Speeding Ticket with Possible Errors

My question involves a speeding ticket from the State of: WA - King County, City of Bellevue

The officer claims by SMD, speed measuring device, that I was speeding 46 in a 30. I do believe the officer was inattentive and clocked the driver I was following. That may be difficult to prove. However it is possible the officer made other mistake when writing the citation.

Observations about the infraction citation:

1) Officer failed to correctly write the driver license number. The officer clearly added a duplicate character in the middle of the number.
2) Officer only wrote 11 for the expiration on the license.
3) Officer only wrote 10 for the expiration on the vehicle.
4) It is difficult to read the zipcode. It may only contain 4 characters.
5) The officer only wrote out his last name and did not include his first name.

per colemac65 - 9a.72.085 requires that the person making the statement "subscribes" it and last time i checked "subscribed" means signed, not printed.

http://www.expertlaw.com/forums/showthread.php?p=390715

6) The officer failed to write P in front of his badge number.

Other findings:

1) I pulled from King County records the mortgage deed on the officer’s residence. The signature is not the same as on the ticket.
2) The officer is married to the assistant prosecuting attorney for the city.

Questions:

1) Do any of the observation or findings above have weight to have the ticket dismissed?
2) Did the officer comply with 9a.72.085 (2) Is subscribed by the person?

Code:

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RCW 9A.72.085
Unsworn statements, certification. 

Whenever, under any law of this state or under any rule, order, or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person's sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which:

    (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.

    The certification or declaration may be in substantially the following form:


    "I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct":
. . . . . . . . . . . .  . . . . . . . . . . . . 
(Date and Place) (Signature)

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3) Here is a scanned copy of the infraction with personal information removed. Is there any thing that the officer failed to complete properly?

http://img16.imageshack.us/img16/8718/officer1.jpg
http://img641.imageshack.us/img641/4546/officer2.jpg

4) Here is a copy of the officer’s signature from a mortgage deed. It does not match the infraction.


http://img708.imageshack.us/img708/7203/signaturee.jpg

5) Is there a possible conflict of interest because the officer is married to the assistant prosecuting attorney for the city of Bellevue?

Thank you for your advice. I’m not sure if I should pay the fine or if I have any grounds to contest.

Quote:

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Quoting dwa

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1) Do any of the observation or findings above have weight to have the ticket dismissed?

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In my estimation, no.

Quote:

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Quoting dwa

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2) Did the officer comply with 9a.72.085 (2) Is subscribed by the person?

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You have no confusion about who the officer is, due to the manner of the signature. Just like you're not confused about the century in which your driver's license expires.

Thank you Mr. Knowitall for your input.

I went over to the court house and printed out the officers statement. He states Charlie Brown as the SMD expert. Thru discovery would the prosecutor share with me the name of the SMD expert or is this a sepperate filling? Possibly Charlie Brown is a filler name like Donald Duck.

http://img97.imageshack.us/img97/1565/smdk.jpg


I suppose this is the form that Charlie Brown, the SMD expert would sign.

Spead measuring device form
http://www.courts.wa.gov/court_rules...eid=cljirlj6.6

Also it is interesting that the officer did not indicate if the vechicle was traveling north or south bound. Could this have any weighting for dismissal?

Charlie Brown is the actual name of the expert.

The officers says incorporated on line and referenced by the declaration. However the officer never says where on line and did not file any declaration when he filed the citation and notes. Where can I find this declaration?

Yes, Charlie Brown is the actual name of the expert.

You have a valid argument in the northbound/southbound reference. I would simply ask the judge how you, a layman, is considered to prepare a defense if you don't know which direction you were cited for traveling in. He never said which direction, and in your case, you could have been traveling eastbound.

He also did not say in the affidavit where EXACTLY he observed your vehicle. He just said that he observed you on Lakemont Blvd SE. Last time I checked, Lakemont is a 2 mile stretch of roadway so if there is no definite place cited for where the infraction occurred then you should bring that to the courts attention because how are you expected to prepare a defense if you don't know where the officer observed this.

Another thing you could look into is whether he shot the laser through a window, and what type of weather there was that day. Courts have taken judicial notice that bad weather can affect lidar readings. You could bring that up, too.

On top of that I would travel to the local courthouse and look up the Kustom prolite Lidar with the serial number LP03535. If you go at the right time an attorney or court clerk can show you how to look this stuff up.

BTW, Did he say the time? It looks like he only said the date.

Excellent research, dwa. If only everyone could post threads like yours.

Brendan

Quote:

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Quoting BrendanjKeegan

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You have a valid argument in the northbound/southbound reference. I would simply ask the judge how you, a layman, is considered to prepare a defense if you don't know which direction you were cited for traveling in. He never said which direction, and in your case, you could have been traveling eastbound.

He also did not say in the affidavit where EXACTLY he observed your vehicle. He just said that he observed you on Lakemont Blvd SE. Last time I checked, Lakemont is a 2 mile stretch of roadway so if there is no definite place cited for where the infraction occurred then you should bring that to the courts attention because how are you expected to prepare a defense if you don't know where the officer observed this.

Brendan

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Is there any rule I can bring up? Rule IRLJ 2.1 NOTICE OF INFRACTION states that the infraction must state the location. The officer states I90 Lakemont Blvd. I think that would be sufficient. It is the officer notes where he states North/southbound on Lakemont Blvd. The notes is where it is not clear. How should I word this to the Judge? What would be the motion?

Quote:

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Quoting BrendanjKeegan

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Another thing you could look into is whether he shot the laser through a window, and what type of weather there was that day. Courts have taken judicial notice that bad weather can affect lidar readings. You could bring that up, too.

Brendan

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I didn't include it but the officer circled that the weather was fog.

I was able to view the manual the city uses for LIDAR. I do not know if this manual is filled with the court. I went to the police station to look at it. They would not let me copy it other then taking a picture.

The problem I had is that the officer says he used the Kustom Pro-Lite. The city does not have a manual for the Kustom Pro-Lite. I have screen shots of the Kustom Pro-Lite+ and ProLaserIII below.

In the officer notes he never states he used the "poor" setting on the environemt menu but the officer statement includes that the conditions were fog.

If the officer was using ProLaserIII I think I could get the case dismissed. However I'm not clear what he used.

Also it is interesting that the wording is different in how the opperation is affected between both devices.

http://img198.imageshack.us/img198/521/prolaser.jpg
http://img52.imageshack.us/img52/9450/prolite.jpg

Quote:

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Quoting BrendanjKeegan

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BTW, Did he say the time? It looks like he only said the date.
Brendan

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yes 0740 both on the infraction and officer notes

Excellent research, dwa. If only everyone could post threads like yours.

Quote:

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Quoting BrendanjKeegan

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On top of that I would travel to the local courthouse and look up the Kustom prolite Lidar with the serial number LP03535. If you go at the right time an attorney or court clerk can show you how to look this stuff up.
Brendan

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I went to the court and talked with the clerk. After about 30min the court clerk was unable to find the incorporated reference declaration either online or filed. I would like to obtain this reference because the officer included it in his notes. How can I obtain this? Maybe I should talk with another court clerk. Should I get it documented that the court clerk can not find this?

Also would someone please explain to me the fees. How did the officer arrive to $195?

Here is another possible defense. The officer notes state that he was under I-90. Is that within the city of Bellevue? Wouldn't that fall under Washington State jurisdiction? Is there a sepperate venue for Washington state vs. city of Bellevue?

Code:

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  RULE 2.3
                          VENUE

    Except as otherwise specifically provided by statute, an infraction
case shall be brought in the district court district or the municipality
where the infraction occurred. If a notice of infraction is filed in a
court which is not the proper venue, the notice shall be dismissed without
prejudice on motion of either party.

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Wow. Again... your posts are quite magnificent. As kindergarten teachers everywhere say: "Gold star for you."

Quote:

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Quoting dwa

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Is there any rule I can bring up? Rule IRLJ 2.1 NOTICE OF INFRACTION states that the infraction must state the location. The officer states I90 Lakemont Blvd. I think that would be sufficient. It is the officer notes where he states North/southbound on Lakemont Blvd. The notes is where it is not clear. How should I word this to the Judge? What would be the motion?

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If you don't feel that it would be a sufficient defense, then don't use it. If you need help on wording, then try this:

"Your honor, there is no testimony as to where the violation occurred. If I don't know where the violation occurred, how can I prepare a defense? Furthermore, there is no testimony as to whether I was traveling northbound or southbound. The officer has failed to pinpoint my exact location. Even the Notice of Infraction has failed to pinpoint my exact location. It only says I90 Lakemont Blvd. I would like the court to take notice that that I90 and Lakemont Blvd is a rather large intersection and covers over 2000 square feet of roadway. If the court has now taken judicial notice of this, I motion for dismissal pursuant to IRLJ 2.1(b)(4)."

This is a motion with a strength of medium in my mind. So it has a 50-50 chance of passing.

Quote:

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Quoting dwa

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I didn't include it but the officer circled that the weather was fog.

I was able to view the manual the city uses for LIDAR. I do not know if this manual is filled with the court. I went to the police station to look at it. They would not let me copy it other then taking a picture.

The problem I had is that the officer says he used the Kustom Pro-Lite. The city does not have a manual for the Kustom Pro-Lite. I have screen shots of the Kustom Pro-Lite+ and ProLaserIII below.

In the officer notes he never states he used the "poor" setting on the environemt menu but the officer statement includes that the conditions were fog.

If the officer was using ProLaserIII I think I could get the case dismissed. However I'm not clear what he used.

Also it is interesting that the wording is different in how the opperation is affected between both devices.

http://img198.imageshack.us/img198/521/prolaser.jpg
http://img52.imageshack.us/img52/9450/prolite.jpg

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It doesn't matter what LIDAR device he used. He circled that the weather was fog. Motion this way:

"Your honor, courts have taken judicial notice that the operation of LIDAR may not work properly if rain, smoke, fog, or heavy dust particles are sufficiently dense. I have screenshots of two LIDAR manuals, the Kustom ProlaserIII and the Prolite+ and both of them include this. Because there is no testimony as to whether he had accounted for the dense fog on the day that he cited me then there is no way to be certain that the reading the witness obtained was accurate. Defense motions for dismissal."

Quote:

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Quoting dwa

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I went to the court and talked with the clerk. After about 30min the court clerk was unable to find the incorporated reference declaration either online or filed. I would like to obtain this reference because the officer included it in his notes. How can I obtain this? Maybe I should talk with another court clerk. Should I get it documented that the court clerk can not find this?

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I'm not sure what you're asking here. Are you saying that the certificate of authenticity is not on file with the court? If so is the case, then motion for dismissal as IRLJ 6.6(d) allows.

Quote:

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Quoting dwa

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Also would someone please explain to me the fees. How did the officer arrive to $195?

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Funny you should ask. Barry just explained it to me on this post.

Quote:

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Quoting dwa

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Here is another possible defense. The officer notes state that he was under I-90. Is that within the city of Bellevue? Wouldn't that fall under Washington State jurisdiction? Is there a sepperate venue for Washington state vs. city of Bellevue?

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As long as he was on a public roadway within the city of Bellevue and that roadway was not I90 or I405, then he has the right venue to say it's bellevue. Under I90 is not on I90.

Brendan

Okay....

1st off at the top of the NOI, the officer has indicated that this happened in the district court, not the municipal court.....this makes me wonder if there is a jurisdictional issue here.......OP, was this filed in municipal court of KC district court? I agree that you were within bellevue city limits, but this is something that i would like to see what Barry thinks...

I don't understand why you think there might be a jurisdictional issue. Do you mean the officer was out of his/her jurisdiction, or that it might have been filed in the wrong court. If you're referring to the court, IRLJ 2.3 states:

Quote:

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Quoting IRLJ 2.3

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RULE 2.3 VENUE

Except as otherwise specifically provided by statute, an infraction case shall be brought in the district court district OR the municipality where the infraction occurred.

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The way I read that, if the infraction occurred in Bellevue, it could be filed in EITHER court. Bellevue Police would probably file it in Municipal Court, whereas, a County Sheriff or WSP would probably file in District Court, but I don't see a problem either way.

Barry

Barry's post = bon appetit. That means that the case will be in KCDC. That means no prosecution present. As cole has pointed out before, much easier to get tickets dismissed. :)

Quote:

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Quoting colemac65

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Okay....

1st off at the top of the NOI, the officer has indicated that this happened in the district court, not the municipal court.....this makes me wonder if there is a jurisdictional issue here.......OP, was this filed in municipal court of KC district court? I agree that you were within bellevue city limits, but this is something that i would like to see what Barry thinks...

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The filed stamp reads "filed in kcdc east division Bellevue". Newbie question did the officer file this in district court or municipal court? The stamp has both district and the city?

Based upon this drawing from WSDOT this happened outside of the City of Bellevue. Possibly I can have the Judge take judicial notice that indeed this happened outside of the city of bellevue. The officer checked city of Bellevue on the citation and distric court. I'm unclear however if this is grounds for dismisal? For infractions within state and/ or county property where should the officer file?

How is district court different from municipality court? Municipality court is just a city while district court is a county court?

http://img121.imageshack.us/img121/5540/cityt.jpg

Code:

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RULE 2.3
VENUE

Except as otherwise specifically provided by statute, an infraction
case shall be brought in the district court district or the municipality
where the infraction occurred. If a notice of infraction is filed in a
court which is not the proper venue, the notice shall be dismissed without
prejudice on motion of either party.

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As Brendan pointed out in another thread, there is no Bellevue Municipal Court. There is probably an agreement between the city and the county (I think they're called "interlocal agreements), whereby KCDC provides court services to the city. That's why both "District" and "Bellevue" are marked (that way, Bellevue will receive a portion of the fine). Therefore, whether it occurred inside the Bellevue city limits or not, as long as that was King County, KCDC is the proper venue. The only question is whether or not Bellevue gets its "cut".

Barry

Newbie question

Can the following case laws be used for Lidar?

Seattle v. Peterson

Bellevue v. Lightfoot

I've been working on preparing the motions. I intend to have everything I say written along with copies off all code and case laws I cite. I welcome your input. Feel free to deconstruct and let me know if I'm off base.


Strike Admission of the SMD

Option A

Your honor I move to strike the Officer's statement regarding the radar results pursuant to IRLJ 6.6 (b). In the absence of the SMD expert the city has not produced the SMD certificate.

* show judge discovery and clerk signed note that SMD cert could not be found *

Quote:

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IRLJ 6.6
SPEED MEASURING DEVICE: DESIGN AND CONSTRUCTION
CERTIFICATION
(b) Speed Measuring Device Certificate; Form. In the absence
of proof of a request on a separate pleading to produce an
electronic or laser speed measuring device (SMD) expert served on
the prosecuting authority and filed with the clerk of the court
at least 30 days prior to trial or such lesser time as the court
deems proper, a certificate in substantially the following form
is admissible in lieu of an expert witness in any court
proceeding in which the design and construction of an electronic
or laser speed measuring device (SMD) is an issue:

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Option B

I move to strike the Officer 's statement regarding the radar results. No evidence was offered relating to the design and construction of the radar unit. The only evidence on the accuracy of the radar unit was the opinion of the Officer that he had confidence in the accuracy of the unit. The City, so far as the record reflects, made no effort to supply the court with the type of information the court would need in considering whether or not to take judicial notice of the reliability of the LIDAR unit. In a prosecution for exceeding the speed limit, the measurement of the vehicle's speed by a LIDAR unit is not admissible unless the City proves that the LIDAR unit used was designed, constructed, and calibrated so as to yield accurate readings when operated properly. Absent such evidence, the reliability of a particular radar unit is not subject to judicial notice. The City has failed to authenticate the accuracy of the engineering design of the LIDAR device as required by ER 901 and Seattle v. Peterson, 39 Wn. App. 524, 693 P.2d 757

ER 901
http://www.courts.wa.gov/court_rules...uleid=gaer0901

Seattle v. Peterson
http://www.mrsc.org/dtSearch/dtisapi...%5fform%2ehtml


Judicial Notice Request that FOG MIGHT cause problems for LIDAR unit

“Your honor, in Bellevue v. Lightfoot

Quote:

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Specifically, in the majority of jurisdictions, courts take judicial notice of the general reliability of radar, including both the scientific principle and the means employing that principle, to measure the speed of motor vehicles.

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Pursuant to a public records request I requested from the City of Bellevue the user manual for the Kustom Pro-Lite Lidar unit. The city allowed me to take photographic images of the manuals. I have with me excerpts of the manuals the city allowed me to review with my public records request. May I approach the bench?

* show judge the manual images and public records request *

I motion you honor to take judicial notice that of the fact that fog may cause problems for a LIDAR unit. I also motion that you take judicial notice that the operational issue of fog is mitigated to some extent with the use of the “poor” mode.

Your honor I have with me the officer notes received in discovery. May I approach the bench?

* give judge the officer notes *

By the officer’s admissions the weather conditions at the time were fog. Your honor the evidence no longer preponderates against me, since the probability of error has increased. Can a court rule that it was "more likely than not" that the LIDAR was accurate despite the fog? I motion to strike the officers statement.

By the officer’s admissions no indication is evident that the officer enabled the “poor” mode for the Lidar unit. Your honor the evidence no longer preponderates against me, since the probability of error has increased. Can a court rule that it was "more likely than not" that the LIDAR was accurate despite the fog? I motion to strike the officers statement.

Just a couple of suggestions. First, don't try so hard to sound like a lawyer (and don't use the word "preponderate" twice). So, in that regard, go with Option A. Keep it short and sweet.

And, strictly speaking, the word "motion", when used as a verb, means to "gesture" (and it's not a good idea to make ANY gestures toward a judge). Otherwise, it is a noun. "I move for dismissal...." or "I'd like to make a motion to suppress...." Oh, and "judicial notice" is a "request", not a "motion". So, if it gets to that, "Your Honor, I request that the court take judicial notice...." (The use of "poor" mode is probably not a proper subject for judicial notice -- it may be a feature of the two devices you examined, but can hardly be considered, "not subject to reasonable dispute".)

Also, don't be surprised if your "photo"-copies are not admitted. There's really no way to determine their authenticity -- theoretically, you could have typed up a sheet of paper and then photographed it. But, I don't think it will get that far.

If it does, however, the judge will certainly have a copy of the officer's notes -- no need to present it to him/her. If not, there's no evidence against you to begin with.

IMHO, if you can, indeed, get a clerk to sign your form that there is no certification on file, that should be evidence enough to prove that the filed form was not, "available for inspection by the public" as REQUIRED by IRLJ 6.6 (d). So, even if the prosecutor introduces such a form, I still think you can move to suppress it.

Good luck,
Barry

@Barry -

After a lengthy search I was able to locate the SMD certificate myself. The certificate location can not be navigated from the City's website from a link. Certain keywords are required to located the certificates. It has taken me over 10hrs to locate this certificate.

SMD Certificate

If you review the certificate you can see why the City would want to inhibite the public from inspecting the certificate and not file it with the court. This deaply upsets me and it is an outrage. It also shows just how incompetent the city is and the lack of evidence against me.

As a newbie I see so many things wrong with it pursuent to IRLJ 6.6

Maybe the biggest is that the Technican never signed the certificate under penalty of purgery. The technician never states his qualifications as an expert. The procedures used to test are not provided and the procedures document that is refferance is not incorporate by refferance. The technician does not state he is an employee of the Engineering firm. Also by admission the tech states that uncertianties are not documented. Could that be uncertianintes about accuracy used in fog?

Does this case now have a 100% chance of dismissal?

How is this motion?

"Your honor I'd like to make a motion to suppress the SMD Certification pursuant to IRLJ 6.6. I move to dismiss."

If this motion is a clear winner I would like to reserve it and make some other motions first that are not as strong just to see what happens. This includes the request for sanctions, harrasment and offical misconduct. I'm also interested in arguing about the judicial notice request that FOG MIGHT cause problems for LIDAR unit. I could see if the judge would dismiss on the no subsection. I would like to see were I could go with some other motions knowing that I have this ace that I could drop at the end.

Most likely I will have to present the certificate because it is not filed with the court. I suppose the judge could say that the cert is not admittable.

Would I be able in the court to show the judge how to find the certs on the city's website? Could we use his computer to pull up the certs if I provide direction?

I'm not sure the best way to play this.

Your points about the Certificate are ALL valid -- the biggest, as you pointed out, being that it was not signed under penalty of perjury. IRLJ 6.6 (b) says:

Quote:

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Quoting IRLJ 6.6 (b)

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... a certificate in substantially the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic or laser speed measuring device (SMD) is an issue:

CERTIFICATION CONCERNING DESIGN AND CONSTRUCTION
OF ELECTRONIC SPEED MEASURING DEVICES OR LASER
SPEED MEASURING DEVICES

I, ____________________ do certify under penalty of perjury as follows:
...

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Without that, I don't see how a judge could find that the certificate on file is "in substantially the following form". Move to suppress pursuant to IRLJ 6.6 (c) (the certificate is insufficient).

Oh, and YOU don't have to present the certificate -- in fact DON'T. If the judge doesn't already have it, or if the prosecutor does not present it, just move to suppress pursuant to IRLJ 6.6 (b) and (d).

Again, just keep it short and sweet. 100% chance of a winner? NEVER! THERE IS NO SUCH THING! But, this should be close to 95%. The remaining 5% is why we have appellate courts. LOL!

Barry

Quote:

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Quoting blewis

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Oh, and YOU don't have to present the certificate -- in fact DON'T.
Barry

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Thanks for letting me know. I was planning on introducing the SMD certificate but I'll make the motion as you suggested.

I contacted the Prosecutor's Office to obtain the name of the prosecutor who is assigned to this case. Turns out there are several prosecutors for different situations. The individual assigned to this case is a contractor. Yes a contractor! The individual does not have a number at the city, a desk with the city or even a city email address. Would the prosecutor still be considered a public official? Also the prosecutor does not file out and the discovery request. There is an assistant. I have the name of the assistant also.

I'm going to try and see if I can sanction the prosecutor. What I'm hoping for is to get a judgment for Official Misconduct

If that happens then I could submit a claim against the city for monetary compensation.

The potential problem is that the contractor prosecutor may not be a public official. I assume if I supena the officer the P.A. that would appear would be a city official. So I'm considering a supena of the officer. The officer is not an expert in SMD so his witness would not help or hurt me. The point is to get a city offical who is the P.A. in court. I could call the P.A. as a witness.

My advice is to not take your request for sanctions too seriously. In fact, there is some reasonable chance it will really tick off the judge. I wrote up a motion and submitted it, but did not argue it at the hearing. The judge read it and said, "Sorry, no sanctions". But, remember I lost that case (although I ended up winning on appeal). It's possible I ticked off the judge at the time. But, if you PM me with your email address, I'll send you a copy of the motion. Since it's from 2004, it even contains the "old" language for IRLJ 3.1.

It's not uncommon to use private practice attorneys for prosecuting cases, just as it's not uncommon to use private-practice attorneys as pro tem judges.

Just try to keep your eyes on the prize and don't get too sidetracked. Your goal is to get this ticket dismissed.

Barry

How do I know that the case was dismissed? The judge says I'm going to dismiss this case. I was not handed any proof that the case was dismissed. I made the motion for sanctions and the judge denied and asked me to close the door as I left. I did not sign any documents. Is that how it works? The judge dismisses and you walk free with out any proof of dismisal? Did I need to talk to the court clerk?

The judge was not friendly at all. Neither was the PA. I made a few mistakes. Don't trust the PA and what they say. Also do not help the PA at all. The judge asked me to close the door with only the PA and officer present. I wonder what the judge had to say. The PA never could produce the online SMD certs even after having me wait 2hrs and calling the officer to appear.

Anyways I'm going to check the court docket to make sure that the case was dismissed. I do not trust the Judge.

The PA told me I spent way to much time on this and that my motions would be denied.

Would I contest again? Maybe not. Considering the amount of effort....

I ran into forum member exhibition of speed. I had to get back to work so I didn't have much time to chat. I'm not sure how much he witnessed. I would be great to get his input.

Hey, D, nice meeting you today, congrats on beating that ticket, I almost giggled when the prosecuting attorney snapped and yelled at you. That was totally unprofessional.

But it was outrageous when she summoned your arresting officer and take YOUR time to find the SMD certif (this is when the cop pulls a slip from his pocket with the SMD's url on it).

Anyways, congrats again, I'm hoping to copy you on the 31st. So I should just try to dismiss the ticket on the account of the "signature that is not under penalty of purgery" if all else fails?

DWA - congrats on the dismissal. Two things: 1) What argument(s) did you end up making to the Judge that actually got your ticket dismissed?

2) From my observation of contested hearings last week in the Burien Courthouse, all plantiffs with tickets that were dismissed just left the courtroom. Several individuals asked if they needed to sign anything but the Judge and the clerk said they are free to go. So although I don't know with exact certainty, I imagine you are ok based on my experience.

Only one motion: 6.6, no SMD certificate. Took all day when the prosecutor tries to search for it.

Just wondering @DWA, why didn't you object on the grounds that the prosecution is supposed to be ready for the case and it is on your time, so you would like the case dismissed if they are unprepared? Because that's what Brendan told me to do if they try to delay to get extra evidence.

Well, technically, as Barry pointed out in another thread, you can object to waiting but you can't object to a continuance.

If DWA really wanted too, he could object to waiting for 2 hours. I know that's what I would have done. However, the prosecution could ask for a continuance if needed.

But then again, an objection to more than one continuance normally passes. Today I was sitting in court watching a few cases and two different attorneys (within 45 minutes of each other) called the prosecution out on this. The motion:

"Your Honor, I have shown up to court here numerous times ready to argue the case but the prosecution has remained unprepared. I have been here 3 times since the beginning of January on this one case. Time is money and I feel that these continuances aren't only wasting my money, but they are also wasting taxpayer dollars. And so I respectfully ask that this case be dismissed on grounds that the prosecution has been unprepared for court."

If you motion with that, I would leave the part about taxpayer dollars out.

Btw, @Barry: Nice joke about the appellate courts on post #16. haha. :)

Brendan

So the interesting thing is that I'm not sure why the case was dismissed. The judge says it was taking to long to find the certs. However the certs were filled with the court. I'm not sure why the PA just didn't reference the certs filed.

This was my first motion.

"Your honor I move to strike the Officer's statement regarding the radar results pursuant to IRLJ 6.6 (b). In the absence of the SMD expert the city has not produced the SMD certificate."

That is all I said at that time.

The PA gets up from her chair and asks the gal who is doing the typing for the court for the SMD certs. She tells the judge she wants to speak with me. She then shows the SMD certs folder to me asking me what the number is.

My first failure. I should not have given the PA the Lidar number.

She finds the certs and says here they are to me in a private conversation in the court. I'm not sure what the judge is doing at this time. I say to the PA that the officer incorporated by reference the certs online. She keeps saying here they are.

The officer notes says, "online and incorporated by reference is the statement of Charlie Brown," Charlie Brown is the SMB expert.

She then asks me to step outside of the court room.

My next mistake. I leave the court room and we talk in the lounge. She is very rude to me and is raising her voice. She asks me what my motions are going to be and I explain them to her. I should have just sat in the court room and not helped the PA. I didn't know any better. I thought that this was common to have these conversations. I go thru each of my motions. She tells me nothing will stand with the judge. I tell her it is for the judge to decide.

So after this conversation I go back in the court room. I thought my first motion for not producing the SMD certificate did not stand. So I present the cert signed by Charlie Brown that I recieved by a public records request. The cert by Charlie Brown is only 2 months old. However there is another cert signed by Ed Cole. I only show the cert from Charlie Brown. Charlie Brown failed to sign the cert under purgery and does not claim to be an expert so I motion to suppress. The judge tells the PA she needs the other pages for the cert. Here is where I say nothing but get concerned. I'm not sure how the judge would have ruled if the PA had produced the other cert. I never told the PA I had any certs. The officer never incorporated by reference the statement of Ed Cole who prepared the second cert. The PA says to the judge she is going to look for the smd certs and print them out. She then leaves the court room. Occasionally she comes in to work on another case.

Queston: Could the cert by ed cole be admissable? Ed Cole's cert was for the same S/N. It was less then 1yr old. The officer only incorporates by referance the statement of Charlie Brown not Ed Cole. I never had the oppurtunity to argue this. However if the PA had presented the cert of Ed Cole I would have.

After about 1.5hrs the PA comes to me asking me if I have the notice for discovery. I show it to her. She then grabs it from me and leaves with it out of the court room. She never says why she grabbed it or why she left.

My next mistake. I should have said the documents were filed with the court and copies are 25 cents. Or better yet say nothing at all. I'm not sure if by law I need to speak to the PA.

I follow after the PA to get back my discovery leaving the court room. Out side the court room I find the officer who gave me the citation. That was a big surprise! She is showing the discovery she took from me. The PA tells me to get back in the court room. I ask for my documents back. The officer says he will not deface my document and that the PA asked me to get back in the court room. I make no statement and walk back in the court room. I did not want to argue with the officer.

After some time the PA comes back in the court room with my discovery and hand me a slip that contains a URL. This is the URL for the location of the certs online.

@Exhibitionist of Speed - I'm not sure what the PA and officer were talking about outside the court room. Did you over hear this conversation can you add some color?

So anyways my guess is that the officer failed to bring copies of the actual cert just the URL for the location.

Someone in another case supena the same officer who ticketed me. So I waited thru this case. It came down to where I was the last one left in the court room. There was the PA and officer.

By this time the judge said the SMD cert was not produced so I'm dismissing the case.

I still do not understand why the PA did not cite section (b) The court is entitled to take judicial notice of the fact that the document has been filed with the court.

Code:

---

    (d) Maintaining Certificates as Public Records.  Any
certificate, affidavit or foundational evidentiary document
allowed or required by this rule can be filed with the court and
maintained by the court as a public record.  The records will be
available for inspection by the public.  Copies will be provided
on request.  The court may charge any allowable copying fees.
The records are available without a formal request for discovery.
The court is entitled to take judicial notice of the fact that
the document has been filed with the court.  Evidence will not be
suppressed merely because there is not a representative of the
prosecuting authority present who actually offers the document.
Evidence shall be suppressed pursuant to subsection (c) of this
rule if the evidence in the certificate, affidavit or document is
insufficient, or if it has not been filed as required.

---

So I'm not clear on why the case was dismissed. It was a circus for the PA. She keeped going in and out of the court room. She was on her cell and kept telling the judge she is getting it printed and sent down.

Some thing else about this judge. She is very strict. The judge said she would not take judical notice of anything. That she does not take judicial notice and is not required to.

Someone before me also had a speeding contested hearing. Same situation as mine with out the SMD certs. With out a SMD cert the judge allowed the evidence because she felt that the visual speed estimate and the LIDAR reading may have been accurate more the 51%. She claimed that the officer had years of experience. I wanted to say something to the defendant but didn't because my case was still pending as I was waiting. The judge also seamed really irritable.

Anyways I do not trust the judge and will verify that the case was dismissed.

Thank you to all those who helped me on this forum. With out your help I would not have been able to do this.

Thoughts?

Alright. Your only mistake was sharing defense with the prosecution. I wouldn't move for sanctions, but I might send a letter to the state bar and the city about the PA's misconduct.

Let this be a lesson for anyone else: never agree to speak to a PA in private. If the PA asks to speak to you in private, say to the PA, "If you have any questions for me then you may ask them on the record."

If the PA asks for some of your documents - ESPECIALLY DISCOVERY - do not, I REPEAT DO NOT give her your paperwork. It is yours for a reason and I would certainly have brought that up in court if it happened to me.

Finally, if the PA asks for you to share her motions with her, say, "You will hear my motions when I make them for the record. If you would like to make a deal with me to dismiss the case, I am open to that. However, if you are unprepared for the hearing: I WILL win."

The judge was probably irritable because of the PA's lack of foundation and the complete waste of her time. In your case, I would have certainly motioned for dismissal on the fact that they failed to provide an SMD calibration after about fifteen minutes.

If she said the case is dismissed, it is dismissed. She said it on record and it will be on that record. If you get a letter from the court saying that it wasn't, I'd appeal.

With that said: Attorney's know their way around the courtroom and most of you do not. Don't be fooled by any attorney "simply asking questions." The fact is, ALL of them will try to sneak around and cheat, if you let them. Don't let them. It's up to you to call them out on their cheating.

Brendan

Quote:

---

Quoting BrendanjKeegan

---

If the PA asks for some of your documents - ESPECIALLY DISCOVERY - do not, I REPEAT DO NOT give her your paperwork. It is yours for a reason and I would certainly have brought that up in court if it happened to me.
Brendan

---

I did not give her my discovery documents. She grab them from me and abruptly left with them out of the court room. I never gave them to her.

I do not know my way around the courtroom obviously. Good advice. Lesson learned. This is where having a lawyer really helps.

However I'm still not clear why the filled certs were not introduced by the PA? As ironic as it is I'm not sure why the case was dismissed. Why the PA did not ask for a continuance. I just don't understand all that happened.

Everyone with good driving records were offered a city of bellevue violation rather then a RCW violation and pay a fine of $124. I qualified for the reduction and almost took it. I think everyone who qualified took it except for me. It was a huge risk.. I went all or nothing. But in the end I prevailed. The lawyers in the court had previously filed motions and the PA or judge dismissed. They left and then I went before the judge. Obviously the PA thought I would go for the reduction since she was not prepared.

Wow. Just grabbed them? Yeah. A letter of grievance to the state Bar should do the trick. Before you send that, take a look over the RPC and try to find what exactly she acted unethically with.

You should also note that filing a grievance is a very serious matter and it may end up having her license to practice revoked. But I really don't think that should stop you. If you feel that she treated you unethically, go for it. Read through this if you like.

After reading through that page, call 206-727-8207 and talk to a representative of the Office of Disciplinary Counsel.

After going through all that, a grievance form may be found here.

On another note: the only way I would have taken that $124 is if the ticket did not appear on my record. So good choice.

Hope that helps.

Brendan

If I quickly swipe my documents (with a smile and a lightening statement of course) out of the way of the procecutor's hand as she is going to GRAB it, would I get in trouble?

Oh yes, Brendan, what rule should I quote to state that in WA state that a visual estimation is NOT sufficient and only a certified SMD can properly indicate and convict of speeding in the case that a collision did not occur.

And if and when I get the same PA as DWA and she asks me to talk I would just go "*chuckle* I plan to only interact with you on record and in front of the judge"

since I know she is a sore loser and one of those over-competitive types, and actually... idk about the "I will win" line, it may tick her off and psych her a bit, but it may be too aggressive/arrogant.

In your case I don't think it matters whether there was a visual estimation. It matters that the visual estimation was confirmed by the radar reading.

Don't go for the visual estimation. Keep your eyes on the prize and go for the ticket itself, or a statement on the affidavit. Your main goal is to break down the radar gun and prove that it wasn't calibrated.

So start with the subsection argument and work your way from there.

Brendan

:eek: goodness! you got balls for going through all that! definately lots of insight and great story. congratulations on the dismissal. i dont think i could do that i would probably just get a lawyer first lol!

DWA, would it be possible for you to post your notes (I think you said you prepared 8 motions to carry out if need be?) on this thread for educational purposes?

Quote:

---

Quoting BrendanjKeegan

---

Wow. Just grabbed them? Yeah.
Brendan

---

Yes, I was sitting down and the PA came up to me. She asked me if I had my discovery and I said yes pointing to where it was. I never told her she could take it or even see it. She immediately then grabs it and briskly walks with it outside the court room. I get my things together and chase after her. When I get outside the court room I'm in the general lobby area. I was surprised because there was the citing officer in uniform. As I walk up to them they both walk away from me. I had seen the PA and the officer looking over my discovery, specifically the officer notes. Then the PA says

PA: "You need to get back in the court room."

me: "I would like to have my documents back."

* the officer is holding my documents and is in possession of them *

citing officer: "I will not deface your documents. The PA asked that you get back in the court room."

I was intimidated by the officer so I did not question him in fear that he may cite me. I went back into the court room with out my documents.

There is so much wrong with this. I had all rights to be in the general lobby area of the court house. The documents were my possession. I never gave them to the PA. Upon my request the officer did not return them. They were clearly my documents because I had attached the envelope to the discovery. The envelope was address to me.

Is this misconduct? Did I have to obey the officer? Would you have stand ground repeating for the return of the documents? The last thing I wanted to do is the officer to cite me for something even if unfounded.

Under all circumstances is the officer required to sign the back of the ticket? This was the back of my ticket. I didn't post it up here because I thought his attached Lidar/ Laser affidavit signiture was sufficent.

http://img145.imageshack.us/img145/6873/scan10025f.jpg

Should this have been signed?

DWA - sorry about your mishap with the PA and citing officer. Regarding the ticket, my citing officer did not fill out any of the back (not even the traffic, weather, street, light like your's did). I assume they don't have to fill those boxes out but would be good things to note their report. I'm no expert, but when I looked at the back it looks like this is the space for the officer to write his/her report. The officer would then sign the back if that is their affidavit (certifying under perjury, etc.). Seems common for officers to type up an addendum or separate affidavdit instead of having to handwrite things.

I don't know if you see it, but it says in the signature box on the back "I certify under penalty of perjury under the law of the state of Washignton that all statements made herein are true and accurate"

Without that signature, the ticket becomes "questionable evidence". That's what I had as my first motion, unfortunately, I did not get to use any of the motions I prepared, haha.

Quote:

---

Quoting Exhibitionist of Speed

---

I don't know if you see it, but it says in the signature box on the back "I certify under penalty of perjury under the law of the state of Washignton that all statements made herein are true and accurate"

Without that signature, the ticket becomes "questionable evidence". That's what I had as my first motion, unfortunately, I did not get to use any of the motions I prepared, haha.

---

Wow! I didn't know that. I could have used that one also. I see in your discovery that the officer did sign the stationary radar affidavit but not the back of the ticket. So because your motion work the back of the ticket must be signed other wise it is dismissed. I really went the difficult route with this. Yet I still got the dismissal. What won the case is the PA not providing the SMD certs... the judge got tired of waiting and dismissed the case with the PA and officer present. So props to the judge. The judge is the one that won this case for me. I really had no clue what I was doing. It is amazing at all that it was dismissed. I suppose if the judge would have let it continued I would have lost the case.

he is not required to sign the back of the ticket.....his signature on the front is sufficient. And his affidavit is seperate. Had he written a narrative on the back of the ticket, he would have been required to affirm it....but that is not the case....

WAIT, EOS, did you get a dismissal based on this!!!!! AWESOME!!!!!

Quote:

---

Quoting colemac65

---

he is not required to sign the back of the ticket.....his signature on the front is sufficient. And his affidavit is seperate. Had he written a narrative on the back of the ticket, he would have been required to affirm it....but that is not the case....

WAIT, EOS, did you get a dismissal based on this!!!!! AWESOME!!!!!

---

interesting... so he never then affirmed the traffic conditions included fog.

what is the difference between all statements and the foregoing?

@DWA... That is only the case if there is no link on the affidavit. If there is no citation number or case number on the officer's sworn statement, then you can go for that on the basis that there is no connection between the two documents.

So unless the affidavit has your citation number on it or the back of the ticket says "incorporated by reference are my notes..." or something like that, then you can point out to the judge that it seems that these two documents are irrelevant and there is no proof that the affidavit is for your case. Follow the paper trail.

I wouldn't use that in your case because it is crucial in your case to point out that fog can disrupt the use of LIDAR. You still have the notes from the manual, right?

Brendan

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

I was not able to post to this old thread from March because it was so old.
http://www.expertlaw.com/forums/showthread.php?t=95183

UPDATE

Shortly after this case in March the SMD expert filed this "blanket" certification on April 5, 2010. I suspect that my case had something to so with this filing because I brought to attention that the SMD expert did not sign the certs under purgery, state his qualifications and in a form pusuant to what the law requires during trial.

Does this bring into question the validity of these certs? Did the city fix the cert problem they had?

PDF of updated Cert by SMD expert in April
http://www.cityofbellevue.org/pdf/Po...ifications.pdf

List of certs, many not signed under purgery.
http://www.cityofbellevue.org/radar-...rtificates.htm

I still get upset over the ill treatment from the officer and PA that day even thou I won the case.