Yes, they can do that. See IRLJ 6.6. It describes what the certificate must look like. Paragraph (d) states that the certificate can be "on file" with the court. So, you'll need to go there and look at it, if you want to see it in advance (and make sure that there is, indeed, a copy on file -- if not, the lidar evidence should get suppressed).Quote:
Quoting mixed.results
IRLJ 3.1 (b) covers discovery. It lists the things that the prosecutor is required to give you (a list of witnesses and a copy of the officer's sworn statement). It then says "No other discovery shall be required." I read that to say that you are NOT required to provide ANYTHING. It would be considered proper etiquette, however, to provide a list of witnesses, if you planned on calling any -- but I wouldn't worry about it, personally.Quote:
Quoting mixed.results
This is certainly a point you can bring up. However, I think the judge will simply say, "Well the officer swore under penalty of perjury that he is certified and that's good enough for me." The only real way to question this is to subpoena the officer, and, as I've mentioned a few times, I NEVER seen anyone win -- when the officer shows up. Not even when questioned by attorneys.Quote:
Quoting mixed.results
As noted above, this is all covered in IRLJ 6.6.Quote:
Quoting mixed.results
Really? Assuming the proper cert is on file with the court, I don't see much hope for winning this one. You might want to consider a subpoena for the officer and hope he doesn't show up.Quote:
Quoting mixed.results
Barry
10 Over in a 35, in Fife, Washington
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04-01-2009, 08:15 AMblewisRe: 10 Over in a 35, in Fife, Washington
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04-01-2009, 06:00 PMmixed.resultsRe: 10 Over in a 35, in Fife, Washington
Agh missed paragraph (d), I was re-reading 3.1 and 6.6 last night. Fair enough, I will try and get those copies tomorrow.
That's what I thought about the discovery too, but it is quite opposite of what the letter says. It urges me to comply with law and it says they will motion to dismiss any evidence if it is not sent to them, but no where does it say I must according to any rules send them anything to use it. Sounds to me like that the "bully" type letter is intentional and they just want me to send anything voluntarily...
I have no plans to subpoena the officer, I would rather he was not there to fill in any gaps... An officer MUST be trained and certified by some sort of an expert or recognized training afaik. Simply stating you are certified means nothing, his mother could have written the certification for all we know and he is still telling the truth in his statement. I have seen twice in the past tickets getting dismissed by showing the court the lack of evidence of officer training, this will definitely be something I will bring up. All well we will see, worst case is I lose and have 1 minor ticket, at the moment my record is still squeaky clean. -
04-01-2009, 06:14 PMblewisRe: 10 Over in a 35, in Fife, Washington
Yeah, more than likely it's just a "form" letter that is sent out with ALL discovery requests. However, if you want to have some real fun, ask for sanctions against the prosecutor's office. Your claim is that the letter is an illegal attempt to harrass you, cause you to spend time, money, and effort to comply with their illegal request. You put together all the information about your defense and you were about ready to mail it when you read IRLJ 3.1(b) and realized that this was just a smoke screen to get you to waste resources. LOL. That should get the prosecutor to backpedal. Probably won't score you any points with the judge though.
But, yes, I would question the RCW citation and the officer's qualifications. BTW, are you eligible for a deferral? If so, that's worth considering.
Barry -
04-01-2009, 06:22 PMmixed.resultsRe: 10 Over in a 35, in Fife, Washington
Yes, I should be eligible, rather have it dismissed flat out though. Do they usually just give you the option beforehand?
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04-01-2009, 08:20 PMblewisRe: 10 Over in a 35, in Fife, Washington
I've heard judges at the beginning of the court session say, "Anyone who wants a deferral line up over here". So, yeah, in my experience, it's usually offered at the beginning. Some folks have posted that the judge told them "it's now or never", when they asked if they could present a defense and then take the deferral AFTER they were found guilty. But, you can always ask at the beginning of your hearing.
Barry -
04-08-2009, 10:47 AMmixed.resultsRe: 10 Over in a 35, in Fife, Washington
Well I went and got the certificate for the lidar gun used, looked substantially like the form on 6.6 and I didn't see anything wrong with it.
Also when talking with the court clerk she had said my court date was April 21st, but they had not sent a notice yet. I think I am going to go back and see if I can get proof of that, and proof of when they received my contested ticket since its been far longer than 21 days.
I mailed it in on: 4/16/09 in Fife so I assumed it was received 4/17/09, why I didn't go turn it in myself and get a receipt or go certified mail I don't know, I've never seen them screw this one up. Today is 4/8/09 which is 22 days later. So unless they mailed it yesterday after when I was there it is late.Quote:
Quoting irlj 2.6 (2)
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04-08-2009, 12:10 PMblewisRe: 10 Over in a 35, in Fife, Washington
But you should have read more. Paragraph (a)(4) states:
How do you plan on showing that the court's delay in sending you the hearing notice by a day or two was prejudicial?Quote:
Quoting IRLJ 2.6
You also should pay attention to the other scheduling problem. Paragraph (a)(1) requires:So, if it wasn't sent yesterday, this one comes into play, as well. And this one does not require a showing of prejudice.Quote:
Quoting IRLJ 2.6
However, you must file a motion for a speedy trial within 10 days -- of the date it was sent by the court (see IRLJ 2.6(d)). If the court fails to reschedule the hearing, paragraph (f) comes into play:Good luck,Quote:
Quoting IRLJ 2.6
Barry -
04-08-2009, 03:42 PMmixed.resultsRe: 10 Over in a 35, in Fife, WashingtonWould you help me understand the legal definition of prejudicial in this sense? I mean the definition would be they were leaning toward one side or the other before the hearing (pre - before, judicial - decision) and they intentionally were sending it late based on this? I'm not sure anyone could prove their motives, but I would think not complying with the irlj guidelines would be reason enough :wallbang:Quote:
Quoting blewis
Yep, that may come in to play, unfortunately it is quite nice the date she told me does lie in the afternoon on a Tuesday which in my hectic schedule actually works (full time student + two jobs).Quote:
Quoting blewis
edit: Where does it say they get to reschedule it? I just re-read 2.6 again and I see in paragraph (d) what it says and then (e) doesn't really apply since it the date was not due to anything I did then (f) goes in to how it must be dismissed.
edit2: And thanks so much, it's amazing how much you thoroughly you seem to know the Washington IRLJ court rules! -
04-08-2009, 03:54 PMmixed.resultsRe: 10 Over in a 35, in Fife, WashingtonOops typo, should have said 3/16/09 and 3/17/09 respectively.Quote:
Quoting mixed.results
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04-08-2009, 05:19 PMblewisRe: 10 Over in a 35, in Fife, WashingtonThat's one definition. But, the one they are refering to here is: In the civil law prejudice signifies a tort or injury; as the act of one man should never prejudice another.Quote:
Quoting mixed.results
In this case you would have to show that their NOT scheduling the hearing within the 21 day time period caused you harm. I cannot think of how that might happen, but I'm sure it's possible. I guess, if you had a witness who has now left the country, and you have NO way to get in touch with them to tell them when the hearing will be, that might be something. But, that's pretty farfetched.
That's fine. That's what you're hoping for. If the court does not grant your motion for a speedy trial and reschedule the hearing for some other date, you walk into the hearing on the 21st and ask for a dismissal pursuant to IRLJ 2.6 (f) and IRLJ (a)(1). You hold up your IRLJ (d) motion to show compliance.Quote:
Quoting mixed.results
The purpose of your Motion for a Speedy Trial is to get the court to reschedule the hearing MORE than 14 days from the date of the notice. You have 10 days in which to file the motion -- wait until the 10th day! That way the court will only have 4 days in which to process and act on it. If you don't receive a new notice before your hearing date, it should be dismissed. But beware, if you don't make the motion for a speedy trial, you CANNOT get a dismissal pursuant to paragraph (f).Quote:
Quoting mixed.results
Thanks,Quote:
Quoting mixed.results
Barry