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  1. #31

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

    Quote Quoting blewis
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    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
    Thanks Barry! I will definitely call tomorrow and ask about that. Perhaps the good people of the forum can point me in the right direction again, if I go for the appeal process. I understand decisions can be overturned based on "errors of law." I'd love to know exactly what that is... and whether such errors happened during my contested hearing or not. But without being able to listen to the tape, or share parts of it as a transcript here, I won't know for sure I guess.

    - - - Updated - - -

    Quote Quoting spikespencer
    View Post
    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~
    Thanks Spike, I called the NMA earlier, but they were closed for the day (different time zones.) So I will call again and ask if they can offer any advice.

    At this point I feel like I am absolutely willing to invest the time and effort into the appeal personally, especially with the good folks on this forum that have gotten me so much further in my knowledge and in the process than I ever would have been without the advice here. I feel I should have won my case based on the evidence, and the judge simply got angry about my making too many preliminary motions instead of just acting like everyone else and testifying, and made up his mind he would find me guilty no matter what I brought up. HOWEVER, the cost is a big issue for me. If it's really to the tune of $300+ just to do the minimum without a lawyer, that's a big financial burden for me. I am on state benefits and I'm wondering if I can request a fee waiver "in forma pauperis" with the court, or if they wouldn't do that for an appeal?

  2. #32
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting Oceangirl17
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    I understand decisions can be overturned based on "errors of law." I'd love to know exactly what that is... and whether such errors happened during my contested hearing or not.
    An "error of law" is exactly what it sounds like. For example, IRLJ 2.2 (d) states that an NOI must be filed within 5 working days -- absent good cause shown. Well, suppose you go into your hearing and state that the officer filed the ticket after 7 working days -- without ANY excuse. The judge says, "Well, I don't think you were prejudiced by the extra two days, so I'm going to deny your motion for dismissal." The law says, "In the absence of good cause shown, a notice of infraction not filed within the time limits of this section shall, upon motion, be dismissed with prejudice." There is NO leeway, the is no room to exercise discretion -- "shall" is always construed as "must". That is an error of law.

    You case is NOT so simple. In your case, the judge COULD and DID exercise "discretion". On appeal, the appellate court cannot overturn a discretionary ruling absent "manifest abuse of discretion." In other words, you must show that, given the facts of the case and how it was presented, ANY reasonable person would have ruled otherwise. There are thousands of cases on the issue. Put another way, the rule is "A manifest abuse of discretion is discretion that is exercised on untenable grounds." In your case, the judge's refusal to even consider your motion -- and to basically deny it BEFORE it was presented -- is in my humble opinion, "untenable". That's why I think you've got a good case -- thanks to the judge's "help".

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

  3. #33

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

    Thanks for clearing that up Barry. I will need the audio recording to make sure of the wording he used, but that's basically what happened. :/

  4. #34

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

    Sorry to hear it didn't go too well. See if you guys have something similar to NLC here in King County. After you've prepared your brief, this sort of a service is really helpful in resolving specific questions and even looking over what you've put together. If the judge explicitly said that he would just deny any further preliminary motions by you at a certain point - that is only going to help your appeal.

  5. #35

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

    Quote Quoting MoMoney
    View Post
    Sorry to hear it didn't go too well. See if you guys have something similar to NLC here in King County. After you've prepared your brief, this sort of a service is really helpful in resolving specific questions and even looking over what you've put together. If the judge explicitly said that he would just deny any further preliminary motions by you at a certain point - that is only going to help your appeal.
    Thanks MoMoney, I was most frustrated by the fact that from what I observed of the courtroom, the lawyers and the people representing themselves were treated completely differently. Of course I don't know much about the law, but when a lawyer brings up "a technicality" with the client not present, and gets a ticket dismissed with a 'good job' wink, and it's followed by friendly small talk, but a person representing themselves brings up the same technicality without a lawyer, and the judge gets mad... as if they're acting 'above their station' or something. Had he simply heard me out, been polite, thought about it and said, "well I understand what you're saying, but I don't think the SMD speed window point is enough to tip the scale in your favor given the other points in the officers statement", then I wouldn't have been thrilled, but I wouldn't be angry enough to file an appeal either. The application of the law should be consistent, with no double standards.

    The two things I can recall that might be an "error of law" in the hearing was when the judge told me he would deny any other motions to dismiss (regardless of what I had to say) so I might as well stop making motions, and two, when he stopped to chastise me from the bench about my defense, saying "you came in here making all sorts of technical arguments, when you should have just testified and said your side of the story" or something to that effect. It seems to me the judge can not, as grounds for finding you guilty, state his displeasure with your defense strategy, nor tell you how best to defend yourself. Using "technicalities" as he puts it, is my legal right.

    Today I will find out how much it is to get a recording of the hearing, and also call the superior court and see if it is possible to get the filing fee waived for an appeal due to my low income. The answer to those questions will probably determine if I will proceed with the appeal.

    Can anyone give me a link to what rules judges must follow in Grays Harbor District Court, which if not followed constitute an "error of law"? Or explain of what the judge did actually is an error of law or not, and where such a law is stated?

    Thanks so much everyone!

    - - - Updated - - -

    PS. Now that we're getting into the appeal process, should I start a new thread so the title of the thread is relevant to the discussion?

  6. #36
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    I don't often read the traffic threads, but I came to this one after seeing the OP's new, post-conviction thread, and I wish I had seen this to back up Barry.

    First, let's look at IRLJ 3.1,
    Quote Quoting IRLJ 3.1(b) - Discovery
    Upon written demand of the defendant at least 14 days before a contested hearing, filed with the court and served on the office of the prosecuting authority assigned to the court in which the infraction is filed, the prosecuting attorney shall at least 7 days before the hearing provide the defendant or the defendant's lawyer with (1) a copy of the citing officer's sworn statement (2) a copy of video or photographic evidence the prosecutor proposes to introduce at trial, unless in reply to the discovery request the prosecutor provides the address to a website where such evidence is accessible to the defendant; and (3) the names of any witnesses not identified in the citing officer's sworn statement. No other discovery shall be required.....
    If I were to interpret that as to mean "only one statement, and no subsequent amended or supplemental statement", it would not mean that no such statement could be admitted. It would mean that the prosecutor would not be required to provide the defendant with a copy. While the language does anticipate that the officer's statement will be singular, it would prejudice the defendant if in fact courts were to construe the language as applying only to an initial statement, no matter how incomplete, while allowing the prosecuting authority to withhold subsequent statements that were later used in court to support the prosecution's case.

    Now, IRLJ 3.3,
    Quote Quoting IRLJ 3.3(c) - Rules of Evidence
    The Rules of Evidence and statutes that relate to evidence in infraction cases shall apply to contested hearings. 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, unless the defendant has caused the officer to be served with a subpoena to appear in accordance with instructions from the court issued pursuant to rule 2.6(a)(2).
    I agree that trying to interpret "the notice of infraction and any other written report" as suggesting that the officer can submit only one report flies in the face of the plain language of the rule. Further, that rule has already been interpreted to allow the officer to submit multiple reports, his own and those prepared by third parties. There's nothing in the rule that would distinguish the submission of a supplemental report made by the officer from the filing of any other additional report -- and also, in this case the court had ordered that such a supplemental report be obtained and submitted.

  7. #37

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

    Quote Quoting Mr. Knowitall
    View Post
    I wish I had seen this to back up Barry.
    That makes two of us. :/

    Several people thought this was an interesting idea. The judge was not one of them... :/

  8. #38

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

    In effect, you're saying that the prosecution has the right to indefinitely recall their witness through out-of-court statements which can be amended and supplemented at will and without objection? Is my impression here incorrect?

    Further, that rule has already been interpreted to allow the officer to submit multiple reports, his own and those prepared by third parties.
    I don't see how that case is comparable. The officers did not submit multiple reports - they each had single reports for their respective NOIs, and in these single reports, they both incorporated somebody else's statements by direct reference (Cole's cert). It was a part of their single testimonies, not amendments or supplements that came later. You wouldn't construe an officer quoting the person he's pulled over, the DOL or his partner as a submission of "multiple reports" - this shouldn't be any different. It's the same as having an officer on the stand and then referencing the certification documents, or having any other material of which they have no personal knowledge for the purpose of getting that material judicially noticed.

    The majority was overturning the assertion "that IRLJ 3.3, IRLJ 6.6(b), and RCW 46.63.080 together allow only the written declaration of the citing officer and do not allow a speed measuring device certificate as an attachment to the officer's statement." The issue I raised in this thread hasn't been about how long a statement can be or how much material can be incorporated by reference from it - but whether there can be multiple statements themselves.

    The court recognized that this was part of the officers' single testimonies, that they were in initial agreement with Hellenthal that incorporation by reference didn't demonstrate personal knowledge, but argued their reading of old IRLJ 6.6 as allowing them to overrule the personal knowledge issue. That case also never broached the issue of an officer indefinitely modifying and supplementing his remarks under penalty of perjury. Bellevue V Hellenthal also didn't give officer's the right to submit any third-party reports, it dealt exclusively with the topic of whether or not an officer's incorporation by reference of a report per IRLJ 6.6 would constitute inadmissible hearsay or not.

  9. #39
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    Default Re: Finding Best Defense for Speed Ticket - Cut N Paste Discovery Statement

    Quote Quoting MoMoney
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    In effect, you're saying that the prosecution has the right to indefinitely recall their witness through out-of-court statements which can be amended and supplemented at will and without objection? Is my impression here incorrect?
    No, that is not correct. What you're saying is that, should a police officer submit a supplemental or revised report, the prosecutor would not be obligated to turn it over to the defense under the discovery rule. You may not realize that you've said that, because you haven't thought this through, but that is your interpretation of the discovery rule.

    I understand that you are intent on tilting at this windmill, despite being told it was not only rejected by a court but was apparently regarded by the court as a complete waste of his time, but you really need to do a better job reading the court rules and the comments about why your suggestion is not compatible with their language.

  10. #40

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

    MoMoney, I can tell you by direct personal experience, that the officers notes on the back of the original ticket (though titled "officers report") and a neatly typed (or cut-n-paste...) document based on those notes submitted at a later date, are not considered "multiple reports" by a judge.

    Regardless of whether the language allows multiple reports or not, in my case those two documents were not considered multiple reports in the first place.

    Arguing that the second report contained different information than the first, six weeks after the fact, might be more relevant, but that's not what you're talking about.

    I can't believe you're still defending your "creative" defense strategy after I was raked over the coals and publicly humiliated in court for attempting to use it. Sigh. I lost the case due to your suggestion.

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