Should You Subpoena the Police Officer to a Washington Ticket Hearing

[wiseguy_2]

My question involves a speeding ticket from the State of: Washington

While driving on I-5 south (Snohomish County) in April, 2011. I was cited for driving 80 MPH (20 over 60 MPH). I'm sure my vehicle was travelling nowhere near this speed. The officer asked me "Where are you going in a hurry?" or "Are you in a hurry to get somewhere?" I responded "No(where), just heading home." When asked for ID/insurance, I was nervous and fumbled while handing them over, wherein I said "I'm not having a very good day today." He never asked if I knew how fast I was going." He later returned with my paperwork and said "20 over will get you a ticket every time. Here are your options..."

I contested the hearing and requested Discovery from the prosecutor and was sent a copy of the "Washington State Patrol LIDAR SMD Case Report" (the Officer's sworn statement).

The contested hearing date is set for later in June.

At a glance, the Statement looks succinct and tidy, albeit a bit boilerplate. His "Comments: The defendant acknowledge speeding and said that he wasn't paying attention." are a total fabrication.

At the location cited, I-5 has 4 lanes (HOV and 3 GP lanes), plus a lane for traffic merging SB from 164th ST and exiting to SB I-405. Which lane is "lane #1"?
I'm seriously questioning whether my vehicle is truly the vehicle the officer's SMD was pointed at, despite his bogus claim of being 100% sure.

I'm looking for the best advice for defending against this ticket.
* Should I Subpoena the WSP officer?
* Anything else?

FYI - I have already read most FAQs and related posts here.

[blewis]

Personally, I don't see much. You can try the Mociulski argument, which is discussed in this thead, starting with post #10. It's not that effective on LIDAR, however. But, I don't see much else. If I were you, and I were eligible for a deferral, I think I'd take it. Or take a chance and subpoena the officer and hope he doesn't show up. If he does, you're probably toast, though.

Barry

[BrendanjKeegan]

Woah, hold up. We're missing something. First of all, what court is this in?

There is no signature on his affidavit. Nothing. Just a thing saying it was submitted electronically. Breaking this down:

RCW 9A.72.085 REQUIRES that any unsworn statement must be subscribed by the person (See the second bullet).

The legal definition of subscription is "the affixing of one's signature to any document, whether for the purpose of authenticating or attesting it, of adopting its terms as one's own expressions, or of binding one's self by an engagement which it contains." SUBSCRIPTION = SIGNATURE. You really can't argue that.

Personally, I see no signature on the affidavit. Just a statement that it was electronically submitted.

Really? How cool! I'm so enthused that the WSP is cutting down on it's tree-cutting and is using email! However, this is not a sufficient subscription for a legal document.

Now, if the TC wants to argue with you on that, then you can go to the origin of electronic signatures and remind the court of what an electronic signature must contain.

In order for a signature to be valid, it must be handwritten, OR signed under the ESIGN act. This is the act that I have seen quoted as to why a court can accept an electronic signature, and rightfully so, it does have a practical application to an infraction.

Now, the ESIGN requires that a "signature must be unique to the person using it." Electronic signatures meet this requirement by prompting individuals to perform an action that is unique to them, such as entering a private password each time that they electronically sign a document.

As we've seen on other affidavits that were signed electronically, the citing officer states: "I certify...true and correct AND I AM ENTERING MY USER ID AND PASSWORD TO AUTHENTICATE IT."

I don't even see that here. Move to dismiss pursuant to the RCW that the officer cites. (DOH!)

If you're in South Division or Cascade Division, the judge will 99% of the time agree with this.

[blewis]

You may be right, Brendan -- it's certainly worth bringing up. However, GR 30 (d)(2)(D) states:

(D) Arresting or citing officer signatures on citations and notices of infraction filed electronically in courts of limited jurisdiction - A citation or notice of infraction initiated by an arresting or citing officer as defined in IRLJ 1.2(j) and in accordance with CrRLJ 2.1 or IRLJ 2.1 and 2.2 is presumed to have been signed when the arresting or citing officer uses his or her user id and password to electronically file the citation or notice of infraction.

As you can see, the ONLY requirement to electronically file an infraction is that the officer ENTER a user id and password -- NOT a statement that it was entered.

Barry

[BrendanjKeegan]

My argument against that would be there's no way of proving that it was signed with a user name and password.

But, yeah. It all depends on the judge.

[blewis]

Well, it COULD NOT have been "electronically filed" without the ID and password. There's simply no way of getting it into the court system.

Barry