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  1. #1
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    Default Discovery For a LIDAR Speeding Ticket

    Hi,

    This is my first time on this forum and I hope you don't mind me jumping in with a question.

    My question involves a traffic ticket from the state of: Texas, County of Tarrant, City of Mansfield.

    I was stopped in a 45MPH zone by a motor officer who claims to have my speed at 60MPH using his Laser device. I sent a letter to the court, officer, and city requesting discovery of multiple documents including officer notes, etc.

    They sent a letter back stating I was not entitled to this information through the Information Act and that I must seek info through Discovery. I then found a sample discovery motion online and modified it to fit my situation and filed it with the court.

    When my court date arrived, I went to court expecting to argue my case only to be met with an empty court save for the City Attorney playing God as he made jokes about people and their 'crimes' while he offered 'deals' to those who would accept. I was handed a document that gave me another court date for a 'motion for discovery'.

    What are they playing at? What am I supposed to do at a motion for discovery hearing? Is there anything I can throw at them at this hearing?

    Help!!!

    Thanks...
    rt

  2. #2
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Laser @ how far? Is that on the ticket? If not, you could argue they intentionally left off possibly exculpatory information. You could post a scan (linked to imageshack) with all identifying information redacted.

    It sounds like they are holding a hearing to see if the judge will allow discovery. If speeding is a criminal offense opposed to civil, then you should be entitled to something. Iowa for example, classifies speeding as a criminal offense but has a special provision that does not provide any discovery for simple misdemeanors.

    Read this to understand better.

    http://blog.motorists.org/what-every...ut-laser-guns/

  3. #3
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    Default Re: Discovery For a LIDAR Speeding Ticket

    I think I see the problem

    You filed a motion with the court, discovery motion. Courts are obligated to rule on motions & objections filed.

    You should have filed a request for discovery upon the opposing party (and not with the court --- most discovery requests are not filed with the court; sometimes a notice that discovery has been served is performed so that the court has it in the record that you did start discovery).

    So, file a request for discovery with the opposing party.

    you may wish to withdraw your motion.


    as far as a FOIA request; I think that they should also provide most of what you asked for under FOIA as well.

  4. #4
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    Default Re: Discovery For a LIDAR Speeding Ticket

    The ticket says 771 feet

    As I understand it, in Texas speeding is a criminal offense (a misdemeanor).

    Any ideas on how I should prepare for this discovery motion? I sent the letter/motion, but beyond that, I have no idea what I need to do to be ready for court. I'd love to be able to throw a motion to dismiss or some other technical thing at them during the motion since they are pushing the issue.

    Thanks,
    rt

  5. #5
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Quote Quoting rth
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    The ticket says 771 feet

    As I understand it, in Texas speeding is a criminal offense (a misdemeanor).

    Any ideas on how I should prepare for this discovery motion? I sent the letter/motion, but beyond that, I have no idea what I need to do to be ready for court. I'd love to be able to throw a motion to dismiss or some other technical thing at them during the motion since they are pushing the issue.

    Thanks,
    rt
    ? did you FILE a FOIA request. If denied, I would appeal it.

    A discovery REQUEST (not motion) should have a header similar to any other type of pleading (names, case #, place, date)...now if they do not reply or object then a motion to compel would be in order (you can ask for a dismissal as a sanction for failure to follow court rules but this is rarely done -- if you file a FOIA request as well, then this too may sway the judge). Do not file your request with the court. Insure you complete a certificate of service (basically an affidavit saying you mailed the request).

    ? did you file a motion for discovery with the court?


    It is rare to have a case tossed due to discovery issues; if you get a favorable ruling on a motion to compel the judge would give them time to complete discovery; after this date & no discovery then you would file another motion to compel asking for a dismissal as a sanction.

    You really want to get technical? See if the LIDAR model has been reviewed by a court in texas (commonly known as a Frye examination, after a federal case of that name). If it has not been, then you can object to any of its readings -- they may have looked at other LIDAR models but it technically is required to be "that model that was used"...search out on google scholar. If at court they say that a case has reviewed the unit, ask for the case citation and then ask for an adjournment to review the case (yet another day for the case to continue court likely - if granted).

    More technical? OK, say the unit has been Frye reviewed...then object to any certificate of calibration under Melendez-Diaz (SCOTUS) because the person who signed it is not there. The tester may have a test method that states: test unit, if % error is noted to be between 0-10% then record value as 1%. Melendez is a starting point, google scholar this case and find other cases that cite it.

    More technical? OK, you can argue that the Certificate of Calibration cannot be admitted due to foundation rules. There was a nice HI ruling on a speeding case that points out all the foundation requirements .. I forget the case citation though; a simple google scholar search should pop it up -- HI has few cases, and I think it was a HI supreme court case ruling so find that one.

    More technical? OK, insure that your cross of the cop shows that he is not an expert and then attack his training (visual training especially -- in TX can they convict you solely on this?? maybe, so you'll have to attack the officer's training in this area --- not hard to do but sometimes judges will try to stop the line of questioning -- I have had to argue with the judge that the line of questioning is appropriate as the state has made this a point of fact to explore).


    And time is an issue ... if your court date is earlier than 30 days then your discovery request will not be late at the date of the trial -- ask for a continuance. Why? Because you need to determine if you need an expert to review any documents received...I never had a judge deny a continuance based on this ground & if they did then I would object to any evidence (like the COC of the LIDAR unit) from being introduced.

    In my state, tickets are adjudicated under criminal rules of procedure. The rules are not hard to understand, you just have to know which rules apply to the particular case. It sounds like you are interested in pursuing this matter so I would recommend you get a copy of the TX procedural rules (may be both statue and practice rules that cover your case) -- or find them online --- practice rules are derived from statues & the statues prevail over the practice rules but there is rarely a conflict between the two but the statutes may have "rules" beyond the practice rules .. just so you know.

    And if criminal, can you ask for a jury trial? I don't think you would want to if you are looking for a technical out, as juries are mostly dumb when it comes to this stuff but the judge would be more strict in accordance to evidence rules; so it would be toss up -- I have gone with juries & with judges. I prefer judge because I can usually ask more questions.

    Finally, prepare for trial, not dismissal due to discovery as it rarely happens. Understand not to ask questions that can result in an answer that will hurt your case -- write your cross-examination questions down (you can read from your list of questions during trial) & understand what possible answers may result from the inquiry ... I have stopped questioning when the officer says something that kills his case (even if not accurate or he was just confused or he did not understand the effect of his answe; ex: Q1) did you witness where the defendant entered the highway? A: No. Q2: where, in relation to your position was the speed limit sign A: I don't know exactly but there are speed limit signs on the road --- BINGO, he could or did not testify that I passed a limit sign -- and and I was charged with violating a traffic control device, a speed limit sign , not charged with speeding ... I did not ask him if there was a speed limit sign between that last entry point and his position because he would have answered YES & I just hurt my own case ; instead I stopped my cross, the state rested & I motioned for acquittal & won the case).

    You generally win a speeding case via motions to strike & objections to the introduction of testimony & evidence during the trial and a good cross-examination.

    I have never seen one won due to discovery issues although I have seen judges admonish the DAs, I have never seen them dismiss the case just due to discovery not being complied with -- judges may limit evidence and testimony to sanction the DA but the case moves on (and even this is rare) .. mostly the judges just tell the DA "you should not have done that, now give the person copies of all the evidence you wish to admit". Seems unfair & against the rules but judges are given this much latitude in respect to discovery issues. So unless you know 100% that you'll be in front of a judge who acts differently than most then I would not count on a "discovery dismissal".

    Discovery is useful & I recommend people do it .... if they don't comply and they present evidence at trial of something you asked for & its anyway technical, then ask for an adjournment and insure that you do this before you cross examine anyone ... you'll need more than 10 minutes to review documents & the old "I'll need an expert to review these you Honor & I may need an expert to appear, so an adjournment under these circumstances is in the interest of justice".

    And object, object, object ... at least get these on the record .. quick simple objections (and don't argue with the judge after the objection -- just move on -- anything you do not object to is considered waved ~ even if the activity is unlawful) .. judges know that once they rule on an objection it is reviewable. Ex: I asked for discovery for a witness list (got nothing of course) & upon the officer being called, I objected, the judge denied it & the case moved on ... but I got the objection into the record -- I if would have lost the case then I may have grounds to reverse. Its a shotgun approach as no one (even lawyers) are up to date on case law -- heck there could have been a SCOTUS ruling the previous day regarding an objection I put forth that may help me in an appeal or at least in considering an appeal.

    I have never appealed a traffic case (others yes, not not traffic) but if I felt I got 100% railroaded at trial I may do; depends on how PUed I am.


    Finally, another GREAT tactic is to serve discovery, get no reply or objections and then I CALL the DA and ask if they have anything responsive to the request. (and prior to filing a motion to compel -- you MUST try to work out the discovery issues before you file a motion to compel -- this step is REQUIRED & must be noted in the compel motion's pleadings). If they say "no" then I am happy !!! Now if they try to introduce anything listed in the discovery then I have a GREAT objection as the DA was not only non-responsive, they lied...and almost all judges will not like this at all ... and about 75% will not let the evidence in at this point .. but the case moves on.

  6. #6
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    Default Re: Discovery For a LIDAR Speeding Ticket

    If the distance was not included, you could very well have raised that argument. 771ft is fair use of the device, something you don't see in every state. It's going to be near impossible to bring up the potential inaccuracies at that distance. As for the discovery, they are probably waiting for that court date to see what the judge says.

    The best you'll get from discovery is the brand of gun, when it was last calibrated. Maybe some extra notes. Really won't do much of anything, but it's worth a try. Would be very unlikely the calibration documents were outdated, but worth a try.

    Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.

  7. #7
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Quote Quoting lostintime
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    If the distance was not included, you could very well have raised that argument. 771ft is fair use of the device, something you don't see in every state. It's going to be near impossible to bring up the potential inaccuracies at that distance. As for the discovery, they are probably waiting for that court date to see what the judge says.

    The best you'll get from discovery is the brand of gun, when it was last calibrated. Maybe some extra notes. Really won't do much of anything, but it's worth a try. Would be very unlikely the calibration documents were outdated, but worth a try.

    Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.
    If the OP wishes to discuss the technical aspects of the measurement technique then the OP will need either a) an admissible copy of the unit's manual (via FOIA or discovery) and/or b) an expert.

    It would be crazy to hire an expert @ a cost of 5K minimum ... so if one can sway a judge in respect to writings in a manual then that is the way to go BUT a judge will give deference to any prior case law concerning the accuracy of the unit.

    I would ask to see the lidar & its "checking" facilities at the PD. The officer will testify that he did a distance check and delta distance check .. if the distance for the targets is correct is a question to investigate. Interestingly, one can ask the officer to detail the step by step actions he took when taking a measurement & check and see if it squares with the manual; if the manual is vague in its steps then this is not recommended ..

  8. #8
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Quote Quoting lostintime
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    Was it used on a tripod? Through the window? Those are things you could bring up, although from 771ft it's going to be difficult.
    Would you get off your silly tripod and window arguments? Seriously!

    There is not a single state in the union that requires the use of a tripod, and you're not likely to find a single officer who is as ignorant as to attempt to use a Lidar device through the window!!! Give it up already!!!!


    Quote Quoting rth
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    They sent a letter back stating I was not entitled to this information through the Information Act and that I must seek info through Discovery.
    I doubt that they said you're not entitled to the info via an FOIA request, but more likely that you are entitled to the info via a discovery request which will result in a more timely and relevant response.

    Quote Quoting rth
    View Post
    I then found a sample discovery motion online and modified it to fit my situation and filed it with the court.
    As far as I know, there is a difference between a discovery motion and a discovery request. If this is a criminal matter, then you may be required to serve a discovery request on the prosecuting attorney and file a copy of the same in court. If they failed to respond, or responded but failed to provide you with some or all items in your request, then you would benefit from filing a discovery motion with the court (and serving a copy of the same on the prosecuting attorney) so that you can appear before the judge and present your argument as to why you are entitled to the items in your request.

    I could be wrong about the procedures for Texas but the wording of the document that you filed with the court should reveal whether you are headed in the right direction or not. May be you can copy and paste what you included in that document (after redacting all personal information), and someone may be able to guide you further.

  9. #9
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Quote Quoting That Guy
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    I doubt that they said you're not entitled to the info via an FOIA request, but more likely that you are entitled to the info via a discovery request which will result in a more timely and relevant response.
    Actually, as I understood their letter, it is exactly what they said:

    Here is a quote from letter: " Pursuant to Section 552.3019d)(2) of the Public Information Act (the "Act"), we are required to inform you that the City believes the requested information is exempt from disclosure and has asked for a decision from the Attorney General about whether the information is within an exception to public disclosure."

    Quote Quoting That Guy
    View Post
    As far as I know, there is a difference between a discovery motion and a discovery request. If this is a criminal matter, then you may be required to serve a discovery request on the prosecuting attorney and file a copy of the same in court. If they failed to respond, or responded but failed to provide you with some or all items in your request, then you would benefit from filing a discovery motion with the court (and serving a copy of the same on the prosecuting attorney) so that you can appear before the judge and present your argument as to why you are entitled to the items in your request.

    I could be wrong about the procedures for Texas but the wording of the document that you filed with the court should reveal whether you are headed in the right direction or not. May be you can copy and paste what you included in that document (after redacting all personal information), and someone may be able to guide you further.
    I think you are right about this, though I did not know this when I first made my request. I simply sent a letter to the City, the officer, and the court requesting the information (I've attached a copy of the redacted letter).

    When I received the City's response denying my request, I filed a "Discovery Motion" with the court using an actual Discover Motion I found a sample of online. When I arrived at the prelim, I was served with a notice of a Discovery Motion Hearing that I was to attend. It is this hearing I am needing information about. What should I bring with me to the court? Can I make motions to dismiss at this hearing? If so, which ones?

    When I got the actual citation, I went to the court the next day and plead not guilty (had to sign LOTS of documents to plead not guilty) and they gave me a court date. I arrived at the court date and when I got there, there was NO Judge, No officer...just the city attorney, I guess this is what they consider a prelim??? I was then given 2 more court dates, one for the actual trial and one for the discovery hearing. This puts my trial more than 145 days from my original date I plead not guilty at the court. Can I do something about speedy trial? I know I'm looking for straws here, but I do appreciate anything you can suggest.


    Here is a link to both documents I mentioned: http://tinyurl.com/3jctjho

  10. #10
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    Default Re: Discovery For a LIDAR Speeding Ticket

    Those tripod ports on LIDAR devices must have just ended up there. They are silly, obviously serve no valid purpose. LIDAR procedure doesn't exist - but you know it's there.

    Sort of like Area 51.

    Another thing, that "TIPMRA" discovery template was never going to do much in the first place.

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