OHTA.ca

Hello,

The other day I got a following too closely ticket while on the 401. Going through this certain region in Mississauga there is always traffic but this day it wasn't too bad. I was traveling roughly 80 km/h as the pace of traffic was a bit slower. The driver in front of me was a good 10 car lengths away when all of a sudden she was stopped on the highway because of traffic. I was behind her and for whatever reason couldn't stop in time and just barely clipped her rear fender leaving a small dent. The OPP officer who arrived on scene told me he could have given me a careless driving ticket (lol) but said I was a "good kid" and gave me a following too closely ticket instead, even though that wasn't the case.

Is there anything I can do about this and get the charges dropped in court?

ALSO, as I was stopped after hitting the car in front of me, 2 seconds later the vehicle traveling behind me hit me and squeezed between me and the center barrier and cause almost $8 000 worth of damage! She received to charge or ticket whatsoever.

If anyone has any input I would really appreciate it!

He is correct that you could have got a careless ticket for it, especially if you were 10 car lengths back. That should have given you plenty of time to stop.

The problem with laying Follow to Close in rear end collisions (and the reason we were instructed not to do it in my jurisdiction) is because it's very difficult to prove the elements of following too closely if no one can give evidence as to how long you were following the vehicle in front of you, how fast, and at what distance.

If you apply for disclosure and there is no evidence of these elements in the report you could bring it to the prosecutors attention and see what they say. In my region they would almost certainly drop it. Not because you don't deserve a ticket, but because they can't prove the one that was laid.

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Hi george

george wrote:...She received to charge or ticket whatsoever.

Do you mean:"She received no charge or ticket whatsoever." ?

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yeah sorry I meant to say she received NO charge whatsoever

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Hi george:

george wrote:ALSO, as I was stopped after hitting the car in front of me, 2 seconds later the vehicle traveling behind me hit me and squeezed between me and the center barrier and cause almost $8 000 worth of damage! She received to charge or ticket whatsoever. [/color]

george wrote:yeah sorry I meant to say she received NO charge whatsoever

I can not think of a reason why the driver that hit your car would have not been charged. Is it possible that she stated that you cut her off and suddenly stopped your vehicle within her headway distance (HTA s. 158)?

I noticed that you estimated the time between collisions to be 2 secs., which would show that you did not cut her off.

Similarly, if your estimation of the distance between your vehicle and the one you hit (about 10 car lengths) is correct, then you should not be convicted of following too closely. If you do the math, you'll see that, as Simon Borys states, you had time to stop your vehicle.

If you have not done so, file the Notice of Intention to Appear (NIA) and when you get a trial date you request disclosure. That way you'll be able to see what is the evidence the prosecutor will bring in support of the charge at trial.

Simon Borys wrote:If you apply for disclosure and there is no evidence of these elements in the report you could bring it to the prosecutors attention and see what they say. In my region they would almost certainly drop it. Not because you don't deserve a ticket, but because they can't prove the one that was laid.

It sounds good to me. You have nothing to lose by doing so.

Cheers

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My opinion is that the officer has laid the wrong ticket and that if you hire a paralegal that knows about accident investigation that you should be able to have the charge dropped completely.

The charge has 4 demerit points on it, and if you pay the ticket it will on your driving record for 3 years, and together with being deemed at fault in the accident that your insurance rates will be affected.

Get some legal advise,

My opinion is based upon being a Toronto OPP officer and investigating many of these accidents in the past.

Follow too closely tickets are very difficult to prove. I agree with Chris, competent paralegal should be able to assist you in this matter.

If you are charged with FTC, and it's clear from the evidence that really you were just driving carelessly, then there's no way they can convict on FTC, and no way that they can substitute a Careless Driving charge for the FTC (definitely no way after 6 mos from the offence date). If you are charged with Careless Driving, you can be convicted for FTC in its place, b/c it's an included offence, but the opposite is not true.

Take the stand and testify that you were 10 car lengths back from the car in front. There is no way you could be convicted on FTC from that distance. For sure the person who you ran into will have to testify to have any chance to convict, and they will have to testify that they saw you following them before you hit them, and at a distance that would be considered not reasonable. The officer of course cannot testify to witnessing the following, as they only arrived after the fact.

Get your disclosure, see what they have on you, and then come back and let us know. FTC's are usually given in the hopes that you'll just pay them out of court. Don't.

I have to disagree with the comment that Follow too closely is an included offence for Careless Driving. That is simply INCORRECT.

The test for an included offence is:

...one must necessarily commit the offence of ....... before the offence of ...........could be made out.

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Hi Traffic Law:

Traffic Law wrote:I have to disagree with the comment that Follow too closely is an included offence for Careless Driving. That is simply INCORRECT.

The test for an included offence is:

...one must necessarily commit the offence of ....... before the offence of ...........could be made out.

While what you say is correct, follow to closely could be an included offense respecting a careless driving charge.

R. v. Ereddia, 2006 ONCJ 303, at Paragraph 6 wrote:Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.
http://www.canlii.org/en/on/oncj/doc/20 ... cj303.html

For instance, a driver who contemporaneously commits a few offences such as, speeding, follow to closely, changing lanes unsafely and cutting other vehicles off, -I have seen this in a highway a few times, could be charge and convicted with careless driving.

By itself, however, as you clearly state, follow too closely is not an included offence respecting careless driving.

Cheers.

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Agreed, follow too close is not an included offence in careless. It's just often the offence that people plea to when charged with careless. However, you can not be convicted of follow too close at a trial for careless, or vice versa.

R. v. Ereddia, 2006 ONCJ 303, at Paragraph 6 wrote:

Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.

This is not the right case to refer to in our argument. I am very familliar with R. v. Erredia and that case deals with a minor mistake by the driver who miscalculated a distance to the parked vehicle. That type of conduct cannot be deserving punishment for Careless Driving.

You are correct, in some situations Follow too Close could be an included offence but it is far from automatic.

Further I would like to add to yours and mine previous posts that determination of an included offence is a tricky business and has to be considered on the factual scenario of a particular violation. I happened to prepare a factum on similar situation <a href="http://www.trafficlawparalegal.com/red_ ... .aspx">Red Light Fail to Stop vs. Red Light Proceed Before Green</a>

R. v. Reiber, 2007 ONCJ 343, para 15:

Mr. Smith also argued that the offence of following too closely is not an included offence in the offence of driving. His argument is not accepted, all the elements of the offence of following too closely clearly being part in the totality of the offence of careless driving in this particular set of circumstances.

So yes, it's not an automatic included offence (i.e. you can drive carelessly w/o following too closely), but if you did follow too closely while you drove carelessly, then you can be convicted for follow too close as an included offence.

Having said all that, para 15 might be in conflict with the last sub-paragraph in para 12, and the words of Justice Binnie of the SCC.