Ticket Defense - 6.6 Radar/LIDAR Cert

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

Last week I got a speeding ticket from a Marysville police officer (north of Seattle). I was on a six-lane arterial off I-5 which starts the first couple of blocks at 35mph, but then suddenly drops to 25 for two blocks, then back to 35! The officer's explanation was that that's a high accident intersection... pffff. Cheating, is what he was doing.

My Passport 8500 X5 didn't make a peep. I only saw the cop get on his motorcycle and turn on the lights, I didn't see a radar gun, but I'm sure he used one. I'm concerned that there's a new radar which the Passport cannot detect? Only thing on the ticket is "SMD".

Anyway I was in a Redmond court on another matter recently, and watched as a lawyer got a speeding ticket dismissed. He moved to suppress the radar evidence on the grounds that the city of Carnation "does not have a 6.6 radar/lidar certification on file." The judge accepted that and then he moved for dismissal and got it. As this lawyer was leaving I asked him if Marysville also lacks this certification, and he said as far as he knows they all do!

I've tried to find this '6.6 certification' to no avail. Must be some new requirement if all cities lack it?

Is it possible that my radar detector did not pick up the shot because the gun was so far out of alignment? This is the Passport company's explanation. If this is the case, how could I use this as a defense?

The SMD cert records can be maintained by the court. See the rule below. Did the officer file the cert with the court? Is the cert incorporated by reference?

I'm not sure however what defines "or if it has not been filed as required". Can it be incorporated by reference online? Where it is posted on a website?

http://www.courts.wa.gov/court_rules...eid=cljirlj6.6

Code:

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(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.

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How to Suppress Radar Certification- here is a case where someone won!
http://www.expertlaw.com/forums/showthread.php?t=92462

It sounds like you're saying this must be done on a case-by-case basis? Alternatively that rule seems to say that a blanket cert can be filed.

I seem to have found the "6.6" he was referring to:
http://www.courts.wa.gov/court_rules...rit506.6&pdf=1

Do you have discovery? If the officer filed the cert with the infraction then that is sufficient. If the officer did not file the cert and it is not on record with the court then that could be in your favor.

The law says, "evidence in the certificate, affidavit or document is
insufficient, or if it has not been filed as required."

I'm not clear what would be considered insufficient filing. But if it is not filled you could motion to dismiss. just my 2 cents maybe others can chime in.

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Quoting Quantum

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I seem to have found the "6.6" he was referring to:
http://www.courts.wa.gov/court_rules...rit506.6&pdf=1

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Your link is to the Local Rules for the Ritzville District Court. Why would you think they'd apply in Marysville, Redmond or Carnation? DWA already gave you a link to the state-wide IRLJ 6.6.

Barry

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Quoting blewis

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Your link is to the Local Rules for the Ritzville District Court. Why would you think they'd apply in Marysville, Redmond or Carnation? DWA already gave you a link to the state-wide IRLJ 6.6.

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Because I'm stupid. I am just trying to figure out all these byzantine regulations, and am lost. This is why I am here.

Actually, I'm not sure WHY you're here. It seems to me that since you said in another thread that you already returned your ticket marked "mitigation", you've already pleaded "guilty" -- therefore, you have no use of a defense. The radar certification is of no consequence, nor are the rules pertaining to it.

At a mitigation hearing, you can ask for a deferral, or you can offer your reasons as to why your fine should be reduced. The judge CANNOT find you "not guilty", no matter WHAT you say or prove. IRLJ 3.4 states:

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Quoting IRLJ 3.4

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(c) Disposition. The court shall determine whether the defendants explanation of the events justifies reduction of the monetary penalty. The court shall enter an order finding the defendant committed the infraction and may assess a monetary penalty.

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"The court SHALL enter an order finding the defendant committed the infraction". In the law, "SHALL" means "MUST". The court has no options.

Barry

Apparently that was a mistake.

So how do I withdraw a mitigation plea, and enter a Not Guilty? I'm sure it's possible.

Call the Clerk of the Court and ask how you need to go about it.

Barry

I will contact the Clerk of Court.

Does anyone know:
- Whether there's a new radar which the Passport cannot detect?
- Whether it is possible that my radar detector did not pick up the shot because the gun was so far out of alignment?
- If so, how could I use this as a defense even if it may be on the 'tested' list?
- Whether a 6.6 is filed blanket for all cases, or if it must be submitted with each ticket?
- How to get the radar model and serial#'s and officer's notes?

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Quoting Quantum

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I will contact the Clerk of Court.

Does anyone know:
- Whether there's a new radar which the Passport cannot detect?
- Whether it is possible that my radar detector did not pick up the shot because the gun was so far out of alignment?
- If so, how could I use this as a defense even if it may be on the 'tested' list?
- Whether a 6.6 is filed blanket for all cases, or if it must be submitted with each ticket?
- How to get the radar model and serial#'s and officer's notes?

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- I'm pretty sure there's no new type of radar.
- Nope, pretty sure that's bogus too. Radar is radar.
- You can't use the fact that your Radar detector didn't beep as a defense.
- IRLJ 6.6 requires that each radar detector have a proper certification on file, and that the radar is handled according to the "certification program" of the group. Washington State Patrol (WSP) requires that each detector be certified every 2 years. If you find that yours wasn't, you're off pretty easily. There are other ways to use IRLJ 6.6 as well (for example, the officer didn't calibrate it that day).
- There's a great starter thread around here somewhere (can't find the link right now) that explains "everything" you need to know about fighting a ticket in Washington state. It has a link to a "discovery" form that you can fill out, and submit. When you submit this form to the court and the prosecutor's office, they will send you back the officer's affidavit (including notes) and the tag number of the radar detector he used.

Hope that helps!

OK I went to the Municipal Court and asked for the officer's sworn statement. They directed me to the Prosecutor's Office, where I wrote a letter asking for the sworn statement.

A couple weeks later I got it. It had the lidar model and serial number. (Kustom Signals Pro-Lite LIDAR #PL26337) So I went to the Municipal Court and asked for the 6.6 certification, and they photocopied the one for this serial#, dated June 8th, 2008.

Almost two years out of date? I thought I had it made, as an atty told belikeh20 it's a year. OK, so I called the testing company (Day Wireless) and asked the radar tech there when the cert expires. He said it varies from 1-3 years, and that he has Marysville on a 2 year schedule. I asked whether it isn't up to the manufacturer when the certification expires? He said no, it is determined by the "Police Chief's Association"! WTH?

So I wonder who's right Steven? How can it be more than a year, if Kustom says a year? Should I get the User's Manual? I found this for trying to suppress evidence, but I've done these things.

The officer's affidavit has boilerplate that he tested and calibrated it that morning and evening, but it's obviously a form letter.

I know now that he didn't actually shoot my car as my radar detector did not go off. It's gotten lidar before, and it is jarring when it does. I know he didn't shoot me as it was silent.

I should note that this is a four-lane arterial. Exiting off of I-5 there is one speed limit sign (25mph) right at the radius of the turn where you merge onto the arterial. Of course you miss it because you're watching for traffic as you merge onto the arterial. 25 on a 4-lane arterial?! Come on... Then there are no more limit signs until a half-mile later when it changes to 35. Of course that's where he got me. I think this is playing dirty, and I would like to beat this ticket if possible.

Could I claim no 6.6 anyway and see if it flies? Or could I video the whole half-mile and claim no notice? I doubt I'd get deferred sentencing as I have a seat-belt ticket and a license suspended infraction in the past 6 months. Could I try to negotiate it down from speeding to something lower? Hopefully there's some option.

I wouldn't claim no radar cert. But, have you received the officer's sworn statement? Post that up here.

If Kustom says its a year, then it's a year. The manual will have something about that.

And I don't know what attorney said that ALL are only good for a year, because some radar certs are good for two.

Post the docs up so we can have a look.

Brendan

Here's what I have so far:
infraction1
infraction2
lidar affidavit
6.6 certification

Will Kustom release the manual? Would the manual have the calibration schedule?

Unfortunately, whichever link I click, I get:

Quote:

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Forbidden

You don't have permission to access /infraction1.jpg on this server.

Additionally, a 404 Not Found error was encountered while trying to use an ErrorDocument to handle the request.

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Sorry I can't be of much help.

Barry

QUANTUM: Send barry a PM and see if you can email him the the docs.

or; BARRY: I can email you the scanned jpeg if you want?

Standby for my response.

Okay, this one is gonna be tricky. I can't find much wrong with it.

The subsection argument applies here, but you might not get very far as a prosecutor may be present in marysville.

You might be able to bring up something to the fact that the time on the affidavit where he says he observed you is 2 minutes after the ticket was issued. Which would mean that he knew you were speeding before it even happened. But I doubt that this argument would hold ANY merit.

If you want, you can bring up the fact that the gun wasn't tested IMMEDIATELY before and IMMEDIATELY after the stop, but that won't matter much in WA.

But really, your best bet is a deferral on this one.

Brendan

OK I've reposted them on Imageshack:
http://img686.imageshack.us/img686/3541/infraction1.jpg
http://img269.imageshack.us/img269/5945/infraction2.jpg
http://img100.imageshack.us/img100/4839/lidaraff.jpg
http://img202.imageshack.us/img202/9067/66cert.jpg

Brendan I don't think I qualify for deferral as in December I got a DWLS infraction (ticket level) and seat belt. Year before December I got a speeding.

I am thinking if I could get the Kustom manual that that would recommend a yearly calibration. Come on, a hand-held precision device like that, carried in a motorcycle saddlebag, only calibrated every two years? How likely is it that I could get the manual?

Also I know he didn't actually shoot me, or my radar detector would have gone off.

But if he observed me two minutes after the ticket was issued, it should cast doubt on -all- the officer's assertions, shouldn't it?

You can do some research around here or google to try and find that manual.

Two minutes might not make that much of a difference in the judges eyes. Remember, you're trying to make it seem more likely than not that you did NOT commit the infraction. So that is a very weak argument. Maybe Barry will find something, but it looks like an uphill battle.

However, another possible argument could be that he stated that the traffic was HEAVY. And he used the Lidar at a distance of about 400 feet. That has a little bit of uncertainty in my mind.

Brendan.

okay....with respect to the day wireless systems 6.6 affidavit...Mr Boyd attests to being certified to calbrate and test MPH and LTI products.....but does not attest to being certified or trained to perform calibration or testing on KUSTOM PRODUCTS!

Oooo, nice! You're an ace Cole. So I'll move for no foundation as the calibrator does not attest to being trained in Kustom, much less the specific Pro-Lite.

Quote:

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I move to suppress the 6.6 radar/lidar cert. The technician attests to being certified to calibrate and test MPH and LTI products but does not attest to being certified or trained to perform calibration or testing of Kustom products, much less the Kustom Pro-Lite specifically.

I move to dismiss for no foundation.

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I was wondering about the section/subsection issue. I know some cases have been thrown out for no subsection. It seems the officer cites 46.61.400. Did he forget the subsection?

Also the officer attests he tested the unit at the beginning and end of his shift. Isn't he supposed to test it immediately before and after my targeting? Isn't he supposed to let me see the device with my reading if I request? I am sure he did not shoot me.

And the officer does not attest that he was trained in the use of Radar and Lidar at all in his '20 years of traffic enforcement experience', much less that he is trained in the SPECIFIC USE of the Kustom Pro-Lite radar unit. Surely this is grounds for dismissal?

Maybe I can set up a series of motions, if the above are reasonable grounds? And if they fail ask for a continuance so I can hire counsel since this is an unfair ticket? (Is Cole an atty in western WA?) Maybe the specter of a continuance would cause them to plea it down to Inattention.

Would Inattention be a 'moving violation'? Is DWLS at a ticket (infraction) level a 'moving violation'? How about a seat belt ticket? Just wondering for insurance purposes.

Is there a points system in Washington? If so, can someone refer me to a place where I can learn how many points I have?

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Quoting Quantum

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Oooo, nice! You're an ace Cole. So I'll move for no foundation as the calibrator does not attest to being trained in Kustom, much less the specific Pro-Lite.

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I don't know how well that motion will hold. It puts a little bit of doubt in my mind, but the fact that he has all of those qualifications still allows him to calibrate it, even though he never says what the type of the SMD. But, go for it. You may find yourself lucky. But don't be too surprised if the judge says that he won't grant your motion because it does not prove more likely than not that you didn't commit the infraction.In the end, this one is gonna be all up to the judge, and I have no idea about your particular one. Maybe you'll find him in a good mood, and maybe (and I hope for your sake not) he won't be.

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Quoting Quantum

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I was wondering about the section/subsection issue. I know some cases have been thrown out for no subsection. It seems the officer cites 46.61.400. Did he forget the subsection?

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Yes. He has forgotten the subsection. It would most likely need to say 46.61.400(1) or (2) for the ticket to be valid. According to Cole, the argument is: without knowing SPECIFICALLY which subsection you are accused under, it's not possible to formulate a defense. The argument works sometimes and sometimes doesn't. Again, this motion is going to depend entirely on the mood of the judge and, "how well you present it." (Barry)

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Quoting Quantum

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Also the officer attests he tested the unit at the beginning and end of his shift. Isn't he supposed to test it immediately before and after my targeting? Isn't he supposed to let me see the device with my reading if I request? I am sure he did not shoot me.

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Washington is a tricky state. Other states require (Minnesota, Missouri and others under case law) that the device in question be calibrated Immediately before and Immediately after. However, some judges accept this in our state, some do not. Barry says that this motion won't fly in court, but I've seen it work and I've also used it once. Therefore, I can attest that this argument may work.

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Quoting Quantum

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And the officer does not attest that he was trained in the use of Radar and Lidar at all in his '20 years of traffic enforcement experience', much less that he is trained in the SPECIFIC USE of the Kustom Pro-Lite radar unit. Surely this is grounds for dismissal?

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Barry said in a post a couple of weeks ago that experience may be enough to tip the scales. And I must say that I agree with him. The officer never says that he was trained in the specific use of the unit. But WA has generally accepted that the officer doesn't need to be trained in the specific use of the unit, he only needs to be "trained." The word trained is left undefined for judges to make their own decisions.

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Quoting Quantum

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Maybe I can set up a series of motions, if the above are reasonable grounds? And if they fail ask for a continuance so I can hire counsel since this is an unfair ticket? (Is Cole an atty in western WA?) Maybe the specter of a continuance would cause them to plea it down to Inattention. Would Inattention be a 'moving violation'? Is DWLS at a ticket (infraction) level a 'moving violation'? How about a seat belt ticket? Just wondering for insurance purposes.

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I highly doubt that they would reduce the charge just because of a continuance. But prosecutors have proved me wrong. However, that is based on the idea that you can get the continuance in the first place. You should try to think of a masterfully brilliant reason for the continuance as all of the discoverable materials have been provided within the accurate amount of time. About the inattention question: It depends on what the charge is. If it's a city ordinance, then most likely it isn't a moving violation.

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Quoting Quantum

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Is there a points system in Washington? If so, can someone refer me to a place where I can learn how many points I have?

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There is no "points system" in WA state, however, insurance companies have their own. I would talk to your local insurance agent about that one.

Brendan

Thanks Brenden. You're a bit pessimistic I think, but the kernels of your original ideas, combined with Cole's, have ended up as the structure of my defense.

The hearing is June 14th, and here are my proposed motions:

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Motion #1
I move to suppress the 6.6 radar/lidar cert on lack of sufficiency. The technician attests to being certified to calibrate and test MPH and LTI products but does not attest to being certified or trained to perform calibration or testing of Kustom products, much less the Kustom Pro-Lite specifically.
Motion #2
I move to suppress the officer’s statement on lack of sufficiency. There is no indication that the radar detector was tested before and after the citation. The officer only states that this was unit was tested at the beginning and end of his shift. According to the Kustom Pro-Lite manual this unit must be tested BOTH immediately before and after the stop was made. Courts have taken judicial notice that the prosecution has a prima facie duty to establish that the radar unit was tested and found to be operating properly at the site of and reasonably close in time to the arrest.
Motion #3
I move to suppress the officer’s statement on lack of sufficiency. The officer states that he was trained on the use of Radar but he does not say that he is trained in the SPECIFIC USE of a Kustom LIDAR unit. Lidar has very specific requirements, in contrast with older microwave units. Further, he does not specify WHEN he was trained, by whom, nor the amount of his training. Based upon his statement, his training could have been 20 years ago, with no class work or any further training. Because of advances of technology, he could not know how to properly use the Kustom Pro-Lite system at all.
Motion #4
I move for a continuance, that I may retain an attorney. There is no indication of which IRLJ subsection the ticket was issued for. Without knowing specifically which subsection I am accused under, it was not possible to formulate a defense and the ticket is not valid.

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If any fly, then of course a motion to dismiss.

Should I try to get the Kustom Pro-Lite manual through a FOIA request? To whom should it be made?

Brendan's not the only pessimist. Personnally, I don't think ANY of your motions (with the possible exception of the "no subsection" argument -- which works occasionally) has merit.

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Quoting Quantum

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Motion #1
I move to suppress the 6.6 radar/lidar cert on lack of sufficiency. The technician attests to being certified to calibrate and test MPH and LTI products but does not attest to being certified or trained to perform calibration or testing of Kustom products, much less the Kustom Pro-Lite specifically.

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Case law, specifically, Bellevue v. Mociulski, states ONLY that the SMD technician must qualify as an expert "via knowledge, skill, experience, training, or education." IMHO, 30 years experience is sufficient to qualify him as an "expert". Once qualified as an expert, there is NO further requirement that an SMD technician receive training on the specific instrument he/she is testing.

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Quoting Quantum

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Motion #2
I move to suppress the officer’s statement on lack of sufficiency. There is no indication that the radar detector was tested before and after the citation. The officer only states that this was unit was tested at the beginning and end of his shift. According to the Kustom Pro-Lite manual this unit must be tested BOTH immediately before and after the stop was made. Courts have taken judicial notice that the prosecution has a prima facie duty to establish that the radar unit was tested and found to be operating properly at the site of and reasonably close in time to the arrest.

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Are you really going to lie to the court? I have NEVER seen an operations manual that specifies that a unit MUST be tested "BOTH immediately before and after the stop was made." Plus, your next statement about "Courts have taken judicial notice...." is just plain crap. ER 201 states that a judically noticed fact is one that "must be one not subject to reasonable dispute." The question of whether at "the beginning and end of my shift" is sufficient has not been addressed -- that I know of -- by a higher court. There is certainly no concensus within the scientific community. Therefore, such a statement is NOT a proper subject for judicial notice. BE VERY CAREFUL about misleading the court.

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Quoting Quantum

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Motion #3
I move to suppress the officer’s statement on lack of sufficiency. The officer states that he was trained on the use of Radar but he does not say that he is trained in the SPECIFIC USE of a Kustom LIDAR unit. Lidar has very specific requirements, in contrast with older microwave units. Further, he does not specify WHEN he was trained, by whom, nor the amount of his training. Based upon his statement, his training could have been 20 years ago, with no class work or any further training. Because of advances of technology, he could not know how to properly use the Kustom Pro-Lite system at all.

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WHEN the officer was trained is not really that important. Plus, you must have missed the part where he states, "I've been trained in the use and operation of this Lidar device and I am qualified to set up, test, and operate this Lidar unit." That would suffice, if I were the judge.

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Quoting Quantum

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Motion #4
I move for a continuance, that I may retain an attorney. There is no indication of which IRLJ subsection the ticket was issued for. Without knowing specifically which subsection I am accused under, it was not possible to formulate a defense and the ticket is not valid.

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Are you moving for a continuance to retain an attorney because there are no subsections? I don't fully understand....

IMHO, a deferral may be your best option, but I'll give you my opinion on other possible defenses.

First, in the officer's sworn statement, I'd attack the "boilerplate". For example, the "boilerplate" part of the statement says, "I was able to obtain a clear tone and reading of 42 at a distance of 411.1 feet. I had a clear and unobstructed view of the defendant's vehicle...." Yet, further down the officer lists the traffic as "HEAVY". If traffic was, indeed, heavy (which is a "fill-in" item, and, therefore, more reliable than "boilerplate"), can you imagine having a "clear and unobstructed view" of a car over 400 feet away (more than a football field, including endzones)? How would that be possible. Did ALL the "heavy" traffic just move aside long enough for the officer to visually estimate your speed, find your license plate through the lidar sight, and activate the device? And no other vehicles came between you and the officer that whole time? That hardly seems possible.

But, that's the problem with "boilerplate". It does NOT permit an "accurate" description of the actual event. Instead, it simply contains the "elements" necessary to obtain a conviction -- regardless of the reality of the situation. So, my questions would be, did the the officer REALLY have a "clear and unobstructed view" of your car through 400+ feet of "heavy" traffic? Was he REALLY able to visually estimate your speed while he viewed your car through 400+ feet of "heavy" traffic. Or are these "boilerplate" items simply necessary for a conviction and, therefore, included regardless of accuracy? If the distance had been short -- say, 40 feet -- it might be a different story. But, 400 feet in "heavy" traffic?

Next, is the lidar certification. As you yourself pointed out, this cert is almost two years old. How is the court to know that it is STILL valid. Nowhere on the certification does it indicate the expiration date, nor the frequency of the tests. Compare this to Bellevue v. Hellenthal, where the Supreme Court held (in describing why the certificate conformed to the requirements of IRLJ 6.6) that:

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Quoting Bellevue v. Hellenthal

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Each certificate also states that the company maintains a quality assurance testing, calibration, and certification program and that each speed measuring device is tested approximately each 12 months. Each certificate describes the testing program in detail and lists the specific radar instruments submitted to the company for evaluation.

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Without the testing frequency or expiration date being specified, how can the court know, for a fact, that the submitted certification is still valid.

Anyway, that's all I've got. I still think you should request a deferral.

Barry

Thanks for more ammo Barry. Two new draft motions, in addition to the others:

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Motion #1
I move to suppress the officer’s statement on lack of sufficiency. He states, "I was able to obtain a clear tone and reading of 42 at a distance of 411.1 feet. I had a clear and unobstructed view of the defendant's vehicle...." And yet further down the officer lists the traffic as "HEAVY", which it was. As traffic was indeed heavy, it was not possible to have a "clear and unobstructed view" of a car over 400 feet away, which is more than a football field, including endzones. How would that be possible? Did ALL the "heavy" traffic just move aside long enough for the officer to visually estimate my speed, find my license plate through the lidar sight, and activate the device? And no other vehicles came between me and the officer that whole time? If the distance had been short -- say, 40 feet -- it might be a different story. But, 400 feet in "heavy" traffic? No sir, my radar/lidar detector never even went off, and my personal belief is that this was solely a visual estimate of my speed.
Motion #2
I move to suppress the 6.6 radar/lidar cert on lack of sufficiency. This cert is almost two years old. How is the court to know that it is STILL valid? Nowhere on the certification does it indicate the expiration date, nor the frequency of the tests. Compare this with Bellevue v. Hellenthal, where the Washington Supreme Court held (in describing -why- the certificate conformed to the requirements of IRLJ 6.6) that:
"Each certificate also states that the company maintains a quality assurance testing, calibration, and certification program and that each speed measuring device is tested approximately each 12 months. Each certificate describes the testing program in detail and lists the specific radar instruments submitted to the company for evaluation."
Without the testing frequency or expiration date being specified, how can the court know, for a fact, that the submitted certification is still valid?

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Should I FOIA a certified copy of the lidar ops manual from the police? Although maybe I should instead subpoena ducas tecum it through the court instead, so if they don't provide it, there's my dismissal. Also I suspect that the certifying tech does not have the tech manual for the Kustom Pro-Lite. Maybe I should subpoena it from him to prove so?

I doubt I qualify for deferral as I said above, as I have a speeding from Dec '08, and a DWLS infraction and seat belt (really. nasty cop), Dec '09.

I do have a bit of new intel though: that lately Marysville has been following the example of Everett in marking speeding down to 'expired tabs' or 'seat belt', although in cases of a clean record. These are much better than 'inattention', which is close to reckless driving. I may only qualify through force of pressing this case hard. Also that seat belt and tabs tickets are not reported to insurance.

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Quoting Quantum

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I doubt I qualify for deferral as I said above, as I have a speeding from Dec '08, and a DWLS infraction and seat belt (really. nasty cop), Dec '09.

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From the cases I've seen, your past record RARELY has an affect on whether or not a judge will grant a deferral -- unless it is particularly egregious. Personally, I'd ask. If the judge says "no", then proceed -- you really have nothing to lose.

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Quoting Quantum

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I do have a bit of new intel though: that lately Marysville has been following the example of Everett in marking speeding down to 'expired tabs' or 'seat belt', although in cases of a clean record. I may only qualify through force of pressing this case hard. Also that seat belt and tabs tickets are not reported to insurance.

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I thought that seatbelt tickets ARE listed on your DOL record, but I could be wrong. I don't remember where I heard that.

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Quoting Quantum

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I gather that there's no use in FOIAing the lidar ops manual. Although if I do and they don't provide it, there's my dismissal.

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You don't really understand FOIA requests. IF the manual is available, and you request it, they are obligated to provide it -- as long as YOU pay for copying. However, there is NO TIMEFRAME for this. It could easily arrive a week (or a month or a day) AFTER your hearing. FOIA requests are usually handled in the order received -- on a time available basis. The fact that you want this for a hearing is of NO consequence. Believe me, their not providing it -- before your hearing -- is NOT grounds for dismissal.

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Quoting Quantum

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Also I suspect that the certifying tech does not have the tech manual for the Kustom Pro-Lite. Maybe I should subpoena it from him to prove so?

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Well, you'd be wrong. They most certainly have the manual. Perjury is a "criminal" offense. Would YOU take that chance if YOU were the SMD tech? You can call the certifying company and make an appointment to go there to view the manual, if you'd like.

As I said, ask for a deferral. As far as your defense, I'd give you about a 20 - 25% chance of success.

Sorry for the pessimism,

Barry

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Quoting blewis

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From the cases I've seen, your past record RARELY has an affect on whether or not a judge will grant a deferral -- unless it is particularly egregious. Personally, I'd ask. If the judge says "no", then proceed -- you really have nothing to lose.

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Frankly I don't see how I can go a year without a ticket, with all the enforcement going on to raise revenue, and the two true speed traps I've gotten caught in which were unfairly rigged speed limits. This is the only way they can catch me, by cheating. I drive for a living, installing satellite.

I have a friend who was in this particular municipal court a while back, when at the beginning of hearings the judge announced, "If anyone is thinking about deferral, you have another think coming..."

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Quoting blewis

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I thought that seatbelt tickets ARE listed on your DOL record, but I could be wrong. I don't remember where I heard that.

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I was told by the actual radar tech who calibrated my lidar that Marysville does not report 'seat belts' to insurance companies. He is often called as an expert witness, and seems to know his way around. He's also the one who told me Marysville is pleading down to 'seat belts' and 'tabs', following Everett's example.

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Quoting blewis

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You don't really understand FOIA requests. IF the manual is available, and you request it, they are obligated to provide it -- as long as YOU pay for copying. However, there is NO TIMEFRAME for this. It could easily arrive a week (or a month or a day) AFTER your hearing. FOIA requests are usually handled in the order received -- on a time available basis. The fact that you want this for a hearing is of NO consequence. Believe me, their not providing it -- before your hearing -- is NOT grounds for dismissal.

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No longer considering an FOIA, but a subpoena as it can get a dismissal if the police have lost the book. I've searched forms on the muni court website, but there is no subpoena ducas tecum.

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Quoting blewis

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Well, you'd be wrong. They most certainly have the manual. Perjury is a "criminal" offense. Would YOU take that chance if YOU were the SMD tech? You can call the certifying company and make an appointment to go there to view the manual, if you'd like.

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A little rough there. I actually went there and asked to see it, but was refused. This is why I suspect he doesn't have one.

Interesting. I don't want to hinder too much, but I did read your thing about a duces tecum.

I would like to add a little info about a duces tecum as your understanding may not be correct. A subpoena duces tecum has to be administered (also known as ordered) by the court. It's governed by CrRLJ 4.8.

If you are to move for a duces tecum to be made, then you NEED to do so ASAP. The clerk can help you on doing so. Basically, the only thing that prohibits the SDT to be administered is that the court may quash or modify the subpoena if compliance would be illegal, unreasonable or oppressive. Again, keyword there is "may," but if the SDT wasn't granted and "illegal, unreasonable or oppressive," wasn't explained then I'd seriously consider an appeal.

You need to move for a SDT to be administered. NOW, if you want to see that manual.

Brendan

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Quoting Quantum

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A little rough there. I actually went there and asked to see it, but was refused. This is why I suspect he doesn't have one.

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Actually they are probably following Kustom Signals example... so maybe you would need to subpoena the document...

"It is the policy of Kustom Signals, Inc., a private corporation, to not discuss any information concerning the internal functions or general operation of our radar and laser based speed measuring devices or any specific traffic situations.

Kustom Signals does sell operator's manuals (U.S. only) for specific models of radar and laser equipment. To obtain a manual, a signed court subpoena is required. The fee for each manual is $60 plus $5 shipping and handling. Manuals are shipped via U.S. mail. These manuals are protected under the federal copyright protection act and cannot be copied and are non-returnable.

Operation manuals describe how to setup and test the equipment. They do not discuss field operation or how the equipment responds in a specific situation. These are training issues and not covered in this manual."

Ya Brendan, I know the ducas tecum should be done right away; hearing is June 14th. I have to learn how to do it though since there are no court forms, and how to serve it on the police. Seems like its approval should be fairly mechanical by the court. I work 7 days a week to make a minimum wage living, and am trying to do this in my spare minutes.

jjb, I think it is implausible that the operator's manual does "not discuss field operation or how the equipment responds in a specific situation." What else is an ops manual for? Can't know unless I get it.

My satellite installer guy made about $30 an hour, plus travel time. Whatever it works out to be with lying around time, the kid was 19 and had a new house and car to go along with the girlfriend and baby.

If you're trying to argue this case on the technical merits of how LiDAR works, good luck. LiDAR tickets are the most secure form of ticket on actually judging a given target; unlike RaDAR, LiDAR can be targeted.

Now, Barry has already given you the best defense you have, which is to argue that the officer is simply arguing that at 400 some odd yards, he was within a margin to obtain a reading, but that in heavy traffic there was never any obstruction of your vehicle. If the conditions were such that he observed you long enough and then decided to LiDAR you, one must wonder precisely how heavy the traffic was. Bear in mind, though, that a LiDAR unit works differently than a RaDAR unit inasmuch as the LiDAR unit doesn't work off of radio wave; it works off of light. It is a laser which can determine the speed the of a vehicle within a second.

But the geometry required of your position with respect to the officer's during heavy traffic for him to have an obstructed view to get the reticule on your license plate and then squeeze the trigger is a bit puzzling to me. Especially since you're like 137 yards away.


Also available to you is to show that the officer's assertion that the zone was properly marked as being 25 MPH zone is false. To do this, you need only show that in any relevant section before where you were "caught", the speed was indeed not posted as 25 MPH; he has argued in his PC statement that you were on notice that the speed is 25 MPH in that area. If this is demonstrably false, then you have something to argue.

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Quoting Quantum

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Ya Brendan, I know the ducas tecum should be done right away; hearing is June 14th. I have to learn how to do it though since there are no court forms, and how to serve it on the police. Seems like its approval should be fairly mechanical by the court. I work 7 days a week to make a minimum wage living, and am trying to do this in my spare minutes.

jjb, I think it is implausible that the operator's manual does "not discuss field operation or how the equipment responds in a specific situation." What else is an ops manual for? Can't know unless I get it.

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An operations manual is a list of instructions on how to point the blasted thing in a particular direction and get it work. I have an operations manual on my microwave oven at home; nowhere in it is there an explanation of how a microwave actually works. It does, on the other hand, tell me how long to defrost a 20 pound turkey.

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Quoting ashman165

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My satellite installer guy made about $30 an hour, plus travel time. Whatever it works out to be with lying around time, the kid was 19 and had a new house and car to go along with the girlfriend and baby.

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Yeah the income can be like that if there's work. But we're only working like 2-3 days a week. Can't even make the rent.

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Quoting ashman165

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Also available to you is to show that the officer's assertion that the zone was properly marked as being 25 MPH zone is false. To do this, you need only show that in any relevant section before where you were "caught", the speed was indeed not posted as 25 MPH; he has argued in his PC statement that you were on notice that the speed is 25 MPH in that area. If this is demonstrably false, then you have something to argue.

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This is what is rigged, AFAIC. As you exit off I-5 onto 4th Ave the 25mph limit sign is right at the radius of the turn as you're trying to merge into traffic. Obviously you're watching for cars in heavy traffic at that point and anyone without two heads will miss the limit sign. I believe this is dishonest. A half-mile later the only other limit sign raises it to 35, and that's right where he got me. I even videoed the whole stretch to show to the judge that there are no limit signs.

So my question is, if this is intentional policy for raising revenue as it appears, how could arguing this possibly succeed?

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Quoting ashman165

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An operations manual is a list of instructions on how to point the blasted thing in a particular direction and get it work. I have an operations manual on my microwave oven at home; nowhere in it is there an explanation of how a microwave actually works. It does, on the other hand, tell me how long to defrost a 20 pound turkey.

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Yes, but your microwave manual does say how many minutes to cook and how to set up the turkey, as the lidar manual should say that a test should be run before and after a stop.

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Quoting Quantum

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This is what is rigged, AFAIC. As you exit off I-5 onto 4th Ave the 25mph limit sign is right at the radius of the turn as you're trying to merge into traffic. Obviously you're watching for cars in heavy traffic at that point and anyone without two heads will miss the limit sign. I believe this is dishonest. A half-mile later the only other limit sign raises it to 35, and that's right where he got me. I even videoed the whole stretch to show to the judge that there are no limit signs.

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Are you saying the signage is confusing, or improperly erected?

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Yes, but your microwave manual does say how many minutes to cook and how to set up the turkey, as the lidar manual should say that a test should be run before and after a stop.

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Nope. The manual simply tells me how to use the buttons on the microwave.
Also, it's not required for the officer to check the unit before and after each stop.

The logic goes a little something like: if the unit is working at some relevant time (usually the beginning of shift) and is working with equal accuracy at some other relevant time (say the end of a shift), then it's reasonably to conclude that the unit is properly functioning during the intervening period. It would be manifestly unreasonable to require an officer to check the equipment before and after each stop. That is to that it's not possible for one to check it immediately before each stop. What, he's supposed to test the device after each car he uses it on so that it'll be freshly checked for the next use to meet your criteria?

The (one) sign is improperly placed, as it is in the zone where all drivers have all their attention on the traffic, trying to avoid collision while merging. I believe this is intentional, although this is impossible to prove, and a contention like this would fall on deaf ears if it is intentional.

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It would be manifestly unreasonable to require an officer to check the equipment before and after each stop.

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This directly conflicts with what several others have said in this forum. And the assertion that a check immediately before and after the stop -is not in the manual- also directly conflicts. As I don't know who to believe I am trying to subpoena the manual, if I can only figure out how to do a ducas tecum in the few minutes I have each morning.

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Quoting Quantum

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jjb, I think it is implausible that the operator's manual does "not discuss field operation or how the equipment responds in a specific situation." What else is an ops manual for? Can't know unless I get it.

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Well, that is a statement I copied from Kustom Signals. I only put it out there because it may partly explain why you were not allowed to see the manual. From the manuals I have read from other Kustom Signals SMD products, I can say that I have not seen a manual say that the unit must be tested immediately before and after each stop. The Pro-Lite may be different. I have however seen how to preform the tests.

I also wanted to say that since the Pro-Lite unit is Lidar your detector may not see the light signal and that *could be* why it didn't go off...

I'd also like to point out Marysville Municipal Court local rule 1.3 http://www.courts.wa.gov/court_rules...palmunmar201.3 which says if you subpoena an SMD expert and loose or any other 3rd party witness you will have to pay there fees. Just FYI if you loose you could end up owing more than the original ticket...

I saw their statement on the website before you'd posted it, but thanks. Of course they want us to know as little as possible.

My radar detector is a Pasport 8500, and picks up lidar frequently, usually in a blast from an overpass by the Staties without a second to respond. Oh yeah, it gets lidar, and was silent that fateful day.

Not intending to subpoena any persons. Only the ops manual from the police, and the tech manual from Day Wireless, with an affidavit attesting to veracity and completeness of each. Haven't figured out how to structure it yet tho.

I just noticed that in the police officer's affidavit he refers to the lidar unit as the "Kustom Signals Pro-Lite LIDAR #PL26337", but in the 6.6 cert it is referred to as a "Kustom PRO LASER III PL26337". These are two different models. Which one is right? Is this enough for dismissal?

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Quoting Quantum

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I just noticed that in the police officer's affidavit he refers to the lidar unit as the "Kustom Signals Pro-Lite LIDAR #PL26337", but in the 6.6 cert it is referred to as a "Kustom PRO LASER III PL26337". These are two different models. Which one is right? Is this enough for dismissal?

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Personally, I'd JUMP all over that one! There are TWO possibilities: 1) Either the certification is for the WRONG unit (so your looking at a lack of foundation), or 2) the officer doesn't even know what kind of Lidar he was operating (and since he doesn't even know WHAT he's operating, how do we know he's operating it correctly).

Your chances just went up to about 75% -- IMHO. Great find!

Barry

agreed.....GREAT FIND!!!

Done. Put this in your pipe and smoke it:
Subpoena duces tecum
... also did one for Day Wireless. (the certifier) ...

{whistle} Uh, Mr. Po-lice, may I please have the custody records and manual for your LIDAR? Eh? You don't have that LIDAR?
Mr. Certifier, may I please see all calibration records for this LIDAR since 2008? What, you've never heard of it and there's no such device?

Wull... Mr. Judge, I don't see how can he could have shot me when the City doesn't even own that LIDAR and in fact this model doesn't even exist?

I have one last piece of advice -- lose the attitude! If you don't show anything but the utmost respect for the court, the police officers and the SMD experts, I'll guarantee you'll lose, and I don't care HOW good your case is. Just remember, judges can do ANYTHING they wish. Your only recourse, then, is an appeal, which will cost you another $200+, and there's STILL no guarantee you'll prevail.

SO, no sarcasm, no flippant remarks, no disrespect. Just present your argument in a clear, unemotional voice. You've got a good case -- don't blow it.

Just my $.02,

Barry

Understand Barry. I speak freely here, as we are letting it all hang out. You know?

My dialog above was made in a naive voice, which apparently does not translate through in a forum.