything further to present based on the discussion. No, was the answer. The clerk then amonish my kid and I believe it was more for show and the benefit of the police advocate and concluded with, “I am going to give you a break this time, but if you end up receiving another ticket in this town, just pay it.” Should that occur, I suppose we’ll cross that bridge when we come to it.
Result – Not Responsible.
Again, the wealth of information on this site is amazing and especially the good and bad scenarios that have been previously documented. Remember though – you are not a lawyer so don’t try and come off like one.
Perhaps not being an attorney requires you to have some ancillary material but as I was thinking, the clerk, can easily throw away everything including the law and force the situation and added cost of having to appeal to a judge. I have also learned that good lawyers also have something in terms of mitigation that may provide the opening one needs at a Clerk Magistrate hearing. The Clerk is just as interested in the “character” of the person who has been cited – are they working, where, going to school, off to college and so on so have a brief verbal resume ready to go.
Either way, without the material on this site we would have had no chance. We would have fumbled the ball and be possibly expending monies on attornies or in worse case paying the fine and the number of surcharges for years to come.
I have also based on the information included in this site, warned my kid to walk the straight and narrow as when the information filters back – she could become a marked person for awhile as they have time on their side.
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7/08