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Discovery in New Jersey Motor Vehicle & Traffic Cases

Most citizens and new attorneys interact with the judicial system through the municipal court system. This is done through one primary way, namely, charges for motor vehicle violations, such as speeding, careless driving, minor car accidents and the like.

Going to court can be intimidating for most people. If they choose to represent themselves, they can make major mistakes that can jeopardize their case. If they decide to hire an attorney to represent them, they are confronted with a confusing and aggressive menu, where hundreds if not thousands of attorneys, both local and statewide, compete for their attention and business.

The first and most important thing to know is that no attorney or law firm can guarantee results. This is against the rules and the law. It would be akin to a doctor talking to a cancer patient over the phone, and promising to cure her of cancer, without so much as a clinical diagnosis, operation or course of treatment. Second, you never know what's going to happen until you go to court. Third, and perhaps most importantly, you can never ensure the best possible outcome unless you (if you are pro se) or your attorney requests full discovery.

Why is this the case? If you request legally permissible discovery, and the state repeatedly fails to grant you said discovery, after numerous court appearances, then both you and the state really can't go forward on the day of trial and you have substantive and legally recognized grounds to request a Motion to Dismiss, grounds that have been upheld by the highest courts in our state. (See State v. Holup, 253 NJ Super. 320 (App Div 1992)).

In my opinion, an insufficient number of attorneys request discovery in traffic/speed violation cases. Sure, the vast majority request discovery in DWI/DUI, drug possession and Disorderly Persons/Petty Disorderly Persons cases. Instead, I've noticed that far too many attorneys handle traffic/speeding matters merely by way of a quick and easy plea-bargain, usually to the 97.2 "unsafe driving" amendment. This is something that many folks can easily get on their own without hiring an attorney, depending on the charge they have. Sure, if you have 10 tickets amounting to something like 12 points worth of potential penalties, and you hire a lawyer go gets most of the tickets dismissed and all you walk away with is a 97.2---that's an amazing feat of legal prowess. Your lawyer did an amazing job. But if you are 30 years old, have never had a ticket, have been driving since you were 16, and just received a 2 point speeding ticket without any accident or property damage---you may not necessarily need a lawyer to assist you in getting the 97.2.

Now, let's say that somebody has a really bad set of traffic tickets, or a really bad individual ticket. Let's say that this person hired a lawyer and that this attorney didn't request any discovery (something that, again, happens all too often). What will frequently happen is that this attorney will flutter into court, try to schmooze or sweet-talk the prosecutor into a good plea-bargain, and it will fail. Granted, some prosecutors are nicer/tougher than others. However, I've found that most prosecutors are serious people. They take their jobs seriously, especially their duty to protect the public. If the prosecutor is "worth his or her salt" then he/she will not cave-in and grant the lawyer a major plea-bargain concession at the drop of a dime. Why would they? What incentive do they have?

In many ways, plea-bargaining is like poker. And the way to get the pot-of-gold, is to have a winning-hand. You get this winning hand through discovery. If the state really does have a winning-hand, you need to call their bluff. You do this through the discovery process. When you send a discovery request to the Prosecutor, you are basically calling their bluff and asking them to show their cards. You are saying that you don't believe they have a winning hand, and that if they want you to fold during this round, they need to show you the proof.

But the thing is, Prosecutors have limited resources. They usually don't want to keep throwing money in the pot with each passing round. They have an incentive to get Defendants to fold as early and as quickly as possible. And they do this by bluffing. If you don't call their bluff, through a discovery request, you are basically forfeiting the entire game. A failure to send a discovery request shows the prosecutor that you and/or your attorney doesn't know the rules of the game. If you don't know how to play, why should he/she do you a favor and grant you a concession? Because she likes your smile? Give me a break!

Most municipal prosecutors hate trials, because they cost money. Municipalities, especially those in conservative Republican areas, are beholden to taxpayers, and there is a major incentive to keep costs down. There is an ideological fixation on balanced budgets and a philosophical aversion toward deficit spending and financing, even through municipal bonds, to a degree. Prosecutors who can keep costs down are rewarded. Prosecutors who try too many cases are sometimes penalized.

This is in contrast to insurance companies, who may be equally conservative, but who are far more pragmatic, usually because they (a) have a larger war-chest and (b) fiscally conservative businessmen shareholders tend to be more intelligent than elected, ideologically conservative politicians. Many insurance companies, of course, will settle many cases in a rather quick manner, but this exposes them to all sorts of abuse from the Plaintiff's bar. The clever insurance companies, though, will "make examples" of certain firms. Here, they will spend lots of money on certain trials (which they know are frivolous) with the intent of smashing the Plaintiff's firm so as to make them think twice about pulling such a stunt again in the future. Or, they will try to ruin the credibility of the firm through a highly publicized trial so as to hurt their long-term business and prevent them from being a long-term threat to the industry in general. Or, they will use the trial to send a message to litigious Plaintiffs in the community to think twice about abusing the system and making such claims. Here, a single insurance company is doing a service not only to themselves, but to other insurance companies, the Defense bar and the court system in general.

The basic idea with such companies is that the onslaught of lawsuits they face from the plaintiff's bar is analogous to the "domino theory" of Eastern Bloc espansion faced by the West during the Cold War, such that they need to employ a strategy of surgical deterrence in order to prevent the "ink blot" from spreading.

Now, how does this relate to discovery?

If you request all the discovery you are legally entitled to, there is a chance that the municipal prosecutor will not be able to meet all of your demands. Since I've opened up my own business and gone solo, I have requested discovery in all my municipal court cases. In quite a few of these cases, few municipalities meet the entirety of their discovery burden. I don't know why this is. Now, had the clients wished to proceed, there is a fair chance we could have won on either (a) a Motion to Dismiss, or (b) a Trial.

However, the Prosecutors always offered us a pretty good plea-bargain as a result of these discovery insufficiencies, and my clients jumped at these deals. This is their prerogative. Personally, I like going all the way, and taking things to trial. I take every case with the end-game in mind. Why execute a Blitzkrieg, unless you plan on taking the enemy's capitol and burning it to the ground? That said, the client is the boss, and if they want to resolve the dispute in peaceful, diplomatic settlement of sorts, then that's what we shall do.

The thing is, many clients have to take-off from work or school in order to come to court. They don't have the time to waste on mere traffic tickets. That said, if we're talking about a five-point ticket with the possibility of a long-term license suspension, things suddenly become more serious in the eyes of the client.

WHAT DISCOVERY CAN YOU REQUEST IN A TRAFFIC CASE?

Under "State v. Green," it is clear that you are entitled to a great deal. You should always request this discovery, and then some. 417 Super. 190 (App. Div. 2010).:

  1. A history of the citing officer's training on the speed-measuring device and who trained him;
  2. The township's training manuals for this measurement device (the specific device, for the specific serial number, not just the device type)
  3. The township's operating manuals for this measurement device (again they must match the serial number)
  4. The State's training and operating manuals (yes, there seems to be both municipal and state operating and training manuals).
  5. Engineering and speed studies, by the Department of Transportation, used to set the speed limit in the specific area where your ticket was given (officers don't always know the speed limit, the city's posted speed limit can often be wrong).
  6. The names and addresses of all people whom the citing officer wrote speeding tickets for, 24 hours prior and 24 hours after, you received a ticket, as well as the disposition of all those cases.
  7. Copies of the citing officer's handwritten notes from this event, and even from the above-mentioned speeding tickets;
  8. Copies of both sides of your speeding ticket (officers can sometimes write crucial notes on the back side);
  9. If you are going to challenge the officer's credibility on the stand, you may want to request a copy of his disciplinary history. This may be denied by the judge. You should only do this if you believe the officer is lying, as it will be seen as abusive and unnecessary in a mere traffic case. However, if you were treated horribly at the scene of the incident, and you believe that the officer is genuinely lying, you have the right to at least request these things. Whether the judge allows you to receive these things is another thing altogether.

*Also remember, that as of 2013, NJ Municipal Police Departments cannot charge you more than 5 cents per page in a discovery request, pursuant to NJ Court Rules 7:7-7(i)1.

  • Furthermore, don't forget that if this is a speeding case, you should always request the tuning fork calibration reports, information about internal and external calibration, the times of calibration and the like (if you are dealing with radar). If you are dealing with LIDAR or Laser, you need to get documents from the NJ Department of Weights and Measures, to ensure that the laser gun was calibrated properly.

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