Family Man, Attorney & Author
As a former prosecutor, I worked on many Reckless and Careless Driving cases. The great majority of these cases were based on a ticket issued by a police officer, and rarely had a police report, statements or other evidence. Occasionally we may have had a video from the police cruiser or a private video recording from a residence or commercial property. There's a major difference between these two type of charges.
In Michigan, Reckless Driving is a criminal misdemeanor punishable by 93 days in jail. It can also suspend your driver's license for 90 days and put six points on your driving record. This means potential increases in car insurance and depending on your driving record, it could trigger additional license sanctions.
In contrast, Careless Driving is a civil infraction, which is not punishable by jail time, and does not alone suspend your license, but rather adds three points to your driving record.
Let's start with the Reckless Driving. As a former prosecutor I typically only had a ticket with a charge on it; the lack of a police report put me in a tough situation to evaluate the case; I had to rely upon talking directly to the police officer about what happened. This differs from most other cases where I have a full file of information about the case. As a former prosecutor, I had a burden to prove my case if the case proceeded to trial. The burden of proof is the following beyond a reasonable doubt:
"Willful or wanton disregard" means more than simple carelessness but does not require proof of an intent to cause harm. It means knowingly disregarding the possible risks to the safety of people or property.
Careless Driving on the other hand requires the prosecution to prove you drove in a careless, imprudent or negligent manner. Reckless requires you intentionally drove in a certain manner, whereas Careless doesn’t look to your willful disregard but rather the results of your driving.
As a former prosecutor, after speaking to the officer, I needed to decide the strength of my case. I would also look at the driving record of the charged person. Depending on the facts of the case, and the master driving record, I would be open to potentially working out a deal with the defense lawyer. Unfortunately it was rare that a criminal defense lawyer properly laid out the right justification to get the deal done.
Having learned from the mistakes of others, I approach these type of cases in a very different manner. I start with that same ticket issued to my client, but then speak to the client about their version of the case. I understand that my client's version is likely skewed a bit toward a favorable version, and there is a middle ground to what actually happened, because the same applies to the cop; tickets are issued to prosecute.
As a criminal defense lawyer I have to weigh the "asshole factor" of the case. Most cops will cut the driver a break and not issue a Reckless Driving ticket unless something was going on above and beyond the typical case. Was my client actually doing something a lot worse on the road, or did the cop just think my client was an asshole?
We all drive on the same roads and we judge what people do around us. I've watched people do some crazy things on the road, and think "wow that person is an asshole". It's a quick judgment, but I don't have the full story; I don't know why that person is actually driving that way or where they are going. Same is true for the police officer. They may see my client driving for a 5-10 second clip and hit them with this serious offense.
Cases can also be overcharged out on the road if the cop doesn't like my client for whatever reason. Issuing an overcharged ticket is more common in my experience than submitting a formal charge request to a prosecutor; less checks and balances involved.
My client may have actually fit the parameters of one of these offenses at that moment, but should they suffer the long-term consequences because of that moment in time? I believe it's important to view the case outside the four corners of the ticket; the observation of that police officer is only a very small sample of who my client is within their community, family and in their career. It may also be cop vs client versions with no independent information offered to the defense and prosecution to weigh.
I work with people who need to drive to survive, keep jobs, travel; I even work with many clients in the auto industry who test drive cars for a living!
So what we do is better understand what was actually going on from my client's point of view then we work to take the "asshole factor" off the case. We also acknowledge the perception of our audience and put proactive steps in place to show that this case is a learning opportunity for the client, and a chance to be a better and safer driving going forward. This could mean a driver improvement class, safe driving course, community service, counseling etc. There is no limit to what we can put in place to change the perception of the client's case.
If the cop thinks you're an asshole then he/she is going to relay those thoughts to the prosecutor who will not budge off the charge and invite a trial with a motivated cop on the stand to nail you on the charge. There is a path to keeping your sword away and building consensus in Reckless and Careless Driving cases in Michigan.
If a case comes down to cop vs client, the client is going to struggle to win that trial with the trier of fact. The main goal is to avoid that confrontation and get the police officer to agree with our plan and get the prosecutor to agree. All cases are different, which provide unique challenges, but everyone involved has a degree of common sense, and reaching a consensus which matches your goals is the ultimate outcome for a client going to court on a serious charge.
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