Although the presumption of innocent until proven guilty applies in traffic cases, if you’ve rear-ended somebody, it seems that the presumption suddenly disappears. In New York, following too closely is governed by NY VTL Section 1129(a). Its elements permit some very plausible defenses.

What is reasonable and prudent?

Police officers are rarely eyewitnesses to accidents that they write citations on. They’re almost always called to the scene. Section 1129(a) states that a driver “shall not follow another vehicle more closely than is reasonable and prudent.” The statute fails to define what reasonable and prudent following is though. Assuming the citing officer wasn’t an eyewitness to the accident, it’s impossible for he or she to state what was reasonable and prudent immediately before impact. They’d be relying on speculation and conjecture. Without an eyewitness testifying as to the speed and distance between the vehicles immediately before impact, speculation and conjecture are not sufficient evidence to support a guilty verdict.

Speed, traffic and highway condition

In determining what was reasonable and prudent, the court has to look at the speed of the vehicles, traffic conditions and roadway conditions. Again, these are variables that the officer can’t testify to at the time of the occurrence unless they were personally present. Speed, traffic conditions and road conditions change from minute to minute. The officer can testify to those elements at the time they arrived on the scene, but they can’t testify to those conditions at the time of the accident. Speculation and conjecture are relied on again.


Assuming there was an eyewitness to the accident, the law requires that they be in court to testify as to what they saw and heard. The officer can’t testify as to what they said. Fundamental due process provides that you have the right to cross examine any witnesses against you, but you can’t cross examine a witness that’s not present in court. The judge will sustain a timely hearsay objection.

If no accident

People are cited everyday for following too closely when there was no accident. In an accident case, the accident itself might be the best proof an officer has that a driver was following too closely. The distinguishing factor is that to write a citation for the subject offense with no accident, the officer will indeed be an eyewitness. Sometimes the officer even purports to be the victim of being followed too closely. Again, whether a driver was following too closely might turn on the subjective perception of the officer, but that officer might not know how the driver was prepared to stop if required to do so. There’s a strong basis for a speculation argument and a not guilty verdict.