Discovery demand was not recieved 14 days prior in Washington

I have a court date next week for a speeding ticket (in Washington State). I mailed out certified letters to the court and to the PA last month to request discovery. The court's letter arrived in time. However, the one to the PA was late.

I just recieved a letter from the prosecutor stating that:

"... State of Wa... hereby submits that the defendant's discovery request was not timely recieved pursuant to IRLJ 3.1. The State received the discovery demand on 2/2/2007, which was not 14 days before the sheduled hearing set for 2/15/2007, pursuant to IRLJ 3.1
The State requests any motion to dismiss... be denied, if the basis of the defendant's request is that the State failed to provide discovery seven days prior to the contested hearing date."

My questions:
Are they still going to send me the discovery?
IF they don't send it at all, can I still motion for dismissal somehow?

Is there anything else I can do? Thanks for your help.

IRLJ 3.1(b) reads (in part):

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If the prosecuting authority, without reasonable excuse or justification, fails to provide the citing officer's sworn statement, the statement shall be suppressed.

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IMHO the fact that your discovery request was not received until 13 days before the hearing, does not constitute a "reasonable excuse" for not providing the officer's sworn statement AT ALL. If the officer's statement is not forthcoming, I'd move for dismissal based on the sentence I've quoted above.

Good luck,
Barry

I think they are trying to head off a motion to dismiss or suppress for non-compliance with discovery, in effect saying because you did not follow the discovery rules you should not be able to have any sanctions imposed.

Courts usually enjoy considerable discretion over discovery matters and dismissal or suppression of evidence are extreme remedies which, in my experience, are seldom imposed.

My sense is that they will furnish you discovery--of course you must receive it in time to make meaningul use of it. You can always move for any sanction you feel is warranted, including a dismissal or suppression of evidence, and let the judge make a ruling on your motion. Normally, when discovery materials are not timely furnished, the result is that the case ends up being continued to a future date.

Thank you both for replying.

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Quoting Litigator

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My sense is that they will furnish you discovery--

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You were right, I received discovery in the mail today, 6 days prior to the hearing. It was filled with "objections" to my requests for discovery. Yet it did include:

1. The speeding ticket (front side only, I asked for front and back),
2. The Officer's Notes
3. Affidavit of Certification Concerning Design and Construction of electronic SMD pursuant to IRLJ 6.6

I think the only other defense strategy I've heard of is to call the court and check the filing date on the ticket. What else can I do?


Here's a long shot I was thinking about: I have USPS certified proof that the letter was delivered at 9:06 AM on February 2, 2007. The Hearing is scheduled for 1:15 PM on 02-15-07. Since they had it for most of the day on the 2nd, isn't that day counted as a full day?

First, in WA the backside of the tickets are, indeed, the officer's notes. The back usually includes checkboxes for SMD, LIDAR, etc.; Serial Number of SMD and tuning fork; Clear and Steady Tone YES/NO; Other vehicles in beam YES/NO; and so on. There is also space for the officer to write down any other information he/she deems necessary.

And according to IRLJ 3.1, that's all you're entitled to.

The filing date should appear on the front of the copy they just sent you -- look for a date/time stamp.

As far as having received the letter on Feb 2, IRLJ 3.1 states (in part)

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Upon written demand of the defendant at least 14 days before a contested hearing, filed with the court and served on the office of the prosecuting authority assigned to the court in which the infraction is filed....

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"14 days before" means go to the calendar, find Feb 15, count backwards 14 days. You needed to file and serve the request on the 1st.

Check the information in the officer's notes. You didn't indicate whether you subpoenaed the officer or not. If not, there needs to be information in the notes concerning the officer's location, fixed or moving, direction, etc. Anything not listed in the notes creates a potential lack of evidence. But, this is a pretty long shot.

My advice -- ask for deferred findings, if you're eligible.

Good luck,
Barry

Thanks Barry.

I'll have to research to find out what makes one eligible. I haven't had a ticket in WA for over 3 years.

When asking for deferred findings, is that done at the hearing? What might one say to the judge?

I could not find a filing date on the copy of the ticket. There is a stamp from the PA dated for 2 days ago. There is a big round black dot. There is a handwritten "6/2" on the ticket. But there is no filing date as far as I can tell.
Perhaps it is hidden under the big black dot?

Thanks again for all your help!

You are eligible for one deferral every seven years -- it's not about how many tickets you've had, just how many deferrals you've had (see RCW 46.63.070(5)). You can also search these forums -- there's a lot of information posted about "deferrals" or "deferred findings".

Call the Clerk of the Court. Ask if they can arrange the deferral, or if you have to come in for the hearing -- different jurisdictions have different customs. You can also ask the Clerk for the filing date of the ticket. They are very helpful people, as a general rule. If the filing date is not within 5 "court" days of the ticket (see IRLJ 2.2(d)), move for dismissal as soon as your case is called.

If you need to go to the hearing, ask for a deferral as soon as possible -- I've seen judges say something like, "Anyone who wants a deferral line up over here". But, sometimes you'll have to wait till your case is called. In any case, it's a good idea to request it BEFORE the prosecutor begins to present his/her case against you.

Good luck,
Barry

Hi Barry,

Ok, I spoke with Clerk of the Court and found out some very (potentially) good things!

1st of all, for anyone who's interested, I found out that in Snohomish County (CD), the deferral proceedings are decided in court by the Judge, on a case by case basis. I have never had a deferral, if only I knew about them in my younger years!

2nd, I obtained the filing date for the ticket. The ticket was filed 15 days after the date the ticket was issued! So, I will motion for dismissal as soon as my case is called. Now, the remaining text of IRLJ 2.2(d) states:

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Quoting IRLJ 2.2(d)

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In the absence of good cause shown, a notice of infraction not filed within the time limits of this section shall, upon motion, be dismissed with prejudice.

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Does that mean they can just name off any "good" reason and if the Judge so chooses, he can overrule my motion to dismiss? Obviously yes, but I was hoping for some of your insight on this matter or if you've had any experience on what could constitute a "good reason".

Also, when the Prosecutor sent me the discovery packet, one of the items stated this:

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Quoting Prosecutors response to my Discovery Request

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The State requests a copy of all motions, with corresponding legal authority the defense intends to argue, no less than 5 days before the scheduled hearing date pursuant to CRLJ 5(a) and 6(d).

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When I recieved this packet, there were already less than 6 days until the hearing. I could not have possibly complied with this request via mail.
Some questions I have are:

• Does that mean I can't make the motion because I did not give them a copy? (The reference mentions "ex parte" but I don't know what that means.)
• Can I bring a copy with me for the State? Is there a proper format?
• What does "corresponding legal authority mean"?

Thanks again for all your help!

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Quoting GoodDriver_WA

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Does that mean I can't make the motion because I did not give them a copy? (The reference mentions "ex parte" but I don't know what that means.)

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Nope, but if you were an attorney, you would be expected to file "pre-trial" motions with the court and serve a copy on the prosecutor. Ex parte mean, basically, that you go before a judge without the other side being present to argue their side of the case. It's not applicable to your situation.

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Can I bring a copy with me for the State? Is there a proper format?

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I wouldn't worry about it. Just make your motion when they call your case.

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What does "corresponding legal authority mean"?

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Your "legal authority" is IRLJ 2.2. Your motion should be something like, "Your Honor, I move to dismiss this case, because the citation was not filed within the five day time period required by IRLJ 2.2". If the filing date is not clearly marked on the citation, you will have to obtain evidence of the filing date from the Clerk. Take that with you, and you should be good to go.

"Good cause shown" means there must have been a compelling reason why the ticket was not filed in time. "The officer was busy" or "on vacation" are NOT good excuses.

Sounds like a slam-dunk to me, unless the prosecutor can come up with a really good reason for the delay in filing. Plus, you'll get to reserve your deferral for another time.

Let me know how it turns out.
Good luck,
Barry

I definitely will. Thank you so much.