There you are, driving down the road, minding your own business, when suddenly you see the lights and hear the sirens of an emergency vehicle. “Is it an ambulance, a fire truck,” you say to yourself as you start to look around. Then you see it – it’s a police car coming up your tail. You move over to the right lane so
the police car can pass you, only to see him change lanes with you. “He must be trying to get off the exit,” you say to yourself as you then move left to yield, only to see that he has moved left with you. Suddenly it dawns on you – this is no ordinary situation. The cop is not looking to get by he is coming for YOU!
Your heart sinks and your mind races “…what did I do, what does he want…” You pull over and the cop approaches “license and registration…”
“Officer, why did you pull me over…what did I do…I’m sorry I did not mean it…was I speeding…what was I doing…what…what…WHAT?!?!”
“You didn’t see me back there,” the cop replies angrily, “you were speeding…you changed lanes and didn’t signal…you passed a car on the right…you left the roadway…you didn’t move over for my vehicle, you failed to yield…”
“But officer,” you say, maybe I was speeding and yes I did pass the car on my right, but I had no choice…and I signaled maybe my signal isn’t working…and no I did not see you I would NEVER do anything to disrespect you officer of course I did not see you…please, don’t give me a ticket, I’m a family man, I have children they need me, my insurance is already high because of my accidents…please…please…PLEASE!!!!!!!!!”
“Wait here” the cop says dryly as he saunters back to his vehicle with your license and registration.
After what feels like an eternity he comes back to your vehicle.
“here’s your license and registration,” the cop says. I wrote you a ticket for speeding.”
“Oh, okay officer, can you please tell me…” and before you finish your sentence, the cop adds “and failure to yield, failure to signal, unsafe passing, failure to maintain lane, passing on the right, and following too close.”
You immediately get dizzy. Your head spins. The entire situation becomes a blur ‘following to close…fail to yield…what, maintain lane…what is this…can they do this…”
CAN THEY DO THIS?
Our office represents many motorists in that very situation. And the answer to “can they do this” is a resounding “maybe.” However, what such a situation gives rise to is a motion to dismiss for violating your double jeopardy rights.
What is Double Jeopardy?
In its simplest form, double jeopardy is being prosecuted for the same crime or infraction more than once. In other words, once you have been prosecuted and acquitted of a crime, the state does not get a “do over.” Once you are acquitted you cannot be tried again on the same charge or charges. Double jeopardy protections are afforded to US Citizens in the United States Constitution, and in New York State under the New York State Constitution. In fact, double jeopardy protections are broader under NYS law than under Federal Law.
However, double jeopardy protections do not merely bar subsequent prosecutions. Whether or not double jeopardy attaches in New York State also turns on a “transaction or occurrence” analysis and whether multiple violations charged in the same incident, while nonetheless different, seek to prevent the same “harm or evil.” Authority for this is grounding in the New York State Constitution, Art. 1, § 6, which holds that a person may not be prosecuted for two or more offenses based upon the same act unless the offenses have substantially different elements and they are designed to prevent very different kinds of harm or evil.
Arguably, the only violation the client committed was improper U-turn, however even that was speculative at best. Nonetheless, because my client was alleged to have committed these several infractions in the same incident, and the violations charged go to prevent the same “harm or evil,” then charging all 3 charges instead of just one violates New York’s Constitution as well as statutory protections against Double Jeopardy. These constitutional protections are also codified in New York’s Criminal Procedure Law, CPL § 40.20.
In this case for example it is plain to see that unsafe lane change seeks to prevent the same harm that failing to signal seeks to prevent. The state compels a motorist to signal when changing lanes because it is unsafe to change lanes without giving those around you a signal. Likewise, changing lanes unsafely, whether or not you signal, is also sought to be avoided under the law. Consequently, while both statutes state different elements which the law compels a motorist to do or prohibits a motorist from doing, both statutes seek to prevent the harm caused by changing lanes unsafely. Thus, being prosecuted under both statutes for the same incident is in laymen’s terms overkill, but in legal terms prohibited under constitutional double jeopardy protections.
Another common traffic double jeopardy protection is prohibiting the police from charging speeding in multiple jurisdictions on a single motor vehicle stop. Indeed, the NYS Court of Appeals held so much in People v. Claud, 76 N.Y.2d 951, 565 N.E.2d 469, 563 N.Y.S.2d 720 (1990), when they concluded that even though there were 2 different jurisdictions involved, to allow two speeding tickets to be issued arising out of the same speeding incident simply because a geographic border was crossed would violate double jeopardy protections.
Multiple counts on a traffic stop are a big problem. They can easily lead to loss of driving privileges, huge insurance increases once you get back on the road, as well as thousands of dollars in fines and surcharges. If you were given even a single moving violation you should contact our office at once. Being given more than 1 ticket on a single stop creates even more urgency. Always call us before doing anything when you receive a traffic ticket. The phone call and advice is always at no cost to you!