Do-It-Yourself guide to Ticketing Bad Drivers:
The Oregon Rules of the Road may be enforced by a private person, and law enforcement officers are required to facilitate the process - statutory protection for bike riders injured by a thoughtless motorist. Create your own day in court and convict the driver of violating the law.
Additional information, including links to the Oregon laws and forms are available at www.stc-law.com.
TRANSFORM THE WORLD THROUGH ACTION
Citizen Initiation of Violation Proceedings
What and Why
Law enforcement agencies do not always have the resources, perspective or legal understanding to investigate and issue citations for traffic law violations. For example, in Portland, city police maintain a departmental policy of facilitating exchange of information between the parties to an accident, but not investigating or issuing citations in traffic accidents unless one of the parties is taken by ambulance to the hospital, or the driver has an outstanding warrant or suspended license. And if the police assist at a collision scene, the investigating officer still has discretion not to issue a traffic ticket, even where there may be a fairly clear violation of the Oregon Vehicle Code. It is often an unpleasant surprise to find out that a motorist accepting fault at the scene later denies it when it comes time to make an insurance claim.
But citizens must consider fully the high costs associated with more intensive traffic accident investigation by police. After all, the civil justice system serves pretty well in sorting out who is at fault in most accidents. Police officers primary mission is to protect public safety, and in the great majority of collisions, fault is clear and investigation of accidents is more appropriately performed by private parties who must figure who and how much to pay for any damages. Regardless of where one draws the line, there is appoint after which it is just more important for an officer to be working on a criminal case than answering a radio call to conduct a traffic investigation for an intersection collision. However, when a motorist disregards the rights of a vulnerable road user it is sometimes worth it to pursue an actual conviction for a traffic violation.
We Can Do It Ourselves
And, without requiring any change in law or policy, Oregon statutes already contain the legal tools for citizens to initiate prosecution of traffic-law breakers. Oregon law allows a citizen to initiate traffic violation prosecutions in state court, AND to have the police help (required by the Oregon statute). But remember, the Oregon statute of limitations for violations is only six months; if the action is not filed within that time then the right to pursue a citizen violation is lost! After the initial report is taken by the police or the traffic court clerk and the citizen signs the Oregon Uniform Citation and Complaint, the completed paperwork is served by the police or court staff on the 'bad' driver summoning them to traffic court to face the charges in a non-jury trial in front of a traffic judge. At the trial the complaining citizen gives an informal presentation of the case, the judge hears evidence and testimony, and if convicted the 'bad' driver receives a conviction and fine for a moving violation - the same if the ticket were issued by a police officer!
The process, known as an "Initiation of Violation Proceeding" is important for vulnerable roadway users - we usually get banged up the most in a collision with a car. Too many of these wrecks occur because some drivers fail to yield or share the road. These drivers are among the most dangerous drivers on the road and it is important that their driving records reflect it. Also, insurance adjusters frequently fail to give adequate recognition to legal rights of non-motorized roadway users. Whether ignorant of the law or just hostile to the other side, many insurance adjusters see a collision case and instinctively favor their insured motorist. Since only the most serious collisions involve law enforcement accident investigation, the person who is hurt after a clear cut violation of the traffic law by a motorist is often disappointed to learn that the driver (who was clearly admitting fault at the scene) is now claiming the other person was at fault. On the other hand if the official court record contains a citation and traffic court conviction of the driver, then the insurance adjuster will be hard pressed to ignore the true liability picture.
Follow the Recipe
The Oregon statute is detailed and task specific. It includes every step of the process. The exact text is printed below because it may be necessary to show it to the authorities. Few Law enforcement personal are likely to have direct experience with the process when it is initiated by a citizen; but most officers are very familiar with the Oregon Uniform Citation and Complaint form (the statewide 'ticket book'). The law requires that the officer facilitate the process. If you dead-end with the officer who first responds then try the department non-emergency and/or traffic phone number. In rural areas, state police and sheriff officers share jurisdiction. The gravity of any injury and seriousness of the motorist's traffic violation will greatly influence the officer's response. Filing these cases over petty traffic standoffs is going to stress a tax-poor law enforcement and court system struggling to contain Oregon's dangerous traffic offenders. But in collisions resulting in injury in which the driver commits a clear violation of the traffic laws, a traffic violation conviction is an option that may be important later to clarify the legal cause of the accident and to make a legal record of the driver's law violation.
How to Initiate a Citizen Initiated Violation Prosecution (Yourself)
Learn the lingo and read ORS 153.058 so you can explain it to someone who has never heard of it and will likely not believe such an unheard of procedure exists until you actually show them the law. Our Website, www.stc-law.com, contains a how-to guide as well as forms and accounts from other citizens who have successfully used the process.
- Contact the officer who investigated your accident or facilitated exchange of traffic accident information, any other officer involved in your accident, the shift Sergeant for that unit on that shift at the time of your accident, the commander for the unit, the executive officer's office (Chief, Sheriff, whatever), the District Attorney's office in your county, the City Attorney office in your city, the traffic department clerk in your local courthouse, or just about any staffer willing to speak with you about it in the courthouse or police station, and show them the statute and this article. If they don't know about the process but are willing to ask someone about, you will probably succeed in getting your case started if you are willing to allow the process to lumber up to speed. REMEMBER PER ORS 131.125, YOU ONLY HAVE SIX MONTHS AFTER THE DATE OF THE INCIDENT TO INITIATE PROCEEDINGS.
- Once you get a law enforcement officer willing to commence your violation proceeding then work through the process with them. They are supposed to create and send a summary of a complaint (which you may be required to swear to and sign), to the clerk'[s office for issuance of a summons. The Oregon Uniform Traffic Citation and Complaint Form may be what most officers choose for issuance of the case.
- If an unhelpful person points out that ORS 153.058 says "A person other than an enforcement officer 'may' commence a violation proceeding....so as to defeat your effort you must point out that the statute does not allow ANY discretion by the officer, the case MUST be commenced once the citizen's complaint is lodged. Further, the court has no discretion in issuing the summons as ORS 153.058 clearly states "the Court 'shall' issue a summons to be delivered...". There is some discretion provided to the court to amend or dismiss a complaint, but issuance of properly presented complaints should not be opposed.
- Ask the officer who issued your case to help you find out about how to present your case. In traffic court you will be in the position usually occupied by the officer who wrote the ticket. Identification of the driver and presentation of evidence must be handled by you and your witnesses. The police or courts will help you and you issue subpoenas to other witnesses in advance of court. If you do not feel like you will be able to present your case then ask for help from the police officer or a friend; again, if you convince the judge at the trial that the defendant violated the law then the conviction that results will be like any other moving violation. If you need more help our office may be able to help depending on the facts of your case.