Speeding Ticket in Chelan County, Washington State

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

I actually have trial tomorrow so I'm hoping for a quick response.

I've filed for discovery, been continued once by the Prosecution (without me present which I wasn't happy about).

Anyway, Officer's Testimony says he used Radar Model R-470

Exhibit A does not list the certification for R-470.

The Prosecuter helpfully circled R-407...

Will (I guess I should use the word SHOULD) this be suppressed under 6.6 C.

Please help, from what I've heard Chelan isn't a court that is friendly to the un-informed.

Also worst case, if the Prosecutor shows up and tries to introduce some other Exhibit into evidence that does contain the certification for R-470 could I suppress with 3.1 B?

One other thing, my copy of the ticket does not include a filing date with the local court. So it was submitted in violation of 2.2(d) right?

Last time I got a ticket in Chelan, I brought this up, the Prosecutor had no rebuttal, but the Judge (Nakata) informed us both that her copy did have a filing date, and it complied with 2.2(d). To which I had no response. Any ideas?

As far as 2.2 (d), you'll have to call the clerk and ask for the filing date -- unless it's an electronic ticket. In that case it's filed at the same time it's issued.

Was this a WSP ticket? If so, this version of "exhibit A" does, indeed, contain an R-470 (on page 10 of 51).

Can you suppress under IRLJ 3.1 (b)? Perhaps, but I'd guess only if the certificate is NOT on file with the court.

Barry

If her copy has a filing date then there was a filing date. A worthless argument. Not worth it if the Judge says it was filed on time.

If the officer's testimony says R-470, then the radar gun he used was R-470. The prosecutor can try and argue otherwise, but the officer testified to using R-470. If the prosecutor tries to say it was clerical error argue that the officer has testified UNDER PENALTY OF PERJURY that he used that radar gun. Argue that unless the prosecutor wants to testify to being there at the violation then the prosecutor cannot amend the officer's testimony.

Barry it is WSP. I read several of your posts about Bellevue V. Molciulski. I think that would apply here, but I don't feel all that comfortable with the argument.

To Brendan's point, the Prosecutor circled R-407 on Exhibit A. He only included page 8 of 53 in my discovery request. I would guess WSP exhibit A is on file with Chelan County, so a discovery violation sounds like a pretty weak case but it may be all that I have other than Molciulski. But I don't think he had to provide me with exhibit A in the first place, so the fact that it's incomplete probably doesn't matter.

I guess the good news is after checking the date, it was continued to May 10th not May 3rd. So tomorrow I will post up all the pages.

Thanks for your quick responses!

One last thought.

Maybe I just let the prosecutor enter the packet he sent to me into evidence (all of it included his incomplete exhibit A) then ask to suppress because his exhibit A does not include the the proper certification for R-470. Thoughts on that? Sounds kind of risky, from what I've seen once the Prosecutor has gotten all of the stuff they want into evidence it's end of story...

Well, in that case, you could move to suppress because there is no testimony by an expert. All you have is a page with a bunch of numbers. It's the first 4 pages of those certifications that has the testimony by Hillock and Nicholson. I don't think the prosecutor would miss offering the first four pages into evidence, but if he does, it's worth the argument.

http://postimage.org/image/2amjxolxg/

http://postimage.org/image/2amll7yf8

http://postimage.org/image/2amia59fo

http://postimage.org/image/2amez2kg4/

I uploaded the images. I skipped the 4 pages that are the boiler plate Hillock and Nicholson testimony, though they are brand new 3/23/2011.

Let me know if you see anything that I have missed.

There's other stuff to exploit, but here's something interesting.

The trooper testifies to signing the affidavit under RCW "9A.72.05." A law that doesn't exist, but one could argue that the last 0 was dropped off as a minor clerical error. Even so, RCW 9A.72.050 has less to do with the certification of unsworn statements and more to do with the actual charge of perjury. Seems fishy. Not enough in itself to dismiss an infraction, but consider this:

The statute for what he is swearing is RCW 9A.72.085, Which requires that the affidavit or statement be subscribed.

Subscription, by definition means, "The act of writing one's name under a written instrument; the affixing of one's signature to any document, whether for the purpose of authenticating or attesting it, of adopting its terms as one's own expressions, or of binding one's self by an engagement which it contains." You can't argue with that. SUBSCRIPTION = SIGNATURE.

In order for a signature to be valid, it must be handwritten, or signed under the ESIGN act. This is the act that I have seen quoted as to why a court can accept an electronic signature, and rightfully so, it does have a practical application to an infraction.

Now, the ESIGN requires that a "signature must be unique to the person using it." Electronic signatures meet this requirement by prompting individuals to perform an action that is unique to them, such as entering a private password each time that they electronically sign a document.

As we've seen on other affidavits that were signed electronically, the citing officer states: "I certify...true and correct AND I AM ENTERING MY USER ID AND PASSWORD TO AUTHENTICATE IT."

Trooper Beler doesn't indicate that. In fact, there is no proper way to ensure that this affidavit was signed in accordance to ESIGN - there is no proof that a User ID or password was entered.

Furthermore, the affidavit has parts that are handwritten. Were these parts amended by someone else after he signed the affidavit? There is no way to prove that it wasn't without that subscription.

If you can present this argument in a quick and properly laid out fashion, then you can move to suppress the affidavit as it is not certified by law under RCW 9A.72.085. However, like Mociulski, the argument can get you mixed up in court as it is a very technical legal argument. So be careful.

I love how he uses his SMD to verify his speedometer (every 90 days), and then uses THAT speedometer to verify the very same SMD. How can you use a device to authenticate another device, which you then use to test the authentication of the first?

However, I agree with Brendan (as long as the signature is TRULY missing and not simply invisible in the copy). IRLJ 3.3 (c) states:

Quote:

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Quoting IRLJ 3.3 (c)

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The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing....

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As Brendan pointed out, url=http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.72.085]RCW 9A.72.085[/url] states:

Quote:

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Quoting RCW 9A.72.085

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Whenever, under any law of this state or under any rule, order, or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person's sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which:

(1) Recites that it is certified or declared by the person to be true under penalty of perjury;

(2) Is subscribed by the person;
...

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So, since the officer statement is NOT signed, it cannot be considered a "written report made under oath".

"Your Honor, since Officer Beler's statement is NOT signed pursuant to RCW 9A.72.085, I object to its being admitted into evidence." Once that's granted, "I move for dismissal due to lack of evidence"

Good luck,
Barry

Quote:

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Quoting blewis

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I love how he uses his SMD to verify his speedometer (every 90 days), and then uses THAT speedometer to verify the very same SMD. How can you use a device to authenticate another device, which you then use to test the authentication of the first?

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Sounds like the officer needs to look up petitio principii...

Or in lay terms: circular argument.

Ticket dropped, the officer citing the wrong rcw in the affidavit and not signing it was sufficient, didn't even have to bring up Esign. Thanks for all the help.

Just FYI Hillock shows up to the Chelan county hearings effectively eliminating the Bellevue v Muckluski argument. Had people contest WSP tickets both on SMDs he certified and ones the other guy had. The court accepted his testimony in both cases despite what I thought was an effective defense in each.