Under NY law, there are instances when the ticket a cop wrote is invalid on its face and, if you know the law cannot be enforced in court and must be dismissed. However, this knowledge and legal work must be known and done by YOU, because the court is not there to be your advocate. The circumstances which give rise to your ticket being invalid on its face is when
the cop wrote the ticket subsequent to an accident investigation. To fully understand why this is prohibited conduct you must first have some knowledge and understanding of NY Criminal Procedure Law.
There are 3 broad categories of offenses in NY State – felonies, misdemeanors, and infractions. Infractions are sub-divided into 2 categories – regular infractions and petty offenses. Traffic infractions, such as speeding, following too close, failing to maintain a lane, are categorized as petty offenses. See, NY Criminal Procedure Law § 1.20(39).
The reason why a police officer is prohibited from writing a traffic infraction subsequent to an accident investigation is because under NY CPL § 40.10(1)(a) a police officer may make an arrest only “when he has reasonable cause to believe that such person has committed such offense in his presence.”
This rule applies to petty offense infractions only. The police may still arrest subsequent to an accident investigation for misdemeanors and felonies such as DWI and reckless driving. The police can also issue infractions on things they observe in the course of their investigation such as uninsured operation and equipment violations.
Exceptions to the rule against issuing infractions not observed
There are only three specific traffic infraction where an officer should be allowed to arrest or issue an appearance ticket despite the fact that said infractions were not committed in the officer’s presence. Specifically, an officer does have the authority to arrest or issue an appearance ticket in lieu of arrest where motorist leaves the scene of an incident involving property damage in violation of VTL § 600(1), leaves the scene of an incident involving injury to certain animals in violation of VTL § 601, or is accused of Driving While Ability Impaired in violation of VTL 1192(1) if the motorist was involved in an accident. This authority is contained in NYS Vehicle & Traffic Law § 602 and NY VTL § 1194, which specifically over ride the prohibition set forth in CPL § 140.10(1)(a).
Inclusio unius est exclusio alterius
Often times prosecutors argue that the police have the authority to write all tickets subsequent to accident investigations. However, under the rules of statutory construction this is not so. This is because the rule of “inclusio unius est exclusio alterius” applies. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted.
In fact, this ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others.” § 240 states in pertinent part: “Where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” Id.
In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See, e.g., Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964) (Holding that the express grant of power to one person excludes by implication the grant of same powers to another).
The law creates several exceptions to general rule found in CPL § 140.10(1)(a), and there are no exceptions to any other non-criminal traffic violations. Because of this under New York McKinney’s Statutes § 240, the is an irrefutable inference that the law does not exclude any other non-criminal traffic infractions from the CPL § 140.10(1)(a).
How to enforce dismissal
To enforce dismissal of an improperly written ticket not committed in the officer’s presence, the motorist must make a written motion to dismiss on notice. And this is where we come in. If you have been given a ticket subsequent to an auto accident that the police officer did not witness, do not plead guilty to it! Before you do anything give us a call. We have the experience and expertise to handle your case. We handle cases like this all of the time, and would love to talk to you about your case.