How to Attack the Required Elements of a Traffic Ticket Violation as a Defense

This article is about the basic foundation of Criminal Defense Work. In order to beat a charge, you need to attack one or more of the “Required Elements”. For a traffic court trial, you need to know which element you are going to attack in advance. Get prepared!

What are “Required Elements”? Well, in America, you are presumed innocent of any criminal (or traffic court) charge. Until they are proven up in court, a charge is simply an “Unproven Allegation”, not a conviction.

Every charge comes from a Statute – or law. For criminal and traffic court violations, the statutes all list a number of requirements in order to be proven.

For example, to be guilty of speeding, there is a requirement that the government prove you were driving. Thus “driving” is a required element of Speeding. No driving, no speeding.

You can extract the required elements of a charge from reading the statute carefully, and thinking about it. Whether it be the Penal Code or The Vehicle Code, all violation statutes list required elements in their text.

But a better place to get the required elements for a misdemeanor criminal charge, like a DUI, is the Criminal Jury Instructions which are used in court during trials to tell the jury what they have to look for. Jury Instructions are published and free on line from the California Judicial Council. You can learn a lot from browsing them. Here is an example we will use for the remainder of the discussion – it is a pot charge:

REAL JURY INSTRUCTION The defendant is charged [in Count ] with (giving away/
transporting) 28.5 grams or less of marijuana, a controlled substance [in violation of Health and Safety Code section 11360(b)].

To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] (gave away/transported) a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance;
4. The controlled substance was marijuana. The marijuana was in a usable amount but not more than 28.5 grams in weight.

As you can see, the jury instruction actually lists and number all of the required elements of this offense. If any of them are missing or cannot be proven, the Defendant is not guilty by law. To create and present a defense against a charge with these required elements, you need to pick out one or more that you feel are weak.

For example, a defense attorney fighting this charge might decide to go after element #2 at trial. That required element is that the “Defendant Knew of its Presence”. The prosecutor may try to prove the defendant knew by having the officer testify that he found the pot in the Defendant’s hat. But the defense attorney can attack that required element by putting the defendant on the stand and asking him, point blank, “Did you know there was pot in your hat?”. If Defendant says “no”, you have a defense focused efficiently on a required element. When the final argument comes, you have something very real and focused to say:

The defendant testified that he did not know it was there. Knowledge of the presence of the pot is a required element. The charge does not fit, you must acquit!”

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