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  1. #21
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting MoMoney
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    He signed and affixed his badge number to them under penalty of perjury. Seems like he intended them to be his sworn statement - the PA realized that they couldn't convict w/ such paltry statements and had them redraft.



    State v Smith is different, that's multiple officers each submitting one report as they're potentially entitled to do. That said, it's possible that the rules weren't written to consider that possibility at all. "The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing..."

    In the same vein, if they personally appeared, they'd each have the opportunity to testify once. If the prosecution attempted to recall them because they realized for instance that they forgot to elicit testimony for one of the charges, defense would have an opportunity to object or this could be impossible as the released officer could have left. Here we have a single officer being able to complement, an unlimited number of times, his initial report/testimony. Likewise, if the officer's appeared personally, their written statements aren't used as evidence - the officer get's one testimony.

    Than again, I could be completely off-base here.
    Seriously, Dude, you came here 54 posts ago asking for help. Now you think you're an expert? If you're going to express an "opinion", at least say that it's only YOUR opinion. Don't come across like you're an "expert" on WA traffic law. You don't even have the courtesy to include the entire cite (e.g. "State v Smith"), so we have some idea what you're talking about. If you're talking about State v Smith, 87 Wn. App. 345, 941 P.2d 725 (1997), that deals with ER 602 and how an officer cannot rely on some "telling" him that the ATSM marks are, indeed, at 1/2 mile intervals, it simply goes to proving that you're wrong, since BOTH officers submitted sworn statements.

    The court rules were written to accommodate RCW 46.63.030 (2) which states:

    Quote Quoting RCW 46.63.030
    (2) A court may issue a notice of traffic infraction upon receipt of a written statement of the officer that there is reasonable cause to believe that an infraction was committed.
    You think you're an expert? Well, I think you're wrong.
    Where am I going? And why am I in this handbasket?

  2. #22

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting BrendanjKeegan
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    This is quite an interesting discussion we have going on here with the recall issue. Although I think that it is a losing argument, it is interesting to point out that case law seems to favor MoMoney's argument that it is similar to recall and suspicious. In any event, you could bolster your argument with a good amount of case law (Washington would be better if you could find it, but the federal courts can be quite convincing in procedural issues). A quick google search gave me this. Section 899.

    However, as a Prosecutor, and I'm not saying that there will be one in Grays Harbor (in fact I don't think they wouldn even care to show up), I would argue that the officer's report falls into ER 612 - writing to refresh memory. The officer's signature at the bottom isn't an indication that this is his full testimony, only that he is crossing his T's and dotting his I's to ensure that the case isn't dismissed per 9A.72.085.

    Arguing the recall issue is definitely worth it though. I'd like to see what the judge says. For whatever it's worth, I think you have a strong case in the fact that the officer failed to mention the correlation between the patrol speed window and the speedometer.
    Thanks Brendan, appreciate your thoughts! I will definitely report back on what happens, and will argue all angles to have the ticket dismissed.

    I also did as was suggested on these forums and went into court today just to listen and get a feel for the contested hearing proceedings. Here's what happened on this day in #2 Grays Harbor District Court...

    First several defense attorneys simply made deals with the prosecutor for reduced fines, or withdrew the request for contested hearing in favor of paying the fine... (and to think someone paid to hire them for that...)

    Then one lady had a contested hearing where she represented herself, and boldly subpoena'd both the officer, and a SMD expert, and a friend of hers, with no defense strategy whatsoever. She kept bringing up irrelevant things like how long the officer was following her before she was pulled over, or whether he remembered anything unusual and specific about her car. She asked the SMD expert all sorts of questions about whether the speed reading would "time out" after a while in locked mode. It was sad and strangely amusing at the same time. The judge pointed out that "beyond a reasonable doubt" applied to criminal cases, not traffic tickets, where the burden of proof is simply "more likely than not." She did not win her case.

    The last case was the only helpful one... the attorney made a preliminary motion to dismiss based on the officer's statement not mentioning testing the SMD device before and after the traffic stop. The prosecutor argued that this applied to weight not admissibility. However the judge granted to motion, and said that he always does that in case of such a defense, because it's an "authentication" issue.

    I didn't understand all of this, but I'm curious as to whether the SMD really needs to be tested before and after the traffic STOP, or if the beginning and end of the day is sufficient (as described in the statement submitted in my case.)

    Also I learned that the state prosecutor, as a mater of policy, will not make an appearance in contested hearing where the person has not hired an attorney. So although the cooky lady had called everyone she could to the witness stand, and the state prosecutor was sitting five feet away, he said he was "not present."

  3. #23

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Jeez Barry, I must've ruffled some feathers. For the record - I'm not a WA State infraction court legal expert, I never claimed to be, and I never claimed to nor provided legal advice. If I came off pretentious or you felt I undermined you, that I wasn't my intention...

    Seriously, Dude, you came here 54 posts ago asking for help.
    Yes, anybody can see my post count. And to top it off, I'm still not above asking for help as I did from experts here several weeks ago. I don't see how asking for help should preclude me from making posts where I'm not groveling for assistance, but if you really thinking I've provided a disservice and that you've got something better for them - I know they'll appreciate hearing it, as will I.

    If you're going to express an "opinion", at least say that it's only YOUR opinion.
    "You might try to argue... No promises on how well this might work - but very interested in hearing your results if you try it out." (1st post)
    "Interpreting "any" as singular is tenuous ground and a prosecutor's presence can change everything." (3rd post)
    "Than again, I could be completely off-base here." (4th post)

    Let me know how I can make it clearer that what I'm saying is only my opinion - I'll defer to your expertise. [Honest statement, not sarcasm or whatever]

    You don't even have the courtesy to include the entire cite (e.g. "State v Smith"), so we have some idea what you're talking about. If you're talking about State v Smith, 87 Wn. App. 345, 941 P.2d 725 (1997), that deals with ER 602 and how an officer cannot rely on some "telling" him that the ATSM marks are, indeed, at 1/2 mile intervals, it simply goes to proving that you're wrong, since BOTH officers submitted sworn statements.
    Let's clarify real quick, I argued that there should not be multiple sworn statements from a single officer on the record. JoJo raised the concern of speed traps from airplanes. I inferred that he was talking about State v Smith, as I assumed he doesn't have personal experience here. I didn't see a need to fully cite it as I assumed the person I was talking to drew from that reference themselves - my apologies.

    As far as proving that I was wrong - I don't see how so. The appeals court will only consider the issues that are before them - Smith never raised an issue about there being multiple reports, one from ea officer, so the appellate court didn't even address it. Even if he had, Smith / JoJo's hypothetical deals w/ multiple officer's each submitting one report. We don't know how the court would've ruled on this issue as it was never raised before an appeals court or the supreme court - The issue here is one officer, submitting one report, and then submitting an entirely different one as his memory of the incident drastically improved over 6 weeks. It's my opinion that our rules and statutes don't accommodate this behavior.

    RCW 46.63.030 (2)
    I can see what you're getting at. That said, I don't think the argument hurts, or that this particular subsection is a nail in the coffin for my opinion.

  4. #24

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting blewis
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    Seriously, Dude, you came here 54 posts ago asking for help. Now you think you're an expert? If you're going to express an "opinion", at least say that it's only YOUR opinion. Don't come across like you're an "expert" on WA traffic law. You think you're an expert? Well, I think you're wrong.
    Wow, Blewis, that was really harsh. I don't think MoMoney pretended to be an expert or a lawyer, just trying to help someone new and nervous about the legal system. Even BrendanjKeegan agreed it was an interesting argument and worth a shot. It doesn't hurt to try.

    I agree that if you have a better suggestion as to how to defend in this case, please by all means give me your suggestions as someone with over 3,000 posts to your credit. My contested hearing it tomorrow...

    Thank-you.

    ~OceanGirl

    - - - Updated - - -

    Quote Quoting BrendanjKeegan
    View Post
    This is quite an interesting discussion we have going on here with the recall issue. Although I think that it is a losing argument, it is interesting to point out that case law seems to favor MoMoney's argument that it is similar to recall and suspicious. In any event, you could bolster your argument with a good amount of case law (Washington would be better if you could find it, but the federal courts can be quite convincing in procedural issues). A quick google search gave me this. Section 899.

    However, as a Prosecutor, and I'm not saying that there will be one in Grays Harbor (in fact I don't think they wouldn even care to show up), I would argue that the officer's report falls into ER 612 - writing to refresh memory. The officer's signature at the bottom isn't an indication that this is his full testimony, only that he is crossing his T's and dotting his I's to ensure that the case isn't dismissed per 9A.72.085.

    Arguing the recall issue is definitely worth it though. I'd like to see what the judge says. For whatever it's worth, I think you have a strong case in the fact that the officer failed to mention the correlation between the patrol speed window and the speedometer.
    Okay, had my day in court today, and it did not go well... AT ALL.

    I was very prepared with all the notes from this forum, organized by category of different pre-testifying motions, and what order the should go in, etc.

    The judge simply began by saying "raise your right hand." I stated I would like to make a couple of motions before being sworn in. He, grumpy now, agreed, and I also politely stated that I would like to apologize ahead of time for my lack of legal knowledge, though I have tried my best to learn and prepare over the past few weeks. Then I started with the "two reports" argument, quoting from the IRLJ's and the definition of "any" and all that, which was clearly a mistake because he just got incredibly annoyed.

    My notes said (which I read, for the most part)

    "Your honor, the officer originally submitted his report on March 14th 2014, four days after the ticket was issued. He signed and affixed his badge number to the documents under penalty of perjury. This seems like he intended them to be his sworn statement - Then for whatever reason, submitted a redraft of his statement six weeks after the original ticket was written, on April 21st 2014. Your honor, I motion to suppress the officer's affidavit filed April 21st pursuant IRLJ 3.3 (c) and 3.1 (b). 3.3 (c) plainly read suggests that the officer may submit a written report in lieu of his presence, not that he may submit one report and then complement it with additional reports. It says, "any other written report" which is clearly singular.

    Likewise, IRLJ 3.1 (b) plainly read suggests that of the three discoverable items, "a copy of the citing officer's sworn statement" is one such discoverable item that makes up the prosecution's case - it doesn't even include the possibility that there could be multiple sworn statements. Likewise, where "any" is construed to include the possibility of a plurality, it is clear as in rule 3.1 (b) (3), which states "any witnesses" versus "any other written report" in IRLJ 3.3 (c)

    Your honor, although there are multiple uses for the word "any" in general, it's clear that in this case the legislative intent here was to allow a single sworn written report to reduce the burden on the police officers involved in traffic stops. If an officer could submit additional reports, than prosecution attorneys in every infraction court in Washington would ask for a continuance every time a part of an officer's affidavit was found to be lacking the necessary elements to generate a preponderance of evidence..."

    He actually didn't let me finish and interrupted by saying motion denied, with a scowl.

    I then moved on to the recall issue, with the second statement being six weeks after the fact and inconsistent with the officers original notes. He didn't care for that either, and said the statement would stand, no matter what I argued - more or less.

    So then I moved on to the patrol speed window of the SMD and discussing that being missing from the notes, and he asked if I was making some kind of motion or not. I said that again I was making a motion to dismiss as no foundation has been set for the acceptance of the moving radar. Though I was able to clearly explain why the radar would not give an accurate reading if the officer did not program in his correct speed into the device, and this was not mentioned in the officers notes, he didn't care. He said he would not accept any motion to dismiss from me and asked whether I wanted to testify or just keep trying to make motions (which would be denied.)

    I agreed to testify, and basically said that I was in the 45 zone, going the limit, at mile marker 1 (which google maps shows is in a 45 zone) and if the court would give me the benefit of the doubt (given especially that the SMD device may not have been used correctly) that I was not breaking the law as to the speed limit.

    He asked if I had anything more to add, and I said no, and then he basically said I tried to go into court and make a bunch of technical arguments instead of being honest and saying my side of the story or describing in detail what happened during the stop, and that the officer said I passed him going in a 30, so I must have been going at least 31, which is breaking the limit. And that the statement said "near" mile marker one, which is close enough.

    Of course I could have gone into more detail explaining what happened during the traffic stop, such as the fact I never actually passed the cop but saw him ahead of me, then he tapped on his breaks to get behind me, but I have been in court the past few days watching contested hearings and know full well that your personal testimony means nothing against the officers statement, so I didn't even bother to try to contradict the officers statement which the judge clearly would not question on any grounds. The judge tried to make me feel like I did something way out of line with technical arguments, however from what I have observed happening in court this week, lawyers representing people use technical arguments and get tickets dismissed, and people saying "their side of the story" are still found guilty. So if I'm not a lawyer, I'm basically set up to lose either way if I can't make "technical" arguments, and just say "oh it happened differently" than the officers report.

    The judge was surprisingly mean to me. I think the first argument about the word "any", totally pissed him off. I saw him on other days being nice to a lady representing herself who had no clue - she lost her case, but he actually offered her a deferment after the fact, which I've never heard of a judge doing (you are supposed to either ask for a deferment first thing, or contest... you can't lose your contested hearing, and then ask for a deferment.) But he told her she could get a deferment and asked her if she wanted one.

    But with me... to sum up... that was a NIGHTMARE. I was really nervous, and the judge was just a bully after round one, mocking me since I clearly don't know that much about the law and if I asked him a question he'd just throw it back at me.

    I am only trying to understand how the system works, but it's set up for people to lose, and for lawyers to be treated differently. Lawyers are all friends with the prosecutor, and they are paid to make deals.

    Anyway, now I'd like another piece of advice. Is it worth it to appeal the decision? It costs $260 to appeal, but more than that, I would assume I need an actual lawyer to go through the process for me. And that would be A LOT more expensive. But I also don't want a ticket to be on my insurance for years and years costing me or my family more in premiums. I don't know what to do....

    Oh and also I was told I didn't qualify for deferment because I've had one in the last 7 years. If I had to guess it's been almost exactly 7 years, because the last time I got a speeding ticket I was late to class in college! Does this mean now both tickets will come up to my insurance? Maybe then it's more worth it to appeal? I'm confused...

    - - - Updated - - -

    Okay, update on the appeal thing - I spoke to a very kind traffic lawyer, who said that based on what happened I have a pretty good chance of winning on appeal because the SMD speed window argument *IS* valid, and the 6 weeks to write the report, and the inconsistencies between the report and the notes would call into question the credibility of the officer. However, it would be about $1500-$2500 in legal fees for the appeal, plus the $260 to file the appeal. Which is about three months worth of my income, and not possible...

    This is how justice operates. For those who can pay...

    In good news however, the traffic lawyer cleared up to me the point about the deferment. The "probationary" period after the deferment is only 6mo or a year, just because I can't ask for a deferment unless 7 years has passed since the last one, doesn't mean that ticket will suddenly show up on my insurance. So basically it will just be the one ticket (40 in a 30) on my driving record, which could effect my insurance if they check it (but I called them and they said the last time they even checked was 10 years ago... they only look if something like an accident happens) and it only stays relevant for insurance rates for 2 or 3 years, if they do find out about it. Also, I am a member in good standing of the National Motorists Association, and they pay members speeding tickets if you go to court to contest them and lose (on the principal that these fines should not be used to fund the salaries of the people who find you guilty - police and judges - a principle I fully agree with, and wish more people would lobby against.)

    So the bottom line is, I won't actually have to pay for the ticket after the NMA pays me back, it shouldn't effect my insurance at all, and I learned a lot more about the process here on this forum and by visiting the court for several days in a row. It's a shame to have a smudge on my perfect driving record when I wasn't being reckless or unreasonable on the road, and had several valid points in my defense... but life isn't always fair.

    I will use this experience as motivation to earn more money, in case one day I need to afford a lawyer for something other than a traffic ticket :P

  5. #25
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    You need to understand the appeal process in WA. Your appeal would be to the Grays Harbor County Superior Court. It is NOT a de novo retrial. It is an appeal "on the record". You will NOT testify, although you can give "oral argument". This all means that YOU must prove that the judge erred, and you must show that from the items submitted into evidence and the Verbatim Report (which you will also have to purchase and have transcribed -- the report, alone, was $40 when I did mine -- back in '04). From what you've said, about the only possible error I can see might be the judge's denial of your motion to suppress the speed readings due to lack of foundation for the officer's failure to compare the "patrol" speed to his vehicle's speedometer (which I believed was your only valid argument to begin with).

    Unfortunately, I did not hear your motion, but if you did indeed say something to the effect that "the officer did not program in his correct speed into the device", I don't think you've got much chance. That's just not the way RADAR works. Had you explained that the user's manual indicates that those two speeds should correlate in order to assure an accurate reading, it might be different.

    As far as your previous deferral, once you've passed the deferral period (usually 1 year), that ticket would have been dismissed. You can request a copy of your record from the DOL (they even have an online form), if you want to be sure. But, there's no doubt in my mind -- as long as it's been more than a year.

    You're right about the system. Our laws give you the right to represent yourself in almost any legal proceeding. Unfortunately, when you do, you are expected to know the laws, case law, and court rules. MOST judges are a little more lenient and sympathetic than yours when it comes to pro se defendants. You, unfortunately, got a hard-case.

    Barry
    Where am I going? And why am I in this handbasket?

  6. #26

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Thanks for the reply Barry,

    Yes I did motion to dismiss on the grounds that no foundation has been set for the acceptance of moving radar when the officer failed to state that the patrol speed window of the SMD matched that of his speedometer (word for word what I said, I read from my notes.) I also added that the manual for the Bee III specifies that this must be done in order to assure the reading is accurate (though I did not quote from the manual directly, I was prepared to do so if challenged.) It should have been dismissed on those grounds, but I got a bit too "creative" with ideas from this forum first...

    By the time I got to the SMD argument/motion to dismiss, the judge was really annoyed, and wouldn't have agreed with anything I said, because he was ticked off. He flat out told me he would not agree to any motion to dismiss, regardless of my argument, before I was finished. Then he actually told me I should stop trying to make technical arguments and just testify. Which is really a complete double standard, when two days earlier I saw him accept technical arguments from lawyers, and dismiss cases based on no mention of the radar being calibrated before and after the traffic stop, and stuff like that.

    So I tried to be "serious" in my defense, and use facts about the radar or the law, instead of just raising my right hand and saying "Oh but I didn't do it" like everyone else (who lost) but that didn't work either.

    How difficult would it be for me to appeal the case and represent myself, on the grounds of the SMD speed window point? Sounds like with the transcript it would be about a $300 process plus a lot of time. But it's the principle of the matter... I don't think a judge being annoyed with certain arguments, should be reason to ignore other, *valid* evidence. Can you tell me more about the process? Is there a prosecutor? Is there a panel of judges? What do you have to do? How long does it take? Do I have anything to lose, or will the outcome be no worse than it currently is, a ticket on my record? I can't be punished further for losing and appeal, right?

  7. #27
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    $300, plus the cost of transcription (about $20 per page -- double spaced, huge margins -- plan on another few hundred, unless you do it yourself). The appeal process from Courts of Limited Jurisdiction is, coincidentally, governed by the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. You will need to read, understand, and follow -- to the letter -- ALL of these rules.

    The first step is to file a Notice of Appeal -- in the same court you are appealing from (Grays Harbor District Court?), and pay your appeals fee. Next, you'll need to get the recording of your hearing and arrange to have it transcribed -- appellate courts do not accept audio recordings -- or at least they didn't when I went through this.

    After the appeal is transmitted to the Superior Court, they will set a schedule, showing when briefs are due, setting status hearings, and finally when your oral argument is scheduled. Then it really begins.

    Next, you have to write you appellant's brief. This is the fun part -- for me. The prosecutor's office will assign someone to handle their side. In many appeals, they don't even submit a "respondent's brief" -- mainly because the appellant's brief is so bad, there's simply no need to reply. In my case, after I submitted by brief, the prosecutor called and offered to dismiss the whole thing. Wahoo!

    So, if the prosecutor feels the need, he/she will submit a respondent's brief. At that time you'd have the option of a "reply brief", which you may or may not want to do. In any case, the Superior Court will schedule a hearing before a single judge. You will have 10 minutes to present your oral argument. Keep in mind that the judge's mind is already made up at this point. So, unless the judge has some questions, you probably won't be able to change the outcome.

    I think that the judge's comments about not accepting ANY motions will only HELP you. I appealed a Superior Court ruling to modify my child support payments, when, at the conclusion of the hearing after denying my request, the judge said, "and if I ever see you in my courtroom again, I'm going to throw you in jail." The Court of Appeals JUMPED ALL OVER that judge and reversed his ruling, citing gender bias.

    In any case, I, personally, think you've got a great appeal. But, your BEST chance is to hire an attorney. If you want to try it yourself, I guarantee you'll learn a LOT (kinda like what happened to me), and have a great deal of fun. It's expensive and time consuming. You'll lose sleep, won't be able to think about much else (especially as the due dates for your briefs approach), but I think you'll love every minute (well, maybe not EVERY minute, but MOST minutes).

    Let me know what you decide,
    Barry
    Where am I going? And why am I in this handbasket?

  8. #28

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Thanks Barry, that really helps put things in perspective!

    Question - there is an option to do the transcription myself? I type very fast. I'd certainly prefer that to $20 a page with crazy margins and double spaced!!!

    How long between when you file a notice of appeal, and when the briefs are due, roughly? Are we talking a few months time (so that I can actually learn the law and prepare, while juggling other things) or only a few weeks?

    Lastly is this court of appeals basically going in front of another judge? Or is it a panel of people (or judges?) I just get worried with the "good-ol-boy" system here in a rural county, that they might all know each other anyway, and be laughing about my appeal on the way to the golf course...

    Congrats on winning your appeal, by the way! I don't know what was going on with your child support payments, but any judge who says something clearly that BULLYING, and threatening your right to use the law, SHOULD be put in check.

    I have 30 days to think about this starting today.... big decision. Will take a lot of work. Hmmm....

    - - - Updated - - -

    Is there a way to get the audio recording before I make the decision whether to file for an appeal? After all, maybe if I listen to that recording and make a transcript, and post the relevant bits here for some feedback, I'd have a better idea as to whether my appeal stands a chance (before shelling out $300 for the fee, and committing to a lengthy process.)

  9. #29
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting Oceangirl17
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    Is there a way to get the audio recording before I make the decision whether to file for an appeal? After all, maybe if I listen to that recording and make a transcript, and post the relevant bits here for some feedback, I'd have a better idea as to whether my appeal stands a chance (before shelling out $300 for the fee, and committing to a lengthy process.)
    Absolutely -- call the Clerk of the Court and ask about the process. In my day (10 years ago), I filled out a form, paid the $40, and they sent me a CD. I think it's all online now and may not even cost anything. But call the Clerk.

    And, yes, you can transcribe it yourself. I can send you a few pages of mine just so you can see the format. Oh, I think it was 2 months for my appellate brief.

    Barry
    Where am I going? And why am I in this handbasket?

  10. #30

    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Thank you for letting us know how it went. Sorry to hear it did not go better. It sounds like you may have a higher than normal chance of winning an appeal maybe 50% so it is a decision you will have to make if you want to take the chance. Will the National Motorists Association help at all with your appeal? Since they are paying for your first one it might be worth fighting on principal? Hopefully you can check with the court and find out how much everything will be, one would think it would be electronic now. Good luck with whatever you decide and let us know how it goes if you decide to fight it.

    ~Spike~

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