Contesting Speeding Ticket in Pierce County District Court (with Discovery)

[surfjade]

My question involves a speeding ticket from the State of: Washington (Pierce County District Court).

My court date is in 2 weeks. The officer's statement mentions the Laser SMD but he doesn't say what mode it was in. Is this grounds for dismissal?

Here are the discovery docs (first few pages - i'll post more in next response). I still need to send in the subpoena..

Other than that it looks to be complete. Is there any hope for me? I don't see how I could be speeding in morning Tacoma rush hour traffic near the Tacoma Mall....

[surfjade]

[surfjade]

[BrendanjKeegan]

What/who are you subpoenaing? I recommend holding off on the subpoena.

Here's what I can point you to.
“Your honor, in the officer’s report, he states that the SMD was in working order before and after the stop. However, as you can see, he has made no testament as to an exact period of time before or after the stop. Your honor, without a proper and definitive time, before and after could be 2 months before and 2 months after the stop. If this were the case, the radar reading would be inadmissible. Therefore, I ask the court to dismiss the case as there is an indefinite time stated on the report.”

And then you've got this...

According to BELLEVUE v. MOCIULSKI, 51 Wn. App. 855, 756 P.2d 1320 (1987):

Quoting Bellevue v. Mociulski
Before the machine is deemed reliable, the witness testing the machines or monitoring the testing must first show his/her qualifications to make and/or evaluate the tests. The witness must first qualify as an expert via knowledge, skill, experience, training, or education. ER 702. After the witness has qualified as an expert, he/she must show that the machines passed the requisite tests and checks. Only then can the speed measuring devices be deemed reliable.

According to Mociulski, the "expert witness" MUST be the one who performs or supervises the testing. However, in the radar certification you have, two different SMD experts -- Steen Nicholson and Anthony Hillock -- both present their qualifications, showing their training and experience. Both seem to be quite qualified.

However, BOTH certificates then state: "On the date indicated in Exhibit "A" which follows, each SMD was tested under the direction of a certified SMD expert". That means that your device was NOT NECESSARILY TESTED (or supervised) BY THE PERSON WHO SIGNED THE AFFIDAVIT! In fact, the "Certifying Official" for your device, designated in the CO column, has the initials "GWH". Those initials don't seem to correspond to EITHER SMD expert's initials.

Therefore, the person who did the testing was NOT the person who signed the form as REQUIRED in Molciulski and ER 602 (no personal knowledge).

Let me know if you need further assistance.

[surfjade]

I was going to subpoena the officer and today is the last day to send it to him (10 days required) however after reading some other posts and yours I'm thinking it might not be a good idea. Since he didn't say in the affidavit what mode the Laser was in when he zapped me or when he performed the tests he may show up and testify.

[adam_]

From what I've read- and Washington is of no personal interest- if there is a possible defect in the affidavit, you NEVER subpoena the officer.

Others closer to WA may give an opinion on how often the officer, on their own volition or on the prosecutors request, will show up to 'correct' their affidavit.

GL

A

[surfjade]

Thanks for your help! FYI - I got a copy of the LaserPro III manual and posted it to Google docs. Link: https://docs.google.com/leaf?id=0B-H...ut=list&num=50

[BrendanjKeegan]

Notice in the manual there is no "mode" discussion. Lidar SMDs can only be operated in one mode - stationary.

[blewis]

he didn't say in the affidavit what mode the Laser was in when he zapped me....

If I were the judge, I think I'd interpret, "The above mentioned Laser can only be used in a stationary / fixed position and was for the above check" a sufficient indication of what "mode" the LASER was in. But, that's just me.

Barry

[surfjade]

Little nervous about tomorrow's hearing...

Brendan,

The initials of the person who callibrated the SMD does match one of the experts who signed an affidavit. Although the officer in his written statement says the SMD was callibrated on 10/18/2009. Exhibit A says 12/18/2009.

Will it work to discredit the officer since he has the callibration wrong. "We can't be certain the officer used SMD L1374 becuase the calibration date in his written statement does not match any on Exhibit A.

Then if that doesn't work I can point out that the testing time before and after the stop is not definitive... Could be 2 months before and 2 months after..

Is this a good strategy??

Thanks again. Wish me luck!