Speeding Dowhill While Trying to Avoid Debris Field

[planedocpaul]

My question involves a traffic ticket from the state of: Washington
I have read through these threads quite a bit thus far, and have already filed and recieved my discovery docs from Pierce county district court. I want to fight this ticket because I was traveling next to a large dump truck carrying rocks that started to fall off the truck when we were rounding a corner. In order not to remain in the debris field, I felt the safest thing to do was accelerate and overtake the truck,and my speed was accentuated by me traveling down a steep grade as well. Immediatley upon doing so, I finished rounding the bend and a WSP patrol car came into view. The officers statement is that I was clocked at 75 using Lidar, and I was issued a citation for 70+ in a 55 under 46.61.400. I pleaded my case with the officer since I have no violations to date and have been driving for 15 years, but to no avail.

The officer's statement I recieved in my discovery was short and sweet. Officer Smallwood states:
"I observed the defendant approaching my location in visual excess of the posted 55 mph limit. I obtained a reading of 75mph on the defendants vehicle at 1616 ft. The ProLaser III SMD, #L1145 has been certified by the factory and WSP technicians to be in good working order. At the beginning of my shift the laser SMD accuracy was checked by (1) internal self-diagnostic test, (2) scope alignment test, and (3) fixed distance/velocity test at 100 ft. I have been trained by WSP in the use/operation of the SMD device."

I looked up the Lidar certificate in the WSP online archive, and under Attachment A I find that the model listed is consistant with the model in the officers statement, however the standards used are listed for the Falcon(which is radar, not Lidar). See below copied from the actual document:
ATTACHMENT A
The Washington State Patrol currently uses the following speed measuring device.
TAG NUMBER L1145
MANUFACTURER KUSTOM SIGNAL INC
MODEL PRO-LASER III
SERIAL NUMBER PL12811

This SMD was certified for accuracy on 04/04/2011.
The Washington State Patrol does hereby certify the following SMD meets the
manufacturer’s published specifications and has been certified using standards whose
accuracies are traceable to the National Institute of Standards and Technology.
CERTIFYING OFFICIAL NICHOLSON, STEEN R
LOCATION OF CERTIFICATION TUMWATER

STANDARDS USED
TAG NUMBER S010
MANUFACTURER KUSTOM ELECTRONICS
MODEL FALCON
SERIAL NUMBER FF4304
CERTIFICATION DATE 09/23/2009

I am confused a bit as to what this means but I'm hoping it means they have listed the wrong standards used to certify the SMD and based on that I can move to surpress and subsequently dismiss.

Can anyone confirm this or offer any other advice? As always, thank you for your time and effort!

[0179]

Hi planedocpaul.

There should be some heavy hitters who will weigh in any moment now but you'll get the most specific and helpful responses when you post scanned or photographed images of all the discovery documents. Redact your personal info of course.

In any event, a search of the SMD certifications on the WSP website shows that the LIDAR gun used in your case was tested for proper calibration by the Falcon RADAR gun. Nothing strange there. But, the testing on 4/4/2011 was performed after the SMD certificate was signed on 4/1/2011. The sequence of certifying before testing is obviously backwards and has been successfully used as the basis for a motion to suppress the LIDAR evidence. If there are no other incriminating details, like a roadside admission of guilt which has been duly noted by the citing trooper you may then be able to make a motion to dismiss due to lack of evidence. But again, why don't you post up images of all your discovery documents?

[planedocpaul]

Thanks for your reply 0179.

I understand now that the radar gun referenced was the operational check portion for the Lidar certification process. Thanks for helping me understand.

You bring up a good point about the dates, but I'm wondering now if there really is an issue I can argue or not. It appears to me that the SMD expert signed the document on 4/1/2011, but that document only decribes the WSP program to maintain their SMD equipent, and specifically states that "This certificate describes the WSP program". It also makes reference that the Attachment A contains the data for the individual SMD and that the details are entered into the system by use of username and password, thus not requiring a signature for the individual device. Now I'm not so sure this is a good argument.

Does anyone else have an opinion on this? Or can anyone confirm that the SMD expert signature date for the program pre-dating the SMD certifacation date can be used to move to supress?

[blewis]

Actually "0179" won his/her case using that exact argument. He/she probably should have given you a link to the thread, so you could read the entire argument.

Barry

[planedocpaul]

Thanks for the link Barry, that thread is quite helpful. Good work guys!

If I were to take the same approach, one would expect the same outcome as the evidence in my case is no different, however, if for some reason my motion to supress and dismiss is not granted, can I appeal to the results of the infraction from 0179? Like case law?

[blewis]

No, only decisions from appellate courts can be used as "authorities". What one lower court does is not binding on another.

Barry

[jk]

Thanks for the link Barry, that thread is quite helpful. Good work guys!

If I were to take the same approach, one would expect the same outcome as the evidence in my case is no different, however, if for some reason my motion to supress and dismiss is not granted, can I appeal to the results of the infraction from 0179? Like case law?

as Barry states, lower court decisions hold no weight in other courts, or even the same court for that matter but if you could find an appellate court (or higher) ruling supporting the action you could use that.

outside of that, if the ruling is an improper application of the law (mistake of law), you can attempt to appeal based on that. You would either have to argue your position, and have it accepted of course, or find support (in the higher court decisions) supporting your argument just to be granted the appeal though.

but that all is getting way beyond a typical person is willing or wants to carry the issues. Part of wisdom is knowing when to say uncle.

[planedocpaul]

Roger that. Makes sense.

I will proceed with the pre-date argument and have prepared copies of the certificate with portions highlighted to illustrate the point.

As a back-up plan, I'm also wondering if there's an argument to be made with the daily check at the beginning of the officer's shift. She states that:
"At the beginning of my shift the laser SMD accuracy was checked by (1) internal self-diagnostic test, (2) scope alignment test, and (3) fixed distance/velocity test at 100 ft. I have been trained by WSP in the use/operation of the SMD device."
She does not say that she was the one who checked the SMD, only that it was checked. Well, quite frankly then it could have been checked by anyone, including someone who had not been trained, and therefore the results (which are also not mentioned) cannot be trusted.
Further, since there is no statement as to whether the SMD passed said checks, one cannot be certain that the device was in good working order on the date and time in question.

Thoughts?

[jk]

I think you're pissing in the wind but the other guys are better at this traffic stuff than I. Hang around for their input.

[planedocpaul]

I think you're pissing in the wind but the other guys are better at this traffic stuff than I. Hang around for their input.

Do you feel that way about the certificate dates or only my last post?