Help With Some Legal Advise

Last Month I received a Local Ordinance Violation Citation. The Citation was for "Unnecessary Noise: Vehicle"
The Specific Ordinance reads:

It is unlawful to operate a vehicle that makes unusually loud or unnecessary noise

I am not able to afford an Attorney, and am not entitled to one in an Ordinance case, so I am representing myself.
I have been a trained Paralegal since 1980, and have over 30 years experience in legal research, though I am definitely out of practice.

Last week I filed a MOTION TO DISMISS. The premise of my Motion is that this Ordinance violates Due Process because it is VOID FOR VAGUENESS, on its face.
My legal argument is simple. That KOLENDER V. LAWSON, 461 U.S. 352 (1983) the Supreme Court stated that in a VOID FOR VAGUENESS challenge a court must make 2 (TWO) determinations: 1) An enactment must provide sufficient notice so that a person of ordinary intelligence can know what conduct is prohibited so that he may steer clear of unlawful conduct and;
2) be sufficiently defined in a way that prevents arbitrary or discriminatory enforcement.

KOLENDER V. LAWSON

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement

With regards to the Ordinance I am charged with, what you see is what you get. There are no definitions or examples of what might be unusually loud or unnecessary noise. It is left to the sole discretion of the Police to determine how loud is unusually loud, or worse yet what is necessary or unnecessary. This in return leaves it wide open for arbitrary or discriminatory enforcement.
I filed a Memorandum of Law with my argument, but on March 27th I must appear before the Judge, and argue the merits of my Motion To Dismiss. Being only a paralegal I am not trained to do this.
I would appreciate any sound advise from anyone out there that has some experience is arguing a VOID FOR VAGUENESS issue.

Thanks for any advise...

Also I am looking for any case in any U.S. Jurisdiction that might be directly on point. Something that involves an Ordinance like the one I am charged with..

Originally posted by VeniVidi
1) An enactment must provide sufficient notice so that a person of ordinary intelligence can know what conduct is prohibited so that he may steer clear of unlawful conduct

In order for this first part to be considered, you will likely have to provide the sources of media that are available when new ordinances are enacted. The judge will likely try to define "sufficient notice" his or her own way.

I would take the present time to find out where and how a citizen is supposed to learn about new ordinances that are enacted. That will help you, and the judge, determine if there is sufficient notice or not.

Originally posted by VeniVidi
2) be sufficiently defined in a way that prevents arbitrary or discriminatory enforcement.

Since you didn't post the actual ordinance, it's hard to determine if the ordinance is sufficiently defined.

Is the ticket that much that you would rather fight it instead of just paying it and moving on? I do agree that if the ordinance is that vague and not specific, then fighting it could get it overturned or re-written.


Is this ticket from noise from a loud exhaust or loud music?

I have never argued this issue in court but I may be able to give you some advice. Your case is a good precedent but you should always try to use more than one when presenting your defense for a judge. Preferably a Supreme Court ruling.

And you are in luck.

Just last year the Supreme Court ruled on the vagueness issue in FEDERAL COMMUNICATIONS COMMISSION ET AL. v. FOX TELEVISION STATIONS, INC., ET AL.

Although the case did not deal with noise, it does address the vagueness issue. Here is the link.

www.supremecourt.gov...

Justice Kennedy wrote the majority opinion which is in the link. Kennedy in particular is very very long winded when he writes but the important part you want to focus on is this: Kennedy writes,

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act interms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972)

Now he sources two other cases you could use in your defense and since your familiar with the law you should be able to build a pretty solid case. Your trying to overwhelm the judge with precedent so he simply dismisses it.

When you present make sure you are polite, to the point, and not derogatory to those who cited you. Simply treat it as a presentation and you should be fine.

reply to post by _BoneZ_


Thanks for the reply BoneZ.
If I understand what you are saying I think you are misinterpreting by what is meant to "provide sufficient Notice". In this context it means simply. When I look at the ordinance as it reads,is it clearly defined in a way that I, as a person of ordinary intelligence, can understand what I would have to do to violate the Ordinance.

Also I did state the Ordinance in my OP. It says:

It is unlawful to operate a vehicle which makes unusually loud or unnecessary noise

It isn't the amount of the ticket. It is the principal. The Officer said that the real reason he was pulling me over was to search my car. I said no and he wrote a ticket.
As I previously said. The Ticket stated that I made Unnecessary Noise. It doesn't elaborate further.

Originally posted by Hopechest
I have never argued this issue in court but I may be able to give you some advice. Your case is a good precedent but you should always try to use more than one when presenting your defense for a judge. Preferably a Supreme Court ruling.

And you are in luck.

Just last year the Supreme Court ruled on the vagueness issue in FEDERAL COMMUNICATIONS COMMISSION ET AL. v. FOX TELEVISION STATIONS, INC., ET AL.

Although the case did not deal with noise, it does address the vagueness issue. Here is the link.

www.supremecourt.gov...

Justice Kennedy wrote the majority opinion which is in the link. Kennedy in particular is very very long winded when he writes but the important part you want to focus on is this: Kennedy writes,

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act interms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972)

Now he sources two other cases you could use in your defense and since your familiar with the law you should be able to build a pretty solid case. Your trying to overwhelm the judge with precedent so he simply dismisses it.

When you present make sure you are polite, to the point, and not derogatory to those who cited you. Simply treat it as a presentation and you should be fine.

Thank you Hopechest. I will read this case now....

reply to post by VeniVidi


Dear VeniVidi,

Well, I don't give legal advice as one cannot practice without a license. So lets just call this advice. You were cited for your vehicle being too loud. It was probably either your exhaust or radio. Many cities and counties have noise ordinances and they have been upheld before. You might want to research noise ordinances in your state, it is possible others have tried your vagueness argument.

Here is the question I want you to answer yourself before you go to court. If someone was outside of your house making as much noise as you did (however much that may have been), would you have wanted them to be cited? In the end most judges are looking for reasonableness. Just saying that you should be prepared for judge to be asking himself if he thinks it would be okay if every vehicle made as much noise as yours did.

Originally posted by VeniVidi
In this context it means simply. When I look at the ordinance as it reads,is it clearly defined in a way that I, as a person of ordinary intelligence, can understand what I would have to do to violate the Ordinance.

You have more legal expertise than I do, but when I read this:

1) An enactment must provide sufficient notice so that a person of ordinary intelligence can know what conduct is prohibited so that he may steer clear of unlawful conduct

I understand it to be that when an ordinance or law is enacted, whoever enacts the ordinance or law must provide sufficient notice to the public so that a person of ordinary intelligence can know what conduct is prohibited under the new ordinance or law so that they may steer clear of unlawful conduct.

In other words, if a new seat belt law is enacted, the city or state must provide sufficient notice to the public of when the law will come into effect, and what the law actually entails so that a person of reasonable intelligence can know that they have to start wearing their seat belts.


That is what I'm seeing when I read that particular part.

Originally posted by VeniVidi
The Officer said that the real reason he was pulling me over was to search my car.

That doesn't make sense to me because that would violate a person's 4th Amendment rights. I don't suppose you could subpoena the officer and have him testify to that? Chances are he won't even show and you could have the ticket dismissed anyway.

Most cops don't show up to court for minor ticket offenses.

Originally posted by VeniVidi
As I previously said. The Ticket stated that I made Unnecessary Noise.

So, does your car have a loud exhaust or loud music? If neither, then your car can't make unnecessary noise, and the ticket has to be dismissed.

If a loud exhaust, you can get it fixed, and show that to the judge to get the ticket dismissed. If loud music, just pull out your subwoofer on the day of court and let the judge know that you sold it and get the ticket dismissed.

These could be your options if your motion to dismiss and void for vagueness falls through.

Originally posted by _BoneZ_

Originally posted by VeniVidi
In this context it means simply. When I look at the ordinance as it reads,is it clearly defined in a way that I, as a person of ordinary intelligence, can understand what I would have to do to violate the Ordinance.

You have more legal expertise than I do, but when I read this:

1) An enactment must provide sufficient notice so that a person of ordinary intelligence can know what conduct is prohibited so that he may steer clear of unlawful conduct

I understand it to be that when an ordinance or law is enacted, whoever enacts the ordinance or law must provide sufficient notice to the public so that a person of ordinary intelligence can know what conduct is prohibited under the new ordinance or law so that they may steer clear of unlawful conduct.

In other words, if a new seat belt law is enacted, the city or state must provide sufficient notice to the public of when the law will come into effect, and what the law actually entails so that a person of reasonable intelligence can know that they have to start wearing their seat belts.


That is what I'm seeing when I read that particular part.

Originally posted by VeniVidi
The Officer said that the real reason he was pulling me over was to search my car.

That doesn't make sense to me because that would violate a person's 4th Amendment rights. I don't suppose you could subpoena the officer and have him testify to that? Chances are he won't even show and you could have the ticket dismissed anyway.

Most cops don't show up to court for minor ticket offenses.

Originally posted by VeniVidi
As I previously said. The Ticket stated that I made Unnecessary Noise.

So, does your car have a loud exhaust or loud music? If neither, then your car can't make unnecessary noise, and the ticket has to be dismissed.

If a loud exhaust, you can get it fixed, and show that to the judge to get the ticket dismissed. If loud music, just pull out your subwoofer on the day of court and let the judge know that you sold it and get the ticket dismissed.

These could be your options if your motion to dismiss and void for vagueness falls through.

I see what you mean, and if I didn't know the law I would think the same thing you do. That it meant sufficient Notice to the Public. Like VIA radio or TV. But it really doesn't mean that.
As far as unnecessary noise. My point of Law is that the Ordinance does not specify whether it is loud music, loud muffler or loud anything but noise. That is why I am arguing that it is Unconstitutional. The U.S. Supreme Court has ruled that it must be specific. I understand the Law. My concern is more of how do I relay it verbally to a Judge. And was looking for advise in that context.

Originally posted by AQuestion
reply to post by VeniVidi

 

Dear VeniVidi,

Well, I don't give legal advice as one cannot practice without a license. So lets just call this advice. You were cited for your vehicle being too loud. It was probably either your exhaust or radio. Many cities and counties have noise ordinances and they have been upheld before. You might want to research noise ordinances in your state, it is possible others have tried your vagueness argument.

Here is the question I want you to answer yourself before you go to court. If someone was outside of your house making as much noise as you did (however much that may have been), would you have wanted them to be cited? In the end most judges are looking for reasonableness. Just saying that you should be prepared for judge to be asking himself if he thinks it would be okay if every vehicle made as much noise as yours did.

Thank you AQuestion for your comment. I had hoped that my OP would be read. I was not cited for my vehicle being to loud. I have an stock exhaust that is in good working Order, and my radio doesn't work. I was cited that my vehicle made unnecessary noise. It doesn't specify what that noise was, and the Officer didn't tell me. Anyway I appreciate the advise.

ETA: just read you latest response -what is causing so much noise on your car? Bad header? Belt?]

reply to post by VeniVidi


Dear VeniVedi,

Thank you AQuestion for your comment. I had hoped that my OP would be read. I was not cited for my vehicle being to loud. I have an stock exhaust that is in good working Order, and my radio doesn't work. I was cited that my vehicle made unnecessary noise. It doesn't specify what that noise was, and the Officer didn't tell me. Anyway I appreciate the advise.

Well now I am really confused. I read your OP and now have no idea what was meant by unnecessary noise. Can you post the actual ordinance so that we can look at it? My fear is that judges will often be harsher if you push them into constitutional questions. As a rule, judges do not want to get into constitutional questions over infractions that do not have jail time associated with being found guilty.

Here is what I can say, judges are more interested in who is being reasonable especially on things they consider minor. Time limitations if you will.

reply to post by VeniVidi

It isn't the amount of the ticket. It is the principal. The Officer said that the real reason he was pulling me over was to search my car. I said no and he wrote a ticket.

Despite what all the legal experts are telling you here the issue in the judges mind will come down to believing you or the officer about "excessive" noise. Bottom line it is his word against yours. And the judges side with the officer 99% of the time. Even if your car wasn't "noisy", it won't matter. The judge will hear your side first (which is what?)

I wasn't noisy?

He will be heard last. It will go like, Yes your honor I pulled over the vehicle because it exceeded noise statutes. And was it noisy? Yes your honor. Case closed.

The officer will show up. They all have one day set aside for court appearances.

The fine before you chose to contest the ticket will be added to extra court time and paperwork. The judge and the cops salary have to be paid from somewhere and you just lost. That is the outcome. If he dismisses it, the court has to cover those extra costs and they don't like that.

Just my experience with "contested" infractions. The court sides with the officer when its his word or yours.

With you its about the principle. With them, its about the money.

In terms of the question as to arbitrary and discriminatory enforcement, certainly the citation cited a specific municipal code section in which you were in violation? I dealt with a similar issue once while living in Dayton, and the municipal code defines nuisance noise as sounds the can continuously be heard beyond a distance of 25-feet from the source (DMC 94.12) which makes this a fairly objective judgment for a code enforcer. Does your city not have this level of specificity in the construction of its municipal code?

Originally posted by walliswallis
In terms of the question as to arbitrary and discriminatory enforcement, certainly the citation cited a specific municipal code section in which you were in violation? I dealt with a similar issue once while living in Dayton, and the municipal code defines nuisance noise as sounds the can continuously be heard beyond a distance of 25-feet from the source (DMC 94.12) which makes this a fairly objective judgment for a code enforcer. Does your city not have this level of specificity in the construction of its municipal code?

Exactly! The problem with my Ordinance is that it doesn't give any definition. I put the exact words of the Ordinance in my OP. There is nothing else. It says only what it says. That is why I am saying that it is Unconstitutionally vague.

10.44.030 It is unlawful to operate a vehicle whick makes unusually loud or unnecessary noise

Originally posted by VeniVidi

Originally posted by walliswallis
In terms of the question as to arbitrary and discriminatory enforcement, certainly the citation cited a specific municipal code section in which you were in violation? I dealt with a similar issue once while living in Dayton, and the municipal code defines nuisance noise as sounds the can continuously be heard beyond a distance of 25-feet from the source (DMC 94.12) which makes this a fairly objective judgment for a code enforcer. Does your city not have this level of specificity in the construction of its municipal code?

Exactly! The problem with my Ordinance is that it doesn't give any definition. I put the exact words of the Ordinance in my OP. There is nothing else. It says only what it says. That is why I am saying that it is Unconstitutionally vague.

10.44.030 It is unlawful to operate a vehicle whick makes unusually loud or unnecessary noise

edit on 3/16/2013 by VeniVidi because: (no reason given)

Does 10.44.030 say exactly what you wrote above or is it a summary of the statute? I mean, did you look up 10.44.030?

reply to post by walliswallis


Yes. The Ordinance says exactly as it is.

reply to post by VeniVidi

My point of Law is that the Ordinance does not specify whether it is loud music, loud muffler or loud anything but noise. That is why I am arguing that it is Unconstitutional. The U.S. Supreme Court has ruled that it must be specific. I understand the Law. My concern is more of how do I relay it verbally to a Judge.

I think your answer is right there in what you said, as far as how to relay it to the Judge, and if the officer can't claim the SPECIFIC reason within that vague definition that he pulled you over, then the citation must be dismissed.