Appeal Wa Speeding Ticket
My question involves a traffic ticket from the state of: Wa
Just a brief synopses.. Grays Harbor, District 2 court.
I presented A motion to dismiss pursuant to 2.1(b)(4) before court rules.... Missing Subsection - Violation of State v Leach.
The infraction notice did not contain the statutory element which states the particular alleged violation. I notified the court that because of this, I could not move forward as I could not formulate a defense without knowing the actual subsection I was being charged under.
The judge immediately warned me that State v. Leach was a criminal case and I argued that it still applied.
The bewildered judge took a few mins to look up 46.61.400 "The WA Basic Speed Law" which he should have been somewhat familiar with already.. Looked through the statute and mumbled...
"Okay 46.61.400 your citation was for forty in a thirty five, five miles over the limit that's the charge and you say that's constitutionally defective because he didn't put the the second prong of the statute in there, well subsection 1 is too fast for conditions subsection threes got nothing to do with anything in this case the issue in the case is due process and you're charged with going 40 and a 35 and this gives you fair notice of that, your motion is denied."
The officer who presented little to no statement on the NOI or in his testimony was then questioned as to whether he knew which subsection I was being charged under. The officer did not know and had no personal knowledge of the statute or the basic Washington speed law. I moved to dismiss and was denied.
During the cross-examination the officer repeated over and over that he could not remember or just didn't know answers to questions.
I made a certain objection, because the officer seemed incompetent and lacked knowledge of vital elements, the officer stated several times that he did not know what his Patrol speed was from his moving vehicle when he visually observed me or when he used the radar to clock my speed.
The objection was that the state did not have vital elements to prove its case- Motion to dismiss. The judge paused the hearing and went silent, seeming to consider this motion do dismiss.
The judge then intervened and reopened the state's case as to manufacturer evidence by coaxing the officer into presenting a narrative to create a fact that was not in evidence and change his story.
The judge went on to ask the officer leading questions, and once the judge finally got the what he wanted, the judge then entered the officers answer into testimony evidence, the judge then denied my motion to dismiss.
Ok, well that's only small snippet. the question is to Appeal or Not Appeal.
I feel that the issue of Abuse of Discretion, bias and prejudiced along with Violating Due Process because I have not been notified properly may be in play.
I've got 9 more days to file.. Any thoughts?
Had to edit.. please delete this thread as it is a double post
I didn't realize that you can't edit or delete a thread after a it's been posted. .. So please bare with the clerical errors.
Re: Appeal Wa Speeding Ticket
Yeah, your argument is specious. Leach doesn't say that a subsection MUST be provided. In Leaches case the citation was for a statute that had two charges (with differing penalties). This is not the case with 46.61.400. There's only one offense there. There's no need to further specify the offense.
How is it you had the officer there to begin with? Very unusual in Washington.
Re: Appeal Wa Speeding Ticket
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Yeah, your argument is specious. Leach doesn't say that a subsection MUST be provided. In Leaches case the citation was for a statute that had two charges (with differing penalties). This is not the case with 46.61.400. There's only one offense there. There's no need to further specify the offense.
How is it you had the officer there to begin with? Very unusual in Washington.
Had him subpoenaed, I was shocked at how incompetent the officer was to testify and how unfamiliar the judge was with the Statute.
Yes, I was a little iffy and reluctant about citing Leach, but I had very little time. This is why, during the hearing, I directly asked the Judge and the officer "Which subsection am I accused of violating?" Both failed to state which sub-section applied as well as the actual alleged violation of the statute, neither of them knew the answer, it was shocking.
The Statute 46.61.400 has 3 sub sections and 3 paragraphs within subsection 2. The subsections vary wildly and there are many ways to violate it. WA state rules under the Basic Speed LAW, it is not an Absolute Speed Law. This is why the subsections matter, they are there for a reason.
And as for Different penalties :
What are the current speeding fines in Washington state?
1 to 5 mph over the speed limit: $125.
6 to 10 mph over the speed limit: $136.
11 to 15 mph over the speed limit: $166.
16 to 20 mph over the speed limit: $207.
21 to 25 mph over the speed limit: $259.
26 to 30 mph over the speed limit: $310.
31 to 35 mph over the speed limit: $361.
More than 35 mph over the speed limit: $423.
There are many different situations in which speeding is determined within the Wa Basic Speed Law, the statute maps that out. For instance, under subsection 1, exceeding a posted limit isn't necessarily a violation depending on whether you were driving at a speed that is not greater than prudent under the conditions, but, exceeding a posted limit IS a violation under subsection 2 because of special hazards/conditions on the road and that is governed by specific speed limits, and subsection 3 changes the rules into another direction. So, you have to ask... What am I being charged with and which subsection am I defending? Unless you want to take it lying down and defend against all 3 or whatever they want to accuse you of.
Re: Appeal Wa Speeding Ticket
Your question tot he officer is nonsensical, so you can't really be surprised he couldn't answer.
The various penalties have nothing to do with the level of offense as it pertains to subsections. Not quoting a subsection doesn't change the penalty.
Re: Appeal Wa Speeding Ticket
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Your question tot he officer is nonsensical, so you can't really be surprised he couldn't answer.
Asking the officer to denote which subsection that HE has charged you with is nonsensical? I guess I could consult with my magic 8-ball.:rolleyes:
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The various penalties have nothing to do with the level of offense as it pertains to subsections.
The differing penalties were listed for your reading pleasure.
Violating the basic speed law requires a combination of several elements and these combinations can be found within the statutes 3 subsections. There are a multitude of ways to violate the statute with only a couple of ways to apply a penalty. But, you must pick (1), (2).(a).(b) or .(c) or (3). or a possible "jackpot" combination as conditions from all 3 may actually exist at the same time, but if none exist, then the statute does not apply, so in that case, no subsection denoted would be appropriate.
RCW 46.61.400
Basic rule and maximum limits.
(1) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
(2) Except when a special hazard exists that requires lower speed for compliance with subsection (1) of this section, the limits specified in this section or established as hereinafter authorized shall be maximum lawful speeds, and no person shall drive a vehicle on a highway at a speed in excess of such maximum limits.
(a) Twenty-five miles per hour on city and town streets;
(b) Fifty miles per hour on county roads;
(c) Sixty miles per hour on state highways.
The maximum speed limits set forth in this section may be altered as authorized in RCW 46.61.405, 46.61.410, and 46.61.415.
(3) The driver of every vehicle shall, consistent with the requirements of subsection (1) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
is it just me or do the subsections vary greatly?:rolleyes:
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Not quoting a subsection doesn't change the penalty.
If the subsection is not denoted, then an essential element is missing, so... Penalty for what?
In a non- "Boss Hog" world with a Judge who has 2 brain cells to rub together... Statutory elements not stated on the charging document should equal no penalty.
Re: Appeal Wa Speeding Ticket
Appeal. The judge erred in denying your motion to dismiss. If you were driving 40mph in a city, you could have been guilty of either 46.61.400(1) or 46.61.400(2), and they have different statutory elements. So failing to specify which of the two you were charged with is the same as failing to state them altogether. From State v Leach: "We affirm the Court of Appeals and uphold superior court dismissal of Respondent Duncan Leach's public indecency conviction. The Superior Court and Court of Appeals properly based their decisions on Holt which requires that a criminal complaint allege all statutory elements of the offense charged."
Re: Appeal Wa Speeding Ticket
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Your question tot he officer is nonsensical, so you can't really be surprised he couldn't answer.
Asking the officer to denote which subsection that HE has charged you with is nonsensical? I guess I could consult with my magic 8-ball.:rolleyes:
Quote:
The various penalties have nothing to do with the level of offense as it pertains to subsections.
The differing penalties were listed for your reading pleasure.
Violating the basic speed law requires a combination of several elements and these combinations can be found within the statutes 3 subsections. There are a multitude of ways to violate the statute with only a couple of ways to apply a penalty. But, you must pick (1), (2).(a).(b) or .(c) or (3). or a possible "jackpot" combination as conditions from all 3 may actually exist at the same time, but if none exist, then the statute does not apply, so in that case, no subsection denoted would be appropriate.
RCW 46.61.400
Basic rule and maximum limits.
(1) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
(2) Except when a special hazard exists that requires lower speed for compliance with subsection (1) of this section, the limits specified in this section or established as hereinafter authorized shall be maximum lawful speeds, and no person shall drive a vehicle on a highway at a speed in excess of such maximum limits.
(a) Twenty-five miles per hour on city and town streets;
(b) Fifty miles per hour on county roads;
(c) Sixty miles per hour on state highways.
The maximum speed limits set forth in this section may be altered as authorized in RCW 46.61.405, 46.61.410, and 46.61.415.
(3) The driver of every vehicle shall, consistent with the requirements of subsection (1) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
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Not quoting a subsection doesn't change the penalty.
If the subsection is not denoted, then an essential element is missing, so... Penalty for what?
In a non- "Boss Hog" world with a Judge who has 2 brain cells to rub together... Statutory elements not stated on the charging document should equal no penalty.
Re: Appeal Wa Speeding Ticket
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Quoting
zeljo
Appeal. The judge erred in denying your motion to dismiss. If you were driving 40mph in a city, you could have been guilty of either 46.61.400(1) or 46.61.400(2), and they have different statutory elements. So failing to specify which of the two you were charged with is the same as failing to state them altogether.
This was my exact argument.
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From State v Leach: "We affirm the Court of Appeals and uphold superior court dismissal of Respondent Duncan Leach's public indecency conviction. The Superior Court and Court of Appeals properly based their decisions on Holt which requires that a criminal complaint allege all statutory elements of the offense charged."
The judge did not seem to think that Leach was relevant because it was a criminal complaint and he alluded that it did not apply to the civil offense of infraction. But both courts are of Limited Jurisdiction.
Re: Appeal Wa Speeding Ticket
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Quoting
Court Jester
The judge did not seem to think that Leach was relevant because it was a criminal complaint and he alluded that it did not apply to the civil offense of infraction. But both courts are of Limited Jurisdiction.
Also from Leach: "[1] In holding that a charging document which omits a statutory element of the crime charged violates a defendant's constitutional rights, the court in Holt did not distinguish between misdemeanors and felonies, nor between complaints and citations. In applying the Holt rule, there is no logical reason to distinguish between complaints and citations or felonies and misdemeanors. If a misdemeanor citation or complaint omits a statutory element of the charged offense, the document is constitutionally defective for failure to state an offense and is subject to dismissal. "
Re: Appeal Wa Speeding Ticket
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Quoting
Court Jester
Ok, well that's only small snippet. the question is to Appeal or Not Appeal.
I feel that the issue of Abuse of Discretion, bias and prejudiced along with Violating Due Process because I have not been notified properly may be in play.
I've got 9 more days to file.. Any thoughts?
I can offer some thoughts, but have no experience with appeals and cannot assess your chances. If you haven’t already, you would definitely want to read the entire Washington State Rules for Appeal of Decisions of Courts of Limited Jurisdiction. I know it will involve some expense including the filing fee and cost to order a transcript. Also it will cost you time to write and research. The whole process would best be viewed as an adventure and learning experience, and if you choose to proceed I would encourage you to share on this forum regardless of outcome.
The missing subsection argument has been successful in some courts, although I’m inclined to think not as much in recent years. The current SECTOR electronic ticketing system probably doesn’t even allow a subsection to be entered (every speeding ticket I’ve seen lately lacks a subsection). For a recent example of this argument not succeeding, you might want to read this previous post from a thread last December.
However the poster in the above linked thread did win based on the officer not stating personal knowledge of device testing. That’s where I think you might have shot yourself in the foot by subpoenaing the officer, because your strongest defense probably had to do with him not checking the moving radar patrol speed against his speedometer.
Based on what you described about how the judged behaved on that issue, I’m guessing the officer’s sworn written statement lacked that required evidence. In the officer’s absence, his written statement is the only evidence available and if insufficient (not containing all required elements) the judge would have been forced to dismiss. Instead the judge was able to coax that necessary element from the officer, and also I’m pretty sure judges in general are more reluctant to dismiss whenever the officer is present.
Also based on your description, it would appear that you never served a discovery request on the prosecutor, and probably based your defense only on the notice of infraction and cross examination of the officer. Your entire defense should have been based on the written statement.
Anyway you did object to the officer’s apparent failure to conduct a patrol speed/speedometer check, and I’m inclined to believe denial of that objection could quite possibly be your best chance for winning an appeal. A more correct initial motion should have been to exclude or suppress the evidence of speed, followed by a motion to dismiss due to lack of evidence--but I’m not sure that technicality would hurt you much since what’s most important is that you objected. Probably in an appeal argument you would want to try to illustrate how the judge was leading the witness prior to denying your objection.
Re: Appeal Wa Speeding Ticket
Judges want to hear the facts of why you (the OP) are not guilty, not some cryptic legalese that is likely not applicable. I've been in court where the judge himself vetted the officers statement to ensure that the device was calibrated and the officer stated such in his report.
Re: Appeal Wa Speeding Ticket
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Quoting
MaltbyMark
Judges want to hear the facts of why you (the OP) are not guilty, not some cryptic legalese that is likely not applicable. I've been in court where the judge himself vetted the officers statement to ensure that the device was calibrated and the officer stated such in his report.
In appeal, you bet they want to hear some "cryptic legalese".
Re: Appeal Wa Speeding Ticket
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Quoting
searcher99
I can offer some thoughts, but have no experience with appeals and cannot assess your chances. If you haven’t already, you would definitely want to read the entire Washington State
Rules for Appeal of Decisions of Courts of Limited Jurisdiction. I know it will involve some expense including the filing fee and cost to order a transcript. Also it will cost you time to write and research. The whole process would best be viewed as an adventure and learning experience, and if you choose to proceed I would encourage you to share on this forum regardless of outcome.
Yes, it appears that the process is designed to defeat you, even if you prevail and recover court costs, you still lose.
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The missing subsection argument has been successful in some courts, although I’m inclined to think not as much in recent years. The current
SECTOR electronic ticketing system probably doesn’t even allow a subsection to be entered (every speeding ticket I’ve seen lately lacks a subsection). For a recent example of this argument not succeeding, you might want to read
this previous post from a thread last December.
Yes, it appears certain prosecutor type judges have adopted this flawed reasoning to allow them to violate Infraction Rules of Limited Jurisdiction 2.1(b)(4) as if it doesn't even exist. I would imagine that the appeals court may not consider the violation of Infraction Court Rules as being a valid enough factor to overturn.
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However the poster in the above linked thread did win based on the officer not stating personal knowledge of device testing. That’s where I think you might have shot yourself in the foot by subpoenaing the officer, because your strongest defense probably had to do with him not checking the moving radar patrol speed against his speedometer.
The officer did not once state that he tested the device before and after shift. The judge acted like an aggressive prosecutor and made it obvious that no matter what, the state was not going to lose. The court was surprised at my attack and the judge told me that no one ever submits motions in his court. It seemed as if the judge had never held a real hearing in his court room, he seemed somewhat unfamiliar with he process. He seemed more familiar with the poor citizens grovelling at his feet with 0 defense and his "infraction committed" rubber stamp.
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Based on what you described about how the judged behaved on that issue, I’m guessing the officer’s sworn written statement lacked that required evidence. In the officer’s absence, his written statement is the only evidence available and if insufficient (not containing all required elements) the judge would have been forced to dismiss. Instead the judge was able to coax that necessary element from the officer, and also I’m pretty sure judges in general are more reluctant to dismiss whenever the officer is present.
The officer is a newbie rookie, he made no statement on the NOI and brought in an affidavit that I was not aware of and never got to see. Even the affidavit made no mention of testing the SMD , speedometer or SMD speed against the speedometer, The patrol speed was not known. I motioned to dismiss on that because it was missing just about all elements. It happened fast when the judge deliberately extracted the missing elements, too fast for me to object to the judge acting as an agent of the state by attempting to re-open the states case to pull such a nasty move.
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Also based on your description, it would appear that you never served a discovery request on the prosecutor, and probably based your defense only on the notice of infraction and cross examination of the officer. Your entire defense should have been based on the written statement.
Yes, I asked for a good amount of discovery, I even served the sheriffs dept and got just about nothing. The officer brought only a 4 line affidavit into court, nothing else. And i did ask for any affidavits, and never received any. My scope was very wide and I missed this mark, I should have attacked this, I know.
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Anyway you did object to the officer’s apparent failure to conduct a patrol speed/speedometer check, and I’m inclined to believe denial of that objection could quite possibly be your best chance for winning an appeal. A more correct initial motion should have been to exclude or suppress the evidence of speed, followed by a motion to dismiss due to lack of evidence--but I’m not sure that technicality would hurt you much since what’s most important is that you objected. Probably in an appeal argument you would want to try to illustrate how the judge was leading the witness prior to denying your objection.
I did a lot more than that, I pushed the hearing to over an hour and a half long. I grilled and tested the officer on Visual Speed Estimation from a moving vehicle for the purpose of excluding his so called observation... When I concluded the test, the officer was off by over 38mph, my speed would have been -.8 mph, driving backwards? The prosecutor/judge did not care or simply could not comprehend.
This is "Boss Hog" territory, where good ole boy attorneys figured out a way to win every time, they are elected as Judges... Many attorneys will not come near this place, because they know how things work out here... It's tough.
Re: Appeal Wa Speeding Ticket
I am getting this message for my multi quote responses...
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Redirecting...
Thank you for your posting! Your post will be not be visible until a moderator has approved it for posting. You will now be taken back to the forum. If you opted to post a poll, you will now be allowed to do so.
I have posted responses to searcher and flyingron, but my response posts have been routed through moderators for review, this has been happening since early this morning when I tired to post a lengthy response to flyingrons last post.
Sorry you can't see my responses yet, I guess you may never actually see them? Thanks for the replies, keep em coming. You can message me with any questions or I will message you my responses. Any examples of appeal briefs for such a situation would be helpful.
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Quoting
zeljo
Also from Leach: "[1] In holding that a charging document which omits a statutory element of the crime charged violates a defendant's constitutional rights, the court in Holt did not distinguish between misdemeanors and felonies, nor between complaints and citations. In applying the Holt rule, there is no logical reason to distinguish between complaints and citations or felonies and misdemeanors. If a misdemeanor citation or complaint omits a statutory element of the charged offense, the document is constitutionally defective for failure to state an offense and is subject to dismissal. "
Yes, I based my argument on this for application. The Judge did not seem to grasp this concept, and appeared to completely ignore irlj2.1 b4 all together.
A constitutional right to due process does not override this particular judges idea of judicial discretion and prosecutorial behavior.
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searcher99
I can offer some thoughts, but have no experience with appeals and cannot assess your chances. If you haven’t already, you would definitely want to read the entire Washington State
Rules for Appeal of Decisions of Courts of Limited Jurisdiction. I know it will involve some expense including the filing fee and cost to order a transcript. Also it will cost you time to write and research. The whole process would best be viewed as an adventure and learning experience, and if you choose to proceed I would encourage you to share on this forum regardless of outcome.
So far , this looks about right.
RALJ RULE 2.2 (d)(3)
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(3) manifest error affecting a constitutional right. A party may present a ground
for affirming a decision of a court of limited jurisdiction that was not presented to that court if the record
has been sufficiently developed to fairly consider the ground. A party may raise a claim of error that was
not raised by the party in the court of limited jurisdiction if another party on the same side of the case
raised the claim of error in that court.
Manifest constitutional error refers to an error made by the trial court which has an identifiably negative impact on the trial to such a degree that the constitutional rights of a party are compromised. These types of errors can be reviewed by a court of appeals even if the appellant did not object at trial.
Re: Appeal Wa Speeding Ticket
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Quoting
searcher99
I can offer some thoughts, but have no experience with appeals and cannot assess your chances. If you haven’t already, you would definitely want to read the entire Washington State
Rules for Appeal of Decisions of Courts of Limited Jurisdiction. I know it will involve some expense including the filing fee and cost to order a transcript. Also it will cost you time to write and research. The whole process would best be viewed as an adventure and learning experience, and if you choose to proceed I would encourage you to share on this forum regardless of outcome.
So far , this looks about right.
RALJ RULE 2.2 (d)(3)
(3) manifest error affecting a constitutional right. A party may present a ground
for affirming a decision of a court of limited jurisdiction that was not presented to that court if the record
has been sufficiently developed to fairly consider the ground. A party may raise a claim of error that was
not raised by the party in the court of limited jurisdiction if another party on the same side of the case
raised the claim of error in that court.
Manifest constitutional error refers to an error made by the trial court which has an identifiably negative impact on the trial to such a degree that the constitutional rights of a party are compromised. These types of errors can be reviewed by a court of appeals even if the appellant did not object at trial.