Our office often gets calls from terrified, despondent motorists who were handed a stack of tickets on a single motor vehicle stop. Often so many tickets are written that the result of being found guilty on all counts will be loss of license. Our office is often successful in defending against such charges, and the grounds for defense is rooted in the Constitutional protections of Double Jeopardy.
What is double jeopardy
Double jeopardy is simply being prosecuted twice for the same thing. It can occur by either being re-tried in the same jurisdiction after an acquittal, or having multiple similar counts levied against you for the same incident. Being charged with multiple counts on the same stop inherently requires that many of the charges are duplicative. However, being charged with similar charges for the same transaction or occurrence is prohibited under the 5th Amendment’s protections against double jeopardy in the United States Constitution. Double jeopardy is also prohibited under Article 1, § 6 of the New York State Constitution, and under the NY State Constitution citizens have greater protection against duplicate prosecutions than under the US Constitution. Under New York’s Constitution, a person may not be separately prosecuted for two offenses upon the same act or transaction when the offenses have substantially similar elements and the acts establishing one offense are indistinguishable from those establishing the other, or the offenses are designed to prevent very different kinds of harm or evil. This prohibition is even codified in New York’s Criminal Procedure Law CPL § 40.20.
In the traffic ticket context, we often represent motorists that are alleged to have may have made an improper lane change in order to pass a slower moving vehicle. Suppose it is alleged that the motorist did this by crossing the solid white line, going onto the shoulder, and passing the slower moving vehicle on its right. The plethora of charges that could easily apply in such a situation are charge failure to signal, unsafe lane change, passing on right, left pavement to pass on right, fail to use designated lanes, drove on shoulder, and failure to obey a traffic control device. Although each of the charges have different elements, all are similar, and the act establishing one offense are indistinguishable from the act establishing the other. For example, if a motorist drives on a shoulder it is also failing to use a designated lane. Furthermore, both statutes are designed to prohibit the same harm or evil – unsafe driving.
How we raise the issue in court
It is one thing to know and spot an issue, it is quite another to properly bring the issue before the court, assert the issue, and preserve the issue for appeal should the need arise. Since this is a legal issue as opposed to a factual issue, i.e., the defense does not turn on whether or not you “did it,” but turns on the validity of the state to bring the charges to begin with, the issue must be raised and asserted in writing in a noticed motion. The arguments should also be supported by controlling case law. Asserting this, and all defenses, requires knowing and understanding trial practice and procedures. It is this knowledge that you leverage when retaining our office.