Cited Speeding Ticket in Skamania County, Washington

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

I was cited for speeding in Skamania County for going 60 mph in a 40 mph zone. My car was the only car on the road and I was in an unfamiliar area. It was Saturday night and I was traveling on Win River Rd. toward Carson town. Most of the area still seems like rural highway to me. So I was thinking I was still in a 60 miles zone. I at most have missed one posted speed limit that stated 40 miles now that I went back in the day light and checked the speed limit signs. I was tagged with SMD (Doppler Radar).

I have already sent in my ticket (contesting) and received my discovery which includes the a copy of infraction (ticket) and the Affidavit. I notice the zip code for my address is wrong; should be 97124 instead of 97134. If possible, would you mind reading the 3 pages of tickets and the affidavit and let me know if there are technicalities that are overlooked. It's on a flickr photo sharing site. Click on each image and then select "all sizes" near the top to see each page.

Thank you

http://www.flickr.com/photos/hikingaroundoregon

First of all, I don't see a "filing" date on the any of the documents. If it's not on them, call the Clerk of the Court and ask when the citation was filed. Remember, the officer only has five days (not including weekends and holidays) to file it with the court, or it can be dismissed.

Second of all, and this may be a bit "sticky", none of these documents are "signed". Yes, they say they have been "authenticated", but the question is: Is that enough? RCW 9A.72.085 states the following requirements for an "unsworn" statement:

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Quoting RCW 9A.72.085

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(1) Recites that it is certified or declared by the person to be true under penalty of perjury;

(2) Is subscribed by the person;

(3) States the date and place of its execution; and

(4) States that it is so certified or declared under the laws of the state of Washington.

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So, the question is, since "subscribed" means, literally, "signed at the bottom", does the lack of an actual signature satisfy the requirements of RCW 9A.72.085? If you cannot find another defense, it might be worth a try.

Barry

I'm just observing here trying to learn a few things but I wanted to chime in and ask if the serial number of the tuning fork(s) should have been specified as well?

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Quoting blewis

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First of all, I don't see a "filing" date on the any of the documents. If it's not on them, call the Clerk of the Court and ask when the citation was filed. Remember, the officer only has five days (not including weekends and holidays) to file it with the court, or it can be dismissed.

Second of all, and this may be a bit "sticky", none of these documents are "signed". Yes, they say they have been "authenticated", but the question is: Is that enough? RCW 9A.72.085 states the following requirements for an "unsworn" statement:


So, the question is, since "subscribed" means, literally, "signed at the bottom", does the lack of an actual signature satisfy the requirements of RCW 9A.72.085? If you cannot find another defense, it might be worth a try.

Barry

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I called the court and the clerk said it was filed on 7/20/09 which is within 5 days of citation (occur on 7/18/09).
That's an interesting approach. Could I say since it's authenticated and not subscribed (signed at the bottom), anyone with the access to the username/password or admin could enter the information. I would then request the officer to step forward to testify that he indeed did enter the information himself. If I don't subonea the officer and he is not present in the court then is it possible to have the case dropped?
Would such arugment have realistic chance of getting the citation dropped?
What would be a better argument/format for approaching this?
The error in the zipcode isn't going to matter right?
Berry, thank you for catching that technicality. It's great to have someone experienced like you sharing their insight.

The problem is that there may, indeed, be a new law or rule, that I simply don't know about, which permits "electronic" signing of documents. So, you'll need MORE than just that argument when you go into court. But, the legal argument goes like this:

IRLJ 3.3 (c) states in part (emphasis added):

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Quoting IRLJ 3.3 (c)

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The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing

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As cited above, RCW 9A.72.085 permits the use of an "unsworn" statement, in lieu of one made under oath, provided it meets the criteria set forth therein -- one of which is that it MUST be signed. So, as I mentioned at the top, unless there is another law or rule which allows an "electronic" signature, in lieu of an actual signature, this document does NOT fulfil that criterion of the unsworn statement. As such, the court cannot consider it in lieu (that's the forth time I've used that term) of the officer's personal appearance. Oh, and the rule states "the notice of infraction AND and other...." By the rules of construction, BOTH must be used, not just one. So, without the officer and without the officer's sworn statement, there is no admissible evidence against you.

And, no, the ZIP code won't matter.

One more point, JJB mentioned the lack of the serial numbers in the affidavit. He/she may be right. We had a case a while back where the fork serial numbers listed in the sworn statement did NOT agree with the serial numbers in the radar certification. That case was dismissed. I would certainly use that discrepancy to object to the admission of ANY radar evidence. As stated in BELLEVUE v. HELLENTHAL, 144 Wn.2d 425 (2001), radar can be used to measure "the speed of motor vehicles when properly calibrated and operated by a trained operator." Whether or not the device was "properly calibrated" depends on whether the proper tuning forks were used. All radar SMD's come with matching, serialized tuning forks. If the forks were interchangeable, they would not need to be serialized. Without the serial numbers (to compare against the certification), it is not possible to know whether the device was "properly" calibrated.

There's one last discrepancy that may be worth noting. The officer states that he was "certified, trained and received instruction in the proper operation of the SMD." However, the officer "checked" the box stating "I verified the speed indicated in the SMD's patrol speed window with patrol car vehicle odometer." However, the officer also checked "STATIONARY MODE". So the question arises, was the SMD in stationary mode, while the vehicle was in MOTION? Otherwise, WHY would you have to verify the patrol speed? Or, did the officer check the "patrol speed window" entry even though the unit was in STATIONARY mode? If the unit was not in the appropriate mode, it was "properly operated", and the evidence is, therefore, inadmissible.

Since, unless you subpoena the officer, he will most likely (I've only heard of ONE time when the officer actually showed up when NOT subpoenaed) not be there. There will be no one to answer questions about the tuning forks or the Stationary Mode setting.

So, first attack should be the missing signature. If the document IS admitted over your objection, you can then attack the operation mode and then the tuning forks. Radar evidence is not admissible if the unit was not properly calibrated AND properly operated.

Good luck,
Barry

p.s. Nice catch, JJB.

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Quoting blewis

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The problem is that there may, indeed, be a new law or rule, that I simply don't know about, which permits "electronic" signing of documents. So, you'll need MORE than just that argument when you go into court. But, the legal argument goes like this:

IRLJ 3.3 (c) states in part (emphasis added):


As cited above, RCW 9A.72.085 permits the use of an "unsworn" statement, in lieu of one made under oath, provided it meets the criteria set forth therein -- one of which is that it MUST be signed. So, as I mentioned at the top, unless there is another law or rule which allows an "electronic" signature, in lieu of an actual signature, this document does NOT fulfil that criterion of the unsworn statement. As such, the court cannot consider it in lieu (that's the forth time I've used that term) of the officer's personal appearance. Oh, and the rule states "the notice of infraction AND and other...." By the rules of construction, BOTH must be used, not just one. So, without the officer and without the officer's sworn statement, there is no admissible evidence against you.

And, no, the ZIP code won't matter.

One more point, JJB mentioned the lack of the serial numbers in the affidavit. He/she may be right. We had a case a while back where the fork serial numbers listed in the sworn statement did NOT agree with the serial numbers in the radar certification. That case was dismissed. I would certainly use that discrepancy to object to the admission of ANY radar evidence. As stated in BELLEVUE v. HELLENTHAL, 144 Wn.2d 425 (2001), radar can be used to measure "the speed of motor vehicles when properly calibrated and operated by a trained operator." Whether or not the device was "properly calibrated" depends on whether the proper tuning forks were used. All radar SMD's come with matching, serialized tuning forks. If the forks were interchangeable, they would not need to be serialized. Without the serial numbers (to compare against the certification), it is not possible to know whether the device was "properly" calibrated.

There's one last discrepancy that may be worth noting. The officer states that he was "certified, trained and received instruction in the proper operation of the SMD." However, the officer "checked" the box stating "I verified the speed indicated in the SMD's patrol speed window with patrol car vehicle odometer." However, the officer also checked "STATIONARY MODE". So the question arises, was the SMD in stationary mode, while the vehicle was in MOTION? Otherwise, WHY would you have to verify the patrol speed? Or, did the officer check the "patrol speed window" entry even though the unit was in STATIONARY mode? If the unit was not in the appropriate mode, it was "properly operated", and the evidence is, therefore, inadmissible.

Since, unless you subpoena the officer, he will most likely (I've only heard of ONE time when the officer actually showed up when NOT subpoenaed) not be there. There will be no one to answer questions about the tuning forks or the Stationary Mode setting.

So, first attack should be the missing signature. If the document IS admitted over your objection, you can then attack the operation mode and then the tuning forks. Radar evidence is not admissible if the unit was not properly calibrated AND properly operated.

Good luck,
Barry

p.s. Nice catch, JJB.

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Thank you Barry for you generous suggestions to approach this case! You are very helpful and informed and I deeply appreciate your time spent in my case.
Also, JJB, thank you for pointing out the tuning fork serial number!

It turns out in Seattle, if the ticket is electronic then an electronic signature is enough. Source: http://seattle-trafficlawyer.blogspo...ooks-like.html and use browser search function to find “electronic signature”. If true (most likely so), I assume it applies to all Washington. I don't know the RCW # for such law though.

I look at the “Stalker Dual DC” on Stalker Radar website. They sell tuning fork, KA band, at 25mph, 40mph, and 55mph. It doesn't look like a specific serial number is needed because you could buy the tuning fork separately. But it seems that a proper tuning fork model # is needed in order to certify the speed. Please let me know if I'm wrong. Their website is: https://www.stalkerradar.com/store/home.php, and type in “tuning fork ka band” in the search box. It returns a list of tuning forks and also the “Stalker Dual DC Radar” used in this citation.

I think I'll try to argue my case directly in the form of:
I do not see the tuning fork's make and model number on this Affidavit. Since this affidavits doesn't support that the radar is properly tuned; therefore, the radar reading cannot be submitted as evidence to this case. I would like to make a motion for dismissal.
Let said the prosecutor suddenly pull out the serial number + certificate for the tuning fork. Since I didn't receive this in my discovery what would I said? Since I didn't receive that in my discovery such evidence is not admissible?

The last technicality is clear. I could just literally word it verbatim to the judge and the prosecutor will either have the cop who cited the ticket present to clarify wether the mode the radar was in (moving or stationary) or the case will most likely be dismissed? Prosecutor could not clarify on behalf of the cop right?

Thank you Barry for educating me on the traffic defense. I hope I have a case.

If the certification is not sent as part of discovery, it MUST be on file with the Court, pursuant to IRLJ 6.6 (d). You need to call the Clerk to find out for sure. If it's not on file or sent as part of the discovery materials, the evidence must be suppressed.

And, no, prosecutors cannot "testify" or even "clarify", and you should object if they try.

Barry

OK, I finally found it. There is, INDEED, a law allowing electronic signatures. In fact there's an entire chapter in the RCW devoted to "electronic authentication": RCW 19.34. Good luck digging through it all.

What it really comes down to is contained in GR 30, which states (in pertainent part):

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Quoting GR 30 (d)(2)(D)

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(D) Arresting or citing officer signatures on citations and notices of infraction filed electronically in courts of limited jurisdiction - A citation or notice of infraction initiated by an arresting or citing officer as defined in IRLJ 1.2(j) and in accordance with CrRLJ 2.1 or IRLJ 2.1 and 2.2 is presumed to have been signed when the arresting or citing officer uses his or her user id and password to electronically file the citation or notice of infraction.

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So my previous arguments about "unsworn" statements are moot. Thanks for bringing this up. I guess it's true that you learn something new everyday.

Barry

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Quoting AdviceAppreicated

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I look at the “Stalker Dual DC” on Stalker Radar website. They sell tuning fork, KA band, at 25mph, 40mph, and 55mph. It doesn't look like a specific serial number is needed because you could buy the tuning fork separately. But it seems that a proper tuning fork model # is needed in order to certify the speed. Please let me know if I'm wrong. Their website is: https://www.stalkerradar.com/store/home.php, and type in “tuning fork ka band” in the search box. It returns a list of tuning forks and also the “Stalker Dual DC Radar” used in this citation.

I think I'll try to argue my case directly in the form of:
I do not see the tuning fork's make and model number on this Affidavit. Since this affidavits doesn't support that the radar is properly tuned; therefore, the radar reading cannot be submitted as evidence to this case. I would like to make a motion for dismissal.
Let said the prosecutor suddenly pull out the serial number + certificate for the tuning fork. Since I didn't receive this in my discovery what would I said? Since I didn't receive that in my discovery such evidence is not admissible?

The last technicality is clear. I could just literally word it verbatim to the judge and the prosecutor will either have the cop who cited the ticket present to clarify wether the mode the radar was in (moving or stationary) or the case will most likely be dismissed? Prosecutor could not clarify on behalf of the cop right?

Thank you Barry for educating me on the traffic defense. I hope I have a case.

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It's my understanding that the tuning fork must match that of the one specified on the tuning fork, otherwise who's to say the tuning fork isn't out of spec? But again that's just my understanding, I am in no way an expert the few cases I've observed have all been in Seattle Municipal Court and Seattle uses LIDAR so it's never came up. Hopefully someone with the proper knowledge could say one way or another.

Please let us know how the case goes, it's nice to see what works and what does not.

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Quoting jjb

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It's my understanding that the tuning fork must match that of the one specified on the tuning fork, otherwise who's to say the tuning fork isn't out of spec? But again that's just my understanding, I am in no way an expert the few cases I've observed have all been in Seattle Municipal Court and Seattle uses LIDAR so it's never came up. Hopefully someone with the proper knowledge could say one way or another.

Please let us know how the case goes, it's nice to see what works and what does not.

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Thank you Barry and JJB. You guys have being tremendous help. Should I attend one of the traffic trial in the court? I would like to have a generalized idea about trial proceeding before actually defending myself. Are the court proceeding generally different from county to county. First, prosecutor usually the first to present the case and then it's my turn right?
I would then present my case and the prosecutor will allow to cross-examine me right? I'll just start off with stating that because lack of tuning fork model/serial number information in the Affidavidts, it is questionable that the radar was properly tuned therefore radar speed reading is inadmissible. Then the prosecutor will jump in to defend and the judge will agree/disagree and told me to continue to present my case right? Should I object immediately while the prosecutor is presenting the case stating that the officer got a reading from the radar of the speed limit? Or should I wait until he has completely presented his case and wait for my turn?
I would appreciate any helpful advice! Thanks!