54 in a 40 on Radar

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

So now my 3rd son gets a ticket. This is in a known speed trap rolling down a hill in unincorporated King County. He was cited for 54 in a 40. I have seen previous versions of this officer's printed statements and it looks like the officer has dramatically improved his statement. The older statements had big enough holes to drive a truck through. However, I am not quite sure how to attack this one. I have included the discovery materials:
Cover Letter
Front of Ticket
Officer Statement
Certification

The tuning fork and SMD unit numbers line up with the certification that was provided. The officer states that he checked the unit with the tuning forks before and after his shift. Is is a stretch to note that he does not specify which day he before and after his shift he checked the unit? What other ideas do you have on this one?

Thanks,
Barry

Have you thought about obtaining the engineering and traffic survey for the specific road where the infraction took place?

Hi Brendan,

We have not thought about an engineering or traffic survey. Talk to me more about what that would do or how I would get it.

On a very interesting note, my son was very clear that the officer was in an SUV when he was ticketed. On the day of the infraction, I asked if it was the motorcycle cop (since he is known to be in that area) and he told me that the officer was in an SUV. I asked again last night and got a confirmation that he was in an SUV. However, the officers statement was that he was "in uniform in a fully marked police motorcycle."

This seems significant as it will directly impact and change the radar device used in the citation and the calibration to determine if it was within specification. Is this a viable defense and how do disprove the officer's statement? The officer statement swears that this is true. Will a testimony stating that he was in an SUV carry the day? Are there any logs that we should get that would show which vehicle that the officer was using that day?

Let me know any additional thoughts you may have.

Thanks,
Barry

I don't think testimony to the fact that it wasn't a motorcycle would help. Unless you can prove it. Which is probably a waste of time.

What would help you is if he used a different radar. Let's say the officer said he used an Eagle II or a Raptor, then you would have a good argument in the sense that it would be pretty difficult to mount the radar and its antennas on the motorcycle.

As for radar testing logs, I have no knowledge of WA state requiring officers to do this. In fact, I have seen some people argue this with a subpoenaed officer and the judge will interrupt to say, "Trooper X's testimony to the fact that the SMD was tested is proof enough that the unit was."

So probably won't help you very much.

You may be able to make an argument about the tuning forks not being authenticated. Basically the argument would say something to the effect of "prove that the tuning forks themselves weren't damaged and were in good condition to calibrate this radar." But that's gonna be a long shot.

The engineering survey is mandated by RCW 46.61.405. You would need to call up the DOT to obtain the information. But the point is moot if the road is not a state highway or even a county road. I'm not familiar with the particular location, however.

If it turns out to be a county road, you can still move to dismiss because the pros has failed to charge you correctly. (This argument only works if a prosecutor is not present) Basically you argue that because the prosecution is not there to amend the charge, the judge cannot do it himself. If the judge tries to amend the speeds, you would object and explain that you believe he is acting in the dual capacity and you would like the record to show that you are objecting to this.

I think you may be on to something, Brendan. OP indicated that this was in unincorporated King County. Therefore, by definition, ALL roads are either county roads or state roads. According to RCW 46.61.400, the speed limit on a state road is 60 and on a county road it's 50. Now, the county, ON THE BASIS OF AN ENGINEERING AND TRAFFIC INVESTIGATION, may lower that limit pursuant to RCW 46.61.415. Since the speed limit on that section of road was 40, the county MUST have conducted such an investigation. You should be able to request a copy of the investigation through an FOIA request.

Oh, and actually, I've seen a motorcycle equipped with BOTH forward and rear facing RADAR antennas for moving operation, along with a LIDAR unit for stationary operation.

Barry

Cops statement does not state he was trained on this particular SMD, just on RDAR generally (if you want to take it that his training was adequate for what he was trained on).

Ed Cole is not a qualified expert - his statement says the design of the unit is adequate but nothing in his short CV indicates he has this expertise. And look at the dates of his training ~ 20 years ago, well before the Stalker was designed. He has no engr. degree (and an EE would likely be required), never has published any papers, etc. Ask that Cole's statement be stricken ... I don't know how well WA actually follows the normal rules or if rules of evidence are completely tossed out

RULE IRLJ 3.1
CONTESTED HEARINGS--PRELIMINARY PROCEEDINGS

(b) Discovery.... Neither party is
precluded from investigating the case, and neither party shall impede another
party's investigation.

I would recommend conduction an investigation. Ask to interview the cop, & the SMD "expert", a state employee. Ask to view, handle, test the RADAR unit. etc...(an investigation can include almost anything, its broader than disovery) when the state refuses you can motion for dismissal under the violation of discovery rules.

RULE IRLJ 3.1
CONTESTED HEARINGS--PRELIMINARY PROCEEDINGS


(a) Subpoena. The defendant and the prosecuting attorney may subpoena
witnesses necessary for the presentation of their respective cases.

Do this for their expert witness .... then get him disqualified as an expert ... then his calibration certificate will be kept out of court. No recommended to force the cop to show unless you find something out during your investigation, if you do one.


Never heard here of anyone taking advantage of the actual liberal ability to conduct an investigation ... and then asking for a dismissal on grounds of not complying with the court's rules. Its a goldmine IMO

I must be in the slow class as this isn't clicking for me yet. It was a county road so the default would be 50 unless there is an engineering and traffic investigation. If there was not, it should be a limit of 50 but he was listed as doing 54 so that would still be speeding. If it was appropriately lowered to 40, he is still out of luck. Howe does this path work? FYI - I believe there is a prosecutor working this courtroom now. So, can you help me better understand this strategy?

Back on the vehicle the officer used: is there a log or something that would identify which vehicle he was using on that day or that would indicated if there are different types of SMD's used on motorcycles vs. the SUV?

Thanks
Barry

Quote:

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Quoting 59baer

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Back on the vehicle the officer used: is there a log or something that would identify which vehicle he was using on that day or that would indicated if there are different types of SMD's used on motorcycles vs. the SUV?
Barry

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Isn't this a portable RADAR device; so it's possible the Sgt. maintains these in his office & troopers take them out w/o signing anything .. that has been my experience. And its why I always ask for an inspection by me of the SMD unit ... if it has any damage to it then its possible that it was in that state when the trooper used it...judges always raise an eyebrow at it but generally will allow it ~ 1/2 the time. But in your state, your rules allow you to conduct an investigation ... so it looks like you are interested in performing one to get some information at least.

Hi Barry,

Here is something I just noticed. Actually, Brendan's comment about the "motorcycle mounted RADAR" got me thinking. The officer NEVER indicates whether he was moving or stationary. So I looked it up, and, sure enough, the Stalker II MDR can be used in EITHER mode. However, if the device was in "moving" mode and the officer was stationary, or the device was in "stationary" mode and the officer was moving, it was being operated improperly. Furthermore, without knowing whether the officer was moving or stationary, nor his EXACT location if he were stationary, you have NO ABILITY to formulate a defense. You cannot, for example, if he were stationary, show that trees or other objects might have blocked the officer view -- or, if he were moving, that other vehicles (same direction or opposite) might have interfered with the reading or his view.

It is accepted that a RADAR unit "will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator." (from the sample certificate in IRLJ 6.6 (b)). However, there is NO EVIDENCE that this particular device WAS being properly operated.

Good luck,
Barry

Barrys:

(A bit ironic that you both have the same name...)

I don't want to be a debbie downer, but some courts, KCDC Bellevue, KCDC Redmond and Snoho Cascade will accept the fact that if the officer indicates he used two tuning forks, then he was moving unless otherwise stated. On the contrary, if he used one fork, he was operating stationary.

But yes, it comes down to what MODE was the officer in? And yes, we don't know.

I just wanted to throw out that tidbit. Not sure if Renton follows the same ridiculous assumptions.

But all-in-all: another good find!