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  1. #1

    Default How Difficult is It to Appeal a Traffic Conviction

    State: FL

    I challenged a speeding ticket (40mph in 30mph zone) and got it reduced to 5-9mph over rather than 10mph over, which cut the fine in half. I did not admit to any speeding at all, but did argue that any device could be off by enough to make a 1mph difference, and she finally agreed with that. However, the hearing officer erred in not dismissing the case entirely. The officer presented photo copies of his radar calibration instead of originals. I asked him who made the copies. He said he did. I pointed out that the officer had access to the originals, and could have presented those at the hearing, but instead brought photocopies.

    Florida procedures state that photocopies can be used unless attacked by the defense. I attacked them under best evidence rules, but the hearing officer did not understand what her procedures book said on the matter and wouldn't dismiss. On appeal I believe a real judge would have to dismiss.

    Further, the officer stated that he got me on radar, but while he was at my driver window collecting my license, etc., he motioned for another car coming down the same street to pull over behind me. I asked if he wrote another speeding ticket just after mine. He said he did, four minutes later. I asked if his radar was hand held and he said no, it was mounted to his motorcycle. I asked how he determined that car's speed then. He stated that we were not there to discuss someone else's ticket, and the hearing officer agreed and would not allow me to continue making that point. My point was that if he was in the habit of eyeballing cars and pulling them over and issued tickets without a radar measurement, perhaps that was what he did in my case as well.

    So, for these two reasons mainly I believe I would have a good case for appeal. But I have no idea what I need to file or which court I need to file it with. Do I need an attorney for an appeal, or is this something procedurally that I can handle for myself? I was well prepared for the hearing. The main reason I'm fighting this is that I absolutely was not going 40mph (probably 35 or less) and this is just a cop out to write tickets on a Sunday morning to raise revenue for the town. I think that's worth fighting.

  2. #2
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    Default Re: How Difficult is It to Appeal a Traffic Conviction

    The records thing? I don't think it's going to work out.
    Quote Quoting Florida Statutes, Sec. 92.29 Photographic or electronic copies.
    Photographic reproductions or reproductions through electronic recordkeeping systems made by any federal, state, county, or municipal governmental board, department or agency, in the regular course of business, of any original record, document, paper or instrument in writing or in an electronic recordkeeping system, which is, or may be, required or authorized to be made, filed, or recorded with that board, department or agency shall in all cases and in all courts and places be admitted and received as evidence with a like force and effect as the original would be, whether the original record, document, paper, or instrument in writing or in an electronic recordkeeping system is in existence or not.
    How he estimated or measured speed for another car has no relevance to how he measured speed for your car.

  3. #3

    Default Re: How Difficult is It to Appeal a Traffic Conviction

    The records thing? I don't think it's going to work out.
    I was relying on Florida's best evidence rule, which I found described in detail here: http://www.donaldmsheehan.com/articl...articleIndex=1

    I also found the following language in one Florida court case:

    The best evidence rule, as codified by statute, requires that if the original evidence or
    a statutorily authorized alternative is available, no evidence should be received which is
    merely "substitutionary in nature." Liddon v. Bd. of Pub. Instruction for Jackson County, 175
    So. 806, 808 (Fla. 1937); Sun Bank of St. Lucie County v. Oliver, 403 So. 2d 583, 584 (Fla.
    4th DCA 1981). Thus, evidence which indicates that a more original source of information is
    available should be excluded. Id. In short, unless otherwise excused by the evidence code,
    the original must be produced unless it is shown to be unavailable for a reason other than the
    serious fault of the proponent. See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980);
    Firestone Serv. Stores, Inc. of Gainesville v. Wynn, 179 So. 175 (Fla. 1938).
    This rule is predicated on the principle that if the original evidence is available, that
    evidence should be presented to ensure accurate transmittal of the critical facts contained
    within it. See Williams; State v. Eubanks, 609 So. 2d 107 (Fla. 4th DCA 1992). Thus, in
    1See §§ 90.953, .955, .956, .957, Fla. Stat. (2002).
    This seems to indicate that the original document should have been presented at the hearing. Can you elaborate on why this argument would not work out? The officer himself admited that he made the photo copy from the original, so he had access to the original and the municipality for whom he works has custody of it presumably. Or dont' the rules of evidence apply in traffic hearings?

    How he estimated or measured speed for another car has no relevance to how he measured speed for your car.
    It seems to me that if I could establish that the officer was writing tickets in general on that morning with no radar measurement, but purely based on visual estimates, then perhaps he lied when he said he estimated my speed to be 40 and then confirmed that it was exactly 40 with his radar? The ticket written 4 minutes after mine was for exactly 40mph as well. That is at least a curious coincidence since the car was driving directly toward the officer, not passing from right to left. I was establishing the officer's general practices for writing speeding tickets.

    If you could prove in court that I was a liar in other cases would that not be a material fact that could influence the case in which I was testifying? If I could demonstrate that a police officer made bogus allegations in other cases, is that not relevant to my case? I'm not understanding why it would not be relevant.

    But I'm still wondering how difficult an appeal is, and whether it requires a lawyer. That's really the crux of my question. The rest is just discussion.

  4. #4
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    Default Re: How Difficult is It to Appeal a Traffic Conviction

    A lot of things may "seem to you", but that doesn't make them legally relevant. Courts aren't interested in speculation and guesswork.

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    Default Re: How Difficult is It to Appeal a Traffic Conviction

    Well, it seems to me that Mr KIA is absolutely correct about the "best evidence" rule. Even in the article you cited, the noted exceptions include "Original in official custody", which the calibration records apparently are. The statute he cited says the same thing.

    Plus, I agree that the officer's method of "clocking" a different vehicle has NOTHING to do with how he clocked you. Oh, and BTW, a "visual estimate" made by someone trained in visual estimating is admissible evidence, with or without SMD corroboration.

    In your case the officer testified that he used radar to confirm your speed. The judge accepted that testimony. NO appeals court will overturn such a decision, nor will they even reexamine the officer's testimony -- that's a matter for the "trier of fact". Your "perhaps this" and "perhaps that" scenarios are not relevant, as Mr. KIA stated, and the judge was well within his discretionary powers to not admit such speculative assertions.

    Sorry, I know that's not what you wanted to hear, but that's the way I see it. If I were you, I'd pay the ticket, save the cost of the appeal (and the attorney that it will take to do it), and get on with your life.

    Barry
    Where am I going? And why am I in this handbasket?

  6. #6

    Default Re: How Difficult is It to Appeal a Traffic Conviction

    Quote Quoting Mr. Knowitall
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    A lot of things may "seem to you", but that doesn't make them legally relevant. Courts aren't interested in speculation and guesswork.
    I have no problem with someone telling my that my thinking is wrong if they can help me to understand why. That is helpful. You don't seem to want to be helpful, so why respond at all?

    I'm not gussing or speculating, I posted links to the Best Evidence Rule in Florida and all you want to do it tell me I'm wrong and that the court is not interested in what I'm saying, but you are offering nothing helpful at all. Really, if you don't want to offer help that's fine, but they why post just to be a disagreable sort?

    Quote Quoting blewis
    View Post
    Well, it seems to me that Mr KIA is absolutely correct about the "best evidence" rule. Even in the article you cited, the noted exceptions include "Original in official custody", which the calibration records apparently are. The statute he cited says the same thing.
    The official custody is the officer's custody. He has possession of the radar unit and its paperwork, but leaves the paperwork at the station bringing only copies (which can certainly be manipulated) to court. If this is not a situation for the best evidence rule then I don't understand where such a rule would apply.


    Plus, I agree that the officer's method of "clocking" a different vehicle has NOTHING to do with how he clocked you. Oh, and BTW, a "visual estimate" made by someone trained in visual estimating is admissible evidence, with or without SMD corroboration.
    Based on my own research, I can tell you that it is an absolute impossibility to accurately judge the speed of a vehicle that is headed straight toward you. The reference points and angles are all wrong. You have to observe a vehicle moving left to right or right to left, I don't care how much experience you have. Unless you use a measuring device, that is.

    Folks can think what ever they like, but this town has a police officer that is writing unjustified tickets based on his whims. That's the truth. Of course it is difficult for me to win such a case, but I need to try. Why? Because if everyone just accepts the small percentage of cops who are abusive it makes for an overall bad environment for people to live in. Other folks can do as they like, roll over, take it, or what ever, but when I know I was written an unjust ticket I will resist it every way I can. You see, I was not going 40 mph.

    In your case the officer testified that he used radar to confirm your speed. The judge accepted that testimony. NO appeals court will overturn such a decision, nor will they even reexamine the officer's testimony -- that's a matter for the "trier of fact". Your "perhaps this" and "perhaps that" scenarios are not relevant, as Mr. KIA stated, and the judge was well within his discretionary powers to not admit such speculative assertions.

    Sorry, I know that's not what you wanted to hear, but that's the way I see it. If I were you, I'd pay the ticket, save the cost of the appeal (and the attorney that it will take to do it), and get on with your life.

    Barry
    Well Barry, at least you've given the matter some thought and offered helpful insights. The best evidence rules thing is really the best argument I have, but I will certainly take the matter of this officer writting tickets based on his eyeballs alone up with the chief of police. I have a meeting scheduled with him next Tuesday. And then I will take it up with the city council and mayor's office so that they know, outside of the judicial setting, what they are dealing with. I've already paid the $80 fine so that is hardly the issue.

    But if anyone would care to answer the actual question I asked, I would certainly appreciate help. That was actually what I did what to hear. That is,

    Do I need an attorney for an appeal, or is this something procedurally that I can handle for myself?

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