Procedural Guide to Traffic Tickets in Washington State

[3j3x]

I'm confused about one thing and I have not been able to find a good answer. Much appreciated if you can help.

Can you file a Discovery Request before you request a hearing?

I'd like to see what evidence there is before deciding whether to contest or mitigate, etc. Is this possible?

[blewis]

In theory, no, you cannot file a discovery request unless you have requested a contested hearing. The authority for requesting discovery is IRLJ 3.1 (b). However, if you notice the full title for IRLJ 3.1 is: CONTESTED HEARINGS--PRELIMINARY PROCEEDINGS. Now, in reality, there is nothing that prevents you from requesting discovery before you send in the response to the Notice of Infraction. Just be aware that there is no reason why you would receive the materials before your 15 day deadline. If you miss that deadline, "I was waiting for my discovery materials" would NOT be a good excuse.

However, as I mention above, if you request a contested hearing, receive your discovery materials, and decide you just want to mitigate, you can ALWAYS change your plea. In fact, I've seen judges ask, "So, you wish to change your plea to 'guilty with an explanation'?" They then allow the defendant to explain why the fine should be reduced.

Or, if a deferral is your desire, you can ask for that at EITHER a contested or mitigation hearing (with the qualifications I've listed above).

Barry

[dwa]

blewis - I'm confused. Your downloaded request for discovery includes.

3. (If radar/lidar was used) Calibration and certification log for the SMD used on ___(date)_____ in issuance of Citation #___________, if not on file with the court pursuant to IRLJ 6.6(d).


However clearly IRLJ 3.1(b) state that other then the officer sworn statement and a list of any witnessess no other discovery is required.

    (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 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.

What rule do you base that you can request the Calibration and certification log if not on file?

Is this RULE CR 26 GENERAL PROVISIONS GOVERNING DISCOVERY?

[blewis]

There is no specific rule -- just logic. In order for the prosecution to introduce evidence from a radar/lidar/stopwatch, etc. device, that device MUST be authenticated (see ER 901 (b)(9) as upheld by BELLEVUE v. MOCIULSKI, 51 Wn. App. 855, 756 P.2d 1320 (1987).

IRLJ 6.6 (b) allows a form to be submitted in lieu of an SMD expert for the purposes of authentication. IRLJ 6.6 (d), allows that form to be "filed" with the court and that the court can take judicial notice of it.

Now, if the form is NOT on file with the court, my Discovery Request form simply allows me to show the court that I did, indeed, exhaust ALL avenues in trying to get a copy. Thus, if it is not on file, I can move for dismissal pursuant to IRLJ 6.6 (d) and (c) without recourse from the prosecution.

And, yes, you're right -- I have NO right to it through discovery. I'm just covering all the bases. I hope that explains it.

Barry

[dwa]

And, yes, you're right -- I have NO right to it through discovery. I'm just covering all the bases. I hope that explains it.

Barry

Thank you for the great explanation. Could it be considered harasment however knowing that the defendant is asking for something that is not entitled by law?

Also according to LIRLJ 3.1 (3) should the discovery for the Calibration and certification log be served 30 days before the court date? What if notice is given within 30 days forthe court date? This makes it impossible to serve within 30 days.

    (3)   Speed Measuring Device Expert.  Defense requests
for a Speed Measuring Device Expert must be made to the
Office of the Prosecuting Attorney no less than 30 days
prior to the date set for the contested hearing.  A request
for a SMD expert may be treated by the Court as a request
for a continuance to the next date on which the prosecuting
attorney has scheduled the appearance of the SMD Expert.  In
cases where either party requests a Speed Measuring Device
Expert (SMD Expert), those cases shall be consolidated to
the extent possible on one calendar.  (See Exhibit LIRLJ
3.1(a)(3).)

[blewis]

Harassment? Nah! You can ASK for anything you like -- the law simply says they are not required to give it to you. It doesn't say you can't ask.

Barry

[dwa]

Harassment? Nah! You can ASK for anything you like -- the law simply says they are not required to give it to you. It doesn't say you can't ask.

Barry

OK

How can I obtain the Calibration and certification log if it is not included in discovery and the court clerk can not find it either online or filed with the court? When I'm before the judge what proof must I show that it is not online or filed with the court?

[franzm]

I was wondering. My wife just got a ticket for doing 52 in a 40 and I was curious about fighting it. The officer was on the other side of the road and it was early morning with lots of traffic in the opposite direction for the Navy base. Also the ticket does not say how the officer knew that she was going so fast i.e. RADAR or pacing and there is no spot for the unit's number or calibration. Is this an ok ticket or can we contest it on the fact that there is no evidence presented to us as to how the officer somehow knew she was going that fast even though there was heavy traffic in the other way. Also on a second note the officer was very belligerent to my wife any chance there? Thank you

[jluvbug147]

Wow, you did a very good job at explaining the process to me. I contested my ticket, and went in very unprepared. I showed the judge some pictures of why I don't feel the officer could have a good visual of the intersection to fully asses me stopping at the stop sign but the judge was very short and didn't give me much time to talk at all. He set my court over so the officer could be subpoena'ed.

i have a question though to you. The officers sworn in statement had some facts that weren't true.

-The officer stated he was north of the intersection, when in fact he was south of the intersection. Is this grounds for dismissal?
-The officer also wrote that I stated I am sure that I stopped, but that I may not have come to a complete stop.This is not at all true and far from it..
I stated after he said I blew through the stop sign, "I most certainly did not, I may have stopped quickly but I defenitely did stop"
I told the judge this and he just had a smirk on his face. He brought up the statement that said the officer observed you approaching the intersection and saw you slow down but not stop.

I brought in photos from where the officer was (in a one alley/parking lot) which he was in going the wrong way (which I think is bogus, private property or not, he should have to follow the one way painted arrow on the ground just like it's intended. There were two buildings on both side, and a sidewalk in front. The photos showed his limited view of where I was. It was dark no street lights. He would've probably had a view of my headlights but i am not sure if that is enough evidence.

[aaron]

If you have questions about a specific case, as opposed to the described procedures in general, you should start your own thread.