leetman,
There is a legal doctrine in criminal law that says a defendant must be charged with the most specific offense. For example, here in Pennsylvania, there is a statute that criminalizes the "Knowing and Inteligent Possession of Narcotics." (Hereinafter, "K & I") Another section of our Crimes Code outlaws the, "Possession of a Small Amount of Marijuana for Personal Use." In cases where a person is arrested with a small amount of marijuana and charged only with "K & I," (rather than the more specific charge of, "Possession of a Small Amount of Marijuana"), I've had some success beating these cases arguing that the Prosecutor didn't charge the most specific offense.
But that's not your situation. As you pointed out, you were charged with the wrong offense rather than a more general offense that is also covered by a more specific statute. The "Most Specific Charge," doctrine does not apply in your case.
In criminal prosecutions, (which, generally speaking, includes traffic court), the Prosecution is free to amend the complaint up until the moment the trial begins. In fact, under some circumstances, the Prosecutor can amend the complaint after direct examination of a witness, so long as cross-examination has not commenced. If the amendment prejudices the defendant, defense counsel is entitled to a continuance in order to adequately prepare for the new and/or amended charges.
This means that if the District/Prosecuting Attorney realizes that the police officer wrote the wrong offense on the ticket, (a common occurance), the District Attorney could move to amend the complaint for the MV statute that prohibits driving in the shoulder. If the D/A amends the complaint, you might be able to get your case continued in order to prepare for the new/amended charges, (especially if you voice an intention to retain counsel!), but legally, you couldn't stop the D/A from amending for the proper charge, nor would the mis-charging be grounds for a dismissal.
Having said that, it doesn't mean that the Judge couldn't use the cop's sloppy police work as a reason to dismiss the ticket. Notwithstanding the State's right to amend the complaint, if the Judge likes you, (or conversely, dislikes the cop or the Prosecutor), the Judge could deny the D/A's motion to amend.
If the D/A doesn't realize the charging error and attempts to prove that you drove in the shoulder when in fact the ticket charges you with driving left of center then, after the Prosecution rested, you could ask for a, "Judgement of Acquittal," (a finding of "Not Guilty"), arguing that the Prosecution failed to prove their case because they charged one thing and proved another.
While this is a vaid defense under the law, it doesn't mean that a Judge wouldn't allow the Prosecutor to amend the complaint , (even at the end of the trial!), and then find you guilty. If that happened, you'd have no recourse but to appeal, which is a long and expenseive process.
I mean no offense, but this is not something you want to do without a lawyer. If your intent is to go it alone, you might as well save yourself the time and aggravation, and plead guilty. I'm not saying nobody has ever beaten a traffic ticket without a lawyer. What I am saying is that you're in way over your head. Get a lawyer if you want to fight this ticket.
Elton
