Negligent Driving 2

Negligent Driving

Some cops actually ticket guys like this. smh


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.

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.

Full Article

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.

Criminal Traffic Lawyer

Traffic Attorney

Traffic lawyer

Hire a Traffic Attorney.

Everybody, and I mean EVERYBODY, who gets a speeding ticket, should hire a traffic lawyer to put up the best possible ticket defense. The big reasons are that you don’t have to show up for court, the traffic attorney will fight your ticket for you, and the best traffic lawyers know how to beat a speeding infraction. Let’s start off with what you need to do before you even get behind the wheel.

Carry valid license and insurance. This is pretty obvious. Not so obvious is the fact that your registration needs to be signed. If it isn’t, you can get a ticket for that too. You also want to make sure that all of your lights work. If you have a third brake light, each light has to work. We see a lot of infractions that include a “burned out tail light” when the only light not working is the third brake light in the rear window. Make sure everything functions.

License plates: you are required to have a front license plate. You are not allowed to have anything obstructing the plate. This includes ball hitches, dirt, and license plate covers – even the clear ones. For you motorcycle guys, the plate has flat, not angled, but 90 degrees to the ground, and the alpha numeric must be oriented so that the tops of letters and numbers are

MC Plate

MC Plate

pointing up.

Tinted windows look cool, and the privacy is nice, but if they are too dark, the cops can give you a traffic infraction. You can run a little tint on your front window, but it can’t obscure your vision while driving. If you look at your windows by the front pillars, you’ll see little lines that indicate the maximum distance from the top of the window that stickers or tint can extend to.

Even though a cracked window does absolutely nothing to obstruct your view, an officer can use it as an excuse to pull you over and write you an equipment violation. If you were drinking, you’ll also end up doing a breath test back at the station. See our DUI blog for more info on what to do and not do following a DUI stop.

If your car is squared away, then you’re ready to go into the world. If your car has some equipment issues, you are likely going to get pulled over; especially in Fife or Lakewood, or if the WSP are around. (Brotha alert: Never, never, ever go to Lakewood. “Black” and “Gang Member” mean the same thing there.) Once you’re on the road, follow the laws. Unfortunately, that’s not as easy as you think. Especially in the Cities of Lakewood and Fife where anything can be a traffic violation.

Use your signal every time you change lanes, or want to turn. If you’ve missed your turn, continue on until you can safely turn around. Cops love citing people for failing to signal. They also love to claim people fail to signal when they make a DUI stop. Always signal.

Obey the Speed Limit. If you don’t obey the speed limit, then don’t admit it when you get caught. Minimizing your speed is the same as admitting breaking the law. For instance, if the speed limit is 60 mph, and you’re cruising along at 75 when the cop hits his lights, don’t pull over and tell the cop that you were only doing 65. That’s admitting to breaking the law. The cop won’t care, and the judge won’t care. The cop will cite you for speeding regardless of how fast you say you were going.

Since you don’t have to say anything to the cops when they pull you over, say nothing. Have your license, registration and proof of insurance ready to go, and politely decline to answer questions, which brings up another point: Be Polite. Cops have a tough job. Don’t make it any tougher on them, or yourself, by arguing with them about your infraction. That’s a fight you will never win.

If you have anything you don’t want the cop to see, do not have it in the passenger compartment with you. Put that stuff in the trunk where a cop isn’t likely to look and is very unlikely to see it. Drugs (medical marijuana included), guns (if you have a CCP advise the cop that you are armed if there is ANY chance he will see your piece), hookers and stolen/illegal stuff, should be kept in your trunk. Incidentally, if you are usually strapped, do not drink and drive while armed. Cops can take your weapons, and prosecutors, at least in Pierce and King County, will attempt to forfeit your weapons. If you’re gonna drink, unload your weapon, clear your weapon, and secure your weapon in your trunk.

For those of you with a CDL, all of the above is very important. The most important thing to do during a stop for speeding, reckless driving, negligent driving, speed too fast for conditions, or failure to maintain a safe distance, is keep your trap shut and don’t make any statements. Your traffic ticket attorney can do a better job for you if you say NOTHING.

Once you get a traffic infraction you will probably wonder, “how do I fight a traffic ticket”, or “how do I fight a speeding ticket?” Your best bet is to hire a traffic attorney to fight things for you. These cases are won on technicalities, and not the facts. But first things first. You need to request a “Contested Hearing”. Incidentally, all of this information applies only to tickets in the State of Washington.

Check the Contested Hearing box (third box down on the ticket) and sign and date the ticket. Fill out an envelope with the appropriate court name and address which you’ll find on the ticket itself. Put a stamp on the envelope. Make a photocopy of the front of the ticket and the front of the envelope showing the proper address and postage. Put the ticket in the envelope and mail it within 15 days of the citation. Keep the photocopy somewhere safe as it’s proof you timely requested the traffic court hearing. When you get the court date, make sure you show up. Alternatively, hire a traffic lawyer to do all of this for you, so you can chill.

Before you go to court, you need to get a copy of the discovery. Discovery includes a copy of the infraction, the officer’s statement about what happened, and the “6.6 Declaration” from the expert who certified the speed measuring device used. When you go to court for your speeding ticket, if you didn’t hire an infraction attorney, you need to know how to attack the most basic technical errors with tickets. This requires paying attention to some things. Read your ticket several times looking for the following problems.

Vehicle type. Most courts will dismiss if the officer forgot to put vehicle type such as sedan, pickup, motorcycle, etc. Make sure he didn’t put the vehicle type elsewhere in the ticket, though.

Timely filed. Cops have five business days to file. Business days don’t include weekends, or holidays, so basically, they have at least one week to file. The new tickets that come on 8.5”x11” paper are pretty much automatically filed, so there won’t be a filing issue. However, the old green tickets

RCW 9A.72. The green tickets require the declaration be signed “under the penalty of perjury under the laws of the State of Washington.” The declaration has to be signed by the cop who witnessed the violation and it has to have this language. If it doesn’t, ask to have the ticket dismissed.

6.6 errors. Look for information within the 6.6 document that the speed measuring device (SMD) was “tested under the direction of…”. The guy who signed the 6.6 is supposed to test the SMD, not some unknown person.

6.6 Attachment A. This little steaming pile nonsense is rarely signed as required by 9A.72. Even when it is, nobody has any reasonable explanation for what specifically it is accomplishing. Sadly, not every court understands this. Judges are elected, not necessarily brilliant.

Pace. Did the cop follow you for at least ¼ mile at a consistent distance and speed? Does he mention his training to pace, or looking at the speedo? If not, there is no foundation for how fast you were going.

SMD Testing. The device needs to be tested before and after the stop. Does the cop’s declaration say this? If not, ask for a dismissal. The tests include checking the LED lights to make sure they all work, an internal diagnostic, and for lasers a reticular alignment test, and distance test at a minimum of 100’. If the cops declaration doesn’t detail all of these tests, ask for a dismissal.

There is much, much more to fighting tickets including the caselaw that supports everything traffic attorneys do to get infractions kicked out of court. Do yourself a favor though and let your lawyer get grilled by the judge and prosecutor while you sit at home, work or school. We know how to beat these things, so let us work for you and keep your record clean, and your insurance low. We have decades of combined experience defending drivers and riders. Call for your free consultation.

Call Us 253-683-4180

Durflinger Oliver & Associates PS

711 St. Helens Ave.
Suite 209

Tacoma, WA 98402

Fax: 253-683-4184


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~ Jim Oliver is a partner at Durflinger Oliver. When he’s not in court defending motorsports enthusiast accused of driving too fast, he can be found on the road wringing out his ’65 Mustang Fastback at triple digit speeds whenever he gets the chance.


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