Contested Hearing Violates IRLJ 2.6 1

[0179]

Case dismissed!

A million thanks to Barry, Brendan, Speedy. I will drink several Fat Tires to you all tonite!

I went to the hearings one hour before mine. Only one of several defendants was there and there were no troopers, officers, or prosecuting attorneys. I wore suit, tie and fresh shave. The judge pro tem described the preponderance of evidence concept. She declared that in contested hearings neither officer's nor defendant's testimony included 'lies' just differences which required her to identify the 'mistake'. She did not mention or offer deferrals.

The first defendant, contesting a 'following too close' citation, stood up and had no more than confirmed that the citing officer had not been physically present at the scene of the alleged infraction before the judge ordered the defendant to provide no further testimony as she (the defendant) was likely to incriminate herself. The judge without another word smiled at the defendant and dismissed the case.

I was called next and as I walked to the defendants table I said, "Your Honor, I have some motions that I'd like to make before you introduce the State's testimony." She nodded, I sat down and read from my notes:

"Your Honor, I move to suppress the state's LIDAR evidence as insufficient per IRLJ rule 6.6(c) and move for dismissal due to lack of evidence. The Speed Measuring Device certificate for the SMD tag number L1328 states in the past tense

On the date indicated in the incorporated document which follows, each SMD was tested using WSP procedures under the direction of an authorized SMD expert. The results were evaluated and certified by a WSP SMD expert to meet or exceed existing performance standards.

This is signed by the certifying official Mr. Anthony F. Hillock on January 11, 2012. However, Attachment A shows that the SMD was tested and certified for accuracy by Mr. Hillock on February 27, 2012. That means the SMD certificate was signed more than 6 weeks before the actual testing occured. Therefore the certificate is not valid and per IRLJ rule 6.6(c) since it is insufficient I move to suppress the state’s LIDAR evidence and move for dismissal due to lack of evidence."

I was so nervous my voice broke a couple of times and I had excruciating urges to swallow my words throughout the double motion. I was worried because the judge had slowly transitioned from a welcoming smile to a slight frown. She asked, "You are not contesting the validity of the two year timing of the SMD certificate are you?" I answered that I wasn't concerned with the two year certificate period directly but I questioned the certificate validity because the expert's signature predated the testing of the SMD. The judge looked around her and asked no one in particular, "Where are the court certificates and attachments?" I offered my copies and with a quick glance at them she said, "Your motion to suppress the certificate is granted. Do you have any other motions?" My heart sank because she hadn't granted the dismissal at what I thought was my strongest motion. I glanced down at my other motions (that are detailed in the above posts) getting ready to read them, and she repeated, "Now that I've granted you suppression of the evidence do you have any related motions?" I got the hint, she hadn't heard that I had originally moved to suppress and dismiss. I moved for dismissal due to lack of evidence, she granted and that was it.

[free9man]

Congratulations on the win!

[blewis]

Indeed! Congratulations! Thanks for the detailed explanation -- that's VERY valuable to others who are contesting on similar grounds.

Way to go!

Barry

[theaccused12]

Well done and congratulations! Thanks for the detailed explanation as I may have to use the same argument in my case.