Discovery For a LIDAR Speeding Ticket

Hi,

This is my first time on this forum and I hope you don't mind me jumping in with a question.

My question involves a traffic ticket from the state of: Texas, County of Tarrant, City of Mansfield.

I was stopped in a 45MPH zone by a motor officer who claims to have my speed at 60MPH using his Laser device. I sent a letter to the court, officer, and city requesting discovery of multiple documents including officer notes, etc.

They sent a letter back stating I was not entitled to this information through the Information Act and that I must seek info through Discovery. I then found a sample discovery motion online and modified it to fit my situation and filed it with the court.

When my court date arrived, I went to court expecting to argue my case only to be met with an empty court save for the City Attorney playing God as he made jokes about people and their 'crimes' while he offered 'deals' to those who would accept. I was handed a document that gave me another court date for a 'motion for discovery'.

What are they playing at? What am I supposed to do at a motion for discovery hearing? Is there anything I can throw at them at this hearing?

Help!!!

Thanks...
rt

Laser @ how far? Is that on the ticket? If not, you could argue they intentionally left off possibly exculpatory information. You could post a scan (linked to imageshack) with all identifying information redacted.

It sounds like they are holding a hearing to see if the judge will allow discovery. If speeding is a criminal offense opposed to civil, then you should be entitled to something. Iowa for example, classifies speeding as a criminal offense but has a special provision that does not provide any discovery for simple misdemeanors.

Read this to understand better.

http://blog.motorists.org/what-every...ut-laser-guns/

I think I see the problem

You filed a motion with the court, discovery motion. Courts are obligated to rule on motions & objections filed.

You should have filed a request for discovery upon the opposing party (and not with the court --- most discovery requests are not filed with the court; sometimes a notice that discovery has been served is performed so that the court has it in the record that you did start discovery).

So, file a request for discovery with the opposing party.

you may wish to withdraw your motion.


as far as a FOIA request; I think that they should also provide most of what you asked for under FOIA as well.

The ticket says 771 feet

As I understand it, in Texas speeding is a criminal offense (a misdemeanor).

Any ideas on how I should prepare for this discovery motion? I sent the letter/motion, but beyond that, I have no idea what I need to do to be ready for court. I'd love to be able to throw a motion to dismiss or some other technical thing at them during the motion since they are pushing the issue.

Thanks,
rt

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Quoting rth

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The ticket says 771 feet

As I understand it, in Texas speeding is a criminal offense (a misdemeanor).

Any ideas on how I should prepare for this discovery motion? I sent the letter/motion, but beyond that, I have no idea what I need to do to be ready for court. I'd love to be able to throw a motion to dismiss or some other technical thing at them during the motion since they are pushing the issue.

Thanks,
rt

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? did you FILE a FOIA request. If denied, I would appeal it.

A discovery REQUEST (not motion) should have a header similar to any other type of pleading (names, case #, place, date)...now if they do not reply or object then a motion to compel would be in order (you can ask for a dismissal as a sanction for failure to follow court rules but this is rarely done -- if you file a FOIA request as well, then this too may sway the judge). Do not file your request with the court. Insure you complete a certificate of service (basically an affidavit saying you mailed the request).

? did you file a motion for discovery with the court?


It is rare to have a case tossed due to discovery issues; if you get a favorable ruling on a motion to compel the judge would give them time to complete discovery; after this date & no discovery then you would file another motion to compel asking for a dismissal as a sanction.

You really want to get technical? See if the LIDAR model has been reviewed by a court in texas (commonly known as a Frye examination, after a federal case of that name). If it has not been, then you can object to any of its readings -- they may have looked at other LIDAR models but it technically is required to be "that model that was used"...search out on google scholar. If at court they say that a case has reviewed the unit, ask for the case citation and then ask for an adjournment to review the case (yet another day for the case to continue court likely - if granted).

More technical? OK, say the unit has been Frye reviewed...then object to any certificate of calibration under Melendez-Diaz (SCOTUS) because the person who signed it is not there. The tester may have a test method that states: test unit, if % error is noted to be between 0-10% then record value as 1%. Melendez is a starting point, google scholar this case and find other cases that cite it.

More technical? OK, you can argue that the Certificate of Calibration cannot be admitted due to foundation rules. There was a nice HI ruling on a speeding case that points out all the foundation requirements .. I forget the case citation though; a simple google scholar search should pop it up -- HI has few cases, and I think it was a HI supreme court case ruling so find that one.

More technical? OK, insure that your cross of the cop shows that he is not an expert and then attack his training (visual training especially -- in TX can they convict you solely on this?? maybe, so you'll have to attack the officer's training in this area --- not hard to do but sometimes judges will try to stop the line of questioning -- I have had to argue with the judge that the line of questioning is appropriate as the state has made this a point of fact to explore).


And time is an issue ... if your court date is earlier than 30 days then your discovery request will not be late at the date of the trial -- ask for a continuance. Why? Because you need to determine if you need an expert to review any documents received...I never had a judge deny a continuance based on this ground & if they did then I would object to any evidence (like the COC of the LIDAR unit) from being introduced.

In my state, tickets are adjudicated under criminal rules of procedure. The rules are not hard to understand, you just have to know which rules apply to the particular case. It sounds like you are interested in pursuing this matter so I would recommend you get a copy of the TX procedural rules (may be both statue and practice rules that cover your case) -- or find them online --- practice rules are derived from statues & the statues prevail over the practice rules but there is rarely a conflict between the two but the statutes may have "rules" beyond the practice rules .. just so you know.

And if criminal, can you ask for a jury trial? I don't think you would want to if you are looking for a technical out, as juries are mostly dumb when it comes to this stuff but the judge would be more strict in accordance to evidence rules; so it would be toss up -- I have gone with juries & with judges. I prefer judge because I can usually ask more questions.

Finally, prepare for trial, not dismissal due to discovery as it rarely happens. Understand not to ask questions that can result in an answer that will hurt your case -- write your cross-examination questions down (you can read from your list of questions during trial) & understand what possible answers may result from the inquiry ... I have stopped questioning when the officer says something that kills his case (even if not accurate or he was just confused or he did not understand the effect of his answe; ex: Q1) did you witness where the defendant entered the highway? A: No. Q2: where, in relation to your position was the speed limit sign A: I don't know exactly but there are speed limit signs on the road --- BINGO, he could or did not testify that I passed a limit sign -- and and I was charged with violating a traffic control device, a speed limit sign , not charged with speeding ... I did not ask him if there was a speed limit sign between that last entry point and his position because he would have answered YES & I just hurt my own case ; instead I stopped my cross, the state rested & I motioned for acquittal & won the case).

You generally win a speeding case via motions to strike & objections to the introduction of testimony & evidence during the trial and a good cross-examination.

I have never seen one won due to discovery issues although I have seen judges admonish the DAs, I have never seen them dismiss the case just due to discovery not being complied with -- judges may limit evidence and testimony to sanction the DA but the case moves on (and even this is rare) .. mostly the judges just tell the DA "you should not have done that, now give the person copies of all the evidence you wish to admit". Seems unfair & against the rules but judges are given this much latitude in respect to discovery issues. So unless you know 100% that you'll be in front of a judge who acts differently than most then I would not count on a "discovery dismissal".

Discovery is useful & I recommend people do it .... if they don't comply and they present evidence at trial of something you asked for & its anyway technical, then ask for an adjournment and insure that you do this before you cross examine anyone ... you'll need more than 10 minutes to review documents & the old "I'll need an expert to review these you Honor & I may need an expert to appear, so an adjournment under these circumstances is in the interest of justice".

And object, object, object ... at least get these on the record .. quick simple objections (and don't argue with the judge after the objection -- just move on -- anything you do not object to is considered waved ~ even if the activity is unlawful) .. judges know that once they rule on an objection it is reviewable. Ex: I asked for discovery for a witness list (got nothing of course) & upon the officer being called, I objected, the judge denied it & the case moved on ... but I got the objection into the record -- I if would have lost the case then I may have grounds to reverse. Its a shotgun approach as no one (even lawyers) are up to date on case law -- heck there could have been a SCOTUS ruling the previous day regarding an objection I put forth that may help me in an appeal or at least in considering an appeal.

I have never appealed a traffic case (others yes, not not traffic) but if I felt I got 100% railroaded at trial I may do; depends on how PUed I am.


Finally, another GREAT tactic is to serve discovery, get no reply or objections and then I CALL the DA and ask if they have anything responsive to the request. (and prior to filing a motion to compel -- you MUST try to work out the discovery issues before you file a motion to compel -- this step is REQUIRED & must be noted in the compel motion's pleadings). If they say "no" then I am happy !!! Now if they try to introduce anything listed in the discovery then I have a GREAT objection as the DA was not only non-responsive, they lied...and almost all judges will not like this at all ... and about 75% will not let the evidence in at this point .. but the case moves on.

If the distance was not included, you could very well have raised that argument. 771ft is fair use of the device, something you don't see in every state. It's going to be near impossible to bring up the potential inaccuracies at that distance. As for the discovery, they are probably waiting for that court date to see what the judge says.

The best you'll get from discovery is the brand of gun, when it was last calibrated. Maybe some extra notes. Really won't do much of anything, but it's worth a try. Would be very unlikely the calibration documents were outdated, but worth a try.

Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.

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Quoting lostintime

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If the distance was not included, you could very well have raised that argument. 771ft is fair use of the device, something you don't see in every state. It's going to be near impossible to bring up the potential inaccuracies at that distance. As for the discovery, they are probably waiting for that court date to see what the judge says.

The best you'll get from discovery is the brand of gun, when it was last calibrated. Maybe some extra notes. Really won't do much of anything, but it's worth a try. Would be very unlikely the calibration documents were outdated, but worth a try.

Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.

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If the OP wishes to discuss the technical aspects of the measurement technique then the OP will need either a) an admissible copy of the unit's manual (via FOIA or discovery) and/or b) an expert.

It would be crazy to hire an expert @ a cost of 5K minimum ... so if one can sway a judge in respect to writings in a manual then that is the way to go BUT a judge will give deference to any prior case law concerning the accuracy of the unit.

I would ask to see the lidar & its "checking" facilities at the PD. The officer will testify that he did a distance check and delta distance check .. if the distance for the targets is correct is a question to investigate. Interestingly, one can ask the officer to detail the step by step actions he took when taking a measurement & check and see if it squares with the manual; if the manual is vague in its steps then this is not recommended ..

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Quoting lostintime

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Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.

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Would you get off your silly tripod and window arguments? Seriously!

There is not a single state in the union that requires the use of a tripod, and you're not likely to find a single officer who is as ignorant as to attempt to use a Lidar device through the window!!! Give it up already!!!!

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Quoting rth

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They sent a letter back stating I was not entitled to this information through the Information Act and that I must seek info through Discovery.

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I doubt that they said you're not entitled to the info via an FOIA request, but more likely that you are entitled to the info via a discovery request which will result in a more timely and relevant response.

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Quoting rth

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I then found a sample discovery motion online and modified it to fit my situation and filed it with the court.

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As far as I know, there is a difference between a discovery motion and a discovery request. If this is a criminal matter, then you may be required to serve a discovery request on the prosecuting attorney and file a copy of the same in court. If they failed to respond, or responded but failed to provide you with some or all items in your request, then you would benefit from filing a discovery motion with the court (and serving a copy of the same on the prosecuting attorney) so that you can appear before the judge and present your argument as to why you are entitled to the items in your request.

I could be wrong about the procedures for Texas but the wording of the document that you filed with the court should reveal whether you are headed in the right direction or not. May be you can copy and paste what you included in that document (after redacting all personal information), and someone may be able to guide you further.

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Quoting That Guy

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I doubt that they said you're not entitled to the info via an FOIA request, but more likely that you are entitled to the info via a discovery request which will result in a more timely and relevant response.

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Actually, as I understood their letter, it is exactly what they said:

Here is a quote from letter: " Pursuant to Section 552.3019d)(2) of the Public Information Act (the "Act"), we are required to inform you that the City believes the requested information is exempt from disclosure and has asked for a decision from the Attorney General about whether the information is within an exception to public disclosure."

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Quoting That Guy

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As far as I know, there is a difference between a discovery motion and a discovery request. If this is a criminal matter, then you may be required to serve a discovery request on the prosecuting attorney and file a copy of the same in court. If they failed to respond, or responded but failed to provide you with some or all items in your request, then you would benefit from filing a discovery motion with the court (and serving a copy of the same on the prosecuting attorney) so that you can appear before the judge and present your argument as to why you are entitled to the items in your request.

I could be wrong about the procedures for Texas but the wording of the document that you filed with the court should reveal whether you are headed in the right direction or not. May be you can copy and paste what you included in that document (after redacting all personal information), and someone may be able to guide you further.

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I think you are right about this, though I did not know this when I first made my request. I simply sent a letter to the City, the officer, and the court requesting the information (I've attached a copy of the redacted letter).

When I received the City's response denying my request, I filed a "Discovery Motion" with the court using an actual Discover Motion I found a sample of online. When I arrived at the prelim, I was served with a notice of a Discovery Motion Hearing that I was to attend. It is this hearing I am needing information about. What should I bring with me to the court? Can I make motions to dismiss at this hearing? If so, which ones?

When I got the actual citation, I went to the court the next day and plead not guilty (had to sign LOTS of documents to plead not guilty) and they gave me a court date. I arrived at the court date and when I got there, there was NO Judge, No officer...just the city attorney, I guess this is what they consider a prelim??? I was then given 2 more court dates, one for the actual trial and one for the discovery hearing. This puts my trial more than 145 days from my original date I plead not guilty at the court. Can I do something about speedy trial? I know I'm looking for straws here, but I do appreciate anything you can suggest.


Here is a link to both documents I mentioned: http://tinyurl.com/3jctjho

Those tripod ports on LIDAR devices must have just ended up there. They are silly, obviously serve no valid purpose. LIDAR procedure doesn't exist - but you know it's there.

Sort of like Area 51.

Another thing, that "TIPMRA" discovery template was never going to do much in the first place.

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Quoting rth

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Can I do something about speedy trial?

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Are you sure one of those LOTS of documents you had to sign wasn't a speedy trial waiver?

Yes, I REALLY ticked them off as I literally READ EVERY word on EVERY page. Took almost an hour at the counter, they were NOT happy!!!

They even got to the point where about 3 cops, 1 attorney, and 2 secretaries were in front of me behind the window attempting to speed me along by explaining each document to me in hopes I would not take the time to read them. I had so much FUN.

In the middle of the stack, there was one that asked that I waive my speedy trial and I said NO. There was also one that said I agreed to give up my right to an attorney...again I said NO. Funny how those were buried within the stack. I guess folks just sign and do not read and then they are out of luck.

Anyway, can someone answer me this:

As for a speedy trial, I read somewhere 45 days from the time you plead not-guilty is about right, is this accurate?

If so, when is the start of the 45 days? I got the ticket, then went to courthouse window and entered my plea of NOT GUILTY (went through the paper mess described above). At that time I was given a 'court date' that arrived and turned out to be court with NO court...just the city attorney. Since I would NOT change my plea to guilty for him, he gave me a NEW court date 2 months away AND a court date 2 weeks away for a discovery hearing. From where to where are my 45 days?

If from the first court date to the second court date, it is exactly 45 days.
If from when I entered my plea to the second court date, it is 112 days.

Help, my hearing is tomorrow...any advice before I go? Is there any motions I can give tomorrow?

Thanks!!!!!!!!!!

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Quoting lostintime

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Those tripod ports on LIDAR devices must have just ended up there. They are silly, obviously serve no valid purpose.

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If the use of a tripod was as essential to the operation of the unit as you claim it to be, then why wouldn't the manufacturer include a tripod with every unit? Heck, build it in, mark up the price of the unit by that much, and make an even bigger profit!

Funny thing is that you used all these arguments in your own defense... And they all FAILED, miserably, might I add! And yet you continue to present them as if they were "written rules"!

If you had a clue, you might understand that Lidar is not strictly used by law enforcement for speed detection, that is NOT the only manner in which a Lidar gun can be used. As such, and depending on how/where/by whom a unit maybe used, it maybe advisable for the operator to utilize a tripod...

So the manufacturer added a tripod mount to allow for the use of such accessory if and when the need arises!

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Quoting lostintime

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LIDAR procedure doesn't exist - but you know it's there.

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Kind of like those voices in your head... Everybody tells you "they don't exist" and yet you're still claiming they're there!

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Quoting lostintime

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Sort of like Area 51.

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Yeah, its all a big conspiracy to rob you of your hard earned money... Every state does it, speed measurements are made up, an innocent driver is randomly selected by a boogey man in uniform usually parked at the side of the road...

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Quoting lostintime

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Another thing, that "TIPMRA" discovery template was never going to do much in the first place.

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What are you talking about? And where do you get off suggesting that claims by that author on that website would even come close to being the "legal standard" for discovery in ANY state?

Wow, I did not mean to stir up trouble. My apologies...

Is there any way someone can actually HELP me with my questions rather than just do the FLAME war thing?

I have court TOMORROW MORNING and I really need some help, I am not wanting to cause a war here, just hoping to find some folks who can help me win this thing.

Thanks...

That guy, You are free to assume what you wish.

LIDAR is intentionally left unregulated in every state besides New Jersey. In 12 years, not one state has passed any sort of law regarding how it should be used. Yet, every state law organization has recommendations for accuracy they are taught during training - are these regulations always followed? No, they are not. The public is not supposed to notice this.

Why would the manufacturer include tripods to prevent sweep error? The "sweep error" results in higher readings, meaning more tickets, making their device more successful.

I never said the TIPMRA defense was any sort of legal standard. I said it "was never going to do much in the first place", implying it's not worth much, if any, merit.

You have a motion for discovery, yes? Then just say that you filed it to get the court's permission to perform discovery & you thought the court's permission was required. The court should grant your motion -- ask the court to set a date for the production of documents to be completed.

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Quoting lostintime

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That guy, You are free to assume what you wish.

LIDAR is intentionally left unregulated in every state besides New Jersey. In 12 years, not one state has passed any sort of law regarding how it should be used. Yet, every state law organization has recommendations for accuracy they are taught during training - are these regulations always followed? No, they are not. The public is not supposed to notice this.

Why would the manufacturer include tripods to prevent sweep error? The "sweep error" results in higher readings, meaning more tickets, making their device more successful.

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And you're free to claim that this is all part of one grand conspiracy between the manufacturers, law enforcement, and the legal justice system against the general public. May be one day you'll realize that the entire world does not have to run on your rules nor does it have to meet your standards. If you do, you're bound to get over all this bitterness that you're still feeling simply because you were convicted of a valid and righteous speeding citation, in spite of all your claimed knowledge about the topic...

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Quoting lostintime

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I never said the TIPMRA defense was any sort of legal standard. I said it "was never going to do much in the first place", implying it's not worth much, if any, merit.

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Pretty much applies to 99% of the information that you post on here... It isn't worth much... But you still post it anyways!

Carry on though; not my place to dictate who can post and what they can post!

None of that is true, by the way. I've never said there is any sort of grand conspiracy. Most people looking for advice here, generally have the distance on their ticket, and it's under 1,000ft. Does this happen everywhere? It does not.

It's impossible to "prove" LIDAR should be used a certain way, because such regulation outside one state does not exist. Proving LIDAR should be used a certain way for maximum accuracy is sort of like proving the existence of anti-matter. Only New Jersey has proven the existence of "anti-matter" particles. You know it's impossible to prove something that doesn't exist, and have always taken some odd pleasure in reminding me of that. Because, it can't be proven that LIDAR should be used a certain way (in all but one state), it is rather easy to call any point I make, uninformed, ridiculous, ignorant, etc.

I think it's dangerous that complete free-reign is given to law enforcement over the device (everywhere besides New Jersey). You think it's great to satisfy your Tom Ripley-esque fascination with playing message board prosecutor, and my inability to prove that LIDAR should be used within reasonable distances in 49 states, theoretically gives you a minimum 49 chances to tell me I'm wrong.

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Quoting lostintime

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None of that is true, by the way. I've never said there is any sort of grand conspiracy.

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You obviously can't even read into/don't understand what you yourself are posting. Maybe you're copying lines from other posts on other websites and pasting them here... And if so, understand that it makes your posts even less useful!

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Quoting lostintime

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It's impossible to "prove" LIDAR should be used a certain way, because such regulation outside one state does not exist.

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So what's your point behind coming on here with the same freaking schpeal in each and every thread where Lidar is mentioned?

"What's the distance? Is it listed on the citation? and did he use Lidar through the window?"

What are you trying to accomplish? If you're trying to change the laws, the rules of evidence and the standards by which these matters are adjudicated, then you'd be better off writing to the legislature in each of the 49 states that you're constantly bitching about, starting with your own state of Iowa (or is it Idaho).

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Quoting lostintime

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Because, it can't be proven that LIDAR should be used a certain way (in all but one state), it is rather easy to call any point I make, uninformed, ridiculous, ignorant, etc.

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So you do realize that "it can't be proven", you do understand that your theories are far from being appliable and that your standard aren't as decisive as you make them out to be... And yet you're always so adamant about how it all should work out!!! And yes, you do make it way too easy to call you out... And yet you keep coming back... With the same so called uninformed, ridiculous, ignorant, (and may I add "useless") comments!

So, again, what is your point and what are you trying to accomplish??

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Quoting lostintime

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You think it's great to satisfy your Tom Ripley-esque fascination with playing message board prosecutor...

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Hey, describe it/me as you wish, it is obvious that the value and meaning behind my posts is miles above and beyond what you can comprehend. At least I had one pertinent comment that helped the OP... Compare that with your being a troll, simply hovering around as you wait for the word "Lidar" to appear in a post so that you can regurgitate all the gibberish you are repeatedly posting, and you've offered NOTHING of value that ANYONE can use or benefit from!

So, yet again, what is your point and what are you trying to accomplish???

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Quoting lostintime

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... and my inability to prove that LIDAR should be used within reasonable distances in 49 states, theoretically gives you a minimum 49 chances to tell me I'm wrong.

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You couldn't even define "reasonable"... Not by any defined or even remotely relevant standards... That certainly makes it easy for anyone -not just me- to tell you you're wrong!

I call it as I see it... In return, you've had plenty of opportunity to "put up" (some sort of proof validating anything you say) "or shut up" (and yet you still blabber on with the same song and dance)...

Get a clue already!!!

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Quoting rth

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Wow, I did not mean to stir up trouble. My apologies...

Is there any way someone can actually HELP me with my questions rather than just do the FLAME war thing?

I have court TOMORROW MORNING and I really need some help, I am not wanting to cause a war here, just hoping to find some folks who can help me win this thing.

Thanks...

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No apology needed... You didn't start anything.

Fact of the matter is, your questions are very specific, and I am sorry I wasn't able to offer much more than what little I did. Personally, I am not as well versed with Texas procedures and I am not aware of anyone on this forum who could answer such specific details. It is unfortunate that you came here so close to your hearing date and that we were unable to address all your inquiries.

Best of luck and please update us with how it all works out!

Through-the-window can refract the laser beam. I'm not say this happened, only bringing up the possibility. The tripod extensions are there for a reason, not just for survey mode. It does help prevent any sort of additional speed. No surprise they aren't in use. If the officer said on the stand that sweep error doesn't exist, that a tripod doesn't help prevent sweep error, he would be lying. Depending on judge/prosecutor, they may allow him to make these points, they may not.

If he said using the device through-the-window didn't alter the beam's angle possibly resulting in a misread, he would be lying again. This is a very arbitrary process, again, one judge may listen, another may not.

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Quoting lostintime

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It's impossible to "prove" LIDAR should be used a certain way,

.... tell me I'm wrong.

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Its not hard to prove the LIDAR is used incorrectly, if it was because the manufacturer has written methods in their manuals on its use.

To the OP:

http://stmaryslawjournal.org/pdfs/Cox_II.pdf