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NEW YORK TRAFFIC VIOLATIONS: CAN AN OFFICER ISSUE A TICKET FOR A TRAFFIC VIOLATION HE OF SHE DID NOT WITNESS?

Generally, an officer may arrest a person when that officer has reasonable cause to believe that person committed a crime, whether in the officer’s presence or not. However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence. There are a limited number of exceptions to this law. (See CPL § 140.10).
This issue frequently arises when an officer arrives on the scene of an accident; interviews witnesses and determines that, for example, a motorist was speeding, traveling to closely, or changed lanes unsafely and issues a ticket accordingly. However, since speeding, traveling to closely or changing lanes unsafely are all non-criminal offenses (they are traffic infractions), can the officer issue a ticket even though the offenses were not committed in his presence?
I must say, I was surprised to learn that the answer is yes. First, the law says that an officer may not arrest for a non-criminal offense not committed in his presence. It says nothing about the issuance of a ticket. (See CPL § 140.10). Second, in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968), the Court of Appeals held that a traffic ticket may be based upon “information and belief”. That means that an officer need not have personal knowledge of the traffic infraction – he or she need not actually witness the traffic infraction.
Therefore, if you had an accident, the officer who arrives on scene could issue you a ticket for unreasonable speed even though that officer didn’t personally witness you driving the vehicle or the accident. However, unlike a ticket issued by an officer based upon his or her direct observation of the traffic infraction, where an officer issues a ticket based upon “information and belief” developed from interviewing witnesses, those witnesses would have to appear and testify in court. Unless the officer or other witnesses called by the prosecution was an accident reconstruction experts that could offer expert testimony as to your speed, eyewitnesses would have to give testimony at trial. The point is, if the officer doesn’t witness the traffic violation, other eyewitnesses or experts will be needed by the prosecution to convict you. (See for example, People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Justice Court 1992)(holding that it is not proper for a police officer to arrive at the scene of an accident, take oral statements of all those involved, decide who and what to believe and then issue a uniform traffic ticket charging only an offense to one of the involved motorists)
For more information about any traffic related matter including speeding, driving while intoxicated or reckless driving, please call Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.drsummons.com.