10 Over in a 35, in Fife, Washington

My question involves a speeding ticket from the State of: Washignton

I was allegedly traveling 10 over in a 35 mph at "N/B 1000 54 Ave E". This is a road which is usually heavily patrolled and I always take it easy on as I only have to travel about half a mile from the freeway on it, there is a stop light about half way from the freeway and where I work and the freeway so no point in rushing as I generally miss the light.

This time I had happened to hit the green and went straight on through cruising a normal speed in the bottom of fifth gear (~40 mph sounds about right for this gear, although I was not staring at my speedo the instant this happened). The road is 5 lanes wide (2 each way + turn) I was in the left N/B lane as stated.

The officer was standing behind his motorcycle on the left side of the road to the direction I was traveling (shooting across traffic, although traffic was light and when I got alert I immediately made visual on him so he had line of sight). He was shooing a Pro Laser III and got a reading of "47 @ 345.9ft", he showed the gun while making the stop, I didn't say anything, but immediately recognized the gun. Immediately as I was hit with laser I was alerted to laser by my Passport 8500 x50 so I hit the brakes. Hard. Easily slowing to 30mph in an instant, unfortunately the alert did not last long, at 350 ft I didn't stand a chance even with passive lidar countermeasures.

The traffic was very light (mostly trucks use this road, probably the reason for the very slow 35 mph speed limit) and there was no pedestrian traffic on either side. I can't believe I missed the police motorcycle, he was sitting on a hill in a drive way to a business on the left partially obscured by the trees when you are farther back. Like I said I know area is heavily patrolled and definitely not flying to get to work at the time (the ticket states 12:01pm and I did not have to be to work until 1pm).

The officer followed me until I turned in to where I work (I was still driving pretty slow well under the limit as I saw him hop on his bike in my mirror, no need to run cutting off in to a side street and make things worse) he lit me up while I was making the turn (he was right behind him in the turn lane I was just waiting for the lights it was pretty obvious). I did the basic hands open on the steering wheel while waiting, stayed very quiet and handed him all my documentation when asked, after showing me the gun he asked if I had any prior tickets and I answered "No, and I would like to keep it that way" (truthfully, all previous tickets I have had have been dismissed in court). He merely said "Ok, I'll be right back" left and came back with a ticket saying he would "save me a few dollars and write the ticket for a few mph less". I assume he meant he would write it for 10 over instead of 12. He asked if understood the ticket, I said "Yes". He responded "Ok, drive safe" and walked away (we didn't exchange too many words).

The ticket states:
#1 VIOLATION/STATUTE CODE:
RCW 46.61.400.100.0 <WHAT IS THIS, THERE ARE NO SUBSECTIONS TO 46.61.400!??>
VEHICLE SPEED
45 IN A 35 ZONE

ZONE:
[]SMD []PACE []AIRCRAFT <NONE TICKED!!!!>

Notes section (not titled):
Speeding +10
47 @ 345.9ft

PENALTY:
U.S. $124-

DATE ISSUED:
3-4-09

[x] Served on Violator

Whats in bold is his handwriting.

Now my questions:

First RCW 46.61.400 has no subsections, I'm not exactly sure why it says 46.61.400.10.0. I'm thinking it may be due to the fact he tried to write it as being 10 over regardless I don't know how I can defend myself from a violation of a statute that does not exist.

Second, probably nothing, but he did not tick anywhere on the ticket how he obtained the 47 @ 345.9ft. Obviously this is the format of a lidar reading aka SMD, but I guess this depends on how the judge will read this. Also an error copying vehicle info, he wrote '95 its a '93, again probably nothing.

I plan to prepare my discovery request soon, if anyone has any suggestions of anything extra I should ask for please help me. Also if anyone has something preformatted that I can just add my stuff in to then look over I would appreciate that as well.

Might be worth looking in to a jammer soon :wallbang: even if I was really going 55 I don't think there would be anything to hit on that road, perfectly straight, great visibility, light traffic, dry roads for great traction, why it's so slow on that road I don't know... I hate Fife.

Sorry for the long post, I wanted to be thorough.

Technical followup:
http://img8.imageshack.us/img8/3892/mapj.th.jpg
http://img9.imageshack.us/img9/5409/visualp.th.jpg
http://img21.imageshack.us/img21/3121/ruler.th.jpg
http://img22.imageshack.us/img22/4516/ruler2.th.jpg

For the angle at which the Lidar hit the front of my car:
cos (345.9/330.9) = 28.74 degrees

Which I suppose really doesn't help my case, but its interesting to put the pieces together.

Wow! Assuming your angle calculations are correct (which they are not), that means you were REALLY travelling 53.6 MPH. Cosine error is NEVER something to bring up in court -- it's ALWAYS in the driver's favor!

But back to your calculations, assuming you were in the far right lane and the officer was about 5 feet off the left side of the roadway, and that each lane is 12 feet wide, that would put the officer about 53 feet laterally from the left edge of your lane. The arcsine of 53/346 is 8.8 degrees. The cosine of 8.8 is about .988, which means that if the officer clocked you at 47, you were actually going 47.56 -- close enough for government work.

As far as your original post and your questions about discovery, you are entitled to a list of witnesses and a copy of the officer's sworn statement -- that's it (see IRLJ 3.1 (b)). I can send you a form you can use if you'll PM me with your email address.

Barry

Absolutely no plans to mention the word cosine in court, looks like there are some flaws w/ my math, I did it quick using a Google search query and didn't do any calculations with it. Doing it on my calculator I got about 1 degree like yous stated, obviously a quick sketch of lines on Google Earth is not science, but I was just looking at things.

Thanks for catching that, my fault. I just thought it was really strange shooting across traffic, not a location I often watch.

Think there is any merit to the fact the stated RCW doesn't match anything? Or does that syntax actually mean something, (I tried a lot of searches without much luck matching anything of that syntax).

Yep, I'm familiar with the IRLJ 3.1 document, I have had other stuff requested in the discovery in the past an got it, so I was curious if it's worth asking for anything else.

Sent you PM,
Thanks

You can ask for anything you want, but the prosecutor is under NO obligation to provide anything other than what's listed in IRLJ 3.1(b), nor will the Court force them to.

I, personally, would certainly bring up the RCW reference. It can't hurt. You may get a sympathetic judge who believes that the police should be able to properly fill out paperwork. I would also point out that the specific section of RCW 46.61.400 is missing -- were you accused of violating the basic speed law, or the posted limit? I would also file an FOIA request to see if there's an engineering study which justifies the 35 MPH speed limit.

Check your email,

Barry

Thanks so much that's exactly what I was looking for.

edit: Do you happen to know more specifically who or what office to serve the FOIA request for any engineering studies on? I'm searching I'll edit my post again if I see something.

My ticket from '04 was in Kent. I addressed my FOIA requests to the Kent City Clerk -- it's on their website. I don't know about Fife.

Barry

I sent the ticket in last Monday (3/16/09) contested checked and still haven't heard back on a court date... Should I be calling them?

Already filed everything for discovery last Friday (3/20/09) and have receipts of filing w/ the court and the receipt from Certified Mail for the letter sent to the prosecutes office. Haven't heard anything back on that yet either.

Did you file a copy of your discovery request with the court, as well? If not, you need to do that.

The court has 21 days from the day they receive your response to send you a hearing notice -- although, even if they don't, you must show prejudice to get it dismissed.

So, sit back and relax -- things will be happening soon enough.

Barry

Yes blewis, I did file with the court, they took one copy and gave me back one with the file stamp on it



Well today I received discovery. It was much shorter than I expected...

The first part was a letter, "RESPONSE TO REQUEST FOR DISCOVERY", said (I'm only copying pieces, most of it doesn't apply):
"COMES NOW City of Fife, through counsel of recored, and certifies that a copy of police reports, including names of prosecution witnesses, was sent to defendant/defense counsel in response to Request for Discovery."

... blah blah blood alcohol test stuff not available blah blah...

"All Speed measuring Device Certifications are on file at Fife Municipal Court at 3737 Pacific Highway East, Fife, WA 98424."

Can they do this, I thought it had to be given in the discovery in order to be used as part of the prosecutor's case?

The second part "PLAINTIFF'S DISCOVERY REQUEST" asks me for my witnesses, "Any books, papers, documents, photographs, or tangible objects which the defendant intends to use in the hearing or trial", expert witnesses, claim of incompetence, prior convictions will be stipulated or need to be proved, rely on insanity, "The general nature of his or her defense", "Plaintiff demands that the Defendant and Defendant's Attorney in this matter comply with all applicable Court Rules, Rules of Evidence and abide by the Rules of Professional Conduct while handling this matter."

Must be sent to them at least 7 days prior to the trial (a date which I still do not know).

I'm not sure I really have any evidence I need to send them, I don't think any pictures, diagrams, etc would do me any good. The only thing that strikes me there is "The general nature of his or her defense" which I'm not exactly sure what they mean.

After their neat little letter I see a copy of the ticket, nothing new, the back is blank, no notes, no weather, traffic, etc circled, no addresses filled in... completely blank.

Then comes the officer's sworn statement. It claims he did 2 range, 2 differential tests, and beam alignment tests on it before and after (ya sure he did :rolleyes:). A one page pre-filled form in which has a couple things circled, the second part claims "no other vehicles or objects were in the path of the LIDAR beam" (but yet he has no problem shooting through traffic to the other side while taking readings!?) .

At the top he crossed out the gun stated and wrote "SEE NOTES". Under notes he put Kustom Signals Pro Laser III, Unit # (removed), Exp - 8-5-2009.

Road conditions - [Wet] / Dry. WHAT!? BS!?!? IT WAS DRY!?!?!?!?
Weather.com history shows .06" of precipitation and clouds all day. It was ****ing dry.
Traffic - [Light] / [Medium] / Heavy. WHAT!? PICK ONE!!! It can't be light and medium at the same time!?

"I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct and that I am a certified LIDAR operator."

Ok, what is his certifications!? Who certified him!? I see none listed?! I've watched someone use a LIDAR gun several times, I've even shot one, does that make me certified?

What about the gun, how was it tested to be certified, I have no records here apparently they are at the court, but who tested and certified it!? What are his qualifications!? Where are they!?

For good or bad they didn't give me much to work with, I see quite a few things missing though, I don't suspect much of a problem winning this one.

I tried to bold my questions.

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Quoting mixed.results

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Can they do this, I thought it had to be given in the discovery in order to be used as part of the prosecutor's case?

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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).

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Quoting mixed.results

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I'm not sure I really have any evidence I need to send them, I don't think any pictures, diagrams, etc would do me any good. The only thing that strikes me there is "The general nature of his or her defense" which I'm not exactly sure what they mean.

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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.

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Quoting mixed.results

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Ok, what is his certifications!? Who certified him!? I see none listed?! I've watched someone use a LIDAR gun several times, I've even shot one, does that make me certified?

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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.

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Quoting mixed.results

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What about the gun, how was it tested to be certified, I have no records here apparently they are at the court, but who tested and certified it!? What are his qualifications!? Where are they!?

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As noted above, this is all covered in IRLJ 6.6.

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Quoting mixed.results

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I don't suspect much of a problem winning this one.

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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.

Barry

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.

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

Yes, I should be eligible, rather have it dismissed flat out though. Do they usually just give you the option beforehand?

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

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.

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Quoting irlj 2.6 (2)

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(2) The court shall send the defendant written notice of the
time, place, and date of the hearing within 21 days of the
receipt of the request for a hearing. The notice of the hearing
shall also include statements advising the defendant of the
defendant's rights at the hearing, how the defendant may request
that witnesses be subpoenaed, and that failure to appear may be a
crime for which the defendant may be arrested, and, in a traffic
infraction case, the defendant's privilege to operate a motor
vehicle may be suspended. If a local rule is adopted implementing
sections (a)(1)(i) and (ii), the court shall advise the defendant
in the notice of the defendant's right to waive the prehearing conference.

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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.

But you should have read more. Paragraph (a)(4) states:

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Quoting IRLJ 2.6

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(4) The infraction may be dismissed upon a showing of prejudice if the court does not send a defendant written notice of a hearing within 21 days of receipt of the request for a hearing.

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How do you plan on showing that the court's delay in sending you the hearing notice by a day or two was prejudicial?

You also should pay attention to the other scheduling problem. Paragraph (a)(1) requires:

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Quoting IRLJ 2.6

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The hearing shall be scheduled for not less than 14 days from the date the written notice of hearing is sent by the court....

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So, if it wasn't sent yesterday, this one comes into play, as well. And this one does not require a showing of prejudice.

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:

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Quoting IRLJ 2.6

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(f) Dismissal With Prejudice. An infraction not brought to hearing within the time period provided by this rule shall, upon motion, be dismissed with prejudice.

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Good luck,
Barry

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Quoting blewis

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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?

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Would 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:

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Quoting blewis

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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.

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:

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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).

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!

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Quoting mixed.results

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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.

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Oops typo, should have said 3/16/09 and 3/17/09 respectively.

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Quoting mixed.results

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Would 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

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That'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.

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.

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Quoting mixed.results

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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).

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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.

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Quoting mixed.results

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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.

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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).

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Quoting mixed.results

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And thanks so much, it's amazing how much you thoroughly you seem to know the Washington IRLJ court rules!

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Thanks,

Barry

Well this is interesting, I received a notice of hearing letter from the court...

It is a date for my "CONTESTED PRE TRIAL" which I guess I am allowed to waive if I see fit.

Timeline:
Ticket - 3/4/2009
Contested letter received 3/17/2009 - 13 days from ticket date
Notice of hearing written - 4/7/2009 - 34 days from ticket date, 21 days from contested received
Notice of hearing mailed (postdate) - 4/8/2009 - 35 days from ticket date, 22 days from contested received
Notice of hearing received - 4/10/2009 - 37 days from ticket date, 24 days from contested received
Pre-Hearing date - 4/21/2009 - 48 days from ticket, 14 days from notice written, 13 days from notice mailed, 11 days from notice received.

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Quoting IRLJ 2.6

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(i) If authorized by local court rule, a defendant who
requests a contested hearing may first be scheduled for a
prehearing conference, which shall be scheduled for not less than
14 days from the date the written notice of the hearing is sent
by the court nor more than 45 days from the date of the notice of
infraction or the date a default judgment is set aside, unless
otherwise agreed by the defendant in writing.

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According to the postdate, it was sent on the 8th which is 13 days prior to court date! Should be 14 or more. Strike 1.

The pre-trial is 48 days from the ticket. They have 45. Strike 2.

Quote:

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Quoting IRLJ 2.6

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(4) The infraction may be dismissed upon a showing of
prejudice if the court does not send a defendant written notice
of a hearing within 21 days of receipt of the request for a hearing.

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We discussed this before, I would argue it is at least 22 days, but I can't prove prejudice, so I will ignore this one.

Quote:

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Quoting IRLJ 2.6

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(d) Objection to Hearing Date. A defendant who objects to the
hearing date set by the court upon the ground that it is not
within the time limits prescribed by this rule shall file with
the court and serve upon the prosecuting authority a written
motion for a speedy hearing date within 10 days after the notice
of hearing is mailed or otherwise given to the defendant. Failure
of a party, for any reason, to make such a motion shall be a
waiver of the objection that a hearing commenced on such a date
is not within the time limits prescribed by this rule. The
written notice of the hearing date shall contain a copy of IRLJ 2.6(d).

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So I get to prepare my document to serve on court/prosecutor.

I'm thinking of mailing it on day 8 certified to prosecutor (I'm not driving to Snohomish). So that I can make sure I get my receipt in time. I can serve the copy to the court on day 10 in person. BUT would it be better to mail it to the court so that they do not have a chance to mail me a new date? I'm thinking if I serve it in person they may just reschedule it right then and there...

If I mail it and receive only my certified mail receipts and do not receive anything from the court I will show up 4/21/2009 with proof I served my request for a speedy trial and received nothing which I believe would be grounds for dismissal.

Quote:

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Quoting IRLJ 2.6

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(f) Dismissal With Prejudice. An infraction not brought to
hearing within the time period provided by this rule shall, upon
motion, be dismissed with prejudice.

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So I'm going in, dressed professional, and saying something along the lines of

Quote:

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Your honor, I have found numerous flaws with the infraction served upon myself. I am displeased with the manor in which the court has handled my case. You will see the ticket was served on myself 48 days ago March 3rd, 2009. The notice of hearing for the pre-trial was mailed to me 13 days ago March 8th, 2009 according to the postdate on the letter sent to me of which I have a copy right here.

Pursuant to IRLJ 2.6 section A paragraph i, the court must assign the pre-trial date to be within 45 days of the date of the notice of infraction and the notice of pre-trial shall be sent at least 14 days prior to today.

Pursuant to IRLJ 2.6 section D I have sent a written motion for a speedy trial within 10 days after the notice of hearing is mailed, you may review copies of the Certified Mail receipts for the letters I have sent to the court and the prosecutor's office here.

Pursuant to IRLJ 2.6 I motion for a dismissal with prejudice based upon the provided evidence for not following the guidelines set in the IRLJ rules.

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What else is supposed to go on during the pre-trial anyway? In the past my attorney has always waived them. It seems silly to have TWO trials for a simple speeding ticket.

I plan on tomorrow putting together a folder with tabs so I can flip between my copies of evidence of dates quickly and it will be very clear what I am presenting.



edit: Also upon reading the rules, it says if I want to defer my ticket I MUST do so before I continue on to the contested hearing. Once I elect for the contested hearing or waive the pre-hearing I no longer am eligible to defer the infraction.

edit2: I also found some evidence of how the certification of the LIDAR gun is substantially different from that of IRLJ 6.6 which is just another attack I can use if all else fails... I wrote some notes on the certification.

Quote:

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Quoting blewis

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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

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I sorta figured it out, the letter calls on CrRLJ rules... This is an infraction case, they do not apply. CrRLJ applies only to a criminal case. I assume they included it for the reasons I stated before, to get me to voluntarily divulge information I did not have to... Sneaky and not exactly nice.




edit:
Order of Importance:
1) Dates

a. Pre-trial > 45 days from infraction notice

b. Notice <14 days from pre-trial

c. Notice >21 days from contested hearing request

i. (No evidence of prejudice, useless)

2) Illegal prosecutor request for discovery – Harassment

a. NOT criminal case, IRLJ 3.1(b) “No further discovery shall be required”

3) Invalid Citation

a. Invalid ordinance number, No subsections of RCW46.61.400

b. Basic speed law or over posted limit?

4) No officer training

a. None mentioned whatsoever

5) No information on certifications

a. Is the certifying person recognized?

6) LIDAR certification is not substantially like IRLJ 6.6

a. Agency does not state they maintain or repair the SMD’s “used by ____ (name of agency).”

b. Does not mention “This agency currently uses the following SMD’s: (List all SMD’s used and their manufacturers and identify which SMDs use laser technology.)”

Also should the whole invalid citation be brought up at the pre-trial if the dates argument doesn't go over well since it would be a preliminary motion?

Oh, NONE of this can be brought up at the pre-hearing conference. There will only be you and the judge (probably a pro tem) -- no prosecutor to answer any of the motions for dismissal. Remember, the pre-hearing conference is just to offer you a deferral, if you're eligible, and to set a hearing date. You will probably have to list any motions you plan to bring up at the hearing, though, and whether you want to subpoena the officer -- just so they have an idea of how long it will take.

In my own case -- almost 5 years ago -- my prehearing conference was scheduled 52 days after the citation. I moved for dismissal (at the actual hearing not the pre-hearing) based on that fact. The judge agreed that it was beyond the time set in the rule, but didn't believe that "dismissal" should be the remedy. I asked what the remedy should be, and the judge said he didn't know, but "it's not dismissal."

Barry

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Quoting blewis

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Oh, NONE of this can be brought up at the pre-hearing conference. There will only be you and the judge (probably a pro tem) -- no prosecutor to answer any of the motions for dismissal. Remember, the pre-hearing conference is just to offer you a deferral, if you're eligible, and to set a hearing date. You will probably have to list any motions you plan to bring up at the hearing, though, and whether you want to subpoena the officer -- just so they have an idea of how long it will take.

In my own case -- almost 5 years ago -- my prehearing conference was scheduled 52 days after the citation. I moved for dismissal (at the actual hearing not the pre-hearing) based on that fact. The judge agreed that it was beyond the time set in the rule, but didn't believe that "dismissal" should be the remedy. I asked what the remedy should be, and the judge said he didn't know, but "it's not dismissal."

Barry

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Ya that list was not meant for the pre-hearing, the only thing that I thought would be worth mentioning is the dates, and I wasn't sure about the other piece, but I see now it's probably not relevant either.

I'm almost done organizing my folder of evidence...

Sent off requests for a speedy trial yesterday. Should arrive today or Friday and I'll have my receipts hopefully Saturday or Monday at the latest.

Folder looks slick, I used dividers and put everything in plastic sheets, looks pretty professional at least and should prevent panicking not being able to find stuff when I need it.

Received Certified Mail confirmations... At least USPS is doing their job, overnight to the location, and overnight responses.

Well things didn't go quite as well as I had hoped today... I had just assumed I would get the option for a deferral or to contest and then get a date and be on my way

Well that did happen... After waiting about an hour and a half for my name to be called when I was called up he had asked my name and info... Then he pulled out the motion for a speedy hearing which I had filed. He had said that it was the 45th day and thus the hearing was a speedy hearing and proceeded to give me a court date. I responded that that's not true, it is the 48th day from the notice of infraction, today is the 21st, that's 48 days. He said if I disagree with his decision I can always appeal his decision then immediately went back to putting down the court date. I took the court date he assigned to me and left... It caught me off guard I didn't expect him to bring it up then for him to completely disregard it. I plan on bringing a calendar with the dates marked off to the real hearing :wallbang:.

http://img19.imageshack.us/img19/9031/calendara.jpg
Ok just whipped this up if he can't figure out the dates from this on the real hearing, we need to rethink who we let in to the Judge's seat.

Gah I can't believe I didn't even have a response when he said that it was on the 45th day I was just dumbfounded and then he just said it was a speedy hearing and just moved on bah... I was kicking myself the whole way driving home, thinking in my head, "Notice of infraction was March 4th... 31 days in March... 31 - 4 is 27. Today is the 21st of April. 27 + 21 is 48!!!"

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Also when they asked if I had any motions for the hearing I just said I did not have any at this time. He said that was fine and that I have I think he said 14 days before the hearing to file any...

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Quoting mixed.results

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He said if I disagree with his decision I can always appeal his decision ....

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You only need to worry about that if you lose. I still think you've got a good case -- and, as I mentioned, that judge shouldn't even have considered your motion, as there was no prosecutor there to argue it.

Try not to get too upset -- just remember: they can't all be gems. Some judges are good, some aren't; some know the law, some don't; some care about fairness, some are just in it for the money.

Besides, now you've got more ammunition -- a judge made an error in your case.

Oh, you need to contact the clerk and see if there is a record of those proceedings. It's usually a recording on a CD. If they have it, order a copy -- it may cost between $20 and $40, but you need a record of this judge saying that it's only 45 days when it's really 48, if you end up appealling.

Barry

How long do you think they carry those recordings? I guess it's not worth waiting until after the hearing to ask for them, if I have time perhaps I'll call them and ask...

Also the prosecutor was in and out the room, although not directly there at the time. Before I went to the judge the Prosecutor was sat down at his desk in the front of the courtroom, called me (and the two others not represented by a lawyer one at a time) up, and had me fill out the form which asked for my motions, witnesses, and anything the court should know (I forget the actual wording, I have a copy of the form in my folder) along with my signature and address... This is the form that the judge wrote the date on. He also handed me an additional copy of the discovery information before he dismissed me back to my seat to wait for the judge to call me up.

So now I'm just trying to play out in my head how the actual hearing will go. The hardest part I'm having is figuring when to bring my points up. Taking the advice of someone whom I have talked to outside of this thread, after stating my name and address etc I should state that I would like to make a preliminary motion. Then when granted I should say something along the lines of "Your honor, I respectively request you and motion you to dismiss this case as the city has not properly charged a factual statutory citation or ordinance number on the notice of infraction which is required by IRLJ 2.1 (b) (4). The city instead cited RCW 46.61.400.100.0, and I would contend to this court that there is no such RWC and would request dismissal." Which I hope he would agree on...

Now if he doesn't, I was thinking of bring the dates back up ignoring the fact it was mentioned at the pre-trial "Your honor, I would also like to motion you to dismiss this case based on the court's inability to provide a speedy hearing pursuant to IRLJ 2.6 (a) (i). The hearing was after 45 days from the notice of infraction, *pull out the calendar sheet*, and thus deserves to be dismissed with prejudice pursuant to IRLJ 2.6 (f).

I'm off. Wish me luck.

Good luck.

Man, that was easy!

Well it would seem that the ordinance they cited is correct and that the extra 10.U is the bail code for 10 over and U is for over. 40mph.... The judge agreed with the prosecuter since the court requires they add that to the ticket. He didn't buy that argument a bit, he said he beleived it was IRLJ 6.2 that let them do this, I can't recall 6.2 off my head, but I'll look it up later.

I also made a preliminary motion to dismiss based on the pre-hearing date and showed the calendar. He said he would not change his ruling as it fell on a saturday and it was a holiday weekend so they did it on the next available day... But he did admit to the actual length being 48 days, I really tried for this one, but he said his ruling will stand.

Then the worse news is that the prosecuter had the officer present.... He grilled him with all of the lidar tests, training, etc and that he claimed he approximated my speed before he shot, clear line a sight, distance seemed correct etc etc. At this point I had nothing left, I just said I have no further questions and took the ticket.

The only thing I had left was him shooting accross the medium traffic, but he had already stated he had the line of sight and made his approximations etc, so I didn't even try, it was over...

At least it was only $124...

Thanks for all the help.

Hmm 6.2 is just the fee schedule and some basic rules (court can't change fee, etc). Didn't see anything about adding bail codes or anything of that nature... All well, it's not worth an appeal, I lost.

Your judge has now declared that April 20 is a legal holiday? Wow! I thought RCW 1.16.050 stated:

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Quoting RCW 1.16.050

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The following are legal holidays: Sunday; the first day of January, commonly called New Year's Day; the third Monday of January, being celebrated as the anniversary of the birth of Martin Luther King, Jr.; the third Monday of February to be known as Presidents' Day and to be celebrated as the anniversary of the births of Abraham Lincoln and George Washington; the last Monday of May, commonly known as Memorial Day; the fourth day of July, being the anniversary of the Declaration of Independence; the first Monday in September, to be known as Labor Day; the eleventh day of November, to be known as Veterans' Day; the fourth Thursday in November, to be known as Thanksgiving Day; the day immediately following Thanksgiving Day; and the twenty-fifth day of December, commonly called Christmas Day.

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I don't see April 20 in that list. Personally, I'd appeal. First you've got the judge saying that 48 days was really only 45. Then he makes up "holidays" that don't exist in order to further justify his decision.

I think an appeal costs around $200 (that's how they discourage you from appealing). But, if you write a coherent brief and get a transcription of the judge's statements, I think you can win. But, it's a lot of work, and I don't know how successful you'll be at recovering your costs (there's case law that goes both ways -- if you decide to go for it, let me know and I'll provide you with the cites).

But, you've only got 30 days to think about it.

Barry

Well I can try and get a copy of the transcript on Monday and review it. If it is clear enough I can go from there.

Sorry, I wrote that post from my BlackBerry, the post is not exactly the most coherent, but I think it still has most of the the important facts.

I didn't expect the officer to be there, but I guess since the court and police station share the same building it made sense.

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Quoting blewis

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Your judge has now declared that April 20 is a legal holiday?

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I wrote that wrong, I believe he stated that it was a judicial holiday since the court is closed on Mondays, not that it was a legal holiday. This was my fault, I'm not sure why I wrote it like that in my last post.

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Quoting http://www.cityoffife.org/?p=city_departments&a=municipal_court

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Court is in session, and open to the public Tuesday through Friday

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It looks like the tape and transcript is $40:

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Quoting http://www.cityoffife.org/?p=city_departments&a=municipal_court&b=appeals

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The record processing fee is $40.00 per case on appeal. This includes one copy of all recordings of the court proceeding. If you require additional copies of the court proceedings, there is an additional $10.00 per CD.

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I seems to me, reading IRLJ 2.6 (a)(1)(i):

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Quoting IRLJ 2.6 (a)(1)

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(i) If authorized by local court rule, a defendant who requests a contested hearing may first be scheduled for a prehearing conference, which shall be scheduled for not less than 14 days from the date the written notice of the hearing is sent by the court nor more than 45 days from the date of the notice of infraction or the date a default judgment is set aside, unless otherwise agreed by the defendant in writing.

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that it is INCUMBENT upon the court to schedule your hearing so that it IS within the 45 day time limit. If the 45th day falls on Saturday, they should have scheduled it for the previous Friday to assure compliance. It's not like it MUST be scheduled on the 45th day -- they had 45 days within which to schedule it.

You will receive a CD with ALL the cases of that day (or session). You MUST transcribe the CD (or pay for it to be transcribed -- about $15 - $20 per PAGE!) -- you cannot submit the CD for the appeal.

As I said, it's a lot of work.

Barry

Yes and I agree with you and that's the point I tried to make, I guess looking back I could have made my argument stronger, but I made my point and I don't think he was going to change his mind.

Also I'm curious there is no issue with transcribing it yourself? It seems they would get people modifying it in their favor? If I have time I will try and pick it up tomorrow.

And how much of the tape must be transcribed? You said I must transcribe the CD implying the CD in it's entirety!?

To answer your questions: First, your transcription must be signed under oath or a declaration made under penalty of perjury. Just remember that you will be going up against another attorney who will, undoubtedly, also have a copy of the CD and compare it to what you write. Perjury is a felony -- not worth it for a speeding ticket.

Second, you only need to transcribe those portions which are pertainent to your appeal. You are NOT appealling the entire proceedings, just the part about 45 days versus 48 days. So that's all you'll need -- probably no more than three or four pages, depending upon how long the discussion went on. You'll probably also need to download a copy of "For the Record". That's the program several courts that I know of use for recording.

Barry

Ugh no time today. :wallbang:

Ah yes, threats of perjury, that's quite the incentive to keep it verbatim!