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  1. #1
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    Jan 2016
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    Default Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

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

    First off I would like to thank Barry for the guide to Washington traffic court. It has helped me and many around me, and all the others that work so hard to keep the board up and running.

    I Filed for discovery and received the affidavit this afternoon and need some help making a motion for dismissal if possible.

    I have checked out the cert for the SMD https://fortress.wa.gov/wsp/smdsearc...tionPrint/4275 and everything checks out with numbers and tuning forks.






    The only thing I can see is that on the third paragraph down on page two which states:

    "The RADAR was used in the [ ] stationary [ ] opposite moving mode [ ] same lane moving mode
    [x] I confirmed the RADAR unit's patrol speed reading with my vehicle's speedometer, which is checked for accuracy by RADAR every 90 days at 30 and 60 MPH, as prescribed in the WSP manual."

    It looks like he never checked the box for which mode the Bee lll was in when used and doesn't say if the officer was stationary or moving.


    Any help would be appreciated
    Thanks.

  2. #2
    Join Date
    Mar 2010
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    Snohomish, WA
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    1,588

    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    That's a winner. I got a dismissal on that very argument a number of years ago.

    "Your Honor, I move to suppress the speed reading and move for dismissal for lack of evidence. The officer failed to denote if the RADAR unit was in moving opposite lane mode, moving same lane mode, or stationary mode. There are three distinctly different modes of operation. Further, the officer does not establish whether the patrol vehicle was stationary or in motion. Based on the officer's sworn statement, it is impossible to determine if the RADAR was used in manner consistent with the manufacturer's recommendations. The speed reading should be disallowed and the case should be dismissed."

    There is a hearsay argument too, if needed. It concerns the statement about the speedometer having been calibrated. He can't swear to things he didn't witness.

  3. #3
    Join Date
    Jan 2016
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    5

    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Thanks for the fast response and the help with the tittle.

    The last time was in Issaquah contesting a ticket a prosecutor was there, do you think they would give me any trouble?

    The hearing is next week, I will post the results.

  4. #4
    Join Date
    Oct 2015
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    California
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    169

    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    The picture of the affidavit does not show it, so let me ask you: was he supposed to check something in this paragraph, and did he?

    "The defendant's vehicle was the only moving vehicle...
    "The defendant's vehicle was number of "

  5. #5
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    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Quote Quoting Teapain887
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    Thanks for the fast response and the help with the tittle.

    The last time was in Issaquah contesting a ticket a prosecutor was there, do you think they would give me any trouble?

    The hearing is next week, I will post the results.
    The prosecutor isn't going to have a chance to give you any trouble, because as soon as your case is called, you state, "Your Honor, I have a pretrial motion." -- if the judge doesn't ask. Then you state verbatim the argument that I posted when the judge says to proceed.

    If the prosecutor asks for a continuance, immediately object and state that TODAY is the trial, and you should not be penalized for the prosecutor not being prepared.

  6. #6
    Join Date
    May 2013
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    1,055

    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Although I'm not familiar in particular with Washington traffic court procedures, I agree with Speedy. On the hearsay question, I think you should object to any statement including the words "is checked" or having to do with the WSP policy manual. Nobody cares about the policy manual per se. Everyone who's ever worked for an agency or company knows that sometimes policy manuals are not followed. That's why they have quality control or penalties for non compliance.

    The question is whether this particular unit was checked within the prescribed time frame, not whether it should have been checked. Unless this officer says he personally checked it or that he saw someone else check it, he doesn't know whether it was checked. Similarly, he could have checked the log book for such checks and then incorporate that evidence by reference, etc. It doesn't seem that he did that or at least that can't be concluded exclusively by reference to his statement. Similarly, his statement that the device "is regularly tested" is likely hearsay. A usable statement would be "I regularly test this particular unit as it's the one I always use." The requirements of the WSP Manual, in contrast to his personal actions or observations, seem to be the basis for the "regular" testing an/or "is checked" statements.

  7. #7
    Join Date
    Jan 2016
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    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Thanks all for the help.

    Case was instantly dismissed using speedys motion.

  8. #8
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    Oct 2014
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    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Quote Quoting Speedy Gonzalez
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    There is a hearsay argument too, if needed. It concerns the statement about the speedometer having been calibrated. He can't swear to things he didn't witness.
    I do not practice in Washington but I’ll throw in a general observation for folks that might be interested. Hearsay is an out of court statement used to prove the truth of the matter asserted. The officer's entire written statement technically is hearsay under this classic definition of the term because it was made out of court but evidently in Washington those statements are admissible in a traffic court hearing despite being hearsay. So, let’s look at his/her written statement as though he/she said it in person in court, which is how one needs to look at this to analyze what may be admissible as it is taking the place of the officer testifying in person.

    If the statement made by a witness is simply that “the radar unit was calibrated” (using that pesky passive voice that my legal writing professors hated with a passion) that’s not technically a hearsay problem because it is not trying to get into evidence an out of court statement that someone made. That is instead is a problem of testifying to things outside the personal knowledge of the witness and is a foundation problem. Fact witnesses (as opposed to expert witnesses) may only testify to things about which they have personal knowledge. If the officer were testifying in person, the prosecutor would have to show the officer had personal knowledge of the facts to which the officer is going to testify by laying the proper foundation for it. A similar issue applies here: the prosecutor needs to show that the officer had personal knowledge of the facts stated for it to be admissible. Since the officer is not there to clarify the matter there is no way for the prosecutor to ask questions to draw out whether the officer had personal knowledge. It has to be evident from what the officer put in the written statement. As the state has not laid the foundation for that personal knowledge on the certification the statement should not be admitted by the court for lack of foundation. This illustrates one of the reasons why passive voice can be such a problem in situations like this.

    Now, if the officer had stated “Officer Joe Doe told me he calibrated the radar unit” that would be a hearsay problem because they are attempting to use Officer Doe’s out of court statement on the calibration and that is not a hearsay statement for which some exception applies. Instead, Officer Doe needs to testify about his calibration of the unit.

    A traffic court judge is not likely to get hung up on the technical details of this; the judge will know when you assert the officer is apparently testifying to something outside his personal knowledge that it is not admissible even if you call it hearsay when it is in fact a foundation issue, but I thought I’d point it out anyway for people who are interested in stuff like this.

  9. #9
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    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Very nice. Thanks for reporting back, and congrats on the win. Helluva civics lesson, ain't it.

  10. #10
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    Oct 2014
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    Default Re: Getting a Ticket Dismissed Based on an Inadequate Foundation for Radar

    Quote Quoting Speedy Gonzalez
    View Post
    Very nice. Thanks for reporting back, and congrats on the win. Helluva civics lesson, ain't it.
    It’s always good when the OP comes back to report what happened. Doesn't happen very often that we get, as Paul Harvey is famous for saying, “the rest of the story.”

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