Contested Hearing Violates IRLJ 2.6 1

First off, thank you Barry and Speedy and all the other folks who are altruistically present and ready with a helpful word. Good instant karma to you guys.

My question involves traffic court in the State of: WASHINGTON

Today, I went to the Pierce County District Court to file my request for a contested hearing and file my discovery request. I was a little distracted as I had just had a rear tire blow out on the freeway on my way to the courthouse. I stopped by the court clerk and she tells me there is no pretrial hearing and that the prosecuting attorney's office isn't involved in the request for a contested hearing or in the request for discovery so no need to go the PA's office. She then verifies that I want to contest the infraction and stamps two of my three discovery requests: one for me and one for her. She updates my address in the system and then asks if I want to save some time (for her? for me?) and get the discovery items and an assignment of a court date for the contested hearing as well. My mind was wandering and I said yes. She gets the WSP officer's original NOI and statement. I watch her as she goes online and carefully verifies the many details of the certification of the LIDAR unit he used on me. She then says that I can choose a contested hearing date as early as any day next week because the schedule is wide open. I chose Friday which is exactly 7 days from today, she gives me a copy of the Notice of Hearing, a copy of the Docket and a copy of the LIDAR certificate.

Notice of Infraction
http://i1256.photobucket.com/albums/...-04-03_867.jpg

WSP officer's statement page 1
http://i1256.photobucket.com/albums/...-10-54_565.jpg

WSP officer's statement page 2
http://i1256.photobucket.com/albums/...-11-40_561.jpg

Docket
http://i1256.photobucket.com/albums/...-18-31_178.jpg

Did I decrease my options by taking care of the discovery items and contested hearing paperwork in person? Do I have a shot at a 'speedy trial' request and a dismissal due to the less-than-minimum time between today's notification of the hearing and the hearing date in one week?

I dont like the officer's statement because of his claim of how he does his morning checks .. the lti 20-20 needs 2 distances, not one. You can check th lidar cert. to see what model was used.

You can go over and look at the range to see if it is indeed 100' ... you can perform an investigation..

I never worry about a speedy trial .. the longer the better but that's a personal decision...now you only have 7 days to prepare...thats the downside

Good luck..others may post

Is it just me or have we seen this same exact affidavit 50 times prior to this?

1.) Move to dismiss as the officer has not stated that the device was working properly, nor has he stated that he conducted the accuracy checks himself.

2.) Move to dismiss as the SMD Certificate has been signed on 1/11/12 but the actual tests were completed on the SMD on 2/27/12, almost two months after the signature. How did the "experts" know the SMD was going to pass? Did they have a sixth-sense?

Good luck.

Nor did the officer specify his exact location, nor whether he had a clear and unobstructed view of the defendant's vehicle. He does state that he never lost sight, but that's not the same as a "clear" shot with the LIDAR.

Barry

Edit: to answer your questions about "speedy trial" -- NO. Remember, YOU were the one who picked next Friday. The Clerk was complying with YOUR request. It's analogous to asking for a continuance which puts you out past the 120 date. As it states in IRLJ 2.6 (e):

Quote:

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Quoting IRLJ 2.6

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(e) Time for Hearing; Effect of Delay or Continuances. A motion for dismissal for the failure to hold a hearing within the time period provided by this rule shall not be granted if the failure to hold the hearing was attributable to the defendant or the defendant's counsel.

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Hey guys, thanks for the suggestions and good-luck wishes!

By using Brendan's advice about a similar affidavit template:

"Your Honor, I move to suppress the LIDAR readings per IRLJ 6.6(c) and move for dismissal. When the officer gives the method of checking the SMD, he does not state what the results of those checks were. When he says the tests were performed, he does not state if the tests confirmed that the speed measuring device was operating correctly. The SMD evidence is inadmissible as there is no statement to the device's accuracy on the date of the infraction. Therefore, the LIDAR readings should be found insufficient."

And then there's:

"Your Honor, I move to suppress the LIDAR readings per IRLJ 6.6(c) and move for dismissal. The officer does not state that the accuracy of the unit was checked by him after NOI 66XXXX on 4/29/2012. The SMD evidence is inadmissible as there is no statement to the device's accuracy on the date of the infraction. Therefore, the LIDAR readings should be found insufficient."

I'm not sure if I should mention in the any of the motions that the officer did not definitively state that he performed the accuracy checks at the beginning of his shift because Brendan has previously opined that the officer is understood to have performed the checks himself when making such a statement.

I'm not so clear on how to cite IRLJ 6.6 or phrase the motion for the SMD date discrepancy. And which section of the IRLJ would apply to the unobstructed view/clear LIDAR shot motion?

The problem with your two motions is that you cite IRLJ 6.6 (c) as your authority. However, IRLJ 6.6 ONLY pertains to the SMD certification -- NOT the day to day testing. So, if you use these motions, leave out the reference to IRLJ 6.6. Now, the date discrepancy DOES relate to IRLJ 6.6, since it pertains to the certification itself.

Barry

Barry, thanks for the clarification on the IRLJ citation in my motions. What do you think of the strength of the motions otherwise?

Any suggestions as to the phrasing of the motion for suppression and dismissal pertaining to the 'out of order' SMD certification and testing dates? And the motion for the unobstructed view/clear shot?

What rank order do you give these motions in terms of strength?
1 pre-citation SMD accuracy check performed, results unknown
2 post-citation SMD accuracy check not performed
3 SMD testing and certification dates are backwards
4 Unobstructed view/clear shot are not noted in officer affidavit

How successful do you think I'll be applying these four in Pierce County District Court?

With the results unknown, you have ensured a dismissal in any KCDC court. However, PCDC: I don't have a clue.

Brendan and Barry, although PCDC's behavior is difficult to predict could you guys give me a ranking of the relative strength of the above motions?

Both of you have mentioned in other threads that passive voice/hearsay motions about SMD accuracy checks are weak (my list doesn't include this motion) as are motions about unstated accuracy check results (#1 from my list above). Is 2 from the list above just as weak as 1? If you guys had your judge robes on what would bother you about those two motions? How could they be phrased to make them most palatable?

I guess the same goes for 3 and 4 which seem to be stronger? Certifying the SMD almost two months before the SMD accuracy testing certainly smacks of WSP technician incompetence. But since the SMD unit ultimately passed the tests, what possible motion makes the best argument for suppression based on that incompetence? Is a motion related to a lack of a stated clear and unobstructed shot stronger than the SMD certification motion? Would this type of motion include my documented lane position (third lane out of four lanes) and the officers presumed, but unstated, position at the right shoulder requiring him to shoot across two lanes of traffic?

Personally, I'd buy number 3 as the strongest. But Judges don't like the fact that they need to dismiss because an "expert" screwed up. Most people in the system really view these guys as experts.

Number 1 I would def dismiss. 2 and 4 would depend on how good the defendant argued it.