Washington Speeding Ticket

[blewis]

For what it's worth, I also posted this argument on another thread (which you're certainly welcome to read in its entirety), but it relates to SMD certifications which are almost identical to yours (also from Nicholson and Hillock):

I have also noted one more item, if the above motions fail. According to BELLEVUE v. MOCIULSKI, 51 Wn. App. 855, 756 P.2d 1320 (1987):

Before the machine is deemed reliable, the witness testing the machines or monitoring the testing must first show his/her qualifications to make and/or evaluate the tests. The witness must first qualify as an expert via knowledge, skill, experience, training, or education. ER 702. After the witness has qualified as an expert, he/she must show that the machines passed the requisite tests and checks. Only then can the speed measuring devices be deemed reliable.

According to Mociulski, the "expert witness" MUST be the one who performs or supervises the testing. However, in the radar certification you have, two different SMD experts -- Steen Nicholson and Anthony Hillock -- both present their qualifications, showing their training and experience. Both seem to be quite qualified.

However, BOTH certificates then state: "On the date indicated in Exhibit "A" which follows, each SMD was tested under the direction of a certified SMD expert". That means that your device was NOT NECESSARILY TESTED (or supervised) BY THE PERSON WHO SIGNED THE AFFIDAVIT!

Therefore, the person who did the testing was NOT the person who signed the form as REQUIRED in Molciulski and ER 602 (no personal knowledge).

There is no way to tell exactly WHO did the testing. "[W]as tested under the direction of a certified SMD expert" is NOT NECESSARILY the person who "signed" the certificate. In fact, since both "SMD experts" use the words "I" and "me" when discussing their qualifications, why would they refer to a "certified SMD expert" when discussing the actual testing.

If you read that entire thread, you'll see that the poster DID NOT cite the Molciulski case in court, as I suggested, and lost. I can't tell you how critical it is to have an "authority" to cite in order to bolster your argument.

Oh, Brendan, remember -- to make the images larger hold down <CTRL> and press "+".

Barry

[BrendanjKeegan]

Well... I have a mac... so it's the pinch thing... but it was at such a bad resolution that I couldn't read it. Pixelated images suck. (and yes, I'm waiting for the "macs suck" statement from you.)

[blewis]

Mac's don't "suck". They "sip" a little, that's all.

Barry

[BrendanjKeegan]

Sip? Haha. Not gonna lie, you got a smile off of that one.

[Gravity]

OK, court date coming up in a couple of weeks. I read the Bellevue V Mociulski case. Thanks for the link. I'll be sure to print out 3 copies of the entire Bellevue V Mociulski case and highlight the appropriate parts.

• Do I make a motion to suppress the LIDAR evidence before the officer speaks or as the first thing that I say when the officer is done?

Back-up plan: In case that fails, I'll need to argue some technical aspects of how the radar was operated.

The argument I'll need to make is that at 430 feet the beam diameter plus scope error tolerance makes the van that was passing me at less that 36" to my right just as likely to have been targeted as me. In order to do this, I need the beam diameter and scope tolerance.

• Has anyone actually gotten a LIDAR manual from the WSP? I'll need to look into that on Monday.

I've thought of cross-examining the officer on this. The officer's affidavit says that scope alignment check was done and the SMD expert's affidavit says there are four calibrations ("accuracy checks"), including "Head up display aiming reticle checks". The tolerance for these checks isn't given, so I could ask the officer what the tolerance is. If he doesn't know, than how can he know the tolerance is tight enough to distinguish between a van and a motorcycle at 430' with less than 36" of separation? If he does know the tolerance and it is anything more that .25 degrees, than he's proven my point.

• Does this sound reasonable? Any suggestions?

[blewis]

Oh my! You subpoenaed the officer? That may have been a HUGE mistake. But, I guess if he doesn't show up, you've got an easy dismissal. The problem is that if the officer DOES show up, you will almost certainly lose -- if the Mociulski argument fails. BTW, officer's are NOT expected to know the details of the laser unit -- only how to operate it. Whether he knows the "tolerance" of the aiming reticle is irrelevant. As long as he USED it properly -- as he was trained -- is all the court will care about.

Barry

[Gravity]

nononono! I didn't subpoena anyone! I've read the advice on the board. I'm simply assuming that the officer will show up -- officers with a 93% ticket rate don't blow off court dates.

Whether he knows the "tolerance" of the aiming reticle is irrelevant. As long as he USED it properly -- as he was trained -- is all the court will care about

I disagree...how can one use a piece of equipment properly if one doesn't know the limitations of the equipment? But, I shouldn't ask questions that I don't know the answer to which is why I have to look into getting a hold of a manual myself.

[lurkertom]

If trooper Hoggat does not show then the judge will rely soley on the officer's affidavit. You need to somehow convince the judge that the van travelling in the lane next to you was (most likely) targeted (because of its size) and you only pulled over because you saw the cop behind you. The boilerplate in the affidavit is vague. The ticket was filled out after you were stopped. Be firm in your testimony and you may create enough doubt in the judges mind for him to find in your favor. If the trooper does show up then have a list of questions for him about traffic and weather conditions at that particular moment.

[Gravity]

WOOT! Found what I was looking for. http://tipmra.com/kgb/WEB/general/ProLaser%20III_om.pdf

On page 22 there is a description of the HUD aiming check:

First, check the alignment of the HUD aiming reticle.
Select an isolated target about 100 or more feet (30
meters) away, such as a stop sign, utility pole or overhead
power wire. Slowly sweep the ProLaser III across the
target and observe that the proper range is displayed only
when the target is within the reticle area, indicating lateral
alignment. (Listening to the audio “chirp” indicating
reflection of laser pulses is helpful when using overhead
wires.) Rotate the ProLaser III so that it is at right angles
to its normal operating position, (positioned on its side)
and repeat the process to verify vertical alignment.

A stop sign is just over 30" across, which means the beam could be 15" off from the aiming reticle when centered on a stop sign. Using the calc here, this translates into an aiming error of +/-.716 degrees. My speed was measured at 430', at which distance the reticle could be off by +/-5.37 feet!! Add to this the fact that the beam width at 430' is almost 12", and the beam could be as much as 6' from where the reticle is centered.

I know that I've indicated the worst-case scenario, but given the fact that I was on a motorcycle with a front fairing width of 26" and travelling approximately 36" from the faster vehicle, I have quite a bit of wiggle room.

So, I'll start off with challenging the hearsay of the certification and if that fails try the "He didn't target me, he targeted the other guy" defense. Only, I think the numbers back up that defense nicely.

[gkim1985]

The officer's statement seems to be lacking. I've used this argument in court before and won. The officer's statement does not state WHO performed the checks of the LIDAR to make sure it was in proper working order. As he does not state that it was him that performed the checks, it amounts to hearsay and would be inadmissible.
I'm not sure if this matters or not but by him stating "the trooper" is trained, this may seem to be vague as well. Since it is him who signed the statement, which trooper is he referring to? Seems odd that he would state it in third person. Anyways, the first argument SHOULD work.