Jefferson County Attorney puts end to 'legal fiction' of defecti - WDRB 41 Louisville News

Jefferson County Attorney puts end to 'legal fiction' of defective equipment plea in traffic cases

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LOUISVILLE, Ky., (WDRB) – It has long been one of the most painless ways to get rid of a speeding ticket in Louisville: plead guilty to an amended charge of “defective equipment,” pay a fine and avoid any boring classes or points on your driver's license.

But it is a “legal fiction,” according to Jefferson County Attorney Mike O'Connell, and he has told his prosecutors to no longer allow traffic offenders to take the popular bargain, saying the defective equipment plea has become an embarrassment.

Traffic offenders were repeatedly allowed to plead guilty to the charge, which is technically to be used for a non-moving violation, like a broken taillight.

“It was being considered almost a routine offer in the courthouse for people who were multiple offenders that never went to traffic school, always thought they could get a charge amended to defective equipment and not have to do anything,” O'Connell said. “It was a tool that helped to dispose of cases but in reality it was a joke.”

In just the last year, nearly 6,000 traffic offenders have pleaded guilty to a defective equipment charge, according to court records.

Instead, O'Connell said, people charged with driving offenses can participate in his traffic program, where they can get their cases dismissed without paying court costs by taking an online safety course.  

But because much of the revenue generated by the program goes to O'Connell's office, some attorneys say his decision is simply a move to punish the defense bar and bring him more funding.

Any time a prosecutor's office has a financial interest in the outcome of a case, it is ripe for mischief,” said Louisville defense attorney Paul Gold.

Another local defense attorney, Keith Kamenish, said it seems to be a “conflict of interest” if the purpose is to “funnel” money into the county attorney's office.

In an interview O'Connell at first denied it was a monetary decision, saying it was a “public safety issue.” But he later acknowledged he would “welcome any additional revenue” the policy change brings in.

“If we benefit from this financially to help people in our office, I'm perfectly comfortable with that,” he said. The money generated will help offset budget cuts to his office and also bring revenue to the circuit court clerk's office, sheriff's department and public defenders, O'Connell said.

The defense bar is upset, he argued, because many traffic offenders were paying lawyers to get their ticket plea bargained to defective equipment.

Defense attorneys also say clients now have little incentive to accept pleas because any charge of speeding could still cause insurance rates to increase. As a result, more people will take their traffic cases to trial, bogging down the court system.

“I think it's short sighted because defective equipment is an excellent remedy for people who get a speeding ticket who normally don't get in trouble,” attorney Artie McLaughlin said.

O'Connell said that it is a common threat by the defense bar to take cases to trial when changes are made, but he doesn't believe citizens will be willing to pay attorneys hundreds of dollars to push a traffic offense that far.

“Most people when this is explained to them will jump at the chance to participate in an online program where the county agrees to dismiss the charge,” he said.

He added, however, “We will prosecute them if we are left with no choice.”

O'Connnell's Drive Safe program is currently under review by the Kentucky Supreme Court as to whether drivers who complete the program have to pay court costs.

In November 2013, a Jefferson Circuit Court judge granted O'Connell's motion to block then District Judge Ann Bailey Smith from charging court costs to drivers who completed the program.

Judge Judith McDonald-Burkman ruled that court costs should not be imposed against a defendant whose case has been dismissed and the Kentucky General Assembly authorized county attorneys to operate these traffic safety programs "prior to the adjudication of the offense."

Smith had refused to dismiss citations against about 100 drivers, claiming in part that the county attorney's office has no right to dismiss charges without the court's consent.

Smith's lawyer, Virginia Snell, has said millions of dollars could be lost in court costs for the state.

Some judges who agree with Smith have postponed their cases. At least 1,500 traffic cases have been postponed while waiting for the Supreme Court ruling, according to Jessie Halladay, a spokeswoman for the County Attorney's Office.

O'Connell is one of about 60 county prosecutors who have launched traffic schools to raise revenue for their offices.

Drivers charged in Jefferson County with any of 17 moving violations can pay $150 to take a two-hour, online class and get their citation dismissed.

The program generates about $100,000 a month, about half of which goes to the county attorney's office.

Defense attorney Paul Gold said legislators probably did not anticipate the loss of millions of dollars now going to the county attorney traffic programs.

“That revenue has to be made up from somewhere,” he said. “Where are the funds going to come from?”

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