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  1. #1

    Default Moving Violation Washington State

    My question involves a traffic ticket from the state of: Washington

    I got a ticket for 65 in a 60. Officer alleges that he had a reading of 73 in a 60. I used the discovery letter on this website to file for discovery. Here is what the prosecutor mailed to me. I don't see anything promising but I'm not expert on these things. He says he had a reading at a distance on 924 feet. Seems like a long range reading ~1/5 of a mile in medium traffic...

    Can anybody help?








  2. #2
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    Default Re: Moving Violation Washington State

    I don't know if this will be heard in front of Anderson or Smith. I assume Smith, but could be wrong. Either way, I've seen Smith accept this argument, so I don't see why Anderson wouldn't.

    https://fortress.wa.gov/wsp/smdsearc...tionPrint/2800

    According to that document, there is testimony that the device was found to be working properly on 1/11/2012, but the tests were performed on 3/19/2012. How could the certifying official know that it would pass? Move to dismiss as the testing was not completed after the fact.

  3. #3

    Default Re: Moving Violation Washington State

    Wow! Thanks a lot will do! I'll let you know which judge hears the case and if they accept that argument. Makes sense to me. How can their expert certify it three and a half months before it was tested...

  4. #4
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    Default Re: Moving Violation Washington State

    Quote Quoting BrendanjKeegan
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    I don't know if this will be heard in front of Anderson or Smith. I assume Smith, but could be wrong. Either way, I've seen Smith accept this argument, so I don't see why Anderson wouldn't.

    https://fortress.wa.gov/wsp/smdsearc...tionPrint/2800

    According to that document, there is testimony that the device was found to be working properly on 1/11/2012, but the tests were performed on 3/19/2012. How could the certifying official know that it would pass? Move to dismiss as the testing was not completed after the fact.
    The documents signed by the engineers on 1/11/2012 simply state their qualifications and their professional opinion that, when calibrated, the devices are accurate. The actual calibration for the device doesn't occur until the date specified on page 5. If you can get a judge to go for that argument, then by all means go for it, but any judge that actually reads the certification document will see that there's no merit to it.

  5. #5

    Default Re: Moving Violation Washington State

    Hmmm. That's an interesting note.

    But if I read the statement, the final sentence on the top of the second page of Hillock's statement is:

    "The units WERE evaluated and certified by a WSP SMD Expert to meet or exceed existing performance standards and entered into the WSP SMD-Certification Management data base."

    Emphasis added with the WERE capitalized. But according to my reading of his statement, he is saying on January 11th, that the devices WERE evaluated blah blah blah. But the device was not actually evaluated until the end of March. So his statement is not accurate.

    Thoughts?

  6. #6
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    Default Re: Moving Violation Washington State

    Quote Quoting SpeedySeattle
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    Hmmm. That's an interesting note.

    But if I read the statement, the final sentence on the top of the second page of Hillock's statement is:

    "The units WERE evaluated and certified by a WSP SMD Expert to meet or exceed existing performance standards and entered into the WSP SMD-Certification Management data base."

    Emphasis added with the WERE capitalized. But according to my reading of his statement, he is saying on January 11th, that the devices WERE evaluated blah blah blah. But the device was not actually evaluated until the end of March. So his statement is not accurate.

    Thoughts?
    It's a little weird -- The bit you quoted is preceded by "On the date indicated in the incorporated document which follows [(Attachment A)], each SMD was tested using WSP procedures under the direction of an authorized SMD expert." To me, the intent of that paragraph is just attesting that every SMD tested follows WSP procedures.

    However, you might be able to make a case that the tense is ambiguous, but I wouldn't bank on it.

  7. #7
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    Default Re: Moving Violation Washington State

    ^^LOL. This guy.

    No merit? Hardly. OP: You hit the nail on the head. All statements on the SMD cert are in the past tense. You can't say, "I brushed my teeth tomorrow." Testimony needs to be ex post facto. Otherwise Tom Cruise's "Minority Report" would be a reality. When's your court date and who is hearing it?

    I can see it now: "Your honor, the prosecution can prove that the breathalyzer was working properly. See? Mark Richards testified that the device was to be tested on March 9th."

    Failing that, a standard Bellevue v. Mociulski argument in front of most judges in KCDC seems to do the trick.

  8. #8
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    Default Re: Moving Violation Washington State

    Quote Quoting BrendanjKeegan
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    ^^LOL. This guy.

    No merit? Hardly. OP: You hit the nail on the head. All statements on the SMD cert are in the past tense. You can't say, "I brushed my teeth tomorrow." Testimony needs to be ex post facto. Otherwise Tom Cruise's "Minority Report" would be a reality. When's your court date and who is hearing it?

    I can see it now: "Your honor, the prosecution can prove that the breathalyzer was working properly. See? Mark Richards testified that the device was to be tested on March 9th."

    Failing that, a standard Bellevue v. Mociulski argument in front of most judges in KCDC seems to do the trick.
    I've read some of the other threads where you offer that advice, and, quite frankly, I'm shocked that it works. However, since it does seem to work, the OP should by all means use it.


    ----going into a debate with BJK over this----

    The actual calibration certification isn't until page 5, which states that the certification took place on 3/19/12.

    The last line prior to the signatures says "This certificate describes the WSP Speed Measuring Device program, effective from date signed until updated or superseded", which [to me, anyhow] implies that just because the document was signed on 1/11/12 doesn't mean that any SMD calibration after that is invalid.

    It seems like anyone who has gotten an ESMD speeding ticket in Washington could have their case dismissed using your defense, since the WSP (or whoever issues the certificates) for some reason abandoned the template in IRLJ 6.6 for this modified version.

    As for Bellevue v. Mociulski, would you mind explaining how that argument would go? I read the decision, but I don't see how it'd apply to the OP. The experts testify to their qualifications, and the "Certified By:" line on page 5 says that it was one of the experts who certified it.

  9. #9
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    Default Re: Moving Violation Washington State

    I admit to being somewhat naive...but it seems pretty clear to me....

    There is no testimony under penalty of perjury by either Nicholson or Hillock stating that either has performed, witnessed, reviewed, directed, supervised or in any way whatsoever participated in conducting the requisite tests on the particular SMD in question - let alone testimony that it was either one of them who "entered those test results into the SMD-CM data base".

    Lacking such sworn testimony, Attachment "A" (which itself bears no signature of either expert) is inadmissible under ER 602 (lack of personal knowledge) and/or ER 802 (heresay)

    Without Attachment "A" there is no evidence that the particular SMD has been properly tested & "Authenticated"

    I would think a motion to suppress the SMD Certiication under ER 602 and/or ER802 would have to be granted leading to dismissal of the alleged infraction for lack of foundation.


    hd

  10. #10
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    Default Re: Moving Violation Washington State

    I see where you and BJK are coming from, but it seems remiss of the state to allow a loophole of that magnitude. Under that logic, any SMD-issued speeding citation would have to be dismissed, assuming that argument was brought up.

    To me, the testimony under penalty of perjury is fulfilled with the signatures in the expert statements. When those are combined with the "effective from date signed..." statement (note that this was an addition to this version, i.e. not originally found in IRLJ 6.6b), that seems to be a sort of perpetual testimony, which allows the engineers to avoid having to print out and sign their engineering statements every time a device is certified. Their signatures are testimony that until the procedures set in pages 1-4 are changed ("updated or superseded"), all SMDs calibrated by either one of them are calibrated following that procedure.

    Then you go to Attachment A, which is the database record. The signed certificates say that the only way those are entered into the database is "under penalty of perjury by entering an authorized user ID and password." Now true, it doesn't say that either one of them entered the results into the database, but it does say that one of them did the certifying. When you combine the name of the engineer, combined with their perpetual testimony discussed in the last paragraph, that seems like something the judge should accept as valid testimony (not dismissable due to 602 or 802).

    Again though, I'm not an expert, and since the argument seems to sway the judges, by all means go for it, which leaves this discussion as purely academic.

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