Contesting Speeding Ticket; First Offense

My question involves a traffic ticket from the state of: Washington, Snohomish County:

I was stopped by WSP on I-405 NB near MP 30 in Lynnwood, WA for doing 75mph in a 60mph speed limit. I received the ticket on 9/28, and it was filed with the court on 9/29. I have contested the ticket and my court date is December 29th. I've requested discovery and received the officer's sworn statement and information to obtain the calibration certificates for the SMD (Kustom Signals, Inc. ProLaser III, serial number PL-20206, WSP number L-1302).

I've read the forums regarding the use of the Mociulski argument for WSP tickets. However I think they may have updated their calibration certificates (see attached), as their exhibit now lists the "Certifying Official: Nicholson, Steen".

The only other thing I could find is that my ticket does not list the subsection for the violation/statute code, so I wouldn't know the exact statute I was violating. However, it clearly states on my ticket "Speeding 5 mph over Limit". So that may be a weak defense.

I would like to request help in reviewing the images and seeing if I'm missing anything. My goal is to get this ticket dismissed, if possible. Experts please help! Thank you in advanced!

https://lh5.googleusercontent.com/-U...800/ticket.jpg

https://lh5.googleusercontent.com/-u...Bstatement.jpg

https://lh4.googleusercontent.com/-W...alibration.jpg

Goal is a dismissal, eh? One avenue to to start an investigation and when the state does not cooperate, then motion for a dismissal on the grounds of violating the court rules regarding discovery, which mandates they cooperate with any investigation.

1. The officer does not state HOW the LIDAR was tested. Was it tested per the manufacturer's instructions? He does not say.
2. The "prior to and after its use" statement is indefinite. WHEN before? WHEN after? Was it last month? Today? WHICH use? When it was used on you or someone else?
3. "It passed each of the checks". What checks? Whether it floats when thrown in a pond? Whether it breaks when you drop it?
4. He "believed" your speed to be above the limit, but does not state what he "believed" it to be, then says that it is consistent with the 75 MPH reading he obtained with the LIDAR.

Thank you for your replies!! I have a couple questions for clarification:

davidmcbeth3 - I have already requested discovery and the prosecutor has provided me with everything I asked for. Is there another investigation I can start? Please explain the process for this.

Speedy Gonzalez - You're correct. The officer does not explicitly provide those details in his sworn statement. How would I convey to the judge that my ticket should be dismiss? Is that "lack of evidence"? I'm not sure what bases I have...

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Quoting Frankie08

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Thank you for your replies!! I have a couple questions for clarification:

davidmcbeth3 - I have already requested discovery and the prosecutor has provided me with everything I asked for. Is there another investigation I can start? Please explain the process for this.

Speedy Gonzalez - You're correct. The officer does not explicitly provide those details in his sworn statement. How would I convey to the judge that my ticket should be dismiss? Is that "lack of evidence"? I'm not sure what bases I have...

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There is no other investigation to perform. You've done what you can, and they responded properly.

I just noticed something about that certification. Did they provide you with the other 4 pages? The page you have posted is not sworn under penalty of perjury and does not substantially conform to IRLJ 6.6. I would go to the court and see what they have on file. It will usually be in a binder there. If it's not on file, and this is all they gave you, then you may have a very solid argument against the certification.

Re-edit: I just noticed where this is at. This certification WILL be on file in that court. Go ask to see the white state patrol certification binder and see what's in it for this unit. They were a full rev behind at the court on my last ticket there.

I noticed on the attachment that the due date for re-certification was in JUL 11 ... one issue.

As far as an investigation, I would include the following:

1) inspect the actual LIDAR unit (damage, serial # check, etc.)
2) inspect the range that they use to do their checks (should be 2 distance checks -- are the distances correct, certified?)
3) inspect documents (training records of officer, maintenance log of LIDAR unit, any chain of custody for LIDAR unit--I always ask the cop if he can testify that the unit has never been dropped--usually gets nowhere but it gets him upset & I move onto other questions)

Just call up the DA and or police and tell them you have a case pending & you need to do these things ... if they say drop dead, file a motion to dismiss (keep records of who you talk to, when, etc.)

bring a camera, tape measure etc.

I wouldn't do any further investigation. What's done is done. Furthermore:

https://fortress.wa.gov/wsp/smdsearc...tionPrint/2150

Take a look at that. This seems a bit fishy that both Hillock and Nicholson are signing a 6.6 affidavit before the actual testing has occurred. I could go into Mociulski, which seems to be a favorite on this site, or you could make a motion to dismiss based on the fact that the SMD Certificate was signed before the actual testing took place. You had a sixth sense that the unit was gonna pass 3 months before actual testing there, Hillock/Nicholson?

You know, if I was an officer, I'd pull people over because "they will speed in the future." Because if these two can get away with this... shouldn't my prediction be admissible as well? I swear they made a movie with Tom Cruise like this a few years back... (Minority Report)

WHERE IS ED COLE!? I would be pretty embarrassed by the disgrace that these two bring to his profession if I were him.

Edit: And, oh. My. Word. This officer said the Lidar device was tested externally. I wonder how he did that! I was unaware that they had tuning forks for LIDAR guns. Oh, wait. They don't.

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Quoting Speedy Gonzalez

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There is no other investigation to perform. You've done what you can, and they responded properly.

I just noticed something about that certification. Did they provide you with the other 4 pages? The page you have posted is not sworn under penalty of perjury and does not substantially conform to IRLJ 6.6. I would go to the court and see what they have on file. It will usually be in a binder there. If it's not on file, and this is all they gave you, then you may have a very solid argument against the certification.

Re-edit: I just noticed where this is at. This certification WILL be on file in that court. Go ask to see the white state patrol certification binder and see what's in it for this unit. They were a full rev behind at the court on my last ticket there.

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Yes, the other 4 pages of the certification from Nicholson and Steen were in the binder at the court. I didn't post because I think it's just the standard certification for all units. The binder at the court was in fact behind on their revision level (last printed June 28, 2011). I was all excited to see that my unit was past due on calibration since the last cal date was 07/30/2009 and I got my ticket 9/28/2011. However upon looking up the latest calibration certifications on-line, it shows my unit was last calibrated on 07/01/2011.

I think as Brendan brought up, the 4-1-11 signature date is likely a good argument. How can you sign a certification THREE MONTHS before it is certified? You can't. It would be different if the signature was on or after the certification date, but it isn't.

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Quoting speedy gonzalez

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i think as brendan brought up, the 4-1-11 signature date is likely a good argument. How can you sign a certification three months before it is certified? You can't. It would be different if the signature was on or after the certification date, but it isn't.

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time machine

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Quoting BrendanjKeegan

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I wouldn't do any further investigation. What's done is done. Furthermore:

https://fortress.wa.gov/wsp/smdsearc...tionPrint/2150

Take a look at that. This seems a bit fishy that both Hillock and Nicholson are signing a 6.6 affidavit before the actual testing has occurred. I could go into Mociulski, which seems to be a favorite on this site, or you could make a motion to dismiss based on the fact that the SMD Certificate was signed before the actual testing took place. You had a sixth sense that the unit was gonna pass 3 months before actual testing there, Hillock/Nicholson?

You know, if I was an officer, I'd pull people over because "they will speed in the future." Because if these two can get away with this... shouldn't my prediction be admissible as well? I swear they made a movie with Tom Cruise like this a few years back... (Minority Report)

WHERE IS ED COLE!? I would be pretty embarrassed by the disgrace that these two bring to his profession if I were him.

Edit: And, oh. My. Word. This officer said the Lidar device was tested externally. I wonder how he did that! I was unaware that they had tuning forks for LIDAR guns. Oh, wait. They don't.

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Thank you for your feedback Brendan. So would I be asking the judge to dismiss based on invalid calibration certificates? Do you think that would be a strong enough case? I just want to be prepared and have other arguments ready if the judge does not accept this one.

Can you elaborate on the officer's statement that the "Lidar device was tested externally"? Is this a point I can bring to the judge to show that officer doesn't know what he is talking about?

Well don't forget that you have the following:

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Quoting Speedy Gonzalez

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1. The officer does not state HOW the LIDAR was tested. Was it tested per the manufacturer's instructions? He does not say.
2. The "prior to and after its use" statement is indefinite. WHEN before? WHEN after? Was it last month? Today? WHICH use? When it was used on you or someone else?
3. "It passed each of the checks". What checks? Whether it floats when thrown in a pond? Whether it breaks when you drop it?
4. He "believed" your speed to be above the limit, but does not state what he "believed" it to be, then says that it is consistent with the 75 MPH reading he obtained with the LIDAR.

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Indefinite time (#2) is a good one in Snohomish county. Also #1 is good too: Did he do the required delta distance check? We don't know. #3 reinforces that. Don't really know what Speedy's saying on #4, however.

If I were you, I would move to dismiss on the fact that the SMD Certification was signed before the device was actually tested. If that fails, I would go with #2. If that Fails, #1 and #3 at the same time. Should that fail, which seems damn near improbable, I would bring up the fact that the officer did not indicate that he was operating the device per his training. You could reinforce this point and drive it home with the fact that he says he tested the LIDAR gun externally. I'm fairly certain that Goodwin would get a real laugh out of a "I would like to see the tuning forks he used..." comment.

But Goodwin will dismiss on the "Minority Report" motion. Just cross your fingers that you don't get a Pro-Tem.

Good luck!

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Quoting BrendanjKeegan

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Don't really know what Speedy's saying on #4, however.

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What I mean is that the officer did not establish a proper tracking history because he does not give a number. How can it be consistent if you don't give a number? Maybe he estimated it to be 70 MPH. We don't know that, however, because he doesn't give the number.

Oh... I see what you're saying. Yeah, I would say that's pretty weak compared to the others that you had conjured up.

I don't know if OP want's to try this, but I started a practice of going weak to strong rather than our normal strong to weak, just to see how weak each judge will go to dismiss. Just don't P.O. the judge. :)

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Quoting BrendanjKeegan

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I don't know if OP want's to try this, but I started a practice of going weak to strong rather than our normal strong to weak, just to see how weak each judge will go to dismiss. Just don't P.O. the judge. :)

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I think that it probably is probably a better strategy to go from weak to strong. I just tend to list the kill shot first.

Thank you all for your help. I think I have some good points to make to the judge to dismiss the case.... hopefully!! The hearing is scheduled for the end of the month, so I have some time to work out a strategy. Not sure if I have enough courage to be experimental going from weak to strong point! But we'll see...

My hearing is tomorrow morning. This is what I plan to say:


Good morning your Honor,

(1) I would like to move to suppress the Speed Measuring Device certification affidavits from the SMD experts Steen Nicholson and Anthony Hillock for the SMD tag #L1302 used by Officer Campbell in the issuance of the Notice of Infraction. On each of their respective certifications, it states that “On the date indicated on Attachment A, the SMD was tested using WSP procedures under the direction of an authorized SMD expert. The results were evaluated and certified by a WSP SMD expert to meet or exceed existing performance standards.” The certification affidavits were signed by Mr. Nicholson and Mr. Hillock on April 1st, 2011. However, the Attachment A shows that the SMD was tested and certified for accuracy on July 1, 2011. That means the SMD certification affidavits were signed 3 months before the actual testing even took place. The certifications are not valid. Therefore I move to suppress the state’s LIDAR evidence and motion for dismissal.

(2) (if not granted) I move to suppress Officer Campbell’s sworn statement due to failure to establish the reliability of the SMD. The officer does not state HOW the LIDAR was tested. We don’t know whether it was tested per the manufacturer’s instructions. Also, the officer states “It passed each of the checks”. But we do not know which checks these consisted of. Per the Kustom Signals, Inc. ProLaser III operations manual, the machine must be checked for accuracy by performing the following checks:
a. Internal self diagnostic check
b. Scope alignment check
c. Fixed distance/ zero velocity test @ 100 feet
We do not know if the machine was tested properly. Therefore the device cannot be established to be reliable and the states evidence should be suppressed pursuant to Spokane vs. Knight. Your honor, I motion for dismissal.

(3) (if not granted) I move to suppress Officer Campbell’s sworn statement due to failure to establish proper operation of the speed measuring device. The officer does not indicated that he was operating the device per his training. The fact that he states he tested the LIDAR gun “externally” reinforces this point. LIDAR guns are not tested externally (no need for tuning forks). Therefore, the state’s evidence should be suppressed and I motion for dismissal.

(4) (if not granted) I move to suppress Officer Campbell’s sworn statement due to indefinite time. The officers states that the LIDAR was tested “prior to and after its use”. This statement is indefinite as we do not know WHEN prior and WHEN after? We cannot establish if it was last month or last week or today. WHICH use? We cannot establish if it was used on me or on someone else. Therefore, the state’s evidence should be suppressed and I motion for dismissal.

If all those don't work, I guess I'm just out of luck! Any last words of advice? Thanks!

With #3 ... I would add that he did not testify that he used the instrument per the manufacturer's suggested method

Good luck. Post back with results.

Thank you everyone for all the help. I was able to get the ticket DISMISSED!!

I presented the "Minority Report" finding to the judge. The prosecutor questioned my research and asked for a continuance in order to review my materials and ensure the certification affidavit was linked with the correct attachment. I insisted that this was not new evidence and that the certification was obtained per the instructions provided in the discovery material and that the court should have it on file. The prosecutor again asked for a continuance based on the fact he had no prior knowledge that I had planned to make motions. The judge seemed to be siding with me but did not say anything. Fortunately a kind attorney stepped in and added that every person has the right to a speedy trial and by continuing the case it would be unfair to me. At that point, the judge agreed with my findings and ruled in my favor!

Thank you sooo much for helping get my ticket dismissed! :D

Congrats ! Won on bogus certificate ... once certificate is out, they have no case...at least that's how this judge sees it.

The prosecutor should get his crap together before he gets to court. Stick to your guns !

Most people just give their side of the story & lose this way... so the DAs are hardly ever ready for a well prepared defendant.

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Quoting davidmcbeth3

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The prosecutor should get his crap together before he gets to court. Stick to your guns !

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Well, in their defense, I have a friend who used to be an Assistant Prosecutor (we'll leave the county nameless). He once told me that every morning he was handed a stack of file folders about a foot and a half tall and was told, "go get 'em tiger." I can't help but feel sorry for these attorneys...