Posted: 6/3/2013 8:38:07 AM EDT
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Have to go to traffic court today for a non-jury trial. Was ticked for a horn violation (honking for a reason other than a warning). I am cheap and want the experience arguing in fron of a judge, so I am representing myself. (Also, it is just a traffic ticket, so if I lose I am not going to be super upset). So here is the deal, I want to represent myself without testifying because I don't want to have to answer the obvious question- Did I do it? There is an extreme lack of evidence. The officer didn't observe me honking and ticked me based on asking a pedestrian who pointed in my general direction. Furthermore, even if I am found to be guilty of the horn violation, I want to claim an affirmative defense in the first amendment. So how do I present this to the court? Do I say, Your honor, I am prepared to show there is no evidence that I committed the offense and that even if evidence does show I committed the offense, I will then present evidence that ticketing me on this violation is an infringement of the free speech clause of the first amendment. I already have searched westlaw, have relevant cases on the Constitutional aspects, and have visual aides and what not on the lack of evidence by the state. I also have prepared questions to ask the ticketing officer that will force her to admit that she is presenting evidence of hearsay. How do I do this without actually testifying? I will not lie under oath and if arguing the lack of evidence is too risky, I will just present the constitutional issue and most likely lose and have to appeal. |
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What does the ordnance say?
Usually the city attorney has to put the officer on the stand. Then you can cross examine. After he's done you can ask the judge to dismiss if he hasn't made a prima facie case. Then you could call your own witnesses or testify yourself. I'd stay away from random constitutional arguements |
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The officer testifies regarding her observations that led to the citation.
(If the officer says she didn't observe the infraction, the court should dismiss the ticket) If the officer does not mention observing the infraction, wait for your turn to speak. You should be given the opportunity to ask several questions regarding the officer's statements before you make your statements. You then get to ask questions regarding the officer's statements. (Hopefully the officer states she did not observe the infraction and the court then dismisses the ticket) If your ticket is not dismissed after that, do not make a statement that incriminates your actions. Simply state the officer did not see you honk the horn. Your first amendment rights will not trump the simple law regarding sounding the horn unnecessarily. You will lose on that issue. You hope lays in the fact the officer did not observe the offence. Otherwise, pay the fine an quit playing around with your horn. 
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Quoted: So you are admitting to honking your horn but want to claim free speech? That is is like the person who comes to court claiming to only have been doing 70 in a 55 not the 75 ticketed speed. No, I am not admitting to anything, but if the court were to find that based on the facts I did honk the horn, I could then claim that the law is unconstitutional based on the 1st and 14th (free speech in a traditional pulic forum, which is subject to strict scrutiny and the law must serve a compelling governmental interest). Further, there is case law that backs this up. |
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Rights can be regulated with laws.
That being said, you can take your shot. Start with the basics...witness? Where are they? What was there name so I can subpoena them? Where is their written statement? Is is possible that the witness, whom is being represented as the only party to hear the noise, was incorrect in their identification? Did my vehicle's horn sound like the toot in question? Did you determine that my horn actually functions? Did you determine that the toot was unjustified? Is it possible that there could have been a reason that you failed to observe? Hence, relying on a horn witness. |
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When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer.
Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. 
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So you are admitting to honking your horn but want to claim free speech? That is is like the person who comes to court claiming to only have been doing 70 in a 55 not the 75 ticketed speed. No, I am not admitting to anything, but if the court were to find that based on the facts I did honk the horn, I could then claim that the law is unconstitutional based on the 1st and 14th (free speech in a traditional pulic forum, which is subject to strict scrutiny and the law must serve a compelling governmental interest). Further, there is case law that backs this up. What are you going to say if they ask did you honk the horn? |
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So you are admitting to honking your horn but want to claim free speech? That is is like the person who comes to court claiming to only have been doing 70 in a 55 not the 75 ticketed speed. No, I am not admitting to anything, but if the court were to find that based on the facts I did honk the horn, I could then claim that the law is unconstitutional based on the 1st and 14th (free speech in a traditional pulic forum, which is subject to strict scrutiny and the law must serve a compelling governmental interest). Further, there is case law that backs this up. What are you going to say if they ask did you honk the horn? Why, he'll plead the fifth of course. 
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Quoted: yes, but the govt has the burden of proof to show that there is a compelling govt interest in that restriction.When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer. Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. |
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yes, but the govt has the burden of proof to show that there is a compelling govt interest in that restriction.
When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer. Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. Is public health compelling enough for you? |
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I haven't blown a horn in a vehicle in over 30 years. I don't even know if any of my vehicles even have a horn. The only reason I have ever blown a horn is while getting a car inspected in a nanny state that required it. Haven't lived in one of those in 35 years.
WTF were you blowing your horn? |
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Quoted: Quoted: Quoted: yes, but the govt has the burden of proof to show that there is a compelling govt interest in that restriction.When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer. Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. Is public health compelling enough for you? a blanket restriction on honking is more restrictive than necessary to protect public health. |
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yes, but the govt has the burden of proof to show that there is a compelling govt interest in that restriction.
When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer. Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. Is public health compelling enough for you? a blanket restriction on honking is more restrictive than necessary to protect public health. But it's not a blanket restriction is it? |
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Quoted: Quoted: Quoted: Quoted: Quoted: yes, but the govt has the burden of proof to show that there is a compelling govt interest in that restriction.When you cross examine the officer don't ask the officer why, or any question to which you don't already know the answer or have the ability to offer the correct answer. Also, it is permissible to apply time, place and manner restrictions on free speech. Think about how that might apply in your case. Have fun. Is public health compelling enough for you? a blanket restriction on honking is more restrictive than necessary to protect public health. But it's not a blanket restriction is it? Yes, the municode says that it is a violation to honk for any reason other than to give a warning. Technically, it would then be illegal to honk during a state inspection. This law is over inclusive. It is also under inclusive because it does not make all distracting noises a violation. |
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Well I guess he's off to court by now, lets see how this turns out, hope he's convinced to not use the 1A as a defense court is late this afternoon. Just focus on the elements of the infraction, the key element in your case is whether the officer can prove she knows you honked your horn. IE: Did you observe driver physically honk the horn by depressing the horn button on the steering wheel? - No. Were there any other cars in the vicinity? Yes. How many? This line of questioning will show how whether you honked the horn is based on speculation by the officer. |
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In for results.
(Oh, and if you do bring the 1st Amendment up over a traffic ticket for honking your horn, that grinding noise you might be able to hear is the judge fantasizing about watching you being eaten alive by badgers while he grinds his teeth and tries to come up with the wittiest slap down he can think of to your argument before finding you guilty and assessing the fine and court costs.) |
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But it's not a blanket restriction is it? Yes, the municode says that it is a violation to honk for any reason other than to give a warning. Technically, it would then be illegal to honk during a state inspection. This law is over inclusive. It is also under inclusive because it does not make all distracting noises a violation. So, you're saying it's a blanket restriction despite the exception? Interesting. Maybe you should argue it's a content based restriction since it only allows honking to express a warning.
I wish I could be in the courtroom with you . . . just so I could watch as it happens. 
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Quoted: Quoted: Quoted: But it's not a blanket restriction is it? Yes, the municode says that it is a violation to honk for any reason other than to give a warning. Technically, it would then be illegal to honk during a state inspection. This law is over inclusive. It is also under inclusive because it does not make all distracting noises a violation. So, you're saying it's a blanket restriction despite the exception? Interesting. Maybe you should argue it's a content based restriction since it only allows honking to express a warning. I wish I could be in the courtroom with you . . . just so I could watch as it happens. LOL, I have a feeling I will lose, but I am going to try. |
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IANAL (but I played one in the Navy for a while), TINLA, etc...
but I think you'd be better off keeping it simple. Your goal is to get out of the fine and court costs, not to try to overturn the ordinance. Traffic Court judges probably aren't real interested in wasting their time hearing you spout a Constitutional argument, and probably can't/won't make a ruling on constitutional grounds anyhow. Never piss off the judge. The burden of proof is on the state, not on you, so you don't have to "prove" a lack of evidence, rather the state must produce the evidence, so if the cop did not personally oberve the offense, or there is no video recording, and the complaining pedestrian isn't in court to testify against you.... then there is no evidence for them to produce. YMMV |
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Bump to show the situation: You are sitting in traffic down town on Bowie St next to the Rivercenter Marriott for 20 minutes. Traffic is extremely slow and as you slowly approach the intersection you notice that the cause of the traffic is policemen directing it rather than the traffic lights. Someone in the congestion of cars begins honking their horn to let the police know they are not happy about having to sit in traffic. Keep in mind this is down town, so noises can be distorted as they echo off of buildings. All of a sudden, a policewoman walks towards you. (You were approximately five cars away from the intersection and not in line of sight of the policewoman. There are also 3 lanes of traffic, so about 20 or so cars in the area) as the policewoman walks your direction, she is unsure of the source of the horn, so she asks pedestrians where the sound came from. The pedestrians shrug, and point towards you vehicle. You are cited for "improper use of horn" and fined $164. You also notice that on the ticket, it is indicated that the officer observed the "violation", which is untrue. |
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Questions I would have asked the officer if she would have shown up and if I was not making the Constitutional argument: Where were you when you heard the honking? Did you observe the driver physically honk the horn by depressing the button on the steering wheel? Were any other cars in the vicinity? How many? Did you determine the Defendant's horn sounded like the horn in question? Did you determine that the Defendant's horn was operational? Let the record show that the issuance of the citation is based on speculation by the officer. I rest my case. Case Law to be presented if the officer would have shown and if I would have made the Constitutional argument was: City of Houston v. Hill, 482 US 451 (1987). - First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. - The freedom of individuals...to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. Goedert v. City of Ferndale, 596 F.Supp. 2d 1027 (2008). - Honking horns to convey a message other than a warning is "speech" protected by the First Amendment. - Two part test to determine whether conduct is communicative protected speech: 1) Whether intent to convey a message was present, 2) Whether the likelihood was great that the message would be understood by those who viewed it. - If a honk is just a honk, then the police cannot distinguish lawful v. non-lawful. |
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Your cross examination of the officer:
1. You heard the sound of a horn? 2. You asked a pedestrian to tell you where the sound came from? 3. So in issuing this ticket, you relied on the evidence of a pedestrian? 4. You asked the pedestrian to tell you where the sound came from, because you yourself did not know the origin of the sound?| 5. Other than a second hand account of a pedestrian, you have no evidence as to the origin of the sound? Then sit down and shut your yap. And at the end of the prosecutor's case, bring an application for a directed verdict. I bet that the prosecutor will not get the pedestrian to show up. |
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Questions I would have asked the officer if she would have shown up and if I was not making the Constitutional argument: Where were you when you heard the honking? Did you observe the driver physically honk the horn by depressing the button on the steering wheel? Were any other cars in the vicinity? How many? Did you determine the Defendant's horn sounded like the horn in question? Did you determine that the Defendant's horn was operational? Let the record show that the issuance of the citation is based on speculation by the officer. I rest my case. Case Law to be presented if the officer would have shown and if I would have made the Constitutional argument was: City of Houston v. Hill, 482 US 451 (1987). - First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. - The freedom of individuals...to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. Goedert v. City of Ferndale, 596 F.Supp. 2d 1027 (2008). - Honking horns to convey a message other than a warning is "speech" protected by the First Amendment. - Two part test to determine whether conduct is communicative protected speech: 1) Whether intent to convey a message was present, 2) Whether the likelihood was great that the message would be understood by those who viewed it. - If a honk is just a honk, then the police cannot distinguish lawful v. non-lawful. This is one of those times similar to an oral quiz when you answer the question without offering up anything extra that opens you up to probing questions to find out what you really know. Ask a basic question to get a fact, then another if necessary, then shut up, you're playing in the judge and prosecutors territory and they'll turn the tables fast. |