What is The Affidavit In Lieu Of Appearance Form?

By: Adam H. Rosenblum Esq. | Last Updated:

A driver who pleads not guilty to a NYC traffic ticket will receive a notice from the Traffic Violations Bureau (TVB) in the mail confirming the date of his/her court hearing. More recently, this notice contains information about how a driver can skip attending court by submitting an affidavit by mail. If that sounds too easy, it’s because it is. The letter is highly deceptive and has led many drivers to make a mistake that can result in being convicted of their traffic offense(s)! For starters, since the police officer will be showing up and testifying in person, it’s easy to imagine how little weight a judge will give to the written statement of a defendant as compared to the word of the police officer especially when they have no means to question the defendant or clarify what was written.

What the DMV Affidavit Letter Says

The letter explains that by filling out and sending in DMV form AA-53, which is included in the mailing, a driver can skip the court appearance. Further, it emphasizes that a driver who fails to send in an affidavit or show up to the court date will have his/her license suspended. This information, which is put in cold, official-sounding language intimidates many drivers into falsely believing that the affidavit or court appearance are the only options, even if they have an attorney.

What the DMV Affidavit Letter Does NOT Tell Drivers

This letter contains several serious omissions that can make a huge difference in whether or not a person chooses to send in the affidavit and forgo appearing in person. This includes:

  • If a person is unable to appear on their court date, they may be able to reschedule their court date. Note that in the TVB there are limitations on this.
  • The driver has the right to an attorney. A driver who has hired an attorney can, but does not need to submit a statement.
  • Hiring an attorney most often means the driver does not need to appear in court anyway.
  • The driver has the right to confront his/her accuser (meaning the police officer who issued the ticket).
  • The police officer will still appear in court to offer his/her side of the story.

Should I Send a Written Statement Instead of Going to Court?

It’s important to understand that a written affidavit (as opposed to a personal appearance by the defendant or an attorney) has very little chance of succeeding in getting a ticket dismissed for several reasons. A judge cannot question a driver to get clarification on the statement, which could be critical to beating the ticket. Further, the driver will have no idea what kind of evidence the officer will submit. Since the driver is opting not to show up in person, he/she cannot question the officer or submit evidence that speaks to the officer’s specific testimony. An officer could say anything—no matter how accurate—and the judge will take it at face value.

Note that police officers rarely lie in traffic court (it is illegal), but they may misremember, forget, or confuse one’s case with a similar one. An astute driver (or better, an attorney) can parse these inconsistencies in order to win the case against the ticket. But this chance will never happen if the driver submits an affidavit.

Should I Send a Written Statement if I Have An Attorney?

As above, in most cases an affidavit can only hurt but not help your case. An attorney may not want to be limited to what is written in the statement, and if the statement is self-incriminating it will help the prosecution’s case. The bottom line is that you should not submit a statement without discussing this with your attorney. He/she will advise you on whether this is a good or bad idea depending on the facts of your case.

Why Does TVB Send the Affidavit in Lieu of Appearance Letter?

The TVB’s reasoning for this is simple: reduce the number of court appearances and speed up each case. This allows the court to adjudicate more cases in less time. However, this only benefits the TVB. The driver gets no benefit out of this expedited process; in fact, it puts the driver at a distinct disadvantage to make a meaningful case and limits one’s ability to prove his/her innocence. In most cases, the affidavit is given very little weight as explained above.

What Should Drivers Do Instead of Submitting the Affidavit?

A driver who wishes to challenge his/her TVB traffic ticket should have it done in person, preferably by an experienced attorney who knows how to navigate the TVB system. If the assigned court date is in conflict with the driver’s schedule, there are two alternatives:

  • Reschedule the TVB court date (if applicable).
  • Hire an attorney to appear on his/her behalf.

Either option will allow the driver—or an attorney working on his/her behalf—to submit evidence, provide clarification requested by the judge, and question the officer. Hiring an attorney specifically offers an opportunity to present a friendly face whom the judge will hold in high esteem (something drivers rarely receive from TVB judges).

Who Should I Contact?

If you or someone you love has been ticketed for a traffic offense in New York City, contact an attorney right away to discuss your options. The lawyers of the Rosenblum Law are experienced traffic ticket attorneys with a positive reputation throughout NYC’s Traffic Violation Bureau locations. Email or Call 888-883-5529 for a free consultation about your case.