Subpoena the Speed Device Measuring Expert in Washington State

[macroplaza]

I received a ticket in Kennewick, Washington (Benton County) on 08-12-06 for going 52 mph in a 35 mph zone. I will not be able to get my ticket deferred since I already received one in March of 2005 in Cowlitz County.

A lawyer here in Seattle says that one approach could be to subpoena the officer and the Speed Device Measuring Expert. He says that the officer may or may not show up, but that there might be an even lesser chance that the Speed Device Measuring Expert will show up and thus could help me win the case.

Does anyone know about this approach and what the probability is that I can win using this approach?

I have been scheduled to appear on Oct. 3 at the Prosser Court House for Benton County.

Thank you very much.

[blewis]

Your appearance on Oct 3 -- is that the hearing or pre-hearing conference?

[macroplaza]

The notice I received calls it a contested hearing.

Thanks.

[chuckycheese]

I can't comment on Washington's rules but in California, that's a fairly reasonable strategy. I feel sure a local attorney would also advise you to stretch it out as long as you're able to do so. Here, that would mean you might be able to reschedule once, maybe, twice depending upon the county.

[cdwjava]

I don't know if one could subpoena the state expert on the device, but you can subpoena your OWN expert.

The state is responsible to show that the device is properly maintained and if the maintenance and calibration records are subpoenaed, the state might decide to bring the expert along as well ... but, they could also hope they stand on their own.

I can't imagine that willy-nilly subpoenas for every conceivable expert would be allowed ... heck, why not go for the guy that calibrated it, the mechanic who checked the speedometer on his car, and the last five officers that used the device?

The state might challenge the subpoena and ask WHY you are asking for the state's expert.

Why would you want the state's expert? Wouldn't that just slam the door on your case unless you intend to fork out for your own expert??

- Carl

[Bookm]

The state is responsible to show that the device is properly maintained and if the maintenance and calibration records are subpoenaed, the state might decide ...

- Carl

Why would the defendant have to supoena calibration documents? Is it not the job of the DA to prepare an adequate case, including all required records? If the defendant asks to see them (in court), and they are not produced (immediately), should the radar evidence not be ruled as inadmissible?

Just asking,
Sean

[aaron]

The state simply has to present a legally sufficient foundation to introduce the evidence. If the defense wishes to attack that foundation, the impetus is on the defense to call the necessary witnesses and experts to support their attack.

[cdwjava]

Why would the defendant have to supoena calibration documents? Is it not the job of the DA to prepare an adequate case, including all required records? If the defendant asks to see them (in court), and they are not produced (immediately), should the radar evidence not be ruled as inadmissible?

Just asking,
Sean

It depends on the status of state law as to what MUST be presented to establish the minimum foundation for the evidence. Many of the documents are not "immediately" available, so a request in court is not rerasonable. If the defense wishes to make an issue of the radar calibration he would need to request these items in discovery. Then, if the records support a contention that the device was not properly maintained or calibrated, the defense can seek a dismissal for lack of foundation. If the state is unable to refute the claim the defense may well prevail.

- Carl

[blewis]

I received a ticket in Kennewick, Washington (Benton County) on 08-12-06 for going 52 mph in a 35 mph zone. I will not be able to get my ticket deferred since I already received one in March of 2005 in Cowlitz County.

A lawyer here in Seattle says that one approach could be to subpoena the officer and the Speed Device Measuring Expert. He says that the officer may or may not show up, but that there might be an even lesser chance that the Speed Device Measuring Expert will show up and thus could help me win the case.

Does anyone know about this approach and what the probability is that I can win using this approach?

I have been scheduled to appear on Oct. 3 at the Prosser Court House for Benton County.

Thank you very much.

You have to keep in mind that Washington is not like any other state. First you need to become very familiar with the IRLJ's. These are the Court Rules which govern how things work in a Court of Limited Jurisdiction, which is where you're headed.

According to IRLJ 3.1(b):

Discovery. Upon written demand of the defendant at least 14 days before a contested hearing, filed with the court and served on the office of the prosecuting authority assigned to the court in which the infraction is filed, the plaintiff's lawyer shall at least 7 days before the hearing provide the defendant or the defendant's lawyer with a copy of the citing officer's sworn statement if it will be offered into evidence at the hearing and with the names of any witnesses not identified in the citing officer's sworn statement. If the prosecuting authority provides the citing officer's sworn statement less than 7 days before the hearing but not later than one day before the hearing, the citing officer's sworn statement shall be suppressed only upon a showing of prejudice in the presentation of the defendant's case. If the prosecuting authority, without reasonable excuse or justification, fails to provide the citing officer's sworn statement, the statement shall be suppressed. No other discovery shall be required. Neither party is precluded from investigating the case, and neither party shall impede another party's investigation. A request for discovery pursuant to this section shall be filed on a separate pleading.

You also have the right to subpoena the officer (IRLJ 3.1(a) - "A request that an officer appear at a contested hearing pursuant to rule 3.3(c) shall be filed on a separate pleading."). However, if YOU don't subpoena the officer, he/she does not have to show up, as stated in the pertainent part of IRLJ 3.3(c):

The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing, unless the defendant has caused the officer to be served with a subpoena to appear in accordance with instructions from the court issued pursuant to rule 2.6(a)(2).

If you had wanted to subpoena the SMD expert, you needed to have done it at least 30 days prior to your hearing. As stated in IRLJ 6.6(b):

Speed Measuring Device Certificate; Form. In the absence of proof of a request on a separate pleading to produce an electronic or laser speed measuring device (SMD) expert served on the prosecuting authority and filed with the clerk of the court at least 30 days prior to trial or such lesser time as the court deems proper, a certificate in substantially the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic or laser speed measuring device (SMD) is an issue....

The SMD certificates are "filed" with the court and the court can take judicial notice that they have been filed. They are public records and available without the need to file a discovery request (see IRLJ 6.6 (d)).

OK, so what does all that mean?
1. You must request through discovery the officer's notes at least 14 days prior to the trial.
2. The only discovery evidence you are entitled to is a list of witnesses and a copy of the citation and officer's notes.
3. You may subpoena the officer (in a separate pleading). If you don't, the officer will not appear and the only evidence against you is the citation itself and the officer's notes.
4. You may subpoena the SMD expert (in a separate pleading -- 30 days before your hearing). If you don't, a calibration certificate will be used as foundation for the SMD evidence.
5. If you subpoena the SMD expert and he/she doesn't show, the court can continue the hearing (see IRLJ 6.6(c)).
6. If you subpoena the officer, you may have to sit in the courtroom ALL DAY waiting for him/her. If the officer doesn't show up, the prosecutor can still use the citation and notes as evidence. If you insist on the officer's direct testimony, you will have to ask the court for a continuance -- after all this is YOUR witness.
7. Same holds true for the SMD expert. These are YOUR witnesses -- the prosecution doesn't need them, so if you do, YOU'LL have to ask for the continuance or be ready to proceed without them.

And most of all, remember that it's the "preponderance of evidence" rule in Washington, not "beyond a reasonable doubt". Normally, the citation alone preponderates against you.

BTW, I sent subpoenas to the officer and the SMD expert when I went to trial for my speeding ticket. They both showed up. I lost, but won on appeal (on a different issue).

Good luck,
Barry

[cop_ticket_me]

You have to keep in mind that Washington is not like any other state. First you need to become very familiar with the IRLJ's. These are the Court Rules which govern how things work in a Court of Limited Jurisdiction, which is where you're headed.

According to IRLJ 3.1(b):
You also have the right to subpoena the officer (IRLJ 3.1(a) - "A request that an officer appear at a contested hearing pursuant to rule 3.3(c) shall be filed on a separate pleading."). However, if YOU don't subpoena the officer, he/she does not have to show up, as stated in the pertainent part of IRLJ 3.3(c):
If you had wanted to subpoena the SMD expert, you needed to have done it at least 30 days prior to your hearing. As stated in IRLJ 6.6(b):
The SMD certificates are "filed" with the court and the court can take judicial notice that they have been filed. They are public records and available without the need to file a discovery request (see IRLJ 6.6 (d)).

OK, so what does all that mean?
1. You must request through discovery the officer's notes at least 14 days prior to the trial.
2. The only discovery evidence you are entitled to is a list of witnesses and a copy of the citation and officer's notes.
3. You may subpoena the officer (in a separate pleading). If you don't, the officer will not appear and the only evidence against you is the citation itself and the officer's notes.
4. You may subpoena the SMD expert (in a separate pleading -- 30 days before your hearing). If you don't, a calibration certificate will be used as foundation for the SMD evidence.
5. If you subpoena the SMD expert and he/she doesn't show, the court can continue the hearing (see IRLJ 6.6(c)).
6. If you subpoena the officer, you may have to sit in the courtroom ALL DAY waiting for him/her. If the officer doesn't show up, the prosecutor can still use the citation and notes as evidence. If you insist on the officer's direct testimony, you will have to ask the court for a continuance -- after all this is YOUR witness.
7. Same holds true for the SMD expert. These are YOUR witnesses -- the prosecution doesn't need them, so if you do, YOU'LL have to ask for the continuance or be ready to proceed without them.

And most of all, remember that it's the "preponderance of evidence" rule in Washington, not "beyond a reasonable doubt". Normally, the citation alone preponderates against you.

BTW, I sent subpoenas to the officer and the SMD expert when I went to trial for my speeding ticket. They both showed up. I lost, but won on appeal (on a different issue).

Good luck,
Barry

Hi Barry - What was the issue that you won appeal on?