Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc
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cdwjava
So ... you directed an order to compel discovery to the agency that has already told you that they do not have the information you are requesting?.
No, it was the DA who told me they don't have the information. It's the courthouse and the judge who are meant to compel the prosecution to provide the materials I requested. I only sent the motion to the DA as well because the form indicated that I should.
I assume the DA must intend to bring some kind of evidence against me and so I suspect their claim of "we don't have anything" is a dodge, which would be expected because why would they willingly help me fight them? So what if it's in the police agency's possession instead? The officer is the prosecution's witness, right? I understand it's normal for the prosecution to present certification for the radar gun, etc. But if the DA is really so empty-handed then I'm happy to fight them with their complete lack of evidence.
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cdwjava
An FCC license for what? [...] Were you clear and specific on this request for their radio license?
Yes, I was clear and specific but I didn't want to reproduce the entire request here because the language gets kind of long. I requested:
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A copy of the FCC (Federal Communications Commission) license that authorized the issuing police agency and operator of the speed measuring device to lawfully operate the device on a specific frequency and / or range of frequencies.
Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc
You might get no response to the FCC license request simply because there will be no separate license for the operation of the radar. And even if they fail to present their radio FCC license, I am not sure that makes their use of radar unlawful in AL unless there is some law that requires the use of radar to otherwise comply with state and federal regulation. It's an interesting point, but may not be one that will get you very far with a judge.
Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc
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protectingmyanonymity
Do you think my chances are bad?
If you did not properly notice your motion for hearing, then the court may not even know that you filed the motion, and may not see it until the date of your hearing. Assuming the court finds merit to your motion, that runs the risk that you're going to get an adjournment as opposed to any more significant relief, with the prosecutor ordered to provide the discoverable materials prior to the next court date.
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protectingmyanonymity
But I also moved to subpoena the officer to bring his copy of the operator's manual to court....
By that, you presumably mean that you asked the court to issue a subpoena duces tecum to the officer -- but was such a subpoena actually issued?
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cdwjava
An FCC license for what?
As you have noted, although FCC regulations do require a license for the operation of a radar transmitter, state and local government entities in the Public Safety Pool that already have a FCC license for operating a radio communications system do not require an additional license to operate ordinary police radar units.
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Quoting 47 CFR Sec. 90.20(f)(4)
(4) A licensee of a radio station in this service may operate radio units for the purpose of determining distance, direction, speed, or position by means of a radiolocation device on any frequency available for radiolocation purposes without additional authorization from the Commission, provided type accepted equipment or equipment authorized pursuant to §90.203(b)(4) and (b)(5) of this part is used, and all other rule provisions are satisfied. A licensee in this service may also operate, subject to all of the foregoing conditions and on a secondary basis, radio units at fixed locations and in emergency vehicles that transmit on the frequency 24.10 GHz, both unmodulated continuous wave radio signals and modulated FM digital signals for the purpose of alerting motorists to hazardous driving conditions or the presence of an emergency vehicle. Unattended and continuous operation of such transmitters will be permitted.
I'm not aware of any state that makes the use of a radar as evidence in traffic court contingent upon the production of a FCC license.
Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc
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Mr. Knowitall
Assuming the court finds merit to your motion, that runs the risk that you're going to get an adjournment as opposed to any more significant relief, with the prosecutor ordered to provide the discoverable materials prior to the next court date.
Well I don't want to risk an adjournment and hopefully the judge will be merciful in that area if I tell him that I had to drive 8 hours one way just to get there and so it would be a great inconvenience to me not to settle the case on my court date. Maybe instead of moving to dismiss I should just move that the prosecutor be ordered to stand by their word about not using any evidence other than the citation.
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Mr. Knowitall
By that, you presumably mean that you asked the court to issue a subpoena duces tecum to the officer -- but was such a subpoena actually issued?
Yes, I asked the court to issue a subpoena duces tecum to the officer, and I doubt it was actually issued but I don't know what else I can do.