Motion to Compel Discovery in California Traffic Court

[randchap]

My question involves traffic court in the State of: California

I am in the process of fighting my speeding ticket I received in April, 2010. Was clocked 61 in a 45 using LIDAR, VC 22350. Distance was 1241', car was parallel in the right lane, was tagged by one of those traps where the cop stands in the middle of the road with a gun and flags people over.

Anyway, was arraigned on November 23, plead not guilty, trial scheduled for Feb 2. Right after the arraignment I served discovery request on the city attorney, and now that 15 days have passed I have heard nothing. I am seeking a motion to compel.

I am unclear if I need to schedule a motion hearing (which is next to impossible I understand), or file my motion. If I file my motion, do I put my trial date on the motion?

As for actually obtaining the material, I was able to get a copy of the speed survey from Caltrans under a public records act (was on Topanga Canyon Blvd in LA) and the limit was justified. I don't necessarily need the discovery to build my case, so I am working the angle of trying to get evidence tossed out by going this route.

Any help on filing vs presenting and steps required would be helpful.

[That Guy]

My question involves traffic court in the State of: California

I am in the process of fighting my speeding ticket I received in April, 2010. Was clocked 61 in a 45 using LIDAR, VC 22350. Distance was 1241', car was parallel in the right lane, was tagged by one of those traps where the cop stands in the middle of the road with a gun and flags people over.

Anyway, was arraigned on November 23, plead not guilty, trial scheduled for Feb 2. Right after the arraignment I served discovery request on the city attorney, and now that 15 days have passed I have heard nothing. I am seeking a motion to compel.

I am unclear if I need to schedule a motion hearing (which is next to impossible I understand), or file my motion. If I file my motion, do I put my trial date on the motion?

As for actually obtaining the material, I was able to get a copy of the speed survey from Caltrans under a public records act (was on Topanga Canyon Blvd in LA) and the limit was justified. I don't necessarily need the discovery to build my case, so I am working the angle of trying to get evidence tossed out by going this route.

Any help on filing vs presenting and steps required would be helpful.

You served it on the city attorney, you need to also serve if on the L A County District Attorney.... Additionally, and since the DA/CA will likely refer you to the issuing agency (I assume this is LAPD), you might as well serve it on them as well... And file a copy of it with the court.

Once you've done that, this is how it typically works out in traffic court: You're not likely to get a seperate date for you to argue your motion. More likely than not, your motion will be heard just prior to your trial (on Feb 2nd) at which time the judge will order the officer to provide you with the docs in your discovery request... You'll get a short period of time to review the material at which point your trial will proceed starting with the officer's testimony and then followed by your cross examination.

[randchap]

Thanks That Guy. Sort of the answer I was expecting. Part of my defense will be based on some strategy outlined in the "How to Fight Your Ticket and Win" book - pointing out potential errors in the LIDAR (i.e. bouncing off different parts of the car giving an inaccurate reading). As such - I requested the instruction manual in the LIDAR device to point out potential errors. If I am given this right before the trial, I wouldn't expect adequate time to review.

Is this just a "too bad" type of situation? If so, I'll adjust my strategy accordingly.

[That Guy]

Thanks That Guy. Sort of the answer I was expecting. Part of my defense will be based on some strategy outlined in the "How to Fight Your Ticket and Win" book - pointing out potential errors in the LIDAR (i.e. bouncing off different parts of the car giving an inaccurate reading). As such - I requested the instruction manual in the LIDAR device to point out potential errors.

For starters, the DA/CA/LEA are not obligated to provide you with the manual for the Lidar unit. The justification I have heard is that the manual is the manufacturer's proprietary information and as such, them providing it to you would be in violation of copyright laws. You can probably find a copy of it online but that does not by any stretch mean that the judge is going to allow you as much leeway as you'd like to argue Pan/slip effects and inaccurate readings. Add in the fact that the officer will likely testify that he visually estimated your speed (and followed that with a Lidar measurement), and your inaccuracy argument is shot.

Back to the inaccurate reading... The LEGAL requirement for Radar/Laser accuracy is outlined in VC 40802(c)(1)(D) and I quote:

The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

Both of those requirements can be met with the officer producing a recent calibration certificate.

In all honesty, and assuming the survey does indeed justify the posted limit, you really don't have much to go on here... The one glimmer of hope that you might have is assuming the officer's testimony does not meet the burden required under VC 40802(c)(1)(C)(ii) which says:

The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.

... and that will obviously depend on what the officer testifies to... Unfortunately, none of us can predict what he will say!

If he is able to testify that your speed was (1) in excess of the prima facie limit, and (2) that it was unsafe for conditions, then the burden shifts to you to prove otherwise (see VC22351(b)... And that may not be an easy task (hence the "glimmer" part of my statement).

If I am given this right before the trial, I wouldn't expect adequate time to review.

Is this just a "too bad" type of situation? If so, I'll adjust my strategy accordingly.

Depending on how much time you'll need, and how long it has been since your arraignment, the court's ability to give you a longer continuance (i.e. for you to return on a different day) is restricted by virtue of that 45 day speedy trial clock that is ticking. If you're willing to waive time, it maybe possible for the judge to offer you a few days to review whatever material you received. If not, then it may end up being a "too bad" situation.

[randchap]

In all honesty, and assuming the survey does indeed justify the posted limit, you really don't have much to go on here... The one glimmer of hope that you might have is assuming the officer's testimony does not meet the burden required under VC 40802(c)(1)(C)(ii) which says:

The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.

... and that will obviously depend on what the officer testifies to... Unfortunately, none of us can predict what he will say!

If he is able to testify that your speed was (1) in excess of the prima facie limit, and (2) that it was unsafe for conditions, then the burden shifts to you to prove otherwise (see VC22351(b)... And that may not be an easy task (hence the "glimmer" part of my statement).


Depending on how much time you'll need, and how long it has been since your arraignment, the court's ability to give you a longer continuance (i.e. for you to return on a different day) is restricted by virtue of that 45 day speedy trial clock that is ticking. If you're willing to waive time, it maybe possible for the judge to offer you a few days to review whatever material you received. If not, then it may end up being a "too bad" situation.

I think there is some glimmer there, actually. I am still trying to figure out how to "lay the foundation" to introduce if need be, but immediately after getting my ticket, I downloaded weather data showing overcast skies, unlimited visibility, no precipitation. If the officer was standing in the middle of the road and there was nothing between him and me (1250' away), and no pedestrians, it certainly makes it more difficult to argue that he considered my speed to be unsafe. In addition, as this was a "ticket mill" type of operation, he wrote me the ticket and sent me on my way as fast as he could. I will get the ticket, but I don't think he took notes or that the incident left a memorable impression. And I definitely didn't implicate myself.

I leave this out because I know this won't get the ticket tossed, but the officer wrote the wrong address on the ticket. My license had my old address on it - I have since moved and my address is correct in the DMV database, but the officer never bothered to even ask if it was correct. He also didn't wait for me to get registration and insurance, just took the license and wrote the thing as quickly as possible.

So - if he shows up, hopefully somewhere he'll slip in testimony, and if he doesn't, I'll refer to the above.

[randchap]

OK - update. I have prepared my motion brief and filed it with the court. I understand that I need to serve this on the CA/DA/LAPD/etc. In reading my Fight Your Ticket and Win book, it appears that this needs to be personally served. Is this a true statement? Obviously paying $50 for a process server is going to be somewhat counterproductive.

Can I have this served through the mail or do I really need to have this personally served?

[SMBI]

Look up service by mail ... it should be in your book. You need someone, other than yourself who is 18 years or older, to place it in the US Mail and fill out a proof of service statement saying who they are and when they mailed it. I would pay for certified mail so you have record of it's receipt but that's not required.

[randchap]

As an update to this, I am happy to report that my ticket was dismissed this morning. In my case, dismissed as "the people are not prepared", meaning that the officer did not show up.

I had prepared my paperwork to try and play the lack of discovery card, and had also put together a defense related to the fact that my 22350 violation (LIDAR) was on a clear day with no rain or anything else to suggest poor conditions, light traffic, etc. Would that have worked? Probably a tough sell. I guess my lesson learned is to stack as many odds in your favor as you can and hope one of them pays off.

In my case, I like to think that delaying things did pay off. Who knows. But, if it is helpful to others, my timeline and process was as follows:

4/22/10 - cited for 22350 (61/45)
6/18/10 - initial due date, did automatic 60 day extension
8/18/10 - revised due date - on this date requested arraignment
11/23/10 - arraignment, plead not guilty and received O.R. (no bail posted)
2/2/11 - initial court date, filed continuance
3/3/11 - revised court date

So - with very little effort on my part, I extended this nearly a year. On the calendar, there were probably 100 cases, and my citing officer was listed for 3 of them. 2-3 other names were highly prevalent. Perhaps the LAPD rotates and by delaying, I rotated to a more favorable timeframe?

Or I just got lucky.

FWIW, I am just happy to be done.

[That Guy]

.... had also put together a defense related to the fact that my 22350 violation (LIDAR) was on a clear day with no rain or anything else to suggest poor conditions, light traffic, etc. Would that have worked?

Not likely... Reason being is that when an engineering and traffic survey is conducted to justify the posted limit, it is conducted under Clear/Dry/Light Traffic conditions... So your argument that the conditions were similar to those when the critical speed was arrived at and yet you were 16mph in excess of that limit is not sufficient proof that your speed (61 in 45) was "safe"!

Congrats anyways.

[KeyWestDan]

You are never going to able to introduce a traffic study or anything of the sort.

I assume this is a civil traffic infraction. There is no discovery. This is not prosecuted by the DA or SA.
The state is represented by the police officer. Any paperwork, communications, etc. about the case you can obtain with a simple state public records request. Serving the discovery request on anyone at the county level is a total waste of time.