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In Can you present a clear record if you do Driver Safety Course in Texas?, it was determined that after taking a Driving Safety Course, a record of such action is placed upon one's driving record.

Taking the course in Texas could be for either dismissing a ticket, or for obtaining an insurance discount.

If one has a jury trial for speeding, and claims to have a spotless driving record (which happens to show the course), would the prosecutor be allowed to contradict such statement, and, either directly or indirectly, inform the jury that the record may or may not be clean?

(Additionally, would the driving record itself has to be shown to the jury? Could they ask what the presence of the course means? Jury selection itself would be a separate question.)

  • Look up "prior bad acts". – Nate Eldredge Aug 30 '15 at 14:16
  • This appears to be a pretty exciting question. Why does it have such a low score, even though both answers are pretty highly upvoted? – cnst Aug 31 '15 at 17:50
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One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination.

The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant.

When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness.

Imagine the following interaction:

  • Defendant: I have a spotless driving record.
  • Prosecutor: Are you saying you've never been issued a traffic ticket?
  • Defendant: Um, Uh, well...

When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror.

By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant.

  • Good points, thanks. However, it doesn't really answer the underlying question here -- are you suggesting that even if you do have a spotless driving record (even though you have been issued speeding tickets, which were all dismissed), you are still better off not bringing it up, or what? How do you make use of a clean driving record to your advantage? Wouldn't the prosecutor asking the defendant about being issued prior speeding tickets qualify as bring up "prior bad acts"? – cnst Aug 30 '15 at 20:40
  • @cnst: The point is that the prosecutor can bring up prior bad acts to rebut a defendant's claim of good character. But the defense has to "open the door". – Nate Eldredge Aug 30 '15 at 20:45
  • Well, if one produces an official driving record from the DPS, maybe certified and whatnot, wouldn't it be "evidence" from the agency, instead of "testimony" from the defendant? Why would one have to testify in the first place? Wouldn't it rather be, "the defendant has a clean driving record, according to the DPS", instead of, "I have a clean record"? – cnst Aug 30 '15 at 20:46
  • Someone has to introduce the evidence. The prosecutor isn't going to introduce the evidence be it good or bad. (If, on the other hand, you had a habit of speeding every Friday at the same location then, according to the article I linked in the answer, the prosecutor could introduce your prior bad acts as habitual.) Who will introduce the evidence if not the prosecutor? That would be the defense. The defense can only introduce the evidence if there's going to be some testimony about its meaning. Therefore, the defense opens the door to discussing the driving record. – Dave D Aug 30 '15 at 22:07
  • "How do you make use of a clean driving record?" This would be done during the sentencing phase, not the testimony phase. I've witnessed two uses of this. In the first, a woman got a speeding ticket. She showed up in court, admitted she was speeding, apologized to the court and the police officers and said it was her first ticket in 60 years of driving. The judge dismissed the case. The very next defendant stood up and said essentially the same thing but claimed it was his first ticket in 25 years of driving. It wasn't his first and the judge spent the next 30 minutes expressing his anger. – Dave D Aug 30 '15 at 22:14
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The prosecutor may not offer evidence of you being merely arrested or issued a ticket.

This answer is based on the federal rules of evidence and depending on how similar they are to the Texas rules you may or may not prevail.

To address some additional concerns, let's delve into a segment on the rules and procedure in a courtroom. Your past criminal record and bad acts are generally inadmissible. The exception to this rule is if you decide to testify as a defendant. In that case, the prosecutor may decide to impeach your credibility by introducing evidence that you have committed crimes in the past: https://www.law.cornell.edu/rules/fre/rule_609

Since this is a traffic violation and we do not sentence traffic violators to significant terms in jail, the prosecutor cannot introduce any evidence about your criminal records at all, unless you open the door.

However, you have indicated you wanted to tell the jury that you have a clean driving record. The only way you can introduce this evidence, is to testify to it. You have to take the witness stand and tell the jury that you have never been convicted of driving violation. Because you want to take the stand in this case, you have to waive your privilege against self incrimination. Allowing you to only answer the question you want to answer would violate the concept of fundamental fairness in a court proceeding.

Now let's say you take the stand and testify that you have a spotless record. After you're done saying what you want to say, the prosecutor would get a chance to cross examine you. He could delve in to the specifics of your record. He could ask you about your driving course. He could ask about whether you had to take it. So on, and so forth.

Now assuming you have never plead guilty or no contest to a traffic violation. Nor were you ever convicted.

Rule 403 of the Federal Rules of Evidence states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

Rule 403 bars the admission of evidence which is substantially more prejudicial than it is probable. Evidence of simply being issued a ticket prejudices the jury against the defendant. As a society, we have a tendency to believe somebody committed a crime, even if they were not convicted. Ie. we say "he or she got off".

The jury will automatically think the defendant is guilty even though the defendant was never convicted. In the eyes of the law, if you were never convicted you are innocent. If evidence of being issued a summons were introduced it would inflame the passions of the jury and prevent the jury from rationally reaching a verdict.

For the aforementioned reasons the evidence of being issued a ticket, but no conviction is inadmissible.

Just a word of caution, trial court judges are given great latitude in their rulings on evidence. Additionally, if a trial judge rules this evidence admissible and you're convicted it is possible it could be construed as harmless error on appeal. Additionally, an appeal will most likely be more expensive than the fines you end up paying. Lastly, factor the possibility in the denial and weigh how critical a spotless record is for your defense.

My suggestion is to try to make a motion to suppress any mention of being issued a ticket and never being convicted in pretrial so the jury doesn't see you objecting to your record.

Disclaimer: I am not a lawyer. Contact a lawyer for legal advice and representation.

  • Take a look at this: law.harvard.edu/publications/evidenceiii/cases/dowling.htm from what you described I do not believe you fit this exception. – Viktor Aug 30 '15 at 22:24
  • Some interesting points, thanks! So, could you clarify what evidence do you suggest should be moved for suppression? Do you introduce the spotless driving record yourself in pre-trial, together with a motion to suppress it in whole, or in part? Or are you advising against using a driving record that shows a driving course? If one has to be afraid to be using a driving record that shows a driving course, doesn't it mean that effectively a dismissed charge IS used against the defendant, since they are no longer capable of introducing their driving record without creating some prejudice? – cnst Aug 31 '15 at 0:27
  • Also, why do you start your answer with an assumption that one has never plead guilty or no contest to a traffic violation? If such an event was in place, say, long time ago, which legally precludes it from appearing on the record, or if a plea was made to an amended violation that no longer involved speeding or any point assessment, and still long time ago, what difference does it make for construing your answer? E.g., the driving record is clean not through mistake or delay, but as per law? – cnst Aug 31 '15 at 0:34
  • @cnst if you plead guilty, you have agreed to the guilt behind your actions. Even if you plead to lesser offense you have essentially admitted to those actions (posted new comment to clarify about the lesser offense part) – Viktor Aug 31 '15 at 15:47
  • ughhh... I think you still forgot to explain why such assumption is relevant to the rest of the answer, nor to address my comment about what evidence did you mean that one should move to have suppressed... Also, where exactly did you post a new comment? – cnst Aug 31 '15 at 16:15

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