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  1. #1

    Default Pacing Ticket Defenses in Washington

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

    First off, I'd like to say thanks to Barry for the great sticky!

    I just received my discovery materials today. I scanned my request and received materials and posted them here. I have a clean driving record and this is my first citation. I had moved to Redmond, WA from upstate NY two weeks prior to getting pulled over and thus still had NY plates and a NY drivers license at the time (not sure if that's relevant).

    After reviewing the officer's statement, I have a couple questions. First, the officer states I passed him at the 5100 block of 520 to the W Lk Samm Pkway block of 520. However, he appears to contradict himself when stating that I passed him on his left at the 5100 block of 520. I may be nitpicking a little bit, but if I passed him on his left, he would need to change lanes and match my speed before he can state that he began pacing me, correct? I know exactly where he pulled me over, but I'm not actually sure when he started pacing me. I didn't even know he was behind me until I saw his lights. His statement does not specifically show when he moved behind me, although it does mention he "paced" me. I would like determine when he started pacing me so I could assess whether he paced me for 3/10 of a mile and followed proper pacing procedures.

    Second, the officer does not state how his speedometer was "certified" or mention that it has been maintained. Even though I requested maintenance and calibration records of the vehicle's speedometer, I did not receive such records. Is this enough to file for dismissal based on lack of evidence? If not, is there a way I can push to receive these records?

    Those are the two things that stood out to me, is there anything I missed? Also, I am able to give a written response by mail as long as the court receives it 7 days prior to my scheduled hearing. Would you recommend I write my response or go to court? If I can file for dismissal, is there a formalized way you recommend I do so?

    Thanks,
    Mark

  2. #2
    Join Date
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    Default Re: Pacing Ticket Defenses in Washington

    Hello Mark,

    Welcome to the forum. My personal experience in Redmond (KCDC-Redmond), is that the judge and prosecutor treat speeding tickets as if they are murder charges.

    My Advice 1. Print out Spokane Vs KnightSpokane Vs Knight
    2. Your honor, I move to suppress any speedometer certification not recieved with discovery, as per IRLJ 3.1(b): .
    "If the
    prosecuting authority, without reasonable excuse or justification, fails to
    provide any portion of the discovery prior to the day of the hearing, the
    portion of discovery not provided shall be suppressed. "
    Once suppressed, motion to suppress the officer's affadavit, due to lack of foundation (no foundation, as it is based on an uncalibrated speedometer, see spokane v knight)

    Once suppressed, motion to dismiss due to lack of evidence.

    Scan/post discovery though, there may be more.

  3. #3
    Join Date
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    Default Re: Pacing Ticket Defenses in Washington

    Dudesky, that motion will not work, since there is NO requirement to produce a speedometer certification through discovery. If, however, the certification is NOT produced at the hearing (and I don't see how it could, since there is no mention of the vehicle ID), OP, you can still move to suppress any evidence of speed due to lack of foundation. The authority for the motion is ER 901 (9). You can also cite SEATTLE v. PETERSON, 39 Wn. App. 524, 693 P.2d 757 (1985), if you feel comfortable doing so. Be sure to print out copies of both authorities and take them with you.

    Barry

    p.s. You're welcome.

  4. #4
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    Default Re: Pacing Ticket Defenses in Washington

    Now that I have a little more time, I can explain why Peterson is applicable, even though it discusses RADAR. Peterson ruled that ER 901 IS applicable to infraction cases where speed is determined by a "process or system". As ER 901 (a) states:

    Quote Quoting ER 901
    (a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
    In this case, the prosecution must assert that the speedometer of the patrol car is "accurate", since this was the only speed measuring device used to determine your speed. However, the ONLY evidence of the speedometer's accuracy is contained in the officer's statement:

    My patrol vehicle is equipped with a "certified" speedometer.
    This statement, however, should not be admissible. ER 602 requires that:

    Quote Quoting ER 602
    A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
    There is NO evidence that the officer conducted or supervised or otherwise had direct knowledge concerning the "certification" of the speedometer. As stated in STATE v. SMITH, 87 Wn. App. 345 (1997):

    Quote Quoting State v Smith
    Stated negatively, the rule [ER 602] bars testimony purportedly relating facts, when they are based only on the reports of others.
    However, even if the officer DID "certify" his speedometer, evidence would have to support the fact that the officer is QUALIFIED to make that determination.

    Anyway, I think you've got a pretty good shot at this one. Good luck,

    Barry

  5. #5

    Default Re: Pacing Ticket Defenses in Washington

    Thanks dudesky and Barry for the replies. Dudesky, I did scan and post my discovery materials, but it's probably my fault you missed them as I posted them in a somewhat hidden "here" link. Here's a more normal looking link:
    https://skydrive.live.com/?cid=3243b...C0EAF0E9%21480

    If I understand Barry correctly, even though I requested the speedometer certification and maintenance in my discovery request, the prosecutor is not legally obligated to provide me with such information. Thus, in the unlikely event that the prosecutor shows up at my case, he could introduce this evidence at the hearing. In the event he does try to introduce this evidence, I can have it suppressed because there is no evidence that the materials introduced match the vehicle used for my citation due to lack of a vehicle id? After reading Barry's latest clarification, I understand that not only would evidence of speedometer certification have to be introduced, but also evidence of the officer's qualifications to use the certified speedometer.

    Assuming no speedometer certification and maintenance records / proof of the officer's qualifications to use a certified speedometer are introduced as evidence, I can move to suppress any evidence of speed (including the officer's written statement that I was going 75-80 mph) due to lack of foundation per ER 901 (9). Then, can I move for dismissal due to lack of evidence that I was driving in excess of the posted 60 mph speed limit on SR520?

    Do you think this is a pretty airtight defense assuming I properly utilize the citations Barry has so helpfully provided me? If not, do you think I should dig more into the officer's description of when he began pacing me and whether he followed proper pacing procedures?

    In addition, both of you seemed to operate under the assumption that I would go to court. I take it that writing my defense and sending it to the court decreases my chances of having the case dismissed?

    Thanks again,
    Mark

  6. #6
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    Default Re: Pacing Ticket Defenses in Washington

    It's NOT the officer's qualifications to USE the speedometer that's at issue, it's the officer's qualifications to "certify" the speedometer. ER 602 only permits testimony based on "personal knowledge". So the officer's statement that the speedometer was "certified" can ONLY be based upon his personal knowledge of that fact -- not something he was told by others. That means he either certified it himself, or supervised or observed the certification -- none of which are supported by the evidence. ER 602 specifically states that there must be sufficient evidence, "to support a finding that the witness has personal knowledge of the matter." The officer's statement contains NO such evidence. It simply states that the speedometer is "certified".

    In proper order, you should first move to suppress the officer's statement that the speedometer was "certified", pursuant to ER 602. Then, move to dismiss evidence of speed based upon the speedometer due to lack of foundation, pursuant to ER 901. Then move to dismiss the case due to lack of evidence.

    Yes, I would give your case my HIGHEST rating -- 95% chance of dismissal (the other 5% is why we have appellate courts).

    Personally, I'm against DWS for reasons that I spell out in the sticky thread. But, that's not the issue here. This defense is based upon the requirement that the Rules of Evidence (ER 602 and ER 901) DO apply in infraction hearings (see IRLJ 3.3 (c)). However, IRLJ 3.5 (a), which governs Decisions on Written Statement, states:

    Quote Quoting IRLJ 3.5 (a)
    The examination may be held in chambers and shall not be governed by the Rules of Evidence.
    That means that this entire defense is moot. You MUST attend a formal hearing in order to use this defense.

    Barry

  7. #7
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    Default Re: Pacing Ticket Defenses in Washington

    Hi Mark,

    I just read your discovery. Your case will be heard in KCDC-Redmond. If "Mr Mitchell" is your prosecutor, then you will be prosecuted by the same prosecutor who got me. My experience: the judge and prosecutor were acting as if they were convicting the "sammamish river speeder", the coulsel didn't get a plea bargain from the prosecutor for any of her other cases (she brought 3 others with her). Even with council, the judge found that I committed the "infraction against humanity". That being said, the evidence against you is flawed, so you do have a chance, but whatever you do, declared written statement is not recommended.

  8. #8

    Default Re: Pacing Ticket Defenses in Washington

    Thanks again for your replies. My court date is coming up in a couple days and I've been reviewing the evidence and ERs provided by Barry. I've never been to court before and plan to show up a couple hours early on my court date so I can watch how things go. I plan to bring all documents I have received for the case in addition to printouts of Seattle v. Peterson, State v. Smith, ER 901 and ER 602. My plan is to say the following:

    1) Your honor, I move to suppress the officer's statement that his speedometer was "certified," pursuant to ER 602 which states that "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."

    2) Your honor, I move to suppress evidence of speed based upon the officer's speedometer due to lack of foundation pursuant to ER 901 (9) which states that "evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result."

    3) Your honor, I move to dismiss this case due to lack of evidence.

    If the judge questions the pertinence of ER 602 or ER 901 to my case, I will reference State v. Smith or Seattle v. Peterson respectively.

    Do you expect that stating the exact words from 1-3 would be sufficient? Is it necessary to quote the pertinent parts of the ERs or should I just make reference to them (I figured more is better than less when in doubt).

    Mark

  9. #9
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    Default Re: Pacing Ticket Defenses in Washington

    Mark,

    When I was watching attorneys in court, they quoted directly. The judge may also say "full citation please". You may also want to bring a printed motion to file. I will PM you the motion my counsel prepared for my case (which was found committed, but you are using an entirely different motion) so that you can prep a similar motion to file.

    Like I said, you are up against the city of Redmond. If Mitchell is your prosecutor, be prepared for the worst. Arrive early to court (consider 30+ minutes) and sit in the spectator box. When the judge goes out for a recess, consider approaching the prosecutor to strike a plea bargain. He may grant it to you, or may choose to take it in front of the judge.

    Also, let me know what happens to your case either way.

  10. #10

    Default Re: Pacing Ticket Defenses in Washington

    Thanks to Barry and Dudesky. I had my hearing this morning. I missed my prosecutors name, but it wasn't Mr. Mitchell, because she wasn't a male. Sorry, Dudesky but I didn't get your motion example until after my hearing. I basically just read from the points I listed previously. After the first two, the judge asked if I wanted to move for dismissal of the case and I said yes. The judge found that my accused infraction was not committed based on lack of evidence and dismissed the case.

    Thanks again!

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