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  1. #1
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    Jul 2011
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    Default Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

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

    I opened discovery and received both the officer's statement and the radar cert in the mail this afternoon.

    I have a few ideas about this case, I've been reading other threads, but will reserve any ideas I have until the people who actually know what they are talking about have a chance to check out the documents.

    Also, let me just say that the officer boldly misrepresented and changed my words to him in a few important instances, to his benefit, but I am not even going to get into that because when it is my word against his I don't really feel that I stand a chance.

    Is there anything in these documents that can be to my benefit?


    The documents are below:




  2. #2
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    Mar 2010
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    Your motions are as follows:

    1. Your honor, I move for dismissal. The entire sworn statement is written in third-person, and there is no factual evidence to suggest that the person who wrote the narrative is the person who signed it. For all we know, officer Tate could be attesting to a statement written by someone else. It certainly appears that way to the average layman.

    2. Your honor, I move for dismissal. The narrative suggests that he observed my speed to be 'in excess of the 25 MPH posted speed limit', but does not give his qualifications to estimate speed visually.

    3. Your honor, I move for dismissal. The sworn statement states that the unit was tested, but does not say WHO tested it. Since it is written in third person, there is no factual evidence to support whether officer Tate tested the unit, or someone else, thus there is no factual evidence to suggest that officer Tate had firsthand knowledge of the calibration results. If the officer has no direct knowledge of the calibration of the unit, he cannot attest to someone else's certification.

    4. Your honor, I move for dismissal. The narrative suggests that the radar was calibrated before and after every shift, but it is indefinite as to when it actually took place.

    5. Your honor, I move for dismissal. The narrative does not state what mode of operation that the radar had been placed in. If it was set to moving mode, it would not give an accurate reading of the speed of my vehicle. Since this information is completely omitted, there is no factual evidence to suggest that it was in the proper mode of operation.

    And... when the officer starts speaking in first person:

    6. Your honor, I move for dismissal. In the written statement, when the officer speaks in first person, the officer suggests that he paced my vehicle. He does not say how he obtained the "in excess of 35 MPH" reading. He does not mention any certification of the speedometer in the vehicle, whether or not he switched the radar from stationary to moving modes, nor any other evidence to suggest any way to determine how he arrived at this 35 MPH number.

  3. #3
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    Are the courts in Washington cockeyed enough to buy into that? Number 1 sounds like a complete waste of time. Number 4 sounds almost as hopeless. As for number 2, the officer's ticket is based on radar, so moving to dismiss based upon his visual estimate is also sounds like a waste of time.

    Number 3 is more interesting, as the affidavit suggests that the person who signed the affidavit supervises maintenance, but does not suggest that he performs it, nor does it identify how he verified that it was performed. You may be able to make something out of foundational and hearsay issues.

  4. #4
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    Quote Quoting Mr. Knowitall
    View Post
    Are the courts in Washington cockeyed enough to buy into that? Number 1 sounds like a complete waste of time. Number 4 sounds almost as hopeless. As for number 2, the officer's ticket is based on radar, so moving to dismiss based upon his visual estimate is also sounds like a waste of time.

    Number 3 is more interesting, as the affidavit suggests that the person who signed the affidavit supervises maintenance, but does not suggest that he performs it, nor does it identify how he verified that it was performed. You may be able to make something out of foundational and hearsay issues.
    Cockeyed? No. It's called they sign an affidavit/sworn statement that Washington allows the officer to submit in lieu of attending the hearing. If the affidavit/sworn statement cannot/does not authenticate things properly, then it is invalid. There is about a 60% chance that the officer screws up something on the affidavit/sworn statement.

  5. #5
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    I understand what an affidavit is. It's that most of your objections seem frivolous. My personal preference is to present meritorious defenses, rather than risking flooding the court with a torrent of bathwater and accidentally flushing away the baby.

  6. #6
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    I had a thought. Is there anything on the books in Washington that would allow me to pass in excess of the speed limit?

    I was passing only because I wanted to get out of the blind spot of the semi and wanted to do so before the lanes merged (we were towards the outskirts of town).

    Also, the officer's statement fails to mention the distance I was away when he registered me on radar. He also fails to mention the cars around me or even what lane I was in. Is this of importance? It seems like it would be, because it helps to determine the accuracy of the radar reading.

  7. #7
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    RCW 46.61.425 permits speeding while passing another vehicle (when that vehicle is going slower than the speed limit -- and the officer already noted that the semi was going 27), but only on a TWO lane road -- one lane in each direction. So, even if the truck were going 10 MPH, speeding to pass is still speeding.

    "Distance" is not a factor in RADAR -- only LIDAR (LASER) gives a readout of the distance. However, since the Python has a range of up to one mile -- it probably won't be an issue.

    The officer may not have mentioned how many cars were around you, but he does state that YOU were "faster" than the other cars. That's probably good enough.

    I also agree with Mr. KIA -- Speedy's argument #3 is the only one with any merit at all. I'd give it about a 20% - 25% chance. The others -- well -- maybe 5% TOTAL (or less) -- and you run the SERIOUS risk of ticking off the judge.

    Barry

  8. #8
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    Are there any other ideas for defenses for this that we haven't mentioned yet? Or anything that I can use to cite Mcouski (sp?)?

    If not, I will definitely go with Speedy's #3. Would it really hurt to then start reading off the other defenses Speedy made after, despite them being risky long-shots? I mean, I really don't have anything to lose, deferral is not an option, and what worse can happen? It is not like the judge will add on to my ticket? Or am I misunderstanding how the process works?

    I could also perhaps start with Speedy's #3 then explain the merits of the situation and why I thought it prudent for safety reasons to get out of the blind spot, mention I am a broke college-student with little means to pay, and see if he provides any leniency.

  9. #9
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    I would start with Speedy's #3 then go with his others.

    If you need Mociulski, here it is:
    “Your honor, 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 the device was NOT NECESSARILY TESTED (or supervised) BY THE PERSON WHO SIGNED THIS AFFIDAVIT! 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?

    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).

    Your honor, unless Mr. Nicholson or Mr. Hillock can show from DIRECT KNOWLEDGE that they themselves were the sole expert who tested the device, I move for dismissal.”

    That may or may not be a direct copy of one that Barry posted on another thread, but I am reluctant to find it. I used this exact wording a while back for a successful dismissal.

  10. #10
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    Default Re: Speeding Ticket in Washington State (Officer's Statement and Radar Cert Included)

    I would leave out #1, #4, #5, and #6 as they have NO merit:

    1) There is NO LAW that states that a document must be WRITTEN by the person who actually SIGNS it. By signing it, the officer attests to the veracity of the statements, NOT the fact that he/she actually WROTE the statements.

    4) The officer states that the unit was "checked before and after EACH duty shift". How is that not DEFINITE? Since there are NO duty shifts before and after which the unit is NOT tested, it CANNOT be an indefinite time.

    5) The officer states that he "was operating STATIONARY radar". That's probably good enough.

    6) Since a RADAR reading of 38 was the actual basis for the ticket, this argument that the officer "suggests" pacing is NOT relevant. OK, suppose the speedometer was NOT certified. So what? The vehicle's speedometer is not a necessary "foundation" for the introduction of "stationary" RADAR evidence.

    Argument #2 has, at least, SOME validity. However, since the ticket is based on RADAR -- NOT the officer's visual estimate -- I don't think it matters very much. However, some judges may find it a persuasive argument, so I'd probably mention it.

    Here's the thread about Mociulski that Brendan was referring to.

    Barry

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