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Received the Discovery Without Smd Certification But...(WA)

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  • 02-18-2020, 02:17 PM
    russoturristo
    Received the Discovery Without Smd Certification But...(WA)
    My question involves a traffic ticket from the state of: Washington.

    My wife got a speeding ticket in a construction zone due to temporary reduced speed limit.
    We requested the discovery and when we got it there was no SMD certificate attached. So I thought that the ticket would be dismissed easily.
    But then I read the discovery's front page and there was something new to me, I'm quoting the last paragraph:
    " All other discovery is your responsibility to obtain from the proper agency.
    Speed measuring and/or weight scale certificates are available for inspection in the Courtroom. See IRLJ 6.6(d)"
    So I'm kinda lost on how to proceed. I'm used to receiving the certificates. I'm also used to move for dismissal if the certificate was missing.
    Yet in this case it clearly states that it's my responsibility to obtain it.
    I did check the SMD's tag on the WASP's website and found the certificate there. Is it the way how it's done now? Is everyone supposed to be aware of where and how to obtain the certificates?
    Or can she still try to dismiss the ticket due to missing certificate in the discovery?
    P.S.
    Is defferal allowed only before taking the stand or can it be taken as an option if the judge doesn't dismiss the ticket?
  • 02-18-2020, 02:27 PM
    PayrolGuy
    Re: Received the Discovery Without Smd Certification But...(WA)
    Have you read IRLJ 6.6(d)?

    https://www.courts.wa.gov/court_rule...eid=cljirlj6.6
  • 02-18-2020, 03:39 PM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting PayrolGuy
    View Post
    Have you read IRLJ 6.6(d)?

    https://www.courts.wa.gov/court_rule...eid=cljirlj6.6

    I did.
    How to request a copy, through a clerk, judge? Before the hearing or during?
  • 02-18-2020, 03:40 PM
    flyingron
    Re: Received the Discovery Without Smd Certification But...(WA)
    'Tis the way it's been done for a long time. Discovery doesn't require they collect documents for you, just that they provide what they have. If they gave you the unit tag number, it's up to you to request (or lookup yourself) from the SP.
  • 02-18-2020, 03:52 PM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting flyingron
    View Post
    'Tis the way it's been done for a long time. Discovery doesn't require they collect documents for you, just that they provide what they have. If they gave you the unit tag number, it's up to you to request (or lookup yourself) from the SP.

    I see.
    Thank you.



    Looks like deferral is her best option since I wasn't able to find any mistakes in the report and the SMD certificate is valid.
  • 02-19-2020, 07:52 AM
    searcher99
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting russoturristo
    View Post
    But then I read the discovery's front page and there was something new to me, I'm quoting the last paragraph:
    " All other discovery is your responsibility to obtain from the proper agency.
    Speed measuring and/or weight scale certificates are available for inspection in the Courtroom. See IRLJ 6.6(d)"
    So I'm kinda lost on how to proceed. I'm used to receiving the certificates. I'm also used to move for dismissal if the certificate was missing.
    Yet in this case it clearly states that it's my responsibility to obtain it.
    I did check the SMD's tag on the WASP's website and found the certificate there. Is it the way how it's done now? Is everyone supposed to be aware of where and how to obtain the certificates?
    Or can she still try to dismiss the ticket due to missing certificate in the discovery?
    P.S.
    Is defferal allowed only before taking the stand or can it be taken as an option if the judge doesn't dismiss the ticket?

    IRLJ 3.1(b) specifies 3 items required to be provided in a discovery response. The IRLJ 6.6 certificate is not a required item for the prosecution to provide but should be filed at the court. At least a few judges will not recognize the WSP site and require that it also be at the court.

    However I think that it’s very much in your wife’s favor that the discovery states, “Speed measuring and/or weight scale certificates are available for inspection in the Courtroom. See IRLJ 6.6(d)" and they are NOT giving you the web site.

    Per the instructions from the prosecution, in your wife’s case the judge probably will suppress and dismiss if the current cert is not filed at the court, so she should definitely check either on the day of her hearing or sooner. If filed she should check to see if it is current and to see if the tuning forks match the officer’s affidavit, and if not move to exclude or suppress.

    She can always ask the judge if deferral is allowed pending outcome of preliminary motions.

    Quote:

    Quoting russoturristo
    View Post
    Looks like deferral is her best option since I wasn't able to find any mistakes in the report and the SMD certificate is valid.

    How do you know there are no mistakes in the report? If you want help with that, upload digital photos or scans (with personal id and citation number redacted) to any free image hosting site and link them here in your thread. Also the SMD certificate may NOT be valid, since per the prosecution it must be available at the court.

    Oops I forgot probably the auto moderation won’t let you upload links. Maybe you could send them in a private message which I will later quote here.
  • 02-19-2020, 08:55 AM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting searcher99
    View Post
    IRLJ 3.1(b) specifies 3 items required to be provided in a discovery response. The IRLJ 6.6 certificate is not a required item for the prosecution to provide but should be filed at the court. At least a few judges will not recognize the WSP site and require that it also be at the court.

    However I think that it’s very much in your wife’s favor that the discovery states, “Speed measuring and/or weight scale certificates are available for inspection in the Courtroom. See IRLJ 6.6(d)" and they are NOT giving you the web site.

    Per the instructions from the prosecution, in your wife’s case the judge probably will suppress and dismiss if the current cert is not filed at the court, so she should definitely check either on the day of her hearing or sooner. If filed she should check to see if it is current and to see if the tuning forks match the officer’s affidavit, and if not move to exclude or suppress.

    She can always ask the judge if deferral is allowed pending outcome of preliminary motions.


    How do you know there are no mistakes in the report? If you want help with that, upload digital photos or scans (with personal id and citation number redacted) to any free image hosting site and link them here in your thread. Also the SMD certificate may NOT be valid, since per the prosecution it must be available at the court.

    Hello searcher99 :)

    How do I check before the hearing if the court has a copy of the cert? We did send a copy of the discovery request to the court as well.

    I'll upload the scans tomorrow.

    Thank you!
  • 02-19-2020, 09:20 AM
    PayrolGuy
    Re: Received the Discovery Without Smd Certification But...(WA)
    According to the law...

    Quote:

    The records will be
    available for inspection by the public. Copies will be provided
    on request. The court may charge any allowable copying fees
    .

    That means you go to the courthouse. I'd ask the court clerk and you can do it any time they are open.
  • 02-19-2020, 09:30 AM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting PayrolGuy
    View Post
    According to the law...

    .

    That means you go to the courthouse. I'd ask the court clerk and you can do it any time they are open.

    Got it.

    Thank you.

    Here is the link to the discovery:
    https://imgur.com/a/bGl0ftg

    P.S.

    Isn't the tuning fork's serial number supposed be mentioned on the officer's report?
  • 02-20-2020, 03:05 PM
    joef
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting russoturristo
    View Post

    Isn't the tuning fork's serial number supposed be mentioned on the officer's report?

    It looks like that model uses an electronic tuning fork (whatever that means) instead of physical tuning forks. Therefore, no tuning fork numbers and the officer references using builtin electronic tuning fork.
  • 02-21-2020, 05:37 AM
    searcher99
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting russoturristo
    View Post
    Isn't the tuning fork's serial number supposed be mentioned on the officer's report?

    Most radar units have 2 assigned tuning forks and they are a required element to be listed on the affidavit. However I’m not sure about this new model. According to the Eagle 3 Quick Reference Guide, “An Automated Test sequence guides the operator through a simple yet thorough tuning fork test. The operator may use the eFork in the remote control or traditional tuning forks.”

    The eFork apparently has a patent pending. It is new technology, so the judge very well could require use and identification of the traditional assigned tuning forks.

    However if no certification is available at the court as directed by the prosecutor, your wife’s first defense should be a preliminary motion to suppress or exclude for lack of foundation the speed reading based on inability to follow the prosecutor’s discovery instructions.

    If the cert is at the court, then she can try a motion to suppress or exclude the speed reading for lack of foundation because tuning forks are not identified.

    She should announce her motions immediately when her case is called, before the officer’s statement is read into the record and before she is sworn in for testimony. If any motion to suppress or exclude is granted, then she can move for dismissal.
  • 02-21-2020, 09:47 AM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Quote:

    Quoting searcher99
    View Post
    Most radar units have 2 assigned tuning forks and they are a required element to be listed on the affidavit. However I’m not sure about this new model. According to the Eagle 3 Quick Reference Guide, “An Automated Test sequence guides the operator through a simple yet thorough tuning fork test. The operator may use the eFork in the remote control or traditional tuning forks.”

    The eFork apparently has a patent pending. It is new technology, so the judge very well could require use and identification of the traditional assigned tuning forks.

    However if no certification is available at the court as directed by the prosecutor, your wife’s first defense should be a preliminary motion to suppress or exclude for lack of foundation the speed reading based on inability to follow the prosecutor’s discovery instructions.

    If the cert is at the court, then she can try a motion to suppress or exclude the speed reading for lack of foundation because tuning forks are not identified.

    She should announce her motions immediately when her case is called, before the officer’s statement is read into the record and before she is sworn in for testimony. If any motion to suppress or exclude is granted, then she can move for dismissal.

    Great, thank you, sir!
    I really appreciate your help.
  • 03-03-2020, 09:12 AM
    russoturristo
    Re: Received the Discovery Without Smd Certification But...(WA)
    Update:

    My wife's ticket was dismissed yesterday!

    She asked court clerk for the SMD cert. They didn't have it, told her to talk to the prosecutor. The prosecutor was present in the court room, they talked before the hearing. The prosecutor said that she'd move for the dismissal since the paperwork was missing on the officer's report.

    When my wife took the stand the judge asked her about how she wanted to proceed. That's when the prosecutor moved for dismissal. That's it!

    Hearing about prosecutor being present in the court room was new to me as it never happened in any of my cases.

    Anyway, thank you everybody for your input!

    Special thanks to searcher99!
  • 03-03-2020, 09:09 PM
    searcher99
    Re: Received the Discovery Without Smd Certification But...(WA)
    Congratulations to your wife and thank you for the valuable court information. Some courts do have a prosecutor present which gives defendants an additional option of discussing and negotiating just prior to the hearing.
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