You may have heard the phrase “lesser included offense” on television or in movies – whether in a fiction show or a documentary covering a criminal court case. You might be wondering, do we have those in Georgia? We absolutely do. You might also wonder – do they apply to traffic tickets? And again – they do. Let’s take a look.
Examples of Lesser Included Traffic Offenses
These lesser included offenses mean that there’s a smaller crime hidden within the big crime. This is a way for someone who didn’t necessarily do a big crime to still get hit with charges for a smaller crime – or, it could be a way for someone who maybe did possibly do a big crime to avoid the steep consequences by only getting charged with the smaller crime. It depends on which way you want it to go.
Here are some examples from traffic ticket cases:
DUI and Reckless Driving
A DUI (driving under the influence) in Georgia is a pretty serious offense. You lose your license for a while, you’ve got to take a DUI Risk Reduction class, you’re on probation for at least 12 months, you’ll probably have to take drug screens, and the list keeps going. For the state prosecutor to prove a DUI, they need to show you got behind the wheel while you were unsafe to drive due to alcohol or drugs. But, if they can’t show this, then there’s another traffic offense they could still get you with, depending on the circumstances surrounding you getting pulled over or cited with the DUI in the first place – whether you got in an accident, or were weaving all over the place in your lane, or were speeding like crazy. That offense is called Reckless Driving. It’s still a serious traffic offense, but not as life-altering as a DUI conviction. For Reckless Driving, all the prosecutor needs to prove is that you behaved recklessly when you drove. That’s it. They don’t have to pin it to alcohol or drugs, just that, based on the circumstances surrounding you driving (accident, speed, weaving, etc.), that you had reckless disregard for the safety of those around you or for the property that you damaged, if that happened.
Reckless Driving and Speeding
Alright – down the rabbit hole we go. So, yes, Reckless Driving is a lesser included offense of DUI – but it’s also got its own lesser included offense – one of those is speeding. There are some police officers and prosecutors that believe that if you go over the speed limit in such an excessive amount of speed, that you automatically are not just speeding, but Reckless Driving.
Once again, for the prosecutor to prove that you were driving recklessly, they need to show and tie in the excessive speed to you being in reckless disregard for other people’s safety and/or property items being damaged. But, if that would be too difficult to prove, based on the evidence, perhaps you could get the lesser included offense of speeding – since, you were, in fact, speeding – and that comes with a lot less consequences. For comparison – Reckless Driving can come with 12 months probation and a huge fine (up to $1,000), versus speeding, which comes with a fine, yes, but very rarely will you see probation with a speeding ticket. Now, if your speed is super high, you could get hit with a super speeder fee – which you have to pay otherwise you lose your license – but that is still way better than probation.
Speeding and Basic Rules Violation
And finally, we get to the bottom rung, so to speak – speeding and basic rules. Speeding is, well, going over the posted speed limit. You get a speeding conviction of 15mph or more over the posted limit and you’re looking at points on your license (that is, your driving record in Georgia) and a fine, and possibly taking a defensive driving class, depending on how fast over you were going. Basic rules violation, on the other hand, means that you have simply violated the rules of the road in Georgia by not driving at a speed that is reasonable given the circumstances – that’s it. If you’re a Georgia driver, a basic rules violation doesn’t even leave the court house, meaning it doesn’t go on your driving record.
So for speeding, the prosecutor has to prove that there was a posted speed limit and that you were going over it. But, if there’s a discrepancy, or other reasons we’ll cover later, you could find yourself instead on the receiving end of a basic rules violation – paying a fine, maybe doing a class, and then that is it. No points on your record. No increased car insurance premiums.
How and When Can You Get a Lesser Included Offense?
This is where having a lawyer comes in handy. Most of the time, the prosecutor will not entertain a lesser included offense for people who represent themselves – though this is not always true. Sometimes, if it’s your first traffic offense, the prosecutor will offer you to do some items in order to get a lesser included offense. But, usually, this is not the case. Even if you ask, the prosecutor may or may not even discuss a lesser included offense with you.
For traffic lawyers however, it’s all about talking to the prosecutor and getting that lesser included offense – if of course you can’t get a total dismissal. It’s what we do all day, every day (well, every day we’re in traffic court, talking to prosecutors). Sometimes, what a traffic lawyer does is to have their client pre-do some items – community service, taking that defensive driving class, being ready to pay their fine in court that day – and this helps work as leverage in the negotiation process with the prosecutor.
But if the prosecutor won’t budge, and you are certain you did not do what they are saying you did (but, maybe, just maybe, you did a lesser included item in what they are saying you did), you can take your case to trial – hopefully with a lawyer representing you at this point – and you can fight it out there. Make the prosecutor prove it. And, at the end, have your lawyer ask specifically for an instruction to the jury (or a request to the judge if it’s a bench trial) to allow for a lesser included offense to be found, if there’s not enough for the main one.
You would probably only want to proactively ask for this if you thought you may be found guilty of the bigger offense. Why? Because if the jury or judge says you’re not guilty, then you don’t have any further consequences. But, with the lesser included offense on the table, you’re putting yourself at risk for having a conviction. These are the nuances where it’s really good to talk with your lawyer about, before blazing in and asking (or not asking) for a lesser included offense.
Now, it could be where the prosecutor gets some cold feet and doubts their evidence on the day of trial – and they are the ones who ask for a lesser included offense. That’s always possible, too. So just because you and your lawyer decide to not ask for this, you could still be facing it, simply because the prosecutor is the one asking.
Trial is always a risk, but that doesn’t mean it’s not a risk worth taking in some instances. Just be wise, look at the options – and try your best to negotiate before you even get to trial, if the prosecutor is willing. It definitely doesn’t hurt to try.
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