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Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket

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  • 09-13-2013, 01:37 PM
    6crnbnh
    Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    My question involves a traffic ticket from the state of: New Hampshire

    For clarity, this ticket is really no big deal. I have a clean driving record (have been driving for over 30 years) and the fine isn't that much ($103.35) so this isn't about the money. This is about local cops in my town running a constant speed trap that I finally got entangled in. I was shocked and surprised that the boys that I pay (through my property taxes) would give a resident of the town, with a clear record, a ticket versus a warning.

    First, the officer stated that I was doing 57 in a 35, but to be a nice guy, he only wrote 55 in a 35 on the summons. So that is what I am being charged with.

    At the "pre-trial hearing", the "prosecutor", who happens to be the police chief and not an actual attorney, said that he was willing to drop the charge down to 45 in a 35 for a fine of approximately $50. I indicated that the fine was not the issue for me. I suggested that he could charge me with something other than a moving violation so that there would be no points on my record and they could still get some money, place the complaint "on file" and if I didn't get another ticket in 60-90 days the charge would go away, or dismiss it altogether, no deal. I stated I had a good defense and will take this to trial otherwise. So, it's going to trial.

    During my "pre-trial" hearing, the chief stated that if this went to trial that I could be found guilty of 57 in a 35 though this is not written anywhere on the defendant copy of the summons I was provided on the day of the stop. Question #1 - Is that possible?

    Also, I filed a motion for discovery for all documents pertaining to the state's case and they sent me the officer's copy of the summons which has his notes on the back (no note to doing 57 in a 35). The front of the summons contains check boxes indicating what was used to determine my speed. The check boxes are for Radar, Aircraft and Clocked. On my copy, nothing is checked. On the officer's copy, Radar is checked with what appears to be the unit number of the vehicle he was in, what looks to be the serial number of the radar unit and what looks like the expiration date of the certification of this radar unit: "Unit 3", "XE11946", "2/26/14". Question #2 - Do I have any standing to question the fact that none of this was noted on my copy?

    My defense will be to go after the serial number of the radar unit, documentation that matches it to the vehicle he was driving (activity log/arrest log/call log), that he has proof it is certified operating correctly (radar unit certification), tuning fork serial numbers matching the radar unit, certification documentation of the tuning forks, documentation that the radar unit was tested before and after my stop, documented proof that the certification facility used for the radar unit and/or tuning forks is certified to do so, etc. Basically I will be asking for documentation for all of this and the original copies (best evidence rule). Based on my research of case laws regarding evidence required in a speeding trial to establish foundation, if asked for in court, the prosecution needs to have all of this documentation.

    Any advice you can offer will be appreciated!

    Thanks!
  • 09-13-2013, 04:30 PM
    That Guy
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Quote:

    Quoting 6crnbnh
    View Post
    I was shocked and surprised that the boys that I pay (through my property taxes) would give a resident of the town, with a clear record, a ticket versus a warning.

    First, the officer stated that I was doing 57 in a 35, but to be a nice guy, he only wrote 55 in a 35 on the summons. So that is what I am being charged with.

    Why would you be shocked at having been cited for 22 mph over the limit? And at what point on the speed scale do you suggest warnings should get cut-off and citations start? Besides, there is no obligation or requirement for cops to write warnings. Your taxes, pay them to cite drivers, and so they do so quite diligently, I am sure.

    Your driving record, and while it might be a good point to bring up when you are getting sentenced, is not the basis for whether a cop will write or not write a citation.

    Quote:

    Quoting 6crnbnh
    View Post
    At the "pre-trial hearing", the "prosecutor", who happens to be the police chief and not an actual attorney, said that he was willing to drop the charge down to 45 in a 35 for a fine of approximately $50. I indicated that the fine was not the issue for me. I suggested that he could charge me with something other than a moving violation so that there would be no points on my record and they could still get some money, place the complaint "on file" and if I didn't get another ticket in 60-90 days the charge would go away, or dismiss it altogether, no deal. I stated I had a good defense and will take this to trial otherwise. So, it's going to trial.

    With you being 22 mph over the limit, places the ball clearly in their court as they have a better probability of a conviction that you do with an acquittal, you made a mistake there. Then again, I doubt New Hampshire reports the actual speed on your driving record and typically, speeding is speeding.


    Quote:

    Quoting 6crnbnh
    View Post
    During my "pre-trial" hearing, the chief stated that if this went to trial that I could be found guilty of 57 in a 35 though this is not written anywhere on the defendant copy of the summons I was provided on the day of the stop. Question #1 - Is that possible?

    Unless there are any particular statutes or rules prohibiting it then sure, it is possible. A simple amendment to that charging document would set it up for 57 in 35. The main question in this case is were you speeding or were you not speeding? Once that is decided and as I mentioned above, it gets to the penalty phase, your particular speed is taken under consideration and compared to a fine schedule that is based upon how many miles over you were. So an amendment in such a case is not likely to be prohibited simply because it does not impact your defense as to whether you were speeding or not, ... Not by much, at least. So loo for a fine schedule and see if there is a difference in the fine amount between 20 over or 22 over... If there is a difference, then they can proceed that way if they chose.

    Quote:

    Quoting 6crnbnh
    View Post
    Also, I filed a motion for discovery for all documents pertaining to the state's case and they sent me the officer's copy of the summons which has his notes on the back (no note to doing 57 in a 35). The front of the summons contains check boxes indicating what was used to determine my speed. The check boxes are for Radar, Aircraft and Clocked. On my copy, nothing is checked. On the officer's copy, Radar is checked with what appears to be the unit number of the vehicle he was in, what looks to be the serial number of the radar unit and what looks like the expiration date of the certification of this radar unit: "Unit 3", "XE11946", "2/26/14". Question #2 - Do I have any standing to question the fact that none of this was noted on my copy?

    You requested discovery and you were give the information, presumably, well in advance of the court date. So no, not including it on the citation is meaningless.

    Quote:

    Quoting 6crnbnh
    View Post
    My defense will be to go after the serial number of the radar unit, documentation that matches it to the vehicle he was driving (activity log/arrest log/call log), that he has proof it is certified operating correctly (radar unit certification), tuning fork serial numbers matching the radar unit, certification documentation of the tuning forks, documentation that the radar unit was tested before and after my stop, documented proof that the certification facility used for the radar unit and/or tuning forks is certified to do so, etc. Basically I will be asking for documentation for all of this and the original copies (best evidence rule). Based on my research of case laws regarding evidence required in a speeding trial to establish foundation, if asked for in court, the prosecution needs to have all of this documentation.

    Unless you are able to cite laws, rules or regulations that are the basis for all those requirements, then I am not sure you have a defense. In addition to making such requirements you will also have to find some statutory authority (a law stating the following) or case law authority (a previous court of appellate case where a law was interpreted and some precedent was established) affording the defendant a dismissal for the state's failure to comply with such law, rule or regulation.

    When you said you had told the DA you had a good case that you're taking to court, I was looking forward to a little more that what the average defendant walks into court with, gets flustered, loses and walks out. My advice... See if you can get in on any sort of deal because while the threat to prosecute you for 22 over instead of 20 over isn't likely to materialize, a conviction for 20 over would be a snap for them to get, in spite of your belief that this, that or the other is required or that it would maker that big a dent in the case.

    The best evidence rule is (as described in Blackstone's Criminal Practice which was used in the 18th and early 19th centuries as an exclusionary principle (key term "was"), i.e. to prevent the admission of certain evidence where better evidence was available, is now all but defunct.

    Besides, documents issued and/or maintain by a public or governmental agency, docs that are public record or those issued by a governmental agency in the nature of conducting its daily business often require less authentication than say, for example, a bank statement introduced by a defendant in a civil case.
  • 09-13-2013, 05:01 PM
    6crnbnh
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Wow, nice presumption of guilt you got there.

    Did I testify that I was speeding? Where in my original post did I state that? Do the cops not use a piece of scientific equipment to determine one's speed and therefore doesn't that equipment have to be operating properly?

    You should know that the system is set up to make money. It has nothing to do with safety. Don't get all high and mighty on me about "speeding". Speed limits today are designed as nothing but revenue generators with 98% of the people so cowed they just pay it and move on.

    When I was charged with the speeding offense, the officer "clocked" me going at a specific speed. This actual speed is the charge against me. It is the speed listed on the summons. If the summons states that I was charged with doing 55 mph in a 35 mph zone, the prosecution must prove that I was going 55 mph. Not 57 or 56, but 55 mph.

    Fines are based on the exact speed I was charged with. So, if I was caught traveling 55 mph, my fine will be higher than if I was traveling 45 mph and vice versa. Thus the reason the 'ol chief wanted to do me a favor and drop the speed down to 45.

    When I pled not guilty to the speed violation - I am pleading not guilt to the EXACT speed I was charged with. They can say I went over the posted speed limit, but that's not good enough.

    They must prove that the method used to calculate my speed was working accurately at the time the offense occurred. If they fail to do that - it will be assumed that the device may not have been calibrated, since there is no evidence to prove otherwise.

    This means that I could have been going 35, 38, 42, 45, 49, 53, 54, 56, 57 or 60 mph, but the exact charge against me is 55 mph.

    You want case law? OK, here's the case law that supports ALL of the documentation they had better show up to court with, otherwise they lose:

    State of Wisconsin v. Lawrence I. Hanson – (Proof of Calibration)
    *(This one states that accuracy of speed detection must be proved if requested by the defendant.)
    City of St. Louis Missouri v. Forrest Boecker – (Radar & Speedometer - Calibration & 6 Month Timeframe)
    *(This one states that it is the obligation of the officer who uses the radar speed meter to establish prima facie that the machine was accurate and functioning properly at the time the defendants speed was checked. It also gives reference that speedometers must also be calibrated.)
    State of Ohio v. Teddie A. Colby – (Testimony of Calibration)
    *(This one states where there is no testimony as to the construction and method of operation of a speed measuring device not the subject of judicial notice, the testimony of the user, standing alone, is insufficient to sustain a conviction for speeding.)
    State of Connecticut v. George W. Lane – (Speedometer Calibration)
    *(This one states that the speedometer of the vehicle used to calibrate a speed measuring device must be calibrated and the testimony of this evidence must be given by the person driving the vehicle.)
    State of Wisconsin v. Allen R. Luedtke – (Speedometer Calibration)
    *(This one states that the vehicle’s speedometer must be checked and proof shown of accuracy if requested by the defendant.)
    Commonwealth of Pennsylvania v. Gail Denny – (Testing Facility Approved By State)
    *(This one states…We consider the following question on appeal: Whether the trial court erred in admitting into evidence a Certificate of Accuracy of a radar speed timing device, where the Commonwealth failed to introduce competent evidence that the issuer of the Certificate was a testing station approved by the Department of Transportation at the time it allegedly tested the radar device in question? All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. A certificate from the station showing that the calibration and test were made within the appropriate time frame.)
    Commonwealth of Pennsylvania v. Lewis G. Cummings – (Original Documents)
    *(This one states that the requirement on which an issue exists is that of the identification of the copy. The state allows reproductions to be admitted only "when satisfactorily identified." "Satisfactory identification" need not be actual testimony that the copy is a true and correct copy. The procedures must provide an appropriate link between the original document and the photocopy.)
    The People of the State of Colorado v. Raymond L. Walker – (Tuning Fork Calibration)
    *( This one states that although an officer may perform the tuning fork test both before and after issuing a citation to the defendant, the officer must have knowledge and supply proof as to the accuracy of the tuning forks.)
    State of Connecticut v. Michael R. Tomanelli – (Radar - Tuning Fork Calibration)
    *( This one states that the tuning forks themselves must be shown to be accurate if they are to be accepted as a valid test of the accuracy of the radar unit.)
    State of Minnesota v. David Arnold Gerdes – (Radar Calibration)
    *(This one states…
    1. Courts may take judicial notice of the underlying principles and reliability of properly tested and operated radar devices for determining the speed of motor vehicles without requiring expert testimony concerning the theory and mechanics of a particular unit.
    2. Where the only means of testing the accuracy of a radar device is an internal mechanism which is an integral part of the unit, and there is no evidence other than the radar reading that a motorist was driving at a speed in excess of the limit, his conviction cannot be sustained.)
    State of Kentucky v. Erna Elijah Honeycutt – (Radar Calibration)
    *(This one states that the radars accuracy must be proven, if brought up by the defendant.)
    State of Ohio v. Bonar – (Radar Calibration)
    *(This one states that in a prosecution involving speed, where the sole evidence is a reading secured by the use of a radar type speed meter, it is the obligation of the prosecution to establish prima facie that the radar type speed meter was accurate and functioning properly at the time the defendants speed was checked and a failure of such proof shall cause an insufficiency of evidence to support conviction.)
    People of New York v. Irving Perlman – (Radar – Unit Testing Before & After Arrest)
    *(This one states in fairness to the defendant, where he has been charged with speeding by means of radar detection, which is accepted by many as being tantamount to conclusive proof of guilt, there should be a showing of testing of the instrument before and after each setup, including at least one test by an outside source to insure that 'simple comparative analyses' can be made, and there should be proof of expert technical testing of the machine periodically, within a reasonable proximity of the date of violation. To accept less, and to rely solely upon the internal calibration by the machine itself, without the testimony of an expert witness, is to render an injustice to the accused.)
    City of Jackson Missouri v. Robert Langford – (Radar - Unit Testing Before & After Arrest)
    *(This one states that a radar unit must be tested both prior and after an arrest is made and proof of this time must be given, if asked for by the defendant.)
    State of New Jersey v. Russell E. Tropea – (Testify as to Speed Limit)
    *(This one states that a police officer must give the speed limit where the person was pulled over during direct testimony.)

    I'll be supplying ALL of this case law to the judge and the "prosecution" at the start of my trial. Is that enough proof for you as to the evidence required and establish foundation in a speeding trial? Are you not even aware of this case law? If not, you are clearly not qualified to respond to this thread.

    The fact that you even question if I can ask or be successful in asking that the equipment used to determine my speed is accurate, calibrated and clearly documented indicates that you are yet another one of those high and mighty folks who is so enamored of the system and how it is set up against the public that you can't see past your own bias.

    Do me a favor and move on and pollute some else's thread...I'll wait for a reasoned individual to respond.
  • 09-13-2013, 06:24 PM
    That Guy
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Quote:

    Quoting 6crnbnh
    View Post
    Wow, nice presumption of guilt you got there.

    Call it what you will... It is not a presumption of guilt. It is an opinion that when you commit an offense while a sworn police officer is witnessing you do so, and he hands you a list of the items he will testify to, you're innocence is pretty much lost. But please, don't let me ruin any preconceived ideas of how you'll walk into court confident and walk out victorious.

    Quote:

    Quoting 6crnbnh
    View Post
    Did I testify that I was speeding?

    I am not sure where you get the idea that you have to testify to speeding for you to be convicted of speeding?

    Quote:

    Quoting 6crnbnh
    View Post
    Where in my original post did I state that? Do the cops not use a piece of scientific equipment to determine one's speed and therefore doesn't that equipment have to be operating properly?

    As I stated in my last post, unless you can find a New Hampshire law that supports your contentions, then you will get shot down and shut out of each and every argument you plan on making. And once you find such law, it will have to say that (example) if the officer did not use tuning forks to check the unit, a defendant cannot be convicted of speeding"... or words to that effect, then you are simply dreaming up all that you posted.

    Let me say this... After a quick search for the term "Radar
    in New Hampshire's statutes, it turns out it does not exist. That does not mean its use is prohibited; instead, it simply means there are no statutory requirements regulating its use. Radar was in fact you whole entire plan, was it not!

    Quote:

    Quoting 6crnbnh
    View Post
    When I was charged with the speeding offense, the officer "clocked" me going at a specific speed. This actual speed is the charge against me. It is the speed listed on the summons. If the summons states that I was charged with doing 55 mph in a 35 mph zone, the prosecution must prove that I was going 55 mph. Not 57 or 56, but 55 mph.

    You asked a question, I gave you a correct answer. Its up to you to believe it or not!

    Quote:

    Quoting 6crnbnh
    View Post
    You want case law?

    ALL the case law in the world is not going to do you much good for you unless it was decided by a court in New Hampshire... But go ahead and make a field trip of it... My guess is you'll be done before you get started.

    Quote:

    Quoting 6crnbnh
    View Post
    Do me a favor and move on and pollute some else's thread...

    You're disappointed, I know.... But neither disappointment nor denial will change the answers you came here seeking!

    Quote:

    Quoting 6crnbnh
    View Post
    I'll wait for a reasoned individual to respond.

    Why would you wait for anyone? See if you believed any of what you posted and asked about, you would not be here waiting for a "reasoned person"!
  • 09-13-2013, 08:58 PM
    ptatohed
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    6crn, while I butt-heads with TG "97%" (or, heck, maybe more like "101%"?) of the time, I agree with the advice (probably more like a requirement, actually) to only use case law from your state. It can be anywhere in the state, different district, different county, but it should be from your state. But I like your spunk, keep going, good luck.
  • 09-14-2013, 12:28 AM
    That Guy
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Quote:

    Quoting ptatohed
    View Post
    6crn, while I butt-heads with TG "97%" (or, heck, maybe more like "101%"?) of the time, I agree with the advice (probably more like a requirement, actually) to only use case law from your state.

    That's because you think you have a clue (in a way, just like the OP here), when in fact, you would be better off staying off the keyboard and watching the screen. Case in point....

    Quote:

    Quoting ptatohed
    View Post
    It can be anywhere in the state, different district, different county, but it should be from your state. But I like your spunk, keep going, good luck.

    Not true.... Case law from an appellate division for example, and while binding on a trial courts in a particular judicial district (and in such case and depending on the ruling, would be described as "mandatory" or "binding") whereas it is not necessarily binding upon appellate divisions in other districts (in which case, it would be described as "persuasive"). It goes without saying that each state supreme court are binding statewide.

    I should also add that case law, (depending on the case) of other states can be persuasive in cases that are uncovering new grounds but in cases where precedent has been set otherwise or rules and regulations dictate other procedures which maybe different than from other states, then you're wasting paper printing all that material when in reality it will not do you any good. Radar has been in use in most states for years and to assume that the cop or the court still needs guidance on how to evaluate it or whether it should be relied upon...

    Then again, if the OP is convinced that his testimony will impact the outcome by much, and that his "innocent until proven guilty" will do him much good, then there isn't much to try and get through to him with.

    Quote:

    Quoting ptatohed
    View Post
    But I like your spunk, keep going, good luck.

    Spunk? I think its more like funk!
  • 09-14-2013, 12:51 AM
    ptatohed
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Quote:

    Quoting That Guy
    View Post
    That's because you think you have a clue (in a way, just like the OP here), when in fact, you would be better off staying off the keyboard and watching the screen. Case in point....



    Not true.... Case law from an appellate division for example, and while binding on a trial courts in a particular judicial district (and in such case and depending on the ruling, would be described as "mandatory" or "binding") whereas it is not necessarily binding upon appellate divisions in other districts (in which case, it would be described as "persuasive"). It goes without saying that each state supreme court are binding statewide.

    I should also add that case law, (depending on the case) of other states can be persuasive in cases that are uncovering new grounds but in cases where precedent has been set otherwise or rules and regulations dictate other procedures which maybe different than from other states, then you're wasting paper printing all that material when in reality it will not do you any good. Radar has been in use in most states for years and to assume that the cop or the court still needs guidance on how to evaluate it or whether it should be relied upon...

    Then again, if the OP is convinced that his testimony will impact the outcome by much, and that his "innocent until proven guilty" will do him much good, then there isn't much to try and get through to him with.



    Spunk? I think its more like funk!

    All this coming from a guy who thinks he's the single one reason this forum is so impressive, who thinks double yellow lane stripes are channelizing lines and who thinks leaving out a few adjacent sentences is evil.

    evil adjective ˈē-(ˌ)vil\
    morally reprehensible : sinful, wicked <an evil impulse>
    causing harm : pernicious <the evil institution of slavery>
    not citing a whole paragraph <he was an evil wicked person when he only quoted the middle sentences of a paragraph>
  • 09-14-2013, 04:46 AM
    6crnbnh
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    I'd appreciate some feedback from someone who actually knows what he is talking about instead of spouting opinion and acting like a douche bag (That Guy).

    The law is not absolute and the way that the douche bag responds makes it sound like if you get pulled over for speeding you're guilty. End of story. That is bullshit of course.

    The case law I cited has been around for a long, long time and it is the standard that dictates the minimum evidence the prosecution must bring to a speeding trial. Just because judicial notice has been recognized as to stationary radar does not mean it is infallible. It needs to be maintained and operated properly.

    But please, "That Guy", continue to add your douche baggery, it is amusing to say the least.
  • 09-14-2013, 06:24 AM
    free9man
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Quote:

    Quoting 6crnbnh
    View Post
    The case law I cited has been around for a long, long time and it is the standard that dictates the minimum evidence the prosecution must bring to a speeding trial. Just because judicial notice has been recognized as to stationary radar does not mean it is infallible. It needs to be maintained and operated properly.

    The problem with the case law you cited is that none of it is from your jurisdiction. I didn't check them all but the ones I did were not ruled on at the Federal Circuit Court or US Supreme Court level. Which means it is not binding on the court that will be hearing your case. Which means it counts for exactly nothing in your court.
  • 09-14-2013, 08:21 AM
    6crnbnh
    Re: Can You Be Convicted of a More Serious Speeding Offense Than is on the Ticket
    Thank you free9man for actually responding directly without the "That Guy" attitude.

    Based on your information, would it make sense to at least ask the judge to take the case law into consideration? I mean, he may say "yes" or he may say "no"?

    Also, based on all the responses I've seen on this board regarding all sorts of traffic stops, the general consensus that comes through from those responding to questions like mine is that there is no defense one can legally raise in a traffic case. It's the word of the officer versus that of the defendant and the officer is always right and not required to actually prove his case other than to say the defendant did it. Do I have that right? In my case, are you saying that based on the case law I found that establishes what the prosecution needs to provide as evidence that the radar was accurate, since it doesn't have to be allowed by the judge in my jurisdiction, all the officer needs to say is "Yeah, I tested it and it works accurately" and not provide any proof that his statement is actually true? If so, I guess it may not be worth taking it to trial, but it would be interesting to do so and see what happens.
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