Non Certified Radar Operator to Testify on Radar Citation

My question involves a traffic ticket from the state of: CA

I received a 22349(a) citation from CHP (75 in 65) on US 395 at 1:00am. Two officers were in CHP vehicle travelling opposite direction the driver of the CHP vehicle was operating the Stalker Dual the other CHP officer (non radar certified) was the citing officer. I have received discovery and CHP has noted that the officer with the radar training certificate has been transferred and will NOT be testifying. The TR-235 has the radar operators last name along with the second officers badge number in the Arresting/Citing Officers Name/ID No box. The officers declaration checked "Any equipment used by me to gather evidence in support of this violation was properly maintained, in good working order, and I have been trained in its use". The second radar non-certified officer signed the declaration.

Since the CHP has already informed me that the officer with the radar certification will not be testifying and the methods used to determine the speed of the involved vehicle was radar (checked in #2, d in officers declaration" should I file a motion to dismiss (file request before 5/20 trial, or motion at trial?) based on the inability of the testifying officer to testify to any radar evidence since he isn't even radar certified?

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Quoting bountyhunter

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My question involves a traffic ticket from the state of: CA

I received a 22349(a) citation from CHP (75 in 65) on US 395 at 1:00am. Two officers were in CHP vehicle travelling opposite direction the driver of the CHP vehicle was operating the Stalker Dual the other CHP officer (non radar certified) was the citing officer. I have received discovery and CHP has noted that the officer with the radar training certificate has been transferred and will NOT be testifying. The TR-235 has the radar operators last name along with the second officers badge number in the Arresting/Citing Officers Name/ID No box. The officers declaration checked "Any equipment used by me to gather evidence in support of this violation was properly maintained, in good working order, and I have been trained in its use". The second radar non-certified officer signed the declaration.

Since the CHP has already informed me that the officer with the radar certification will not be testifying and the methods used to determine the speed of the involved vehicle was radar (checked in #2, d in officers declaration" should I file a motion to dismiss (file request before 5/20 trial, or motion at trial?) based on the inability of the testifying officer to testify to any radar evidence since he isn't even radar certified?

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Which code section is it that requires an officer to be Radar certified before using Radar to issue a Radar enforced citation under CVC 22349(a)?

Don't look, you won't find it. That requirement exists only under California's speed trap laws which are not applicable in your case. Can you try and make the point that he isn't certified? Sure... Will you win on that basis? There would be no legal justification for the court to offer you a dismissal or an acquittal because the officer is not certified in using Radar. So you're free to try but to assume a sure thing... Nah...

In fact, you've received discovery... Was that before you submitted a TBD, did you not make that argument in your declaration? If you did, and you were still found guilty then there is your answer. If you didn't and yet you were able to figure out that the officer is not certified then one can only assume that the court figured it out as well And since there is no statutory authority or any case law I am aware of that would require certification for a non-speed-trap case, I am not too confident you will succeed.

If you're still going to file a motion, I would follow the related procedures for filing motions in criminal court as described in your county court local rules.

Considering he's not certified in the device perhaps testifying as to the contents of McDonald's secret Big Mac sauce would be slightly more applicable.

That Guy -I'm not going to attempt to find the code which states an officer needs to to radar certified before issuing a radar citation..that wasnt my point or argument. I submitted TBD and my entire argument in my declaration was four words "I am not guilty". Upon receipt of the guilty TBD I served discovery where the CHP volunteered the information about the sole certified radar operating officer not testifying due to being transferred. Ill assume the court isn't aware of this since the discovery came from the CHP and not the court. I would like to note that generally when an officer DOESNT SHOW UP your ticket is dismissed. Since if the primary officer isn't going to show up (per CHP HQ on their line item discovery request cover sheet) how can I examine the officer who is radar certified if he isn't present. I can certainly ask all the radar questions of the other officer but..he cant testify at all to any of those questions now can he? BOTH officers are witnesses to the case. Having one officer not show up do to "being transferred" denies me due process, introduces hearsay and is insufficient evidence.

OBJECTION, Hearsay This is essentially anything said or written outside of the courtroom by anyone other than the witness. The police officer can not testify as to what a witness at the scene told him. The actual witness would need to testify for those statements to be admissible. The same holds true for the officer who wrote the citation testifying on behalf of the other officer who ran the radar unit. Both officer’s must testify and only to the extent of their involvement.

Motion to Dismiss due to insufficient evidence, specifically a missing officer. This is when you have a case that involved two police officers. For instance, one officer ran the radar gun while the other officer pursued the suspect and wrote the citation. Both officers need to be present since one can not testify on the behalf of the other officer. This motion would also apply if the single officer involved is not present. You usually won’t have to make a motion if the primary officer is missing. Typically, the prosecution will drop the case since he knows he has no chance without the officer present.

You have realize "That Guy's" only objective is to dissuade you from fighting the ticket or tell you that you don't have any legitimate defense (even if you do, which you obviously do). There's nothing else to his platform.

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Quoting bountyhunter

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That Guy -I'm not going to attempt to find the code which states an officer needs to to radar certified before issuing a radar citation..that wasnt my point or argument.

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You don't have to go look for it and even if you did, as i said, you will not find such a requirement for the type citation you were issued.

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Quoting bountyhunter

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I submitted TBD and my entire argument in my declaration was four words "I am not guilty".

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Aaah... that explains why you're so adamant about winning this case!

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Quoting bountyhunter

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the CHP volunteered the information about the sole certified radar operating officer not testifying due to being transferred.

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I can't see the wording of your request or the wording in their response. So I don't know if any of it is lost in your rewording their response. In other words, while you make it sound like the CHP is admitting defeat already, it maybe that you asked for both officer's names and whether they would be testifying, along with both officers' certification... And in response, they provided you with one officer's information and indicated that the other officer has transferred.

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Quoting bountyhunter

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Ill assume the court isn't aware of this since the discovery came from the CHP and not the court.

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As it always does... But I am safely assuming that the judge who reviewed your TBD and found you guilty is at minimum, as observant as you are and would have noticed the discrepancies you noticed in your TBD; had those been sufficient to dismiss the case or find you not guilty, you would not be here asking about what to do as you plan and prepare for your TDN.

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Quoting bountyhunter

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I would like to note that generally when an officer DOESNT SHOW UP your ticket is dismissed.

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I would like to note that ^this^ is NOT necessarily true, not in all cases and certainly not under all circumstances... With this case being a TBD/TDN and since there is no statutory period by which your trial may be held (there is no 45 day trial "restriction" that the court must meet) the court has just as wide a discretion to dismiss it as it does to continue the trial to another date. You can object all you want but if the officer has a legit excuse for not showing up, or even without the legit excuse, the judge has the discretion to dismiss the case but he is not obligated to! In this case, and with the impression I am getting that the citing officer is a recent graduate, missing court is not likely to be a voluntary issue... He's likely to either contact the court for a continuance , or surely appear as required.

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Quoting bountyhunter

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Since if the primary officer isn't going to show up (per CHP HQ on their line item discovery request cover sheet) how can I examine the officer who is radar certified if he isn't present.

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What do you mean "primary"? If he did not sign the citation or the declaration, you simply calling him "primary" does not elevate his role to the critical status you would like it to be!

You can try and convolute matters as much as you'd like. It doesn't change the fact that legally, if two officer's participated in clocking, and citing a driver, then both officers must sign the citation, and both officers must appear to testify. If only one officer clocked you (whether he's certified or not is not an issue when it comes to a 22349 citation), and that same officer wrote up the citation and signed it, then only that officer needs to appear; he is your accuser and you only have the right to examine him. If you would like to examine the other officer, even though he did not participate, he was only a bystander (a witness), then fine, you can subpoena him but otherwise, don't expect him to be there and don't expect the case to get dismissed if he isn't!

You stated in your first post that in the declaration, one officer checked this and the other officer checked that... I don't see how that would be possible if only one officer signed the declaration, and even then, I don't see how that would be possible if only one officer signed the citation. So maybe you can redact all personal information from the officer's declaration, and post a copy of it along with an explanation as to how you were able to determine who checked what... If there is a discrepancy on the signature/badge number on the citation, post a redacted copy of that as well. Otherwise, I'm not clear on what you have or don't have.

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Quoting bountyhunter

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I can certainly ask all the radar questions of the other officer but..he cant testify at all to any of those questions now can he?

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If he was the one who used the radar to click you then sure you can ask him. But what Radar questions are you going to ask him that you think will influence the court in your favor? You do realize that Radar has been in use since 1935 and isn't subject to that much scrutiny as you may expect.

Better yet, for someone who had only submitted an "I am not guilty" declaration, what is it that you have up your sleeve that you feel is likely to stump even a recent CHP academy graduate? You should keep in mind that similar to how you appear to plan on bringing up the officer's TBD for consideration in your TDN, you are also subject to having your TBD to get scrutinized by the court as it evaluates your case. An "I am not guilty" declaration is neither impressive, nor is it convincing that you have any sort of case, argument or defense other than a hope and a prayer that the officer will not show up. So you can try and make a huge issue that the other officer not being there is a violation of your due process or that testimony is in violation of the rules of evidence. And you might succeed but the bigger likelihood is that the judge will see through all the fluff and will know enough to figure out what's going on!

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Quoting bountyhunter

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BOTH officers are witnesses to the case. Having one officer not show up do to "being transferred" denies me due process, introduces hearsay and is insufficient evidence.

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Come on, seriously... Here is where your whole argument falls apart... As you sit there arguing how his presence is crucial to your case, you are in fact aware he will not be there. The CHP has notified you he does not plan on appearing, and so it is up to you to make sure he is there. You have to subpoena him if you want him there. If you don't, complaining about him not being there on the date of your trial all while you knew he will not be there while arguing he should have been there.... that isn't going to fly! But before any or all that, just because he was there at the scene does not imply he must appear.

No it doesn't violate your due process rights, One signature on the citation implies one accuser. Not two.
You cannot ask questions that you know the one officer cant answer because they would be hearsay only to afford yourself the chance to object on hearsay gounds.
Sufficiency of the evidence isn't up to the defendant to decide, the trier of fact -in this case, the judge- is the final arbitrator.

And as I said, make your argument before the court and see what the judge says. Unless BOTH officers signed the citation, you cannot compel BOTH officers to be there at your trial. As I described above, if you feel the other officer is so crucial to your innocence, then you are free to subpoena him and if he doesn't appear, then you can try and convince the court why his presence and testimony are critical to your case and move for a dismissal.

Lastly, you don't have to explain to me what hearsay, or insufficient evidence or what your due process rights are or are not. If you think you have any such claims or arguments, you are free to make appropriate motions to the court and see how it goes. Since your main question in your original post was about motions and since you never brought it up in your second post, I assume that answer was satisfactory. If so, good luck with your case.

So stating "I am not guilty" in a TBD proves why Im so adamant about winning this case? Hmm OK. Plenty of people bury themselves with their statements in a TBD. One is under no obligation to volunteer information in a TBD.

Here's the link to the CHP letter as well as the declaration signed by the officer without the radar certificate.
https://docs.google.com/file/d/0B3HB...it?usp=sharing
Please note the wording under "Instructions" "The officer named above shall check all statements that apply, date, sign, and complete and return this form to the court named above by return date". I do not see officer Mendoza's signature on the declaration.
There were no discrepancies in my TBD..I just said "I am not guilty" (and it wasn't meant to be "impressive")
I'm happy to have my case drawn out for as long as it takes for the officer with the radar certificate to testify to its proper use.
Officer Long admitted in the declaration that he signed that officer Mendoza was operating the radar (and that "we" were travelling/observed/estimated). So my accuser isn't the officer who cited me. And quite possibly have BOTH officers involved in making visual speed estimation. Your point fails.
Officer Long who apparently is now just a "witness" per your words and not the accuser signed under penalty of perjury that "Any equipment used used by me to gather evidence in support of this violation was properly maintained, in good working order, and I have been trained in its use." and further that "The method(s) used to determine the speed of the involved vehicle was: Radar

Apparently your OK with my accuser NOT showing up for trial. The officer operating the radar, trained in the use of said radar and the only person with a valid radar operator certificate doesn't have to show up because it isn't convenient.

Officer Long also observed your offense, and in his statement appears to indicate that even HE believed you were travelling in excess of 80+ MPH. As such, HE is a witness AND your accuser since it appears that Officer Long issued the citation. He does not have to be radar certified to believe you are speeding. The court can choose to weigh his observation accordingly if you challenge the validity of his observations and, maybe, the court will decide that he lacks the training and experience to make such an estimate ... though at 80 or more it was probably pretty obvious that you exceeded the maximum limit, so even if he was WAAY off by 10 MPH, you were still over.

Bottom line is that the radar operator is not required to be there. If you want him there, you can subpoena him. If he is not there, then be prepared to cross examine Officer Long such that you believe it might show that he was unable to properly estimate your speed. If you can cast reasonable doubt on the estimate of speed being over 65 MPH you can prevail.

If he's not trained/certified on radar, there's a good chance isn't trained to estimate speed.

Does seem a bit odd that a higher-end, well-funded organization such as the CHP wouldn't send both, or at least the certified officer.

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Quoting lostintime

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If he's not trained/certified on radar, there's a good chance isn't trained to estimate speed.

Does seem a bit odd that a higher-end, well-funded organization such as the CHP wouldn't send both, or at least the certified officer.

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One does not have to be formally trained to estimate speed. It helps because you have formal training to fall back on, but the court is free to weigh the testimony as it is. Courts permit this all the time and there is no legal requirement that there exist formal training in order to offer such an estimate. I have been a peace officer for 21 1/2 years and have been driving for 36 years. I have no formal radar training. I am also a collision investigator. The courts have found this experience sufficient to accept my visual estimates of speed for more than 18 years. But, I also don't try to split hairs and estimate 60 in a 55. When I make such an estimate, it's usually when the vehicle is WAAAAY beyond the posted or safe limit (10-15 or more).

Most CHP officers are radar-trained ... I am surprised this one is not. It could be that he is a rookie and has not yet completed his requisite estimates since the academy.

As for the second officer, if he was transferred out of the area it may be a logistical issue to get him back. It is not uncommon for officers to move halfway across the state. Many officers try and work their way out of the Bay Area and Los Angeles to areas where they were raised, have friends or family, or places where their salary will afford them a better standard of living than those pricey places. Transfering a long way away makes it difficult to arrange for the officer to return for court, and unless compelled to do so, they aren't going to go through the expense that might be required to transport the officer to court and possibly pay for room and board just so that he can testify on an infraction when it is not absolutely necessary.