My brother’s son is in law school and told me that I should use an ‘affirmative defense’ to the overweight ticket I received. Here is what happened: I went over a bridge in a small town only to meet the local constable on the other side of the bridge who waved me over and put me on his portable scales. Yep, I was overweight on his scales and was given a ticket for $830. Is the kid right about this affirmative defense and if not what can I do?
John C., OK
The defendant (you) would admit guilt to being overweight with an affirmative defense but you can plead not guilty with a negating defense. Simply put, the first one says, “I did it but please don’t punish me because I have an excuse” while the second one says, “I didn’t do it and you can’t prove I did.” Let’s look at both to determine which may work best for you.
In any crime, and traffic tickets are treated as crimes, the prosecutor must prove all the elements of the crime beyond a reasonable doubt in order for you to be found guilty. You just do the prosecutor’s job for him when you plead guilty. He then asks the judge to punish you with either a fine or jail or both depending upon the crime, so that is seldom a good option.
Considering the affirmative defense first, you would need to admit your guilt but have an affirmative defense to bring in additional facts or an explanation to justify your conduct. Some of the usual affirmative defenses are mental illness, self defense, intoxication, duress, mistake of fact or even entrapment. If you can convince the judge your actions were justified then you may be exonerated or have your liability reduced.
In your case an affirmative defense could be any one of the following reasons:
- You had an overweight permit allowing you to haul extra weight.
- You were a utility vehicle and exempted by state statute during an emergency.
- The bridge was not posted for a lesser weight than the highway you were on.
- The posting was not visible upon approaching the bridge.
Here are some other ways you could claim an affirmative defensive:
- You could allege entrapment where the officer suggested or ordered you to go over the bridge or if you were following DETOUR signs.
- You could claim self-defense if you went over the bridge to escape being chased by criminals.
- You could allege duress if you were a trainee and your trainer told you to go over the bridge, or as a driver and the company told you to go over the bridge.
- You could allege mistake as in you had the bill of lading showing your weight was legal or you actually had weighed the vehicle and had a scale ticket showing a legal weight so you thought it was legal to go over the bridge.
- You could claim mental illness or intoxication. However, since you are a truck driver I would suggest you refrain from pleading a mental illness or intoxication for your defense of your vehicle being overweight.
With any affirmative defense you must first admit the crime then use the defense as an excuse why you should not be punished.
The other type of defense is the negating defense, which attempts to remove or disprove one of the elements of the crime. Let’s use your being overweight as an example and, depending upon the jurisdiction, the usual general elements of the crime. First, your vehicle weighs more than the permitted weight for that bridge. Second, the weight limit for the bridge was posted and able to be seen upon approach to the bridge. Third, you were on a public road. And four, you crossed the bridge.
Without getting into who posts the weights and signs, was there a sign visible to you upon your approach? Could you read it, meaning was it obscured by a tree or fog or a parked vehicle? Were you on a public road and not a private road? Did you cross the bridge? Did your vehicle weigh more than the posted bridge limit and if so, who said it did and how did they determine it was overweight?
This is where your attorney would be showing photographs to the judge of the bridge and signs trying to show you were not properly notified of the weight limit. He should also try to show that the officer was not properly trained on the portable scales. The portable scales were not functioning properly or they were not calibrated timely or accurately. He should also try to show the judge that the officer always sits there catching trucks for money and not warning them not to cross as a safety precaution. How can the officer tell a truck is overweight only after it has crossed the bridge – that is just crazy, right?
The attorney should also be discussing the proper posting and weight determination by the state highway department; did they do it right and as prescribed by law? The attorney could also seek the amount of fines collected for that bridge and compare that to the total amount of traffic fines collected for the jurisdiction. The State Supreme Court determined that a few towns had speed traps just to collect money by using their speeding ticket fines from out-of-towners verses the amount of fines collected from local drivers.
Sometimes when money is short, it seems extra funds are found by setting traps for the unwary. They settle for the money by putting property and lives at stake for the extra cash. If money is not the issue, then they need better signs and lights to warn drivers about the bridge and give them ample opportunity to avoid that bridge, if they really cared about the bridge, property, and people.
What can you do when this happens to you? First ask yourself if you can make a simple and believable argument of why you had to go over that bridge and hope the judge believes you and dismisses or reduces your fine. This is similar to throwing yourself upon the mercy of the court. Second, if you or your lawyer thinks you can disprove any one of the elements of the crime then you should go that route.