By Jeff McConnell & James Mennella
attorneys at law
It's a good idea for you and your attorney to take a hard look at trial preparation and find out whether the prosecution has the right recipe when they try to make their case against you. It sounds simplistic, but the process can be compared to a baking a cake. If you have all of the right ingredients, a cake is the result. If you don't, then it may look like a cake, but it's not.
Here are a few pointers from a recent case we took to trial in our local municipal court.
Q: What is the first thing I should do in preparing for a trial?
A: The first thing to do in every case once it is set for trial is to get a copy of the federal/state statute or city ordinance you are charged with. Once you have this document, you can determine what is required to be found guilty of the charge.
Many violations have a specific set of elements that must be shown by the prosecution in order to prove that you violated the law. For example, the current version of the Oklahoma State Statute on "Full Time and Attention to Driving" 47 O.S. section 11-901b reads:
The operator of every vehicle, while driving, shall devote their full time and attention to such driving.
No law enforcement officer shall issue a citation under this section unless the operator of the vehicle is involved in an accident.
In order for you to be found guilty of this charge two elements must be found. First, that you failed to devote your full time and attention and, second, that an accident was involved.
Q: So what happens if all of the elements are not met?
A: If the prosecution fails to prove any of the elements of the violation, then a motion to dismiss should be made to the court. For an interesting twist, this is what happened in our case.
The officer cited our client for "Full Time and Attention to Driving." The interesting part is that he wrote the violation under the municipal code rather than the Oklahoma state statute. In comparing the two, they are not the same. The Municipal code article I section 32-10 – Attention to Driving Required reads:
The operator of every vehicle while driving shall devote his full time and attention to such driving.
So, we have a problem now as the municipal code (no accident required) is different from the state statute (requires an accident).
What do we do? In our case, we're in municipal court and operating according to the municipal code. Remember, the municipal code in this example did not require an accident in order to be charged with "Failure to Devote Full Attention." So are we sunk?
No, we're not sunk because the state law did require an accident to have occurred before a "Failure to Devote" ticket could be issued.
In Oklahoma, as in most other states, municipal laws may not conflict or run counter to state laws. When this happens, as in our case, the municipal law is deemed illegal and cannot be used against you. Simply comparing the state and municipal laws and finding out they weren't the same was enough to have our case dismissed. A trial wasn't necessary.
The bottom line: Be sure to compare your state and municipal laws for any differences and let the court know if you find any.LL
Send any questions or comments regarding transportation law to:
Jeff McConnell and
James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City,
OK 73134, call 405-242-2030,
fax 405-242-2040, or e-mail