Washington Ticket, How To Find The Speed Measuring Device Info

[Aryckb]

Hello all,

I got a ticket last November here in Washington State and have been looking for information on fighting it. 50 in a 40. First of all I believe he got the wrong vehicle and that I was not speeding, or at least not 10mph over. Maybe 1 or 2. I asked for discovery and all I got was a copy of my ticket and a blank page for the officers notes. No information at all. Is that good or bad? I've thought maybe I could fight it on the fact that he wrote the color of my vehicle as "Sil" which I take as silver or gray, but my vehicle is Tan. At the time there was another vehicle in traffic that was gray. Could this a possible angle to fight it? I've also read online to look into finding out if the Speed Measuring Device (SMD) was currently calibrated, but I keep running into dead ends on that. No one seems to be able to answer my questiosn on how I find out which SMD was used, Radar or Lasar. Then if I get that how do I find the ID of the specific unit that was used by the ticketing officer. I've been to the courthouse and I looked at the calibration records, but there was no way to tell which unit was used. Should it be on my ticket? I appreciate any input that is out there. Thanks.

Eric

[blewis]

No information at all. Is that good or bad?

Are you kidding? That's GREAT!!!

In WA the citation is the "evidence" against you (unless you subpoenaed the officer -- in which case the officer's testimony may be sufficient to convict you). The back of the ticket (aka "officer's notes") should contain the manufacturer and serial number of the SMD unit that was used. There should be a "check box" for things like "Clear and Steady Tone" and "Other vehicles in beam" -- things like that. The discovery information should also have included the calibration certificate for the unit. If none of that information is contained in the discovery information they sent you, you've got one of two scenarios:

1) The officer's notes really do exist with the information all filled in. However, when they photocopied it, something went wrong and you did not receive it. In this case you must move to suppress any other copy of the officer's notes that might be in the court file or with the prosecutor. IRLJ 3.1(b) states in part:

If the prosecuting authority, without reasonable excuse or justification, fails to provide the citing officer's sworn statement, the statement shall be suppressed.

2) The officer failed to fill out the reverse side of the ticket. In this case, there really is no evidence against you, such as the SMD device used, the fact that there were no other vehicles in the beam, etc.

In either case you should move for dismissal due to lack of evidence. Most reasonable judges will grant it. If not, you've got pretty good grounds for appeal.

Good luck,
Barry

[Aryckb]

Thanks Barry, thats some great news!

I had a feeling that the SMD info should be somewhere on the ticket and that was probably the reason that the court clerk wouldn't comment.

As for the back of my ticket / Discovery, I recieved one from the court and one from the prosecuting office and both were blank.

In regards to "Boxes" on the back of the ticket, there are a few, but nothing marked there as well. They are: Traffic, Weather, Street and Light. Each has a few abbreviations under them, such as Traffic (Lt, Med, Hv) Weather, (CL, RN, FG, SN) and so on. But like I said, nothing on the back of either of the discoveries is marked, or circled, etc. All I can see is the lines that the officer should have written something on.

Could just the information on the front of the ticket: Violation Statue - RCW 46.64.400, Vehicle speed - 50 in 40, Zone - SMD (Checked) and the officers signature be enough "preponderance of evidence"?

I think I'll go with motioning for a dismissal for lack of evidence, like you said in #2. Also I didn't subpoena the officer, so it'll be just me and the judge. I'll continue to do my homework, but this helps out a lot.

[blewis]

Could just the information on the front of the ticket: Violation Statue - RCW 46.64.400, Vehicle speed - 50 in 40, Zone - SMD (Checked) and the officers signature be enough "preponderance of evidence"?

Not even close. But that doesn't mean some ambitious prosecutor won't try. Of course, if there is no prosecutor, your job is even easier. Just make your motion for dismissal as soon as the judge lets you talk.

So, there are a couple of things you need to be aware of. Under the Rules of Evidence, specifically ER 901, evidence of a radar gun's reading of the speed of a vehicle is not admissible unless it is authenticated. A form as prescribed by IRLJ 6.6 will meet this requirement. However, since the radar make and serial number do not appear on the discovery materials you were provided, you need to object to the admission of any certificate that the prosecutor (or the judge) might produce. There is simply no way to prove that the certificate applies to the particular SMD that the officer used to "clock" your speed, since it is not identified in the notes. And it is that particular device that must be authenticated.

Likewise, you must object to the admission of your speed without the required authentication -- and you must object as soon as the prosecutor tries to enter it into evidence. "The requirement that evidence be authenticated is waived under ER 103 if the aggrieved party does not make a proper and timely objection on authentication grounds." State v. Roberts, 73 Wn. App. 141 (1994).

Basically, unless the officer's sworn statement (which, even if it does exist, is not admissible under IRLJ 3.1(b), since you were not provided with a copy) states that he/she visually estimated your speed as 50, there is no evidence as to how the officer determined your speed. No visual estimate, no admissible radar reading, nada!

So, object to the admission of the officer's statement pursuant to IRLJ 3.1(b). Object to the admission of the SMD reading pursuant to ER 901. Object to the admission of ANY evidence of your speed due to lack of foundation. Make these objections immediately. Then move for dismissal due to lack of evidence. Should be a slam-dunk! (Why don't I ever get ones like this?)

What court are you headed for. If it's close by, I might come watch.

Good luck,
Barry

[Aryckb]

Thanks again Barry, great information!

What is ER901?

Court is next week in Issaquah. Let me know if your interested and I'll provide more info.

[blewis]

The "ER" refers to "Rules of Evidence". These are the rules that govern whether or not certain information, introduced in court, can be allowed into evidence and under what conditions. In some states, the Rules of Evidence are not applicable to traffic infraction cases. However, in WA, they do apply.

If you're really interested, you can find the complete collection here.

The Roberts case I cited above simply states that ER 901 APPLIES to radar or other SMD devices. They MUST be authenticated BEFORE the information can be admitted into evidence.

I hope that clarifies it,
Barry

[Aryckb]

Barry,

Well to day was the day. The judge dismissed the ticket on the fact that the officer filed the ticket a day late. I said I was ready to fight it on other grounds and he said we can check those out in a minute. When he got back to me I told him I was preparde to fight it on the grounds that there was lack of evidence. His reply was that the officer gave me 2 ways out of this ticket. Feels great to be done with it and to also WIN!

Thanks again Barry for all your great information. If anything, win or lose, I wanted to fight it to learn more about the system, and that I did.

FYI, he also dismissed 2 traffic cases infront of me. A lady had an 80 in a 60 along with an unbuckled kid. Speeding was tossed due to lack of evidence and the seat belt ticket tossed due to you can't always control your kids. She buckeld him in, but he undid it to see the officer approach the car was her excuse. The judge has kids and said he can understand.

Also, dismissed was a Reckless ticket for a guy that said he wasn't driving as the definition of reckless says. The judge said he had seen other reckless tickets from the same officer, but doesn't always agree with him and dismissed the guys ticket. It was a good day in court for those that showed.

Thanks again for the help.

Eric

[blewis]

Congratulations, Eric, nice job! Yeah, the filing date is always the FIRST thing to check in WA. Officers used to only have 2 days, but even though it's been extended to 5, many have trouble getting their paperwork done.

Sounds like your judge was in a good mood. Just out of curiosity, did any of the cases have the citing officer present?

Again, congrats,
Barry

[Aryckb]

Nope, none had the citing officer present. The one lady had a translator, but that was it.

[blewis]

That's about what I figured. I have yet to see or hear of a case where the defendant has won when the officer was subpoenaed -- in WA state, that is. I've watched several hundred traffic court cases over the years, both when I was getting ready for my own hearing, and when I was helping friends. Probably only 10 or so (I should have kept better track -- but I doubt is was too many more than that) had the officer present.

Without the officer there seems to be about a 40% - 50% chance of a dismissal. But, in every case I've seen, when an officer has been subpoenaed, the court has always sided with the prosecution. That's not to say you can't win when you subpoena the officer, but the odds seem to go WAY down. It's probably not the same in other states where the officer is REQUIRED to attend the hearing.