Negligent Driving in the Second Degree charges are much easier to beat than you would think. A person commits negligent driving in the second degree when “he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.” RCW 46.61.525(1)(a). Prosecution for a traffic infraction is “initiated by the issuance, service, and filing of a notice of infraction.” IRLJ 2.2(a). “The infraction need not have been committed in the officer’s presence, except as provided by statute.” IRLJ 2.2(b)(1) (emphasis added). A law enforcement officer has statutory authority to issue a notice of a traffic infraction:
(a) When the infraction is committed in the officer’s presence;
(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;
(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident committed a traffic infraction;
(d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or
(e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170.
RCW 46.63.030 plainly requires courts to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. Negligent Driving in the Second Degree is a moving violation. For the infraction to be valid, the movement must have been made in the officer’s presence.
That Negligent Driving ticket probably isn’t as bad as you think. Every week we are hired by a dozen, or so, drivers who are charged with some level of Neg Driving (Negligent Driving in the First Degree, or Negligent Driving in the Second Degree). They come in knowing that Neg Driving is a “Major Moving Violation” that can result in a high fine, increased insurance, and even a license suspension. What these clients don’t know before they come into our office, is that a Neg 1, which is a criminal charge, or Neg 2, which is an infraction, can often be attacked and beaten. This article will deal with Negligent Driving in the Second Degree.
We generally see Negligent Driving in the Second Degree tickets issued as a result of an accident, or some act of driving that an officer believes was unreasonable and put other people or property at risk. In both cases, officers generally rely on witness statements to determine that someone drove negligently.
Neg 2 is defined in RCW 46.613.525 as when a driver “operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.” “[N]egligent” means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.”
We recently represented a 17 year old kid who was driving his 2000 Honda Civic on a local highway when the car suddenly quit running. He was able to pull over onto the left shoulder, which wasn’t quite wide enough, but for fifteen minutes every driver on the road was able to safely drive around him. While our client was waiting for his mom, a local prosecutor was driving without paying attention to what was ahead, and slammed into our client totaling both cars.
Troopers arrived, did a quick investigation, and issued a Neg 2 citation to the negligent driver… our 17 year old client. The trooper wasn’t a witness, and our client wasn’t driving when the accident occurred, but that didn’t stop Trooper McHasty from issuing our guy a citation. I’ll explain in a bit how we were able to attack that ticket and get it kicked out.
The second most common Neg 2 scenario we typically see is where there’s no accident, but an officer believes that a driver did something wrong. In State of Washington v. Magee, a WSP Trooper saw a car on the right shoulder facing the wrong direction jump starting another vehicle. Magee, an attorney, argued that the Trooper was not allowed to issue a citation for an alleged infraction that the Trooper did not witness. The appellate court agreed and further stated that Negligent Driving is a “moving violation” and the citing officer must witness the negligently moving vehicle. And that is where most of these traffic tickets are beat.
Our 17 year old client who got rear ended while he was stopped was cited for “Neg Driving” even though he was stopped when the prosecutor ran into him. The judge at our hearing agreed that our kid was not driving when the accident occurred, and was not driving when the Troopers responded. The case fell squarely under Magee, and the judge really had no discretion to do anything but grant our motion to dismiss. The case got kicked out and our client saved money on the fine, money on insurance, and he didn’t have to go to court to argue with the judge, or a prosecutor.
If you’ve been issued a citation for Negligent Driving in the Second Degree, you should immediately speak with an experienced traffic attorney about whether you should request a contested hearing to attack that ticket. Call us for a free consultation.