Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)
I would start with Speedy's #3 then go with his others.
If you need Mociulski, here it is:
“Your honor, According to BELLEVUE v. MOCIULSKI, (51 Wn. App. 855, 756 P.2d 1320 (1987)):
‘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 the device was NOT NECESSARILY TESTED (or supervised) BY THE PERSON WHO SIGNED THIS AFFIDAVIT! In fact, since both "SMD experts" use the words "I" and "me" when discussing their qualifications, why would they refer to a "certified SMD expert" when discussing the actual testing?
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).
Your honor, unless Mr. Nicholson or Mr. Hillock can show from DIRECT KNOWLEDGE that they themselves were the sole expert who tested the device, I move for dismissal.”
That may or may not be a direct copy of one that Barry posted on another thread, but I am reluctant to find it. I used this exact wording a while back for a successful dismissal.
"A jury consists of twelve persons chosen to decide who has the better lawyer." ~Robert Frost