Defenses Against a False Pacing Ticket

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

I could understand if I was actually breaking the law but I am getting really tired of having to defend myself in court all the time. I know this time it is my fault for driving a red car and the officer noted that in his sworn testimony. Do I have any chance of defending against the officers lies? I have a witness who is my wife and can corroborate that the officer wrote down completely incorrect information but she will be out of town on the court date. Can I have her sign a sworn testimony too and submit that to the court?

I would scan this but the only relevant non-PII information I would not have to redact is the officer’s sworn statement I received in discovery typed out below:

On 4-8-14, I was assigned uniformed patrol as 3W36. I was on patrol near the intersection of Limitary Rd. S and S 288th street when I heard a loud engine and saw a fast moving red vehicle northbound on Military Rd. South. I had to accelerate to a high rate of speed to catch up to the vehicle around the 28400 block of Military Rd. South. As I came up to about 5 car-lengths behind the vehicle, I paced the vehicle at 65+ mph in a signed 45mph zone for about ¼ mile. I got closer to the vehicle and plate listed as he slowed for the stoplight at S 272nd and Military Rd. South. He accelrated [sic] with a high revving engine when the light turned green and proceeded north bound. I saw the vehicle swerve quickly to the right to avoid a person crossing the road wearing a traffic type vest. I stopped the vehicle at about the 26400 block of Military Rd. South. The listed driver was identified by valid WA driver’s license and he produced a Gieco [sic] insurance card and registration. The vehicle had aftermarket exhaust, wheels and rims. The vehicle had painted stripes on the hood. Listed driver cited for speeding 20 mph over speed limit.

I noted all of the spelling mistakes. Can I provide evidence that the zone is actually posted as a 40MPH zone instead of what the officer wrote down as 45MPH or would that just look worse? The officer seemed really confused that night. He actually asked me how fast the zone was (I said 45 just to test him) and he just wrote down what I said as 45 even though it is clearly posted as 40MPH in this stretch.

I actually saw the officer turn left and pull in behind me from 272nd right after I had started off from the light at that intersection so I know he was not pacing me at the 28400 block as he claims. I had to come to a complete stop at the light and there was no one behind me in fact. Is ¼ mile enough distance to pace someone? The person he mentioned was not crossing the road but actually walking down the center double yellow line, I had actually expected the officer that was following me to stop and talk to him when he sped up right after we passed the pedestrian and pulled me over instead.

It seems like he is trying to profile me as some kind of street racer, I have never raced on the street or on a track in my life. The 16” inch rims and tires on my car are the stock rims and yes they are cheapest tires I could find for these rims at $25 apiece. My exhaust is aftermarket as it is a 25 year old car. When you get up to freeway speeds you can really tell because my differential produces a lot of noise that my mechanic said is fine for now. However, it seems like he wrote it specifically to avoid any chance of it being thrown out in court even though nary a lick of it is true and accurate. Is there anything I can attack here? The prosecutor’s office said I would have to get any kind of speedometer calibration records from the police department. Has anyone else done this or have any idea how I would go about this? Thank you in advance for any help you can give

~Spike~

Sorry, but when the cop says you were going 20 over, the judge will believe him and not believe one of the thousands that parade through the courtroom saying they didn't do it.

The cop was "confused"?

There's nothing "confused" about the statement he wrote.

That you end up in court because you have a red car is baloney.

I've had red cars and never ended up in court with them.

Take traffic school if you have the option. I don't see you beating this ticket.

My advice comes with a caveat: I cannot see your discovery materials -- and YOU seem to have made just as many typos as the officer.

But, here goes: The officer never states that he maintained a constant distance from your vehicle while he was "pacing" you. On two occasions, he admits to closing with you. If those were the times he glanced at his speedometer, his speed would not have been the same as yours.

Furthermore, the officer doesn't state that he checked the speedometer for accuracy -- regularly or otherwise. As stated in Spokane v Knight, 96 Wash. 403, 165 Pac. 105 (1917):

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Quoting Spokane v Knight

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Speedometers, like other machines, may get out of order, but where they are tested regularly, they may be relied upon with reasonable certainty to determine accurately the rate of speed at which a machine is driven.

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Conversely, when there is NO EVIDENCE that the officer's speedometer was tested regularly, it CANNOT be relied up to accurately determine the vehicle's speed. This is "independent" of the speedometer calibration (unless, of course, it was calibrated that very day). It's comparable to the daily testing of RADAR versus the periodic (once a year or every other year) calibration.

Personally, based on the officer's statement, I'd say you're guilty as sin. However, without the two items I've mentioned, it will be difficult to get a conviction.

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I have a witness who is my wife and can corroborate that the officer

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You could bring your entire family to confirm your testimony, but their bias would be obvious, it won't mean more than your solo testimony..

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My exhaust is aftermarket as it is a 25 year old car.

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If you can't post the images of your discovery, it's really hard to help. But that's not a valid defense. I'm assuming the officer cited you for speeding and for your illegal exhaust per RCW 46.37.390. In theory, you can defend against the second charge if the officer doesn't identify your vehicle in the report (since that charge is based on the premise that you have an exhaust louder than stock).

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Quoting adjusterjack

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Sorry, but when the cop says you were going 20 over, the judge will believe him and not believe one of the thousands that parade through the courtroom saying they didn't do it.

The cop was "confused"?

There's nothing "confused" about the statement he wrote.

That you end up in court because you have a red car is baloney.

I've had red cars and never ended up in court with them.

Take traffic school if you have the option. I don't see you beating this ticket.

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The officer was very confused but as I said before I am aware that what he wrote even though being largely a fabrication is pretty damming. I know a judge would not believe my testimony but I thought I would see if it would matter if my wife being a witness to my account of events would make any difference.

I have lived here for years, I get a red car and get pulled over for the first time. I tend to see a correlation. There are other factors such as the greatly increased police presence that has made me very careful not to break any traffic laws in the last couple of months. However, I know people that take the same roads I do well over the limit and they never get pulled over as their car color is far more sedate.

We have something called a deferred finding which can involve traffic school in this city but we can only do that once every seven years. Even though I am eligible I don't want to spend the money and fund the police any more than they already are.

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Quoting jojo

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My advice comes with a caveat: I cannot see your discovery materials -- and YOU seem to have made just as many typos as the officer.

But, here goes: The officer never states that he maintained a constant distance from your vehicle while he was "pacing" you. On two occasions, he admits to closing with you. If those were the times he glanced at his speedometer, his speed would not have been the same as yours.

Furthermore, the officer doesn't state that he checked the speedometer for accuracy -- regularly or otherwise. As stated in Spokane v Knight, 96 Wash. 403, 165 Pac. 105 (1917):

Conversely, when there is NO EVIDENCE that the officer's speedometer was tested regularly, it CANNOT be relied up to accurately determine the vehicle's speed. This is "independent" of the speedometer calibration (unless, of course, it was calibrated that very day). It's comparable to the daily testing of RADAR versus the periodic (once a year or every other year) calibration.

Personally, based on the officer's statement, I'd say you're guilty as sin. However, without the two items I've mentioned, it will be difficult to get a conviction.

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Thanks jojo. Are you saying that even if the bi-yearly speedometer calibration that I can probably obtain shows it was calibrated say a month ago, that since it was not calibrated as recently as say a SMD like radar would have to be that I could ask for a dismissal on this?

I was thinking the same thing about him not stating he maintained a constant distance, unfortunately I do not have enough experience to know what the court expects as far as evidence when the officer paces.

Could you please point out any typos I have made? Being an internet veteran I make it a point to talk in full sentences using complete and correctly spelled words so I am little confused by your statement. All the same I'll post the discovery materials tonight if you think it would help.

I am not denying that I have exceeded the speed limit in city limits at some point in my life, this was not one of those nights as the police presence in my area has tripled in the last few months I have been far to concerned with exactly something like this happening to speed.

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Quoting MoMoney

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You could bring your entire family to confirm your testimony, but their bias would be obvious, it won't mean more than your solo testimony..

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No illegal exhaust charge, only the trumped up speeding charge. It is aftermarket in respect to it not being the original rusted exhaust on the car just like the tires are aftermarket because the original dry-rotted factory tires would be unsafe to drive on. The way he phrases it, it sounds like I am driving some riced out Honda with huge wing and a sewer pipe-buzz bomb-fart pipe which I am not.

That is kind of what I thought might be the case but as far as bias goes the officer has a bias as well, it seems when it comes to the preponderance of the evidence that if you have multiple witnesses all making the same statement that it would tip the scale from a single peace officer. I am sure that is probably just me trying to inject too much logic into the legal system though.

~Spike~

Was this King County Sheriff or WSP?

Neither, local Kent police which is why it is going to Federal Way municipal court.

~Spike~

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Quoting spikespencer

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Thanks jojo. Are you saying that even if the bi-yearly speedometer calibration that I can probably obtain shows it was calibrated say a month ago, that since it was not calibrated as recently as say a SMD like radar would have to be that I could ask for a dismissal on this?

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Even if there is documentation on file with the court, it doesn't matter if the speedometer was calibrated both a day before and a day after the stop. The officer needs to lay a foundation by testimony that the certificate is what it says to be. He needs to list several items that he failed to mention in his report for a foundation to even begin to be set. Spokane v. Knight will do the trick.

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Quoting spikespencer

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Neither, local Kent police which is why it is going to Federal Way municipal court.

~Spike~

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Really? Hmmm. Interesting. Kent Police pull you over and you're going to Federal Way Municipal Court? Let's look at this:

IRLJ 2.3 states:

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Quoting IRLJ 2.3

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Except as otherwise specifically provided by statute, an infraction
case shall be brought in the district court district or the municipality
where the infraction occurred. If a notice of infraction is filed in a
court which is not the proper venue, the notice shall be dismissed without
prejudice on motion of either party.

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Based on this, the infraction MUST have actually occurred in Federal Way. However, RCW 10.93.070 states:

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Quoting RCW 10.93.070

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General authority peace officer -- Powers of, circumstances.

In addition to any other powers vested by law, a general authority Washington peace officer who possesses a certificate of basic law enforcement training or a certificate of equivalency or has been exempted from the requirement therefor by the Washington state criminal justice training commission may enforce the traffic or criminal laws of this state throughout the territorial bounds of this state, under the following enumerated circumstances:

(1) Upon the prior written consent of the sheriff or chief of police in whose primary territorial jurisdiction the exercise of the powers occurs;

(2) In response to an emergency involving an immediate threat to human life or property;

(3) In response to a request for assistance pursuant to a mutual law enforcement assistance agreement with the agency of primary territorial jurisdiction or in response to the request of a peace officer with enforcement authority;

(4) When the officer is transporting a prisoner;

(5) When the officer is executing an arrest warrant or search warrant; or

(6) When the officer is in fresh pursuit, as defined in RCW 10.93.120.

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Basically, unless it falls into one of these exceptions, a Kent Police officer has no jurisdiction in Federal Way. Granted, since Kent begins at 272nd, you were pulled over in Kent, but, because it was filed in Federal Way, it implies that the actual infraction occurred in Federal Way. Read through State v King, 167 Wn.2d 324 (2009), which provides a pretty thorough discussion of officer jurisdiction and RCW 10.93.120. Oh, I called the Kent Police and they claim there is no interlocal agreement with Federal Way, and that Federal Way Police have sole jurisdiction in their city (that fact should be officially verified -- submit your FOIA request for the speedometer calibration AND a copy of any interlocal law enforcement agreement the city may have with Federal Way -- you can actually do that online through the Kent City website).

Awesome, thanks guys! I am learning so much from this. I live minutes away from where I was pulled over and I actually almost never see the Kent Police in Kent jurisdiction. They are usually well south of 272nd (except in this case), maybe they are transporting a lot of prisoners but my wife has been seeing them in Shoreline on a regular basis. In the officer's statement "I was on patrol near the intersection of Military Rd. S and S 288th street...[I caught] up to the vehicle around the 28400 block of Military Rd." basically stating that he was outside of his jurisdiction and he never claims that I broke any laws after 272nd (I saw I had a cop following me when he turned off of 272nd so of course I didn't).

Searching through a few other pacing threads I can see how other officers lay that groundwork for showing the speedometer accuracy, which this officer completely failed to do.

All I should need to do is proceed with a motion to dismiss similar to say:

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Your Honor, I move to suppress any evidence of speed based on the patrol vehicle's speedometer due to lack of foundation and move for dismissal with prejudice for lack of evidence. Since modern speedometers are electronic, they should be periodically 'calibrated', just like any other electronic Speed Measuring Device. Furthermore, authentication of an electronic speed measuring device is subject to ER 901, pursuant to Seattle v Peterson. There is also no evidence offered to attest to the accuracy of the speedometer. As well as no evidence to support that the speedometer was ever tested. The speed reading should be found insufficient and suppressed and the case should be dismissed.

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I will look into the jurisdictional grounds of this too as I have felt the Kent police have been trying to reach pretty far outside of their limits. I saw the place to submit the FOIA request on their site while I was digging and I will submit the FOIA soon even though I have a few weeks to prepare. Thanks again, I really appreciate all of this.

~Spike~

- - - Updated - - -

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Double checked with my wife and we both remember the officer being dressed in a Kent uniform and the patrol car being marked as Kent. Even though everything obtained in discovery plainly says Federal Way. I will post of the FOIA information when I get it.

~Spike~

If there isn't an inter-local agreement as JoJo stated, you just need to walk in and make a motion to dismiss per IRLJ 2.2 and 2.3 before they read it in or swear you in. FMC does not have jurisdiction to hear the case as the NOI clearly states that the infraction was in Kent but that it is being filed in Federal Way. I would still prepare other motions but you really seem to have lucked out here.

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Quoting MoMoney

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If there isn't an inter-local agreement as JoJo stated, you just need to walk in and make a motion to dismiss per IRLJ 2.2 and 2.3 before they read it in or swear you in. FMC does not have jurisdiction to hear the case as the NOI clearly states that the infraction was in Kent but that it is being filed in Federal Way. I would still prepare other motions but you really seem to have lucked out here.

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If you do ^^that^^, you will lose. The NOI clearly states that the infraction occurred in Federal Way, while the officer's statement states that the infraction took place BOTH in Federal Way AND Kent, since 272nd is the dividing line. Therefore, Federal Way Municipal DOES have jurisdiction -- so does Kent (as well as King County District Court). The wrinkle comes from the combination of IRLJ 2.3 and RCW 10.93.070, as I outlined in my previous post. Since the NOI was filed in Federal Way, IRLJ 2.3 requires that the infraction had to have taken place in Federal Way. However, the Kent officer did not have jurisdiction in Federal Way, unless there was an interlocal agreement in place pursuant to the ruling in King.

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Quoting MoMoney

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FMC does not have jurisdiction to hear the case as the NOI clearly states that the infraction was in Kent but that it is being filed in Federal Way.

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Quoting jojo

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The NOI clearly states that the infraction occurred in Federal Way, while the officer's statement states that the infraction took place BOTH in Federal Way AND Kent, since 272nd is the dividing line.

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I don't see any indication that it says the infraction was in Kent, as I read the narrative it seems like he claims he paced me in Federal Way then he says I slowed (stopped) at the red light and proceeded when it turned green at which point there is no mention of continuing the infraction or any indication I did anything against the law as high revving (2,200RPM) is not against the law as far as I know.

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Quoting jojo

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The wrinkle comes from the combination of IRLJ 2.3 and RCW 10.93.070, as I outlined in my previous post. Since the NOI was filed in Federal Way, IRLJ 2.3 requires that the infraction had to have taken place in Federal Way. However, the Kent officer did not have jurisdiction in Federal Way, unless there was an interlocal agreement in place pursuant to the ruling in King.

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I agree with this part of it that since this alleged infraction took place in Federal Way outside of his jurisdiction that pursuant to IRLJ 2.3 and RCW 10.93.070 I should be able to get a dismissal unless the prosecution can come up with how this was a case of “fresh pursuit” which is the part I am concerned about and do not entirely understand as it mentions “who is reasonably believed to have committed a violation of traffic or criminal laws” but in order for this to be used I believe he would have had to be going from Kent into Federal Way and not from Federal Way into Kent, and I think this may only apply to arrests?

~Spike~

You're right - Read the wrong box w/ respect to the city, improper venue won't hold. Filing an FOIA won't hurt, but you can also look it up online for federal way since they actually keep their contracts online (don't know about Kent). If you can find a contract on the Federal Way site, you'll know well in advance of an FOIA response if there is an agreement that affects your case or not.

I only found the Valley Special Response Team and the Valley Civil Disturbence Unit as well as the interlocal jail agreement which mention Kent PD and none of these would seem to apply to my case. It is strange how almost every other city in King county has an interlocal agreement posted publicly but not Kent. Oh well though at least public records are easier and cheaper to obtain than Federal Way.

~Spike~

The jail agreement isn't relevant. But if they're still party to the VSR and VCDU agreements, that gives their personnel the right to operate in member municipalities. The officer explicitly states that he was on an assigned patrol in Federal Way (he mentions streets in Federal Way as being where he was assigned for that patrol).

I'd try and pick apart at the actual contracts (see the duration of the contracts and if they're still valid - what operational rights it gives to the members), but doesn't look like a jurisdiction violation will be a cake-walk based on what you found.

Well the court date is finally coming up (almost four months after the alleged infraction not quite the speedy trial I have come to expect).

I have confirmed that the speedometer was never calibrated so I figure that should be pretty slam dunk.
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On the other hand, I would kind of like to test the application of dismissal based on the jurisdictional argument of IRLJ 2.3 and RCW 10.93.070 as according to the record search there is no inter-local agreement between Kent and Federal Way.
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However, reading through some of the other threads previously I am worried that the judge may not appreciate my trying to use unorthodox technical arguments and may not accept a dismissal using either motion if I annoy them too much with the inter-local agreement motion. Should I just play it safe and use the lack of speedometer calibration to get a dismissal or could I proceed with the lack of an inter-local agreement argument and appeal the decision if the judge denies both motions to dismiss? I don't mind going to appeals just as long as there is a decent chance I will win.

~Spike~

Stupidest thing I heard today ended up being from a judge and was "your making legal arguments so we'll have to schedule you for a date that the prosecutor can hear." Isn't that what a contested hearing is for?

I never agreed to waive my right to a speedy trial and since the date of the alleged infraction was on 4/8/2014 and the attorney calendar is set for August 8th or 122 days after April 8th (despite the Court Clerk claiming it was just within the time frame). So now I guess I have to file an objection to the date by the 29th so it is within the 10 days required by IRLJ 2.6(d)? Should I do this like filing a discovery request?
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~Spike~

Well finally had my last hearing today, finally won. I spent 2.5 hours waiting for the 90+ cases with attorney representation (I was the only Pro Se). It seemed like the prosecutor was about ready to fight me on my motion to dismiss for exceeding the 120 day right to a speedy trial but after the usual spiel from the Judge about my three options to mitigate, defer, or contest...right when I was about to say I choose to contest it the City Prosecutor finally read through the officer's statement and agreed to motion to dismiss for evidentiary reasons.

Thank you all for your help. Hopefully this will be the last time I have to start a thread here.

~Spike~

Congrats!