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  1. #21
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    Aug 2010
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    15

    Default Re: Just Received My Discovery

    Quote Quoting colemac65
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    your honor i would motion you to supress the SMD certification 6.6 affidavit as Mr. William Witt, who is employed as the city’s Lidar technician mentions 5 tests that the LIDAR must pass in order for the LIDAR unit to be considered in proper working order. The 1st test is the “Crystal Output Frequency test” This test is performed using a “Tektronix Frequency Counter” Mr Witt states that the counter is tested every 2 years to verify that it conforms to applicable National institute of Standards and technology standards. However, Mr Witt does not inform us that the counter is in fact accurate, in proper working order, or when the last time it was tested. Mr Witt does not inform us who tested it, nor does he certify that the Tektronix Frequency Counter was in fact in proper working order at the time of the test. We cannot factually determine that the LIDAR unit was in fact in proper working order without knowing if the key component of the test was in fact working properly. Or who calibrated teh techtronix frequency counter.

    If the judge grants your motion, motion for a dismissal for the lack of evidence.

    THIS ARGUMENT RECENTLY WORKED FOR MY STEPDAD>>>> IN SEATTLE MUNI!!!!!!

    The other aspect of the motion i agree is splitting hairs, but IMHO, it shows the judge that your no dummy and have done your homework....
    Thanks for spelling that out for me. I'll be going to court this week to observe, and my date is early December. IF this works out, I'll be insisting on buying you a beer. Thanks so much for your legwork.

  2. #22
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    Nov 2010
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    17

    Default Re: Just Received My Discovery

    Quote Quoting BrendanjKeegan
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    Cole, I hate to be a stickler, but I am gonna disagree. And I think the judge would see it this way too.

    He certifies under penalty of perjury on the first line of the affidavit. At the end of the affidavit, he dates it, places it and subscribes it.

    We see the following in the code:

    Key word here is MAY.

    This differs greatly from IRLJ 6.6 which states:

    The word MAY does not show up. Instead, we have the words, "IS admissible."
    I agree with @OP.

    Below is off the Washington State Courts Website
    http://www.courts.wa.gov/court_rules...eid=cljirlj6.6

    ... Good luck though. I have two ticket next week I'm fighting.

    IRLJ 6.6
    SPEED MEASURING DEVICE: DESIGN AND CONSTRUCTION
    CERTIFICATION


    (a) In General. This rule applies only to contested hearings
    in traffic infraction cases.

    (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:

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

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

    I am employed with _______________ as a _______________. I
    have been employed in such a capacity for _______________ years.
    Part of my duties include supervising the maintenance and repair
    of all electronic and laser speed measuring devices (SMD's) used
    by _______________ (name of agency).

    This agency currently uses the following SMD's:

    (List all SMD's used and their manufacturers and identify which
    SMDs use laser technology.)

    I have the following qualifications with respect to the above stated SMD's:

    (List all degrees held and any special schooling regarding the
    SMD's listed above.)

    This agency maintains manuals for all of the above stated
    SMD's. I am personally familiar with those manuals and how each
    of the SMD's are designed and operated. On __________ (date)
    testing of the SMD's was performed under my direction. The units
    were evaluated to meet or exceed existing performance standards.
    This agency maintains a testing and certification program. This
    program requires:

    (State the program in detail.)

    Based upon my education, training, and experience and my
    knowledge of the SMD's listed above, it is my opinion that each
    of these electronic pieces of equipment is so designed and
    constructed as to accurately employ the Doppler effect in such a
    manner that it will give accurate measurements of the speed of
    motor vehicles when properly calibrated and operated by a trained
    operator or, in the case of the laser SMDs, each of these pieces
    of equipment is so designed and constructed as to accurately
    employ measurement techniques based on the velocity of light in
    such a manner that it will give accurate measurements of the
    speed of motor vehicles when properly calibrated and operated by
    a trained operator.

    ___________________________________
    (Signature)

    Dated: ____________________________

    (c) Continuance. The court at the time of the formal hearing
    shall hear testimony concerning the infraction and, if necessary,
    may continue the proceedings for the purpose of obtaining
    evidence concerning an electronic speed measuring device and the
    certification thereof. If, at the time it is supplied, the
    evidence is insufficient, a motion to suppress the readings of
    such device shall be granted.

    (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.


    [Adopted as JTIR effective January 1, 1981; amended effective
    September 1, 1989. Changed from JTIR to IRLJ effective September 1, 1992;
    amended effective September 1, 1997; amended effective
    October 31, 2000; amended effective January 3, 2006.]

  3. #23
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    Aug 2010
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    15

    Default Re: Just Received My Discovery

    Quote Quoting colemac65
    View Post
    your honor i would motion you to supress the SMD certification 6.6 affidavit as Mr. William Witt, who is employed as the city’s Lidar technician mentions 5 tests that the LIDAR must pass in order for the LIDAR unit to be considered in proper working order. The 1st test is the “Crystal Output Frequency test” This test is performed using a “Tektronix Frequency Counter” Mr Witt states that the counter is tested every 2 years to verify that it conforms to applicable National institute of Standards and technology standards. However, Mr Witt does not inform us that the counter is in fact accurate, in proper working order, or when the last time it was tested. Mr Witt does not inform us who tested it, nor does he certify that the Tektronix Frequency Counter was in fact in proper working order at the time of the test. We cannot factually determine that the LIDAR unit was in fact in proper working order without knowing if the key component of the test was in fact working properly. Or who calibrated teh techtronix frequency counter.

    If the judge grants your motion, motion for a dismissal for the lack of evidence.

    THIS ARGUMENT RECENTLY WORKED FOR MY STEPDAD>>>> IN SEATTLE MUNI!!!!!!

    The other aspect of the motion i agree is splitting hairs, but IMHO, it shows the judge that your no dummy and have done your homework....

    Seattle Muni. My judge didn't like that argument. The prosecutor (viably taken aback by my request) stuttered and said that this is a certified copy that they give everyone in speeding cases, and that it's always been that way. The judge said that this creates a "looking into a mirror of a mirror of a mirror" scenario where we'd never get to the end of devices that need to be documented and that she had never heard this argument before. And that was it. She said the proper way to do this would be to subpoena Witt and question him. So she gave me a continuance to Feb 2.

    I think i'm calling a lawyer. This is getting ridiculous.

  4. #24
    Join Date
    Feb 2010
    Posts
    1,383

    Default Re: Just Received My Discovery

    They really wanted you to subpoena Witt? Do you remember the prosecutor's name? I've got someone in mind who really doesn't do the math on speeding cases... especially when it comes to subpoenas.

    Subpoenaing Witt (Pros. pays Witt $60+/hr at Ct). Multiply that by an hour or two: $120+.
    Add that to whatever the prosecutor has already spent on the case (45 min. x $40/hr) = $30.
    Total cost of this case: $150+

    I wonder if it's really worth that $4 they'll make off of you... hell, you can barely pay for a drink down here (FL) with that.

  5. #25
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Just Received My Discovery

    This is indicative of a problem with "technical" defenses -- the defendant is usually ill-prepared to argue beyond the initial motion. An attorney might have responded to the judge's comment about the "proper way to do this would be to subpoena Witt" something like:

    Your Honor, the prosecution has elected to avail itself of the privilege granted by IRLJ 6.6, namely, to submit an SMD certificate in lieu of requiring live testimony from the SMD expert. Since the Supreme Court allows an affidavit in lieu of testimony, I would submit that the affidavit MUST stand on its own. In point of fact, paragraph (c) clearly states, "If, at the time it is supplied, the evidence is insufficient, a motion to suppress the readings of such device shall be granted." IRLJ 3.3 (c) states that the Rules of Evidence apply to contested hearings. Mr. Witt COULD have indicated in his affidavit that he, personally, tested or supervised the testing of the Tektronix device. However, since he did not, his "testimony" violates ER 602, in that there is insufficient evidence to support a finding that he had "personal" knowledge of the testing. I would submit to the Court that the remedy for this "insufficiency" is dismissal, pursuant to IRLJ 6.6 (c), NOT a continuance.
    I don't know how well that argument would have worked in this case -- even if an attorney made it -- it all depends on the judge. Anyway, let us know how this eventually works out.

    Barry

  6. #26
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    Feb 2010
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    CT & IL
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    Default Re: Just Received My Discovery

    Quote Quoting jldaniel1
    View Post
    Seattle Muni. My judge didn't like that argument. The prosecutor (viably taken aback by my request) stuttered and said that this is a certified copy that they give everyone in speeding cases, and that it's always been that way. The judge said that this creates a "looking into a mirror of a mirror of a mirror" scenario where we'd never get to the end of devices that need to be documented and that she had never heard this argument before. And that was it. She said the proper way to do this would be to subpoena Witt and question him. So she gave me a continuance to Feb 2.

    I think i'm calling a lawyer. This is getting ridiculous.
    The requirement for you to gte the witness into court has been shown to be BS in the State of Mass. v Melendez-Diaz case. But you would need to convince the judge that melendez is relevant ... Crawford is another case. My argument was that the certs are issued to support convictions, your conviction of speeding and hence, Melendez is controlling. Courts in my state refuse to answer (or rule on melendez -- my state its criminal) this but rule that the certs foundations requirements have not been met. Now, in WA you have a right to conduct an investigation per court rules (read discovery rules--they limit formal discovery but open up the flood gate of "investigations". So, my advice is to ask the DA to produce the LIDAR tech for questioning before trial as part of your investigation & to ask that you examine any insturments he uses, facilities he uses in the prep of his cert. When they refuse (and they will) then motion to dismiss for the rule violation. And issuing out a subpenoa is not hard, go to the clerk's office (they need to sign off on it since you are not an attny). Its time to start playing hardball..an attny will not be your best advocate in this case only you will. Begin your investigation. Today. Good luck.

    Oh yes, and during your investigation, see if the equipment & facilities (ie range used with lidar distance readings) are calibrated (if not, & the tech is a HS graduate & not an expert in anything) then when the tech is on the stand then you cross him until he cries .... bring a 100ft tape measure with you to check the distance calibration ,.. & a video camera , nothing says you cannot video tape the investigation processes. If the equipment used to calibrate the lidar unit is not calibrated then the calibration is junk science. Prepare a list of Q to ask the tech for the trial ... you may get lost during cross w.o. it. You should ask Q that you know the answer to (from your investigation efforts).

  7. #27
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    Aug 2010
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    15

    Default Re: Just Received My Discovery

    Quote Quoting BrendanjKeegan
    View Post
    They really wanted you to subpoena Witt? Do you remember the prosecutor's name? I've got someone in mind who really doesn't do the math on speeding cases... especially when it comes to subpoenas.

    Subpoenaing Witt (Pros. pays Witt $60+/hr at Ct). Multiply that by an hour or two: $120+.
    Add that to whatever the prosecutor has already spent on the case (45 min. x $40/hr) = $30.
    Total cost of this case: $150+

    I wonder if it's really worth that $4 they'll make off of you... hell, you can barely pay for a drink down here (FL) with that.
    I don't, but I know it was a woman, and I could describe the heck outta her (I went in about 4 hours early to observe). She was generally very polite until I told her I would still like to fight the case in the pre-trial meeting, to which she said "oookay" with a "good luck, kid" tone.

    Quote Quoting blewis
    View Post
    This is indicative of a problem with "technical" defenses -- the defendant is usually ill-prepared to argue beyond the initial motion. An attorney might have responded to the judge's comment about the "proper way to do this would be to subpoena Witt" something like:



    I don't know how well that argument would have worked in this case -- even if an attorney made it -- it all depends on the judge. Anyway, let us know how this eventually works out.

    Barry
    That sounds good to me, though the initial argument did as well. I'm discouraged that "we've never heard that one before" serves as a good enough argument against my motion to deny it. No wonder everyone gets lawyers... watching how quickly they settled and dismissed cases with a person in a suit next to the defendant, it's obvious that the legal system is more about tradition and presentation than actual logic-based arguments (and I was dressed nicely, btw).

    And I really think I'm at the point of getting a lawyer and just settling it for a non-moving and paying the fine. I'd rather do that then possibly lose and look at catching this citation PLUS my deferred one (i was actually speeding that time, albeit 5 mph over) on my record all at the same time. It's just discouraging. I really thought we were on to something...

    Quote Quoting blewis
    View Post
    This is indicative of a problem with "technical" defenses -- the defendant is usually ill-prepared to argue beyond the initial motion. An attorney might have responded to the judge's comment about the "proper way to do this would be to subpoena Witt" something like:

    I don't know how well that argument would have worked in this case -- even if an attorney made it -- it all depends on the judge. Anyway, let us know how this eventually works out.

    Barry
    As a follow up to this thought process, barry, the judge said I'd be sitting in front of a new court and starting fresh. Because I like gambling (and winning), whats the hypothetical on taking the same defence I did with this one with my new judge, but then following it up with your statement here and just not subpoenianing Witt?

  8. #28
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    Feb 2010
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    CT & IL
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    Default Re: Just Received My Discovery

    Quote Quoting jldaniel1
    View Post

    As a follow up to this thought process, barry, the judge said I'd be sitting in front of a new court and starting fresh. Because I like gambling (and winning), whats the hypothetical on taking the same defence I did with this one with my new judge, but then following it up with your statement here and just not subpoenianing Witt?
    Any reason for not conducting an investigation? You may wish to get the SMD "expert" in court to disqualify him as an expert.

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