Idiot merged lanes into me

[dkmcclelland]

Well, it seems as though I have the worst luck ever. I get my BMW fixed after the dealership's touch up guy did a half-ass job and today while driving down Peachtree St. in Atlanta at 4 PM this afternoon and as I was merging into the middle lane of the three lane road an idiot in a 2000 Ford Taurus decided she wanted to come over into the lane at the same time. It was just too quick for me to stop in time. Long story short the woman told the cop that I swerved at her and since he was not there and could not prove my word against hers he give us a ticket to both of us for improper lane change. Which means that it was not ticketed to show fault for anyone.

I was able to get all of the rubber marks on the fender off with some M105, but the bumper and painted fender flare is going to need to be repainted. The rim I can take to a rim repair shop and have resurfaced.

I was just wondering if you guys thought a PDR guy would be able to fix that dent? If it's less than $500 I do not want to file it on insurance. I'd really not want to file it on insurance anyway, but we had the front bumper repainted a few months ago when an older lady backed into it. The entire cost of that was over $900. We've got the advanced technology package with the radar sensor in the bumper that took them extra time. We made them repaint the bumper because they missed a couple spots and we weren't happy with the results so I'm not sure if they charged for the first time they painted and the second. It was filed under their insurance so I really didn't pay much attention to the item by item body shop summary.

In any case... Here are the pictures... A sad day for the Jeep... 2 wrecks in 6188 miles :(

http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1761_zps988jd7rl.jpg
http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1763_zpsdpwmdf7c.jpg
http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1764_zpsg4bgmvfm.jpg

[PA DETAILER]

OUCH. Its lived a hard life for 6188 miles! Better days ahead!

[mleun481]

Thats terrible. Maybe time to invest in a dash cam.

[VISITOR]

although what happened stinks, at least you were both okay and didn't get into a serious accident. hopefully you get everything taken care the best you can. a problem still here in southern california are people who still use their cell phones while driving... :nomore::mad:

[GenesisCoupe]

Sucks..i had a lady not see a red-light because she was talking on her phone (not using bluetooth) and went right in front of me. Luckily only my front bumper had to be changed, but this was only after 3,000 miles on the car..oh and bought as a pre-2013 edition which meant everything had to come from Korea as there was not a single part in the entire U.S. so i had to wait 2 weeks.

[GenesisCoupe]

oh and i think a PDR will be able to handle that..he would loosen up the fender bolts after opening the hood and go from the inside and push out.

[AnthonyGXP]

On a brighter note.......at least your wheel barrels are still clean!

Seriously, sorry to here that! I couldn't imagine!

[Jbirk]

I used to practice law about seven (7) years ago. I am NOT going to say what State only that I cannot offer legal advice in 49 States.

Now that that disclaimer is out of the way, I will offer a suggestion for how I would handle it (your millage may vary).

1. ALWAYS SHOW UP TO EVERY COURT APPEARANCE
2. You do NOT want to be in court with the other Defendant at the same time, but do NOT communicate this with the court. Here is what to do... around a week before the first court appearance, go to the Clerk of Court and ask for a continuance. You might want to file a motion for a continuance, or they may have a simple form to fill out. The gist of getting a continuance is that you generally NEED to offer some legitimate/bonafide (i.e. excuse) reason why you cannot come to court. Generally, if you smile and are friendly, you will not have any problems being they pretty much rubber-stamp the first one. Regardless, get the new date in writing.

*** Now after that first date you did not have to show up comes and goes most likely the person who hit you will be found guilty at bench-trial, plead guilty/no-contest, not show, or pay the fine... Regardless as far as that person is concerned it is all about them and it is over. They will no longer contact the court for details and move on with life. ***

3. Immediately file a FOIA with the Court for Public Record of this. Later, you can argue you cannot both be responsible "Beyond a Reasonable Doubt" and this driver was already found guilty to that burden of proof... (this is to tip the scale just a little in your favor and create some doubt.)
FOIA the 911 or Dispatch logs (This will show the cops were NOT already there, so they could not see anything but the aftermath).

4. Right before your re-scheduled date, file a Motion for a Trial By Jury (if your State allows it for minor traffic)... Just bring it in and ask the Clerk to clock it into your case file and give you a stamped copy. Note: You might have to argue this right in front of a judge but many courts have a precedence to simply grant these requests and the judges in these states generally give the authority to the court Clerk to approve these.

Here is why:
A) If you pay the fine, plead no contest, plead guilty, get found guilty at bench trial, or get found guilty by a jury, it is EXACTLY the same... it is NOT somehow worse on your record even if you do ultimately get convicted by a jury..., so do NOT worry.
B) It takes prosecuting the case out of the jerk cop's hands who wrote you the ticket when he did not see anything...
C) It takes the decision factor out of the judge's hands, which is good because he works for the same city/town as the Cop... and trys to generate money for the city/town.
D) Jury trials take Time & Money!
E) They clog the prosecutor's docket, which they hate especially when they have REAL criminals to prosecute.


5. Now what will happen is this... You will be notified of an Attorney Meeting... Normally this will be on a Friday to mess with your work schedule, and they will then schedule a Jury Strike (jury selection) the following Monday. It is to PUNISH you for fighting your ticket... another court tactic. Simply APPEAR. This Attorney meeting is when you meet with whoever is prosecuting you. You ARE your own attorney unless you waste money and hire one for this. When you meet this attorney (probably a higher ranking cop because they generally will NOT pay for an attorney) tell him (or her) you are NOT guilty.

6. Tell him the other person hit you and you and was even found guilty! That you will let him dismiss it OR try you by an unpredictable jury! Stand firm. (He has bigger fish to fry and knows it is a bogus case)

*****
With luck, he will tell the judge the prosecution is dismissing the case.
*****

If your case still exists, you pissed them off and/or they are penny pinching pirates.


7. At this point, I would typically recommend filing Discovery on the other side to ask for a listing of all witnesses, Dept. Policy, etc. That said in this case, I would NOT tip them off that you know the cop is NOT a witness (he wasn't even there). It is VERY unlikely they will subpoena the other driver who hit you, so do not give them reason too. Instead, focus the Motion on the Production of Brady Material demanding any Exculpatory Evidence, etc. Honestly, just make one up and give they jerk prosecuting you a homework assignment! Ask for training records etc. (This will steer them into thinking your defense will be that of an idiot). The key is to SERVE them this in court, if your attorney meeting goes bad. At this point, you demand to argue to the Judge that you need this as it is critical to your pre-trial dense strategy.

8. At this point, you could file a motion for Discovery to get information for Department Policy, who they are going to use as witnesses, etc. I personally would NOT tip them off because they might subpoena the other driver (very unlikely). Regardless, file a Motion to Compel the Production of Brady Material. ASK for a hearing!

9. If not you will find yourself at another appearance in Jury Voir Dire, which is when you get to qualify your jury.

**File another motion to record your trial or get the recording; they do not like this but most States require they allow this**

LOTS of people will be here for all sorts of cases. At this point you would simply ask some qualifying questions to the jury. If the judge is a jerk he will try and prevent you from questioning the candidates and either let you "seat" the juror (accept) or "strike" (decline). I would recommend you argue your right to question the jury. You might even bring up some case law. (a quick Internet search will find plenty - you do not need fancy law libraries). If not go with the flow.

**I do not think it will make it this far **

10. Show up to your Jury trial!

** Your court reporter or recorder should be there **

** Pre-Trial motion ask the jury to be removed from the room to discuss a motion to dismiss. If you want to piss off everyone including the judge, do it with the jury present, but they judge facts not the law... **

At this point you will ask the prosecutor ALL the witnesses whom he/she intends to call. At this point, you Tell the Judge you move to dismiss on the basis no witness is present in the courtroom. Specifically, that the officer was NOT present when the accident happened (he only showed up after)... he does NOT have first-hand knowledge, and that they indicated they intend to call no other witnesses. If the officer says he was there and saw the whole thing, tell the court you have audio of the dispatch you got from a FOIA (play it). If the other driver is there, no worries, you will simply have to cross-examine him/her later. If the judge wants to re-schedule, object that you have the right to a speedy trial, made several court appearances, etc. That the State chose the this date, time, venue, etc.

** It should get dismissed and the jury told to go home. **

** If the judge is a jerk, he will say the cop can testify as to what he saw AFTER he arrived on the scene... or the other driver is present... and the jury will be invited back into the room. **

During your opening, you will tell the jury about Reasonable Doubt and that the burden of proof is "Beyond a Reasonable Doubt" and explain what that means... Explain they (the prosecutor and cops) MUST prove each and every element of the crime (statute you were written for to this standard).

If multiple cops are going to testify, move for Exclusion to where ALL those who will testify have to wait in another room while one (1) cop testify, so they do not hear what the other witnesses. With any luck, each cop will say something completely different, so even if one testy-lying the jury will see contradictory testimony.

The prosecution always goes first.

You WILL cross-examine their witnesses (cops). Ask him how he found out about the accident. Ask if he has first-hand knowledge of seeing it take place or if he arrived on scene after being dispatched. If he lies, tell him you are going to play an audio recording for him and play the dispatch you FOIAed... Ask him why his testimony was inconsistent... etc. ASK him what the dept. policy is on writing tickets at accidents. Ask him how many tickets he wrote. Ask why he wrote two (2). Ask him to read the back fo the ticket where it probably says, "based on blah blah blah reasonable beliefs, etc." Hand the cop the document about the other driver being found guilty and have him read it! Ask questions like, "In his expert opinion if (2) cars are driving side-by-side, and only one (1) of the cars changed lanes hitting the other car, could it have caused damage similar to this?"

If the cops put the other driver on the witness stand... you will ultimately have to cross-examine him/her. Ultimately ask why he/she plead guilty, got found guilty, etc. Again, use the other driver's conviction against him/her. Ask, "if I were in my lane driving straight, and you were driving and made an honest, unintentional mistake changing into my lane and I did not move, would our vehicles be damaged.?


Each item you hand to the cop in cross-examination, ask the court to make it an exhibit, so the jury will see it in deliberation!

The idea of cross-examination is to make the witness look bad. Basically, you need to get him to say he was not there etc. Poke holes in his testimony! Create reasonable doubt.

At some point, they will stop calling witnesses. Ask if they rest. If they rest, they can no longer introduce new evidence/testimony.


Now, they will tell you that you can testify! I would recommend you do NOT testify if you have EVER had a ticket, been in an accident, etc. Because you will NOT have your own attorney to ask you questions (unless you hire one), so ALL the questions asked will be by them... Regardless, even if you had an attorney to put you on the stand, they would get to cross-examine you and make you look bad.

I would recommend you do Not take the stand!


** Closing Arguments .. A little narrative. Remind the jury that if they have ANY doubt, then it is not beyond a reasonable doubt! Tell the jury you did nothing wrong and that this has cost you a LOT of time and money out of pocket, that you have had three (3) to four (4) prior court appearances, taken days off work, that they have NOT seen the legal process except today, and that this is devastating to you (even if it is not)! Tell them that you are reminding them the officer testified he saw only the aftermath making his sole determination you were at fault with the same evidence they have to review (the damage to the car)... Make yourself appear to be the victim pleading with them to let you off. Ask them to ask themselves how they would feel if put in a situation where someone hit them and the police ticketed them! Re-iterate they have an exhibit showing the SAME plantiff found the other driver at fault already! **

Finally, ask the judge to give the jury instruction on Reasonable Doubt... This is the part where he will tell them if they have any doubt they are NOT to convict you.

** You will probably win unless the court railroads you each step of the way, and you do not get a fair trial. If this happens file a notice of appeal (it is a letter indicating your intent) in a timely manner ... and you will almost certainly need an attorney to argue judicial error **

If your state allows a whole new trial (i.e. a redo), do it ALL over again in the higher court... you will get a more fair trial.


One thing will become of this... the local cops will either A) find some way to retaliate, or B) stop ticketing you for bogus reasons.

[TheAverageMan]

I used to practice law about seven (7) years ago. I am NOT going to say what State only that I cannot offer legal advice in 49 States.

Now that that disclaimer is out of the way, I will offer a suggestion for how I would handle it (your millage may vary).

1. ALWAYS SHOW UP TO EVERY COURT APPEARANCE
2. You do NOT want to be in court with the other Defendant at the same time, but do NOT communicate this with the court. Here is what to do... around a week before the first court appearance, go to the Clerk of Court and ask for a continuance. You might want to file a motion for a continuance, or they may have a simple form to fill out. The gist of getting a continuance is that you generally NEED to offer some legitimate/bonafide (i.e. excuse) reason why you cannot come to court. Generally, if you smile and are friendly, you will not have any problems being they pretty much rubber-stamp the first one. Regardless, get the new date in writing.

*** Now after that first date you did not have to show up comes and goes most likely the person who hit you will be found guilty at bench-trial, plead guilty/no-contest, not show, or pay the fine... Regardless as far as that person is concerned it is all about them and it is over. They will no longer contact the court for details and move on with life. ***

3. Immediately file a FOIA with the Court for Public Record of this. Later, you can argue you cannot both be responsible "Beyond a Reasonable Doubt" and this driver was already found guilty to that burden of proof... (this is to tip the scale just a little in your favor and create some doubt.)
FOIA the 911 or Dispatch logs (This will show the cops were NOT already there, so they could not see anything but the aftermath).

4. Right before your re-scheduled date, file a Motion for a Trial By Jury (if your State allows it for minor traffic)... Just bring it in and ask the Clerk to clock it into your case file and give you a stamped copy. Note: You might have to argue this right in front of a judge but many courts have a precedence to simply grant these requests and the judges in these states generally give the authority to the court Clerk to approve these.

Here is why:
A) If you pay the fine, plead no contest, plead guilty, get found guilty at bench trial, or get found guilty by a jury, it is EXACTLY the same... it is NOT somehow worse on your record even if you do ultimately get convicted by a jury..., so do NOT worry.
B) It takes prosecuting the case out of the jerk cop's hands who wrote you the ticket when he did not see anything...
C) It takes the decision factor out of the judge's hands, which is good because he works for the same city/town as the Cop... and trys to generate money for the city/town.
D) Jury trials take Time & Money!
E) They clog the prosecutor's docket, which they hate especially when they have REAL criminals to prosecute.


5. Now what will happen is this... You will be notified of an Attorney Meeting... Normally this will be on a Friday to mess with your work schedule, and they will then schedule a Jury Strike (jury selection) the following Monday. It is to PUNISH you for fighting your ticket... another court tactic. Simply APPEAR. This Attorney meeting is when you meet with whoever is prosecuting you. You ARE your own attorney unless you waste money and hire one for this. When you meet this attorney (probably a higher ranking cop because they generally will NOT pay for an attorney) tell him (or her) you are NOT guilty.

6. Tell him the other person hit you and you and was even found guilty! That you will let him dismiss it OR try you by an unpredictable jury! Stand firm. (He has bigger fish to fry and knows it is a bogus case)

*****
With luck, he will tell the judge the prosecution is dismissing the case.
*****

If your case still exists, you pissed them off and/or they are penny pinching pirates.


7. At this point, I would typically recommend filing Discovery on the other side to ask for a listing of all witnesses, Dept. Policy, etc. That said in this case, I would NOT tip them off that you know the cop is NOT a witness (he wasn't even there). It is VERY unlikely they will subpoena the other driver who hit you, so do not give them reason too. Instead, focus the Motion on the Production of Brady Material demanding any Exculpatory Evidence, etc. Honestly, just make one up and give they jerk prosecuting you a homework assignment! Ask for training records etc. (This will steer them into thinking your defense will be that of an idiot). The key is to SERVE them this in court, if your attorney meeting goes bad. At this point, you demand to argue to the Judge that you need this as it is critical to your pre-trial dense strategy.

8. At this point, you could file a motion for Discovery to get information for Department Policy, who they are going to use as witnesses, etc. I personally would NOT tip them off because they might subpoena the other driver (very unlikely). Regardless, file a Motion to Compel the Production of Brady Material. ASK for a hearing!

9. If not you will find yourself at another appearance in Jury Voir Dire, which is when you get to qualify your jury.

**File another motion to record your trial or get the recording; they do not like this but most States require they allow this**

LOTS of people will be here for all sorts of cases. At this point you would simply ask some qualifying questions to the jury. If the judge is a jerk he will try and prevent you from questioning the candidates and either let you "seat" the juror (accept) or "strike" (decline). I would recommend you argue your right to question the jury. You might even bring up some case law. (a quick Internet search will find plenty - you do not need fancy law libraries). If not go with the flow.

**I do not think it will make it this far **

10. Show up to your Jury trial!

** Your court reporter or recorder should be there **

** Pre-Trial motion ask the jury to be removed from the room to discuss a motion to dismiss. If you want to piss off everyone including the judge, do it with the jury present, but they judge facts not the law... **

At this point you will ask the prosecutor ALL the witnesses whom he/she intends to call. At this point, you Tell the Judge you move to dismiss on the basis no witness is present in the courtroom. Specifically, that the officer was NOT present when the accident happened (he only showed up after)... he does NOT have first-hand knowledge, and that they indicated they intend to call no other witnesses. If the officer says he was there and saw the whole thing, tell the court you have audio of the dispatch you got from a FOIA (play it). If the other driver is there, no worries, you will simply have to cross-examine him/her later. If the judge wants to re-schedule, object that you have the right to a speedy trial, made several court appearances, etc. That the State chose the this date, time, venue, etc.

** It should get dismissed and the jury told to go home. **

** If the judge is a jerk, he will say the cop can testify as to what he saw AFTER he arrived on the scene... or the other driver is present... and the jury will be invited back into the room. **

During your opening, you will tell the jury about Reasonable Doubt and that the burden of proof is "Beyond a Reasonable Doubt" and explain what that means... Explain they (the prosecutor and cops) MUST prove each and every element of the crime (statute you were written for to this standard).

If multiple cops are going to testify, move for Exclusion to where ALL those who will testify have to wait in another room while one (1) cop testify, so they do not hear what the other witnesses. With any luck, each cop will say something completely different, so even if one testy-lying the jury will see contradictory testimony.

The prosecution always goes first.

You WILL cross-examine their witnesses (cops). Ask him how he found out about the accident. Ask if he has first-hand knowledge of seeing it take place or if he arrived on scene after being dispatched. If he lies, tell him you are going to play an audio recording for him and play the dispatch you FOIAed... Ask him why his testimony was inconsistent... etc. ASK him what the dept. policy is on writing tickets at accidents. Ask him how many tickets he wrote. Ask why he wrote two (2). Ask him to read the back fo the ticket where it probably says, "based on blah blah blah reasonable beliefs, etc." Hand the cop the document about the other driver being found guilty and have him read it! Ask questions like, "In his expert opinion if (2) cars are driving side-by-side, and only one (1) of the cars changed lanes hitting the other car, could it have caused damage similar to this?"

If the cops put the other driver on the witness stand... you will ultimately have to cross-examine him/her. Ultimately ask why he/she plead guilty, got found guilty, etc. Again, use the other driver's conviction against him/her. Ask, "if I were in my lane driving straight, and you were driving and made an honest, unintentional mistake changing into my lane and I did not move, would our vehicles be damaged.?


Each item you hand to the cop in cross-examination, ask the court to make it an exhibit, so the jury will see it in deliberation!

The idea of cross-examination is to make the witness look bad. Basically, you need to get him to say he was not there etc. Poke holes in his testimony! Create reasonable doubt.

At some point, they will stop calling witnesses. Ask if they rest. If they rest, they can no longer introduce new evidence/testimony.


Now, they will tell you that you can testify! I would recommend you do NOT testify if you have EVER had a ticket, been in an accident, etc. Because you will NOT have your own attorney to ask you questions (unless you hire one), so ALL the questions asked will be by them... Regardless, even if you had an attorney to put you on the stand, they would get to cross-examine you and make you look bad.

I would recommend you do Not take the stand!


** Closing Arguments .. A little narrative. Remind the jury that if they have ANY doubt, then it is not beyond a reasonable doubt! Tell the jury you did nothing wrong and that this has cost you a LOT of time and money out of pocket, that you have had three (3) to four (4) prior court appearances, taken days off work, that they have NOT seen the legal process except today, and that this is devastating to you (even if it is not)! Tell them that you are reminding them the officer testified he saw only the aftermath making his sole determination you were at fault with the same evidence they have to review (the damage to the car)... Make yourself appear to be the victim pleading with them to let you off. Ask them to ask themselves how they would feel if put in a situation where someone hit them and the police ticketed them! Re-iterate they have an exhibit showing the SAME plantiff found the other driver at fault already! **

Finally, ask the judge to give the jury instruction on Reasonable Doubt... This is the part where he will tell them if they have any doubt they are NOT to convict you.

** You will probably win unless the court railroads you each step of the way, and you do not get a fair trial. If this happens file a notice of appeal (it is a letter indicating your intent) in a timely manner ... and you will almost certainly need an attorney to argue judicial error **

If your state allows a whole new trial (i.e. a redo), do it ALL over again in the higher court... you will get a more fair trial.


One thing will become of this... the local cops will either A) find some way to retaliate, or B) stop ticketing you for bogus reasons.

Read the whole post. The first part where the guy pleads guilty first, and you show up at an after date. That is one hell of a good sounding tactic. I will definitly tuck this away if I ever need it. Great post.

By the way OP, sorry about the car damage. Get a dash cam. Check out the WireCutters review on the G-1w

The Best Dash Cam | The Wirecutter (http://thewirecutter.com/reviews/best-dash-cam/)

I got one in my car, good investment.

[Jbirk]

As for your damage:

Do you know how to Wet Sand, Compound, and Polish?

If yes, I can walk you through repainting that with rattle cans. A couple weeks ago a friend and I did a bumper on a Dodge RAM truck with Duplicolor (color matched by code) spray cans.

If you want to do the work, you MUST still get the PDR done. You may still need some Bondo or other body filler.

I would get some 80, (120 - 150), 220, 320, 400, 600, 800 sand paper.

Can of Spray primer.

Grey Scotch Brite pad.

Can of prep spray and/or wax & grease remover.

Guide Coat (the powdery stuff is best)

Sand Paper in 1000, 1200, 1500, 2000, 3000 (and maybe 5000)


You will need some compound such as M105 or FG400

You will need some finishing polish such as M205



This is MY first time ever painting and wet sanding, so with no experience, I tried it on a friend's truck... Our philosophy was it couldn't look any worse than when it started and we knew we can polish anything :xyxthumbs:

Let's just say it was WAY worse than your car in the beginning :props:

http://www.autogeekonline.net/forum/attachment.php?attachmentid=37384&stc=1&d=1442733106

http://www.autogeekonline.net/forum/attachment.php?attachmentid=37385&stc=1&d=1442733106

http://www.autogeekonline.net/forum/attachment.php?attachmentid=37386&stc=1&d=1442733106

http://www.autogeekonline.net/forum/attachment.php?attachmentid=37387&stc=1&d=1442733106


The repair area ended up being HALF the bumper, lol! It took us two attempts because spontaneously about 6 insects landed in the wet paint the first time.

[Jbirk]

Oh, I want to mention that once you get out of your ticket and the other driver gets convicted...

Demand the other driver's insurance pay for the repair... the only downside is it will likely end up on a Car Fax and cost you huge diminishment of value.

You may want to talk to the other driver and ask him/her to pay. If not send a demand letter, but be nice because a court may read it later. The driver CAN notify his insurance company if he wants, but if below the deductible there is no reason to tip them off.

You CAN sue the other driver direct if you want... if it is less than the cost of a deductible, this is probably ideal. You would need to prove NEGLIGENCE in a CIVIL case. The burden of proof is "Preponderance of Evidence" in civil cases, so you just need to tip the scale in your favor. :xyxthumbs:

Once you have the FOIAed paperwork and your Dismissed/Acquitted/Nul Processed case, that should be enough.

*****

To demonstrate Negligence, here are the elements:

1. Duty
2. Breach
3. Causation
4. Damage.


Specifically, you will tell the judge this is for a claim less than the Deductible, so there is no reason to get insurance involved, BUT that you sent a letter demanding payment. Present that letter. You will tell the judge the driver was negligent in that he had a duty to drive with reasonable caution as to prevent an accident but there was a breach of this duty causing damage in the dollar amount of $$$.

That you have receipts, AND a police report, AND the other driver's court case disposition where he plead guilty (or was found guilty), etc. And that you were NOT determined to be at fault (again your court case disposition). Basically, use the other driver's fault against him or her.

If above $500, this is probably a bad tactic and it really should probably be an insurance claim.

***********************

MANY STATES REQUIRE you to report damage greater than $$$$ in damage. This is normally how things get on Car Fax NOT that I am suggesting you try and hide this as it would be unethical (and likely unlawful) to not disclose accident history when selling your car.

If it is MORE than that, you had better disclose it. The problem is if you do that they will also likely haste you to prove you had insurance at the time of the accident, which I am sure you do, BUT it will be up to your insurance company to fax the paperwork, and they are slow. Meanwhile the DMV will likley start a countdown to suspend your licence, and you may need to play phone-tag for a week or two to get both sides of a simple document faxed over and someone at the DMV to input it. Just saying from past experience. :nomore:


Now, if this ends up on your Car Fax, etc. You ARE entitled to diminishment of value as a third-party claimant (not as a first party policy holder except in Georgia). That said, it will probably take arbitration to get paid for this, etc... so if you open that can of worms, expect the insurance company to delay, deny, defend.

They will tell you it was minor that your car lost no value, they will tell you they do not have to pay you, etc. If you get to the point of an offer, they will probably try to low-ball you with some formula used to settle a case in GA involving State Farm and their first party policy holders in a Class Action, which you are NOT a part of, an insurance company that is probably not involved, and a State you do not likley live in, etc.

They (insurance companies) love that class-action formula they used in an irrelevant case Mabry v. State Farm, yet they sure as heck would not take that part about paying first-party policy holders if they are at fault (except in GA). i.e. You cannot take bits and pieces of a case but ONLY the whole thing, and that one is relevant only in GA anyway and even then only to that one Class-Action. Just so you know, insurance adjusters CAN legally lie to you, and they will.

[Dmb5450]

Oh, I want to mention that once you get out of your ticket and the other driver gets convicted...



Demand the other driver's insurance pay for the repair... the only downside is it will likely end up on a Car Fax and cost you huge diminishment of value.



You may want to talk to the other driver and ask him/her to pay. If not send a demand letter, but be nice because a court may read it later. The driver CAN notify his insurance company if he wants, but if below the deductible there is no reason to tip them off.



You CAN sue the other driver direct if you want... if it is less than the cost of a deductible, this is probably ideal. You would need to prove NEGLIGENCE in a CIVIL case. The burden of proof is "Preponderance of Evidence" in civil cases, so you just need to tip the scale in your favor. :xyxthumbs:



Once you have the FOIAed paperwork and your Dismissed/Acquitted/Nul Processed case, that should be enough.



*****



To demonstrate Negligence, here are the elements:



1. Duty

2. Breach

3. Causation

4. Damage.





Specifically, you will tell the judge this is for a claim less than the Deductible, so there is no reason to get insurance involved, BUT that you sent a letter demanding payment. Present that letter. You will tell the judge the driver was negligent in that he had a duty to drive with reasonable caution as to prevent an accident but there was a breach of this duty causing damage in the dollar amount of $$$.



That you have receipts, AND a police report, AND the other driver's court case disposition where he plead guilty (or was found guilty), etc. And that you were NOT determined to be at fault (again your court case disposition). Basically, use the other driver's fault against him or her.



If above $500, this is probably a bad tactic and it really should probably be an insurance claim.



***********************



MANY STATES REQUIRE you to report damage greater than $$$$ in damage. This is normally how things get on Car Fax NOT that I am suggesting you try and hide this as it would be unethical (and likely unlawful) to not disclose accident history when selling your car.



If it is MORE than that, you had better disclose it. The problem is if you do that they will also likely haste you to prove you had insurance at the time of the accident, which I am sure you do, BUT it will be up to your insurance company to fax the paperwork, and they are slow. Meanwhile the DMV will likley start a countdown to suspend your licence, and you may need to play phone-tag for a week or two to get both sides of a simple document faxed over and someone at the DMV to input it. Just saying from past experience. :nomore:





Now, if this ends up on your Car Fax, etc. You ARE entitled to diminishment of value as a third-party claimant (not as a first party policy holder except in Georgia). That said, it will probably take arbitration to get paid for this, etc... so if you open that can of worms, expect the insurance company to delay, deny, defend.



They will tell you it was minor that your car lost no value, they will tell you they do not have to pay you, etc. If you get to the point of an offer, they will probably try to low-ball you with some formula used to settle a case in GA involving State Farm and their first party policy holders in a Class Action, which you are NOT a part of, an insurance company that is probably not involved, and a State you do not likley live in, etc.



They (insurance companies) love that class-action formula they used in an irrelevant case Mabry v. State Farm, yet they sure as heck would not take that part about paying first-party policy holders if they are at fault (except in GA). i.e. You cannot take bits and pieces of a case but ONLY the whole thing, and that one is relevant only in GA anyway and even then only to that one Class-Action. Just so you know, insurance adjusters CAN legally lie to you, and they will.


You have given some great info for anyone that will ever drive a car. Your posts on this thread were amazing! I am sure everyone who reads this appreciates the time you have put in to help fellow autogeeks out. I wish I would have known some of this when I was rear ended last year. The other driver took full responsibility so that wasn't an issue. when I claimed inherent diminished value against her and All State, they used their lawyer against me. Their lawyer said since they are under not legal or moral obligation to report the damage to my car to car fax it will never show up when I try to sell the car, therefore not impact resale value. Well after a long process and wanting it to be done I settled for 250, should have been 1500. Anyway, I do not trust car fax. I sold the car and watched it as it was posted online. It sold in 1 week and the car fax to this day shows no accidents or repairs.

[swanicyouth]

My advice:

1. That looks like a pretty new Jeep. Just suck it up and get it fixed correctly under insurance. Looks like the wheel finish is damaged - that's prolly $300 alone.

2. Not sure what all the legal advice is for, since it seems nobody is labeled as at fault, if I read this correctly. If you received points, I'd prolly go to court and ask the judge if you could plead to a lesser offense that carries no points.

If you have a pretty good record - most judges will just let you pay the fine minus the points IME.




I used to practice law about seven (7) years ago. I am NOT going to say what State only that I cannot offer legal advice in 49 States.

Now that that disclaimer is out of the way, I will offer a suggestion for how I would handle it (your millage may vary).

1. ALWAYS SHOW UP TO EVERY COURT APPEARANCE
2. You do NOT want to be in court with the other Defendant at the same time, but do NOT communicate this with the court. Here is what to do... around a week before the first court appearance, go to the Clerk of Court and ask for a continuance. You might want to file a motion for a continuance, or they may have a simple form to fill out. The gist of getting a continuance is that you generally NEED to offer some legitimate/bonafide (i.e. excuse) reason why you cannot come to court. Generally, if you smile and are friendly, you will not have any problems being they pretty much rubber-stamp the first one. Regardless, get the new date in writing.

*** Now after that first date you did not have to show up comes and goes most likely the person who hit you will be found guilty at bench-trial, plead guilty/no-contest, not show, or pay the fine... Regardless as far as that person is concerned it is all about them and it is over. They will no longer contact the court for details and move on with life. ***

3. Immediately file a FOIA with the Court for Public Record of this. Later, you can argue you cannot both be responsible "Beyond a Reasonable Doubt" and this driver was already found guilty to that burden of proof... (this is to tip the scale just a little in your favor and create some doubt.)
FOIA the 911 or Dispatch logs (This will show the cops were NOT already there, so they could not see anything but the aftermath).

4. Right before your re-scheduled date, file a Motion for a Trial By Jury (if your State allows it for minor traffic)... Just bring it in and ask the Clerk to clock it into your case file and give you a stamped copy. Note: You might have to argue this right in front of a judge but many courts have a precedence to simply grant these requests and the judges in these states generally give the authority to the court Clerk to approve these.

Here is why:
A) If you pay the fine, plead no contest, plead guilty, get found guilty at bench trial, or get found guilty by a jury, it is EXACTLY the same... it is NOT somehow worse on your record even if you do ultimately get convicted by a jury..., so do NOT worry.
B) It takes prosecuting the case out of the jerk cop's hands who wrote you the ticket when he did not see anything...
C) It takes the decision factor out of the judge's hands, which is good because he works for the same city/town as the Cop... and trys to generate money for the city/town.
D) Jury trials take Time & Money!
E) They clog the prosecutor's docket, which they hate especially when they have REAL criminals to prosecute.


5. Now what will happen is this... You will be notified of an Attorney Meeting... Normally this will be on a Friday to mess with your work schedule, and they will then schedule a Jury Strike (jury selection) the following Monday. It is to PUNISH you for fighting your ticket... another court tactic. Simply APPEAR. This Attorney meeting is when you meet with whoever is prosecuting you. You ARE your own attorney unless you waste money and hire one for this. When you meet this attorney (probably a higher ranking cop because they generally will NOT pay for an attorney) tell him (or her) you are NOT guilty.

6. Tell him the other person hit you and you and was even found guilty! That you will let him dismiss it OR try you by an unpredictable jury! Stand firm. (He has bigger fish to fry and knows it is a bogus case)

*****
With luck, he will tell the judge the prosecution is dismissing the case.
*****

If your case still exists, you pissed them off and/or they are penny pinching pirates.


7. At this point, I would typically recommend filing Discovery on the other side to ask for a listing of all witnesses, Dept. Policy, etc. That said in this case, I would NOT tip them off that you know the cop is NOT a witness (he wasn't even there). It is VERY unlikely they will subpoena the other driver who hit you, so do not give them reason too. Instead, focus the Motion on the Production of Brady Material demanding any Exculpatory Evidence, etc. Honestly, just make one up and give they jerk prosecuting you a homework assignment! Ask for training records etc. (This will steer them into thinking your defense will be that of an idiot). The key is to SERVE them this in court, if your attorney meeting goes bad. At this point, you demand to argue to the Judge that you need this as it is critical to your pre-trial dense strategy.

8. At this point, you could file a motion for Discovery to get information for Department Policy, who they are going to use as witnesses, etc. I personally would NOT tip them off because they might subpoena the other driver (very unlikely). Regardless, file a Motion to Compel the Production of Brady Material. ASK for a hearing!

9. If not you will find yourself at another appearance in Jury Voir Dire, which is when you get to qualify your jury.

**File another motion to record your trial or get the recording; they do not like this but most States require they allow this**

LOTS of people will be here for all sorts of cases. At this point you would simply ask some qualifying questions to the jury. If the judge is a jerk he will try and prevent you from questioning the candidates and either let you "seat" the juror (accept) or "strike" (decline). I would recommend you argue your right to question the jury. You might even bring up some case law. (a quick Internet search will find plenty - you do not need fancy law libraries). If not go with the flow.

**I do not think it will make it this far **

10. Show up to your Jury trial!

** Your court reporter or recorder should be there **

** Pre-Trial motion ask the jury to be removed from the room to discuss a motion to dismiss. If you want to piss off everyone including the judge, do it with the jury present, but they judge facts not the law... **

At this point you will ask the prosecutor ALL the witnesses whom he/she intends to call. At this point, you Tell the Judge you move to dismiss on the basis no witness is present in the courtroom. Specifically, that the officer was NOT present when the accident happened (he only showed up after)... he does NOT have first-hand knowledge, and that they indicated they intend to call no other witnesses. If the officer says he was there and saw the whole thing, tell the court you have audio of the dispatch you got from a FOIA (play it). If the other driver is there, no worries, you will simply have to cross-examine him/her later. If the judge wants to re-schedule, object that you have the right to a speedy trial, made several court appearances, etc. That the State chose the this date, time, venue, etc.

** It should get dismissed and the jury told to go home. **

** If the judge is a jerk, he will say the cop can testify as to what he saw AFTER he arrived on the scene... or the other driver is present... and the jury will be invited back into the room. **

During your opening, you will tell the jury about Reasonable Doubt and that the burden of proof is "Beyond a Reasonable Doubt" and explain what that means... Explain they (the prosecutor and cops) MUST prove each and every element of the crime (statute you were written for to this standard).

If multiple cops are going to testify, move for Exclusion to where ALL those who will testify have to wait in another room while one (1) cop testify, so they do not hear what the other witnesses. With any luck, each cop will say something completely different, so even if one testy-lying the jury will see contradictory testimony.

The prosecution always goes first.

You WILL cross-examine their witnesses (cops). Ask him how he found out about the accident. Ask if he has first-hand knowledge of seeing it take place or if he arrived on scene after being dispatched. If he lies, tell him you are going to play an audio recording for him and play the dispatch you FOIAed... Ask him why his testimony was inconsistent... etc. ASK him what the dept. policy is on writing tickets at accidents. Ask him how many tickets he wrote. Ask why he wrote two (2). Ask him to read the back fo the ticket where it probably says, "based on blah blah blah reasonable beliefs, etc." Hand the cop the document about the other driver being found guilty and have him read it! Ask questions like, "In his expert opinion if (2) cars are driving side-by-side, and only one (1) of the cars changed lanes hitting the other car, could it have caused damage similar to this?"

If the cops put the other driver on the witness stand... you will ultimately have to cross-examine him/her. Ultimately ask why he/she plead guilty, got found guilty, etc. Again, use the other driver's conviction against him/her. Ask, "if I were in my lane driving straight, and you were driving and made an honest, unintentional mistake changing into my lane and I did not move, would our vehicles be damaged.?


Each item you hand to the cop in cross-examination, ask the court to make it an exhibit, so the jury will see it in deliberation!

The idea of cross-examination is to make the witness look bad. Basically, you need to get him to say he was not there etc. Poke holes in his testimony! Create reasonable doubt.

At some point, they will stop calling witnesses. Ask if they rest. If they rest, they can no longer introduce new evidence/testimony.


Now, they will tell you that you can testify! I would recommend you do NOT testify if you have EVER had a ticket, been in an accident, etc. Because you will NOT have your own attorney to ask you questions (unless you hire one), so ALL the questions asked will be by them... Regardless, even if you had an attorney to put you on the stand, they would get to cross-examine you and make you look bad.

I would recommend you do Not take the stand!


** Closing Arguments .. A little narrative. Remind the jury that if they have ANY doubt, then it is not beyond a reasonable doubt! Tell the jury you did nothing wrong and that this has cost you a LOT of time and money out of pocket, that you have had three (3) to four (4) prior court appearances, taken days off work, that they have NOT seen the legal process except today, and that this is devastating to you (even if it is not)! Tell them that you are reminding them the officer testified he saw only the aftermath making his sole determination you were at fault with the same evidence they have to review (the damage to the car)... Make yourself appear to be the victim pleading with them to let you off. Ask them to ask themselves how they would feel if put in a situation where someone hit them and the police ticketed them! Re-iterate they have an exhibit showing the SAME plantiff found the other driver at fault already! **

Finally, ask the judge to give the jury instruction on Reasonable Doubt... This is the part where he will tell them if they have any doubt they are NOT to convict you.

** You will probably win unless the court railroads you each step of the way, and you do not get a fair trial. If this happens file a notice of appeal (it is a letter indicating your intent) in a timely manner ... and you will almost certainly need an attorney to argue judicial error **

If your state allows a whole new trial (i.e. a redo), do it ALL over again in the higher court... you will get a more fair trial.


One thing will become of this... the local cops will either A) find some way to retaliate, or B) stop ticketing you for bogus reasons.


Who would have all the time to do this for a traffic ticket??? The OP prolly has a job to go to everyday. This is completely crazy and unnecessary IMHO. No wonder why the courts are clogged with nonsense.

[Ricorocks]

R U the Birk from TV "Birks Law". Very good, interesting post

[dkmcclelland]

My advice:

1. That looks like a pretty new Jeep. Just suck it up and get it fixed correctly under insurance. Looks like the wheel finish is damaged - that's prolly $300 alone.

Yes, the Jeep is a 2015 and we've only had it since May 2015. :(

2. Not sure what all the legal advice is for, since it seems nobody is labeled as at fault, if I read this correctly. If you received points, I'd prolly go to court and ask the judge if you could plead to a lesser offense that carries no points.

If you have a pretty good record - most judges will just let you pay the fine minus the points IME.

Who would have all the time to do this for a traffic ticket??? The OP prolly has a job to go to everyday. This is completely crazy and unnecessary IMHO. No wonder why the courts are clogged with nonsense.

So I've only ever gotten two tickets in my life (granted I'm only 26) Less than a year ago I turned left onto a street that had a sign that said no turn on left so I got a ticket which was a moving violation. I did this program that you are only allowed to do once a year so that it doesn't give you points.

I have no points on my license right now and nothing else on my record. As far as the legal advice posted earlier, I really do appreciate the time it took you to compose that, but like others said I do not have the time to do that. I'm a nurse and I work 12 hour shifts in the ICU. I'm taking the Jeep to my PDR guy in the morning and letting him tell me if he can fix it. I trust him.

I took some Megs M105 and got all of the rubber off the fender and most of it on the rim was just rubber.

I am in no way racist, but the other car was a load of 16-18 year old African American girls and boys that proceeded to throw gatorade all over the Jeep and scream and holler at us. One had the audacity to be seen by EMS... I'm not the type of guy that backs down when I know I'm right, but I know that I got into that lane and then they did at the same time. I wasn't on my phone, but I was in a conversation with the three other people in the truck with me. So, for that fact, I will admit fault because if I had been paying more attention I could have avoided her hitting me.

On a positive note, the rim on the Jeep drug down the ENTIRE side of her shitty Taurus and ripped the mirror off (The mirror did the damage to the fender btw) so I'm sure if she tried to get hers fixed it would be totaled.

Here's what the Jeep looks like now after I've done what I can do.


http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1766_zpsy1ggdkxo.jpg
http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1772_zpszxldtn23.jpg
http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1768_zps4rjn4apt.jpg
http://i154.photobucket.com/albums/s279/dustinmcclelland15/IMG_1769_zpsxyisat3r.jpg