Why is Every Accident Careless Driving? And some other misunderstandings…
I used to ask myself this question. In my, let me call them inexperienced days, I would wonder why police would lay a charge so hard to prove. Why not what the person actually did. The paradigm shift in how & why things were took on a whole new meaning.
Lets consider a True / False set of statements. Answer True or False and lets see how you make out.
1. Police should charge people with what they actually did. This ensures justice is served.
2. Prosecutors should provide disclosure in a timely fashion. This ensures I can make full answer and defence on behalf of my client and manage their expectations.
3. Trials should be set within a reasonable period of time. This ensures trials be heard on the merits. You can also close your file sooner and have a happy client, sooner.
4. Disclosure, when provided, should be complete so as to reduce any further disclosure requests and avoid unnecessary adjournments.
5. Prosecution units should ensure all witnesses are properly summonsed to avoid unnecessary adjournments.
Ok. So who amongst the readers answered true to any of the questions. Every answer of true is wrong. Well, if you’re defending, either clients or yourself, then true answers will hurt. Why? Because presumably you want to win. Here are some simple truths.
1. You want police to lay the wrong charge so you have a great argument in trial.
2. You want disclosure to not be produced so you can argue for relief in your client’s favour.
3. You want the trial to take longer than reasonably necessary so you can argue unreasonable delay.
4. You want disclosure to be incomplete so you can argue it’s deficient.
5. You want witnesses not coming to court so the charges are easier to win.
Hopefully that makes some sense to you. With a shift in how we think about cases, lets take a closer look at the careless driving accidents.
Joe accused has a lane change collision with Johnny Complainant. Police attend the scene and charge Joe Accused.
The facts are a simple lane change accident. So lets now analyze the various outcomes.
The police charge Joe Accused with Careless Driving. Joe has 2 options. He can either:
a) Resolve to a lesser offence
b) Try the case
In the first scenario, the defendant pleads guilty to something less than careless driving (usually a minor infraction). This scenario on its face seems win / win. The prosecution saves the time and trouble of a trial. The Defendant gets a reduced charge. A bird in the hand. A no risk guaranteed minor infraction without the need for a trial. This option is quite attractive an incredibly high number of people choose this option. The problem from the defence perspective is this; The prosecution usually can’t prove careless driving. The threshold for careless driving is high and often, the driving conduct required to prove careless driving, just isn’t there yet, people keep pleading guilty to something less and think they’ve won. This happens so much that trial schedulers know they can put more cases than can be tried on a docket. Mostly because guilty pleas are quick and short whereas trials are much longer.
This is the most common scenario.
If Joe accused goes to trial, he would likely succeed in the above facts. The trial would would take longer than a guilty plea to something less but the result would be better in a trial. The trial is not 100% but if we follow the law on the charge of careless driving, we all know that the almost sure result is an acquittal.
So if a trial is held on the careless, it’ll be more work but the result will be better. While not directly in line with this blog post, keep it in mind thinking about fees. I’ll circle back to this shortly.
This is a bit more difficult. At least from all perspectives. It’s easier to prove, nowhere to negotiate down, no point in a guilty plea, and you’re forced to look for alternate ways to win. Not that you shouldn’t be having the plan B options in the back of your mind anyway but your work is definitely cut out for you.
In fact, the charge is less serious and already a minor charge. This makes managing your client’s expectations that much harder. And if you’re representing yourself, you will be spending a lot of time on reading the charter and such.
This scenario is also difficult for police / prosecution unit. They actually have to prove the charge. There’s no real incentive for the defendant to plead. They have to go through all that work and end up with a likely lane change conviction. Had they laid a Careless Driving Charge, they could have likely negotiated the Lane Change and saved a trial.
From the 2 different charges, you can see why it’s attractive to a police officer to lay the Careless Driving charge. There’s a stronger likelihood of resolving, most people feel good about a reduction (oblivious or not to the fact that they might not have been able to prove Careless Driving) and statistically, they can process more charges on a docket.
As a Traffic Ticket Paralegal who defends people, I’m quite happy with police laying Careless Driving Charges. It means I can win more, get ecstatic clients instead of happy ones, up the success rate and generally speaking, have fun doing more trials in cases I’m likely to win.
If a client is charged with Careless Driving, remember how hard it is to prove. Do an in depth risk analysis of going to trial. There are so many cases where a reduced charge is an easy way out and not the best way out. Police will routinely lay a Careless Driving knowing full well it will likely be resolved to something less. They’re practically giving you a win.
The trial will take longer. This is true. Charge more. You’re spending more time, doing more work and people are generally happy to pay more knowing they’ll get a better result. My personal focus is quality over quantity and so far, it’s been working out. You may have less clients but you’ll make more money; your reputation as a trial litigator will also climb higher.
If you’re a self represented defendant, or a paralegal about to represent someone on a Careless, chances are you want to win. So focus on the big picture and JUST WIN IT!