Negligent Driving, Second Degree, by Speeding in Washington State
My question involves a traffic ticket from the state of: Washington
Hello - This is my first time dealing with this so would appreciate any help.
I am a Canadian and was driving northbound on the I5 when the incident happened one evening when the sun was still out. I had just turned a bend when I saw the police vehicle and within seconds he turned on his lights and I approached him until we were parallel when he signaled for me to park aside.
The officer asked why I was going so fast (to which I did not respond before he asked for my license), he went back to his vehicle, came back with the ticket, told me I had three options, check the box and mail it back. I read on the ticket that I was being charged for Negligent Driving 2nd Degree. I asked the officer how Negligent Driving was different from speeding. He said negligent driving would not impact my insurance in BC but speeding would even though speeding was cheaper (made no sense at all but I didn't say anything). He said he could've charged me for reckless driving but he didn't. I asked again why Negligent Driving and he said I was going very fast (apparently 88 in a 60 zone) and that was within range for Negligent Driving 2nd Degree. I had more questions to ask but he turned around and left.
The violation reads as "46.61.525 NEGLIGENT DRIVING 2ND DEGREE 88MPH IN 60MPH ZONE".
The SMD box was not checked. Nor was PACE or AIRCRAFT (below).
http://i1378.photobucket.com/albums/...psvfnqufzv.jpg
I contested the charge because I did not feel like I was going at 88, and the officer provided me no straight answer to why I was being charged for Negligent Driving. I am convinced that he charged me for whatever he could that costed the most, considering I am Canadian and probably wouldn't appeal. I requested for discovery documents using Barry's template and asked for:
- list of witnesses the plaintiff intends to call at the hearing
- officer's sworn statement
- calibration and certification log for the SMD (even though the box was not checked... I asked in good measure since I'm representing myself and didn't want to be surprised)
- copy of the dash cam and body cam.
I received the notice that the officer will be the prospector's witness, and the officer's sworn statement (below).
http://i1378.photobucket.com/albums/...psm5jcuhvy.jpg
My questions are:
- I read that speed alone cannot be reason for the Negligent Driving 2nd Degree charge - what can I say to that effect? Is this my main argument?
- The SMD box was not checked off in the ticket, but the sworn statement says that was using a RADAR - am I able to dismiss the radar use because it wasn't indicated in the ticket?
- No radar reading was provided - is that ok? Couldn't they just say they read whatever they want from the radar?
- I'm guessing it's ok that they didn't provide the last two items that I requested?
- Would the officer actually show up now that the prosecutor said he was a witness? Or do they just list that even though he may or may not show up?
- Is there anything I have missed in the statement that can be used to my advantage?
Appreciate any comments. Thank you in advance for your time.
Re: Negligent Driving Second Degree by Speeding Only [Washington]
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a9852
I read that speed alone cannot be reason for the Negligent Driving 2nd Degree charge - what can I say to that effect? Is this my main argument?
I have no direct experience with Neg2, but based on Barry’s prior comments it would appear you are correct. Here’s an excerpt:
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blewis
You were cited for a violation of RCW 46.61.525.2, which states:
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Quoting RCW 46.61.525
(2) For the purposes of this section, "negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.
I would argue that paragraph (2) "creates no citable traffic offense". (See
STATE v. MacRAE, 101 Wn.2d 63, 676 P.2d 463 (1984).) Even if the judge allows the citation to be amended to paragraph (1), it will still be up to the prosecution, using the officer's sworn statement, to prove that you were operating "a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property." In other words, just saying you were going 95 in a 60 zone is NOT sufficient. But, that's the reason you need to submit a discovery request so that you KNOW what the officer wrote.
Good luck,
Barry
In your case neither paragraph is cited but according to Barry speed alone is not sufficient proof and the officer has nothing else in his statement besides speed.
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a9852
The SMD box was not checked off in the ticket, but the sworn statement says that was using a RADAR - am I able to dismiss the radar use because it wasn't indicated in the ticket?
That would be a sufficiency motion based on IRLJ 2.1(a) but I believe it is an argument you should NOT bring up because it would stop the judge from considering the officer’s sworn written statement about radar evidence, which helps your defense. Instead the judge would only consider the ticket as prima facie evidence.
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a9852
No radar reading was provided - is that ok? Couldn't they just say they read whatever they want from the radar?
The reading is in the officer’s statement and on the ticket, which is certified under penalty of perjury.
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a9852
I'm guessing it's ok that they didn't provide the last two items that I requested?
Per IRLJ 3.1(b) dash cam and body cam video must be provided only if the prosecutor proposes to introduce that as evidence at your hearing, and the calibration certificate is not one of the 3 required items. Probably your discovery materials included a cover letter directing you to view the certificate on the Washington State Patrol website. If not then the certificate must be on file at the court per IRLJ 6.6(d).
By the way, I’m not sure why you redacted the tuning fork numbers but if they don’t match the ones listed on the certificate you would probably get a dismissal. Be sure to check those numbers.
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a9852
Would the officer actually show up now that the prosecutor said he was a witness? Or do they just list that even though he may or may not show up?
He is a witness by way of his sworn written statement “in lieu of the officer's personal appearance at the hearing” per IRLJ 3.3(c). Citing officers are almost never present at infraction hearings in Washington State.
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a9852
Is there anything I have missed in the statement that can be used to my advantage?
He states that he tested the unit at the beginning and end of his shift. You can get his shift schedule for that day via a public records request. It’s possible that his shift ended well after midnight and he electronically signed/submitted the statement before midnight. If so his end-of-shift testing statement would be false and you could move to suppress the radar evidence.
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Appreciate the response searcher99. Cleared up a lot of things - thank you.
There was no cover letter directing me to the calibration certificate but I just checked the tuning fork numbers and unfortunately they do match.
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searcher99
He states that he tested the unit at the beginning and end of his shift. You can get his shift schedule for that day via a
public records request. It’s possible that his shift ended well after midnight and he electronically signed/submitted the statement before midnight. If so his end-of-shift testing statement would be false and you could move to suppress the radar evidence.
The statement was written one day after the incident - so there's no point in checking the end of shift time correct?
I suppose my argument now is speed alone is not sufficient proof and the officer has nothing else in his statement besides speed. Is there a specific way I should be formulating this? I read about "pre-trial" motions, etc - when should I be bringing this up?
One more question - if my argument is there is no proof of negligent driving, would the prosecutor lower the charge to speeding? Or will they have to drop it altogether?
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Regarding the calibration certificate, if the prosecutor did not direct you to the State Patrol Internet site I would go to court early on the hearing day and check to see if it is filed at the court. If it is not, you can try moving for suppression of the radar evidence per IRLJ 6.6(d). However this motion probably has only a small chance. Most judges will recognize certifications on the state patrol server as “filed” but some could have an issue with the prosecutor not informing a defendant where to find the cert when that question was asked in discovery.
If the ticket was submitted on the following day then you are correct that the end-of-shift time would not be an issue.
Immediately after the case is called I’d be inclined to move for dismissal due to lack of evidence. The officer’s statement does not contain anything to support operating “a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.” Also since RCW 46.61.425 (1) condones exceeding the speed limit in a specific circumstance, it should follow that speed alone does not meet the burden of proof for a charge of Negligent Driving, Second Degree.
As stated earlier I haven’t seen any Neg2 cases, so I’m relying mostly on posts from blewis and brendanjkeegan. The above reference to RCW 46.61.425 comes from another previous post by Barry but also you should note his comments that these arguments definitely can lose especially when not made by an attorney.
To make a more informed decision I would do the following:
- Call a court clerk and ask if the court allows deferred findings for Neg2 tickets. If so you would have an option to request deferral online for $175 which is much easier and cheaper than the ticket.
- Also ask the clerk if a prosecutor will be present at the hearing. If no prosecutor attends, then the charge cannot be amended to speeding. However even with a prosecutor it’s not likely that it can be amended.
- The only way to know how Neg2 in Washington might affect your insurance would be to call and ask your agent, because whatever the officer said could be wrong. Deferral is safer if your rates can go up, but otherwise you only risk the fine which a judge might still reduce even if your arguments lose.
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Thanks again searcher99. I've considered a deferral but I truly believe that 1) I was not going at the speed the officer claimed I was and 2) Was incorrectly charged for a violation that was not reasonable to the situation. So allow me to ask one more thing.
You mentioned:
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searcher99
That would be a sufficiency motion based on
IRLJ 2.1(a) but I believe it is an argument you should NOT bring up because it would stop the judge from considering the officer’s sworn written statement about radar evidence, which helps your defense. Instead the judge would only consider the ticket as prima facie evidence.
Can you explain why it would not be beneficial for me to try and suppress radar evidence? Would it be logical for me to:
1) try and dismiss the radar evidence because it was not indicated on the ticket that SMD was involved
2) argue that there is insufficient evidence that I was going at the speed the officer claims
3) argue that there was no reason provided within the ticket that I was doing anything else that met the requirements of the violation
Thanks.
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Probably it does not matter whether the SMD box was checked on your ticket because you have been provided with discovery materials clearly indicating radar was used, so I don’t see that working. Also you are charged with Neg2—not speeding, so the judge needs to see the officer’s statement and observe the total lack anything other than speed evidence.
A few years ago I had a speed ticket with the SMD box also unchecked like yours. When I started a sufficiency motion the judge asked me, “Do you really want to do that?” and then explained that if I did she could not consider anything other than the face of the ticket. I withdrew the motion and asked to view discovery (which I had not previously requested due to the defect on the ticket). Ten minutes later I moved for and was granted suppression of the radar evidence due to an expired calibration certificate. Actually that was my original idea, because all the attorneys were taking advantage of the fact that the city had a strict 1-year recertification policy. In my case this forum ended up being a bit of a distraction. :D
Suppressing radar would certainly be beneficial be if there were any clear arguments that would convince a judge to do that. Definitely you should check to see if the cert is filed at the court especially since the prosecutor did nothing to help you find it on the web. Also you might have a weak argument that the officer does not indicate personal knowledge about the speedometer certification (ER 602) and did not provide you any way to verify it (ER 901).
Your main argument should be to immediately move for dismissal due to no evidence for Neg2 other than speed as I outlined above. If that fails you can attempt to suppress radar but your chances of that are probably not great. All motions are preliminary and should be done before the officer’s report is read into the record and before you are sworn in for testimony. Of course if any motions succeed then you will not need to testify.
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Wanted to give an update - I checked if the calibration certificate was filed with the court but was directed to the website and I didn't know if that was 'right' or not. I was offered an amendment to a $250 parking ticket at first by the prosecutor, but after I rejected the offer the prosecutor read through the documents at which point he agreed that there were no grounds for my charge and we ended with a $50 settlement.
I want to thank searcher99 and this whole community for helping everyone out. This is a great resource for people who don't have other means to navigate the particularities of the legal system. Of over 30 cases that were supposed to be at the hearing, I was the only one that showed up cause the others either settled by phone or had a lawyer representing them. For charges that are truly unjustified, the fact that you have to hire a lawyer cause you don't even know where to start is quite unfair. So thanks for this!
Re: Negligent Driving Second Degree by Speeding Only [Washington]
Thanks for the update. I’m assuming that the $50 settlement was probably for a parking charge, although it strikes me as a bit unethical for the prosecutor to attempt to extract any money at all considering that he had no case. Nevertheless I think you did well and achieved a good outcome. Congratulations and best wishes.