Forming a Traffic Ticket Defense

[BRUINSCOUT00001]

My question involves a speeding ticket from the State of: Washington, Clallam County

Anyone have any advice on how to proceed? I got cited for my speed. 58 in a 45. The officer was heading in the opposite direction on a four lane Highway.

I have court on May 6th, and wondering what you all thought I should do from here. Any advice would be appreciated.

[blewis]

Hmmmm. I don't know about this one. It's going to be an uphill battle, I think. I don't even know if I'd give it a 50-50 chance of success. But, let me lay out my points. Perhaps someone can add to them or see something I missed.

The main issue is the "reliability" of the radar unit. Here are the salient points:

1. The officer does NOT specify how many tuning forks were used for the calibration check. Nor are the serial numbers listed. You'll need to go to the courthouse and get a copy of the radar certification. If the serial numbers are listed, the question becomes "why not list the serial numbers on the sworn statement?" The answer MIGHT be that they are NOT the tuning forks listed in the Certification.
   
   
2. The officer did NOT check the box beside the statement, "The radar base speed reading was consistent with the reading displayed on my patrol vehicle's certified speedometer." Interestingly, the next statement, "My patrol vehicle's speedometer was certified for accuracy on 3-17-10 by Sgt. Hester" IS CHECKED! AND IT WAS CERTIFIED THAT VERY DAY!
   
   
3. Also interesting is the LACK of a check mark by the statement, "The radar reading was consistent with my visual estimation of the defendant's vehicle speed."

OK, so what do we have? The officer states that he observed your car travelling "in excess of the posted speed limit." Yet, he did NOT specify what he visually estimated your speed to be. Furthermore, the radar reading was NOT consistent with his visual estimate -- whatever that was (if it had been, he would have checked that box). Furthermore, the radar "base speed" was NOT consistent with the patrol vehicle's "certified" speedometer (if it had been, he would have checked that box). On top of that, we don't know for an absolute fact that the tuning fork or forks used to check the radar's calibration were, indeed, the proper fork(s) issued for that unit.

No knowledge of which tuning forks were used, the lack of agreement between the radar's base speed and the patrol's speedometer, and lack of agreement between the radar reading and the officer's visual speed estimate throw the radar reading into SERIOUS question, in my mind.

Oh, I could have argued that the "speedometer certification" does NOT meet the requirements for validation set forth in case law, but, in this case, you WANT to show that the discrepancy is with the radar. So, having a "certified" speedometer -- that is NOT consistent with the radar -- is in your favor.

As I stated in the beginning, I don't think these points are particularly strong, but it's all I can come up with. Maybe someone else will see something I missed.

Good luck,
Barry

Edit: plus, let's not forget the "no subsection" argument.

[BRUINSCOUT00001]

Thanks Barry for your time and your opinion it is really appreciated...Sounds like I'm gonna have a tough time with this one. I was just curious...but the sworn statement wasn't even signed...or maybe even written until the day I served the county with the discovery....One full month later...Is that normal?

[BrendanjKeegan]

In addition to Barry's post, I might add two cents.

I honestly don't know how much luck you will get with this, but: IRLJ 2.1(b)(1) states: "The name, address, and phone number of the court where the notice of infraction is to be filed;" I don't see ANYWHERE on the NOI where it says the District Court of Clallam County. In fact, it says the district court of Port Angeles. I wasn't aware that the city of Port Angeles had its own District Court. In other words, I didn't think there was a Port Angeles District for the State of Washington Court System. Also I don't see an address or a phone number, but maybe it was listed on the original NOI.

The officer, in his statement, said nothing about when he was trained. Only that he was.

And finally, I don't see anywhere on the statement where he lists the serial number of the SMD. Sometimes a radar certification (see IRLJ 6.6) won't be listed by tag number but by serial number. So If you have trouble finding the radar certification then I would move to dismiss because there is no certification and therefore no evidence that it has been checked and calibrated by a certified radar facility.

Oh, and one more... this might not fly at all, but it may be another shot: He said that it was tested before and after the stop, but what about date's or times? I think that it is agreeable that if it was calibrated three days before you were stopped and a day after you were stopped that it may not be calibrated correctly.

All of Barry's points + the few that I found = a fairly questionable SMD.

Brendan

[blewis]

Good catch on the "before and after" radar check, Brendan. I'd certainly point that out. Your other points are MUCH weaker, however. Here's why:

I honestly don't know how much luck you will get with this, but: IRLJ 2.1(b)(1) states: "The name, address, and phone number of the court where the notice of infraction is to be filed;" I don't see ANYWHERE on the NOI where it says the District Court of Clallam County. In fact, it says the district court of Port Angeles. I wasn't aware that the city of Port Angeles had its own District Court. In other words, I didn't think there was a Port Angeles District for the State of Washington Court System. Also I don't see an address or a phone number, but maybe it was listed on the original NOI.

IRLJ 3.1 (d) states:

(d) Sufficiency. No notice of infraction shall be deemed insufficient ... by reason of defects or imperfections which do not tend to prejudice substantial rights of the defendant.

Obviously, the missing Court information does NOT affect a defendant's substantial rights. And since OP was able to figure out WHERE to file and serve the Discovery Request, you'd be hard-pressed to show ANY prejudice at all.

The officer, in his statement, said nothing about when he was trained. Only that he was.

That's true. But, in addition to saying he was trained, he also indicated 13 years experience with radar. If I were a judge, I'd say the two are sufficient to show he was a "qualified" radar operator.

And finally, I don't see anywhere on the statement where he lists the serial number of the SMD. Sometimes a radar certification (see IRLJ 6.6) won't be listed by tag number but by serial number. So If you have trouble finding the radar certification then I would move to dismiss because there is no certification and therefore no evidence that it has been checked and calibrated by a certified radar facility.

I don't remember EVER seeing an actual "serial number" for an SMD. All I can remember, and quickly looking through some other postings verifies it, are "tag" numbers. However, if OP goes to the court and searches for the SMD certification, I'm sure it will be filed by "tag" number, not serial number. But, that's just my opinion based on my experience. Certainly, if you have trouble finding the certification, make a motion to suppress, as Brendan suggested.

All that being said, add the "before and after" (1 year before? 1 month after?) to the other items we've discussed, and you've still got a pretty weak case. OP, if you're eligible for a deferral, you might want to give it serious consideration. If not, I think it will ALL come down to the judge and how well you can present these issues.

Good luck,
Barry

[BRUINSCOUT00001]

Thank you all for your time and opinions. This is getting very interesting to say the least. So I turned in discovery and apparently Sgt Hester had to file it with the court house the very day I turned it in. due to the fact it is filed on April 22nd.
Guess who pulls me over 4 days later on my way to work AGAIN!! Yup.... Sgt Hester!!
He passes me, whips a U-turn, pulls up behind me and pulls me over...comes to the passenger window asks me where I'm headed...I tell him to the hospital n Jefferson County. He states that I was doing 67 in a 55 and asked for my license.I had the cruise control on set at 60 mph. He doesn't ask for registration or proof of insurance......It feels like to me that he knew my vehicle, since four days earlier he had to refresh his memory for the sworn statement, and that I am contesting his ticket. Uggh...now another ticket in a different county...no more 5 over for me!

What should I proceed with first? A motion to supress the sworn statment due to the unreliability of the radar unit?

Then the a motion to dismiss based on the lack of subsection on the infraction?


Never one this before not sure how I should even bring a forward a motion LOL

[blewis]

What should I proceed with first? A motion to supress the sworn statment due to the unreliability of the radar unit?

Then the a motion to dismiss based on the lack of subsection on the infraction?

You are NOT trying to suppress the officer's sworn statement. You are trying to use it to show that the radar reading was NOT reliable. Otherwise, it would have been consistent with the officer's visual estimate, as well as the patrol car's speedometer -- but it was not! Plus, there is no evidence that it was tested within a "reasonable" time "before and after" the stop, nor is there evidence that the proper "serialized" tuning forks were used. If the radar evidence is not reliable, and the officer did not state what speed he "visually" estimated you were going, there is NO evidence that you were speeding at all. Move for dismissal.

If that fails, then try the "no subsection" argument (search for "subsection" -- you will find several threads that discuss it at length).

Barry

[BrendanjKeegan]

Yeah, Barry, I didn't think those points were worth half of the time to type it, but I thought I'd put in a little bit of an opinion.

I've seen both tag #'s and serial numbers organized in court. So the question is, Where is the certification...

Anyhow. OP: If it was my case, I would make the motions one by one. But Barry may do differently. It's however you feel your case will be presented best.

Btw- if he ever does pull you over again, try to play the ignorant card and don't admit you were late to anything or speeding or anything that could be used against you as an admitting factor.

Brendan

[jjb]

I don't know if any of this is useful but I found the manual for the Kustom Trooper SMD here: http://www.kustomsignals.com/pdf/Trooper.pdf

It looks as though the manufacturer calls for more tests than the officer stated.
1. Automatic Circuit Test (page 8)
2. Moving Mode (He states he tested it but not in which mode it was in when he tested it).

As I stated before I don't know if any of that helps but if the unit was used in moving mode but tested in stationary mode maybe it wasn't operating correctly?

I don't know if any of this is useful but I found the manual for the Kustom Trooper SMD here: http://www.kustomsignals.com/pdf/Trooper.pdf

It looks as though the manufacturer calls for more tests than the officer stated.
1. Automatic Circuit Test (page 8)
2. Moving Mode (He states he tested it but not in which mode it was in when he tested it).

As I stated before I don't know if any of that helps but if the unit was used in moving mode but tested in stationary mode maybe it wasn't operating correctly?

[blewis]

Great find, JJB. Indeed, the fact that there are separate "moving" and "stationary" tests may be VERY important. Plus, look at page 10:

For an additional check of the Moving Mode, drive the patrol vehicle and compare the reading in the PATROL display with the vehicle’s calibrated speedometer. The speed registered in the PATROL display and speedometer should coincide, or be within reasonable limits (allowing for minor speedometer error). These comparisons, on a day-to-day basis, are a reliable way to check the accuracy of your radar. If there are major discrepancies between the PATROL speed registered and the vehicle speedometer, the system should be taken out of service until the discrepancies are resolved. (This check is one of the best ways to verify the proper operation of your radar).

This improves the "reliability" arguments. Since the officer did NOT indicate that the patrol speed agreed with his speedometer, "the system should [have been] taken out of service", per the operator's manual.

Your main problem will be getting that document into evidence. I'm not sure you can ask the judge to take "judicial notice" of the document as a "public records document", since it is clearly located on the manufacture's website. In my own case, since I had subpoenaed the SMD expert, I asked him to identify the document. Once he did, I moved to enter it into evidence. You MAY have to resort to the same tactic.

In any case, if you can get the document into evidence, I think your chances have climbed to about 80-20.

Again, nice job, JJB.

Barry