"A jury consists of twelve persons chosen to decide who has the better lawyer." ~Robert Frost
I won't waste any more time arguing this point -- use it if you want to.
Where am I going? And why am I in this handbasket?
My court date is in a week (Aug. 30th). Are there any other viable defenses to this not yet touched upon?
I am wracking my head and have a few ideas but will list them out after I let some people more in the know have a look.
Thanks for everyone's help so far!
Are these any good? Feel like I am grasping at straws.
1. Officer Tate states that “as he fell in behind the violator vehicle on James St. he noted the violate vehicle was well in front of the semi and still in excess of the 25 MPH posted speed limit. Officer Tate does not state if he estimated this speed visually or with radar, and if with radar, does not state if the radar was operated in stationary or moving mode, giving Officer Tate’s reading little credibility. He does not state his credibility for estimating this speed visually.
2. Officer Tate first notes that the violator “appeared to be in excess” of the posted speed zone of 25 MPH. Officer Tate later states that the defendant was well in front of the semi and still in excess of 35 MPH. The officer seems to be implying, using similar wording as when the officer earlier stated the correct speed limit of 25 MPH, that 35 MPH is the correct speed limit. This is of course wrong, and causes a question of credibility to Officer Tates credibility in the citation due to his confusion of numbers.
3. The officer initiated the stop on a Saturday evening at 7 PM, on Main St. a time when the street was very busy and in which the defendant was driving on the outside lane. If the officer was operating the device on Main Street near Golgatha street, that would place at least 2 lanes between himself and the defendant, one of which Officer Tate himself speaks of being a large semi that the defendant at that time was attempting to “pass” or move behind, obstructing view and causing overlap. For a radar unit to be accurate there must be good visibility, and a minimum of traffic. The amount of interference at this hour makes the reading questionable. (I could also add in something about mechanical or radio interference here? I don’t know if its helpful).
Anyone want to please take a stab at what I wrote, or offer any advice on how to beat it that hasn't already been stated? Thanks.
With the big GIANT disclaimer that I am not intimately familiar with WA traffic law and know what little I do from reading the WA threads on here, here goes...
Your arguments first:
2) It's either a typo, or (implies) visual estimation at 35 mph. It's nowhere near enough to impeach the officer's credibility, and irrelevant since you were above the speed limit anyway. I suggest you not raise it.
1) The officer's statement about "first" and "second" contacts is confusing. The written order of things in his notes suggests that he clocked you at 38 mph first and decided to issue the ticket. Before he caught up with you, he saw you passing the semi still in excess of 35mph. Is that right? If so, how he came up with the speed when/after you passed the semi isn't relevant; in any case, I'm sure his radar training (like here in CA) includes visual estimation within +/- 5mph.
3) You can give it a shot, but he did say "faster than all other traffic".
I think you stand a better chance trying to question the foundation. Does WA require checking the radar before and after the stop, and not just the officer's shift?
Also look into using the Mociulski argument as mentioned earlier in this thread. The relevant portions in your certificate by Mr. Joshua Humphrey are:
All initial testing of the SMD was performed under my direction -- what about the rest of the testing? Under whose direction was that performed?
The SMD listed above was tested and calibrated on April xx,2010 -- it DOES NOT say tested and calibrated BY, or UNDER THE SUPERVISION OF, Joshua Humphrey. You may be able to use this attempt to raise reasonable doubt under Mociulski.
Thank you quirkyquark, gonna give that a shot and see if I can figure out any other possible defenses in the meantime. Would like to have as much ammo in my gun as possible. You have been a big help.
Any other ideas?
Don't forget to come back and update us, whatever happens....good luck!
Just got back from court:
I started with the following motion:
“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.’ This position was further affirmed in Bellevue v. Hellenthal.
According to Mociuski, the expert must be the one who performs or supervises the testing. However, in the radar certification you have for the radar unit used in this citation (PYT 546001859), the expert witness states that ONLY "All INITIAL testing was performed under his direction." What about the rest of the testing, other than the initial? Under who's direction was that performed? The expert witness only says the initial testing was performed under his direction, and speaks nothing of the rest, raising reasonable doubt under Muciulski that the unit was tested entirely by or under the supervision of a qualified individual. Furthermore, the certificate goes onto say that the "SMD listed above was tested and calibrated on April 26, 2010." It does not say tested and calibrated BY, or UNDER THE SUPERVISION of Joshua Humphries, compounding the already stated doubt. I move to suppress the SMD Certification affidavit from SMD expert Humphries on the grounds of doubt and mixed-messages the certification testing was done entirely or supervised entirely by him. (I was then going to move to suppress the sworn statement of the officer due to failure to establish reliability of the SMD, if he accepted the first motion, and then the case due to lack of evidence).
The judge thought about it, read the SMD certification several times, thought about it, and I could tell he was waffling. He then asked me a few questions to clarify what I meant, and then attempted to explain that he disagreed because even though he agreed it was worded poorly and confusingly, he thinks that the rest of the certification was enough to say that he did it all. I politely kept reading parts of Mociulski but he didn't take it.
So I went with motion two:
2. Your honor, I move to dismiss pursuant to IRLJ 2.1b4 which states that the notice of infraction shall contain the following information on the copy given to the defendant - "The infraction which the defendant is alleged to have committed and the accompanying statutory citation or ordinance number..." Officer Tate only alleged that I violated RCW 46.61.400, but failed to denote the subsection that I allegedly violated. Without knowing specifically which subsection I was accused under, its not possible to formulate a defense. The law allegedly violated has three subsections and none were denoted, the three subsections varying wildly from infractions on railway grade crossings to special hazards in the roadway. I cannot formulate a reasonable defense without knowledge of the subsection, and move for dismissal.
The judge immediately said to the clerk, "Get me 46," or something like that, and she ran to get the book and he flipped through the pages, found whatever he was looking for, and started reading for a few minutes. Then he looks up and goes, "Please read your motion again." And I read it again and he said, "That IS a valid defense and I dismiss the citation."
I had seen about ten other speeding tickets before me and none of them got off. One got a $10 deduction in payment amount, lol. One guy was sorta smirking as I left and a few were looking like, 'Damn, I need that notebook you just read from.'
Thanks a lot ExpertLaw, couldn't have done it without all the information I was able to find here and all the help I got from everyone.