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  1. #1
    Join Date
    May 2017
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    3

    Default How Specific Must Records Be for LIDAR Testing

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

    I have read numerous posts on here that have been incredibly helpful. I filed my discovery request using blewis advice. Here are my docs and defense.
    Officer Statement
    SMD Cert.
    SMD Cert. pg 2
    NOI
    NOI Pg2

    My hearing is on Thursday (and I know it's not ideal timing wise) but thanks so much to any help. My question is:

    • My defense was going to be based on the officer stating “The methods used showed the LIDAR unit was working properly before and after the stop with the defendant.” This has not mention of when these tests were complete, could be days or months before or after. Is this enough to win the case pursuant to Rule ER 901 (b)(9)? Should I cite Mociulski as well, insofar as before the machine is deemed reliable the witness must show the machines passed the requisite checks.
    • Another point the officer mentioned the fixed distance test but doesn't specify any details, namely the length, again per rule ER 901 (b) (9) is this valid?
    • The Certification mentions the Range Accuracy Test and the Speed Accuracy Test but does not mention the delta distance test as the LTI Truspeed manufacturer specifies. Furthermore, delta distance is a compound test of both speed and distance simultaneously and therefore would not be concluded in the isolated tests previously mentioned.
    • The officer ticketed me on a sunny morning (I was driving westbound - sun behind me/towards officer) on a steep hill (estimated 9.3 degrees) at over 600 feet. These three events combine to significantly increase the officers probability of sweep error.


    Anything else I might have missed? Appreciate any help!

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Testing

    48 in a 30.

    I can't imagine what kind of "how to beat the ticket" gimmick you think is going to beat that.

  3. #3
    Join Date
    May 2017
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    3

    Default Re: How Specific Must Records Be for LIDAR Testing

    Appreciate the response, honestly I firmly believe my speed was not captured correctly.

  4. #4
    Join Date
    Apr 2014
    Posts
    193

    Default Re: How Specific Must Records Be for LIDAR Testing

    Your problem is providing independent evidence that there was sweep error or other issues with that particular measurement. Your comments and testimony will be considered biased and self-serving. If the officer sticks to his claim that it was a valid speed measurement, he will be believed.

  5. #5
    Join Date
    Jul 2010
    Posts
    8,006

    Default Re: How Specific Must Records Be for LIDAR Testing

    Quote Quoting wa12
    View Post


    [*] My defense was going to be based on the officer stating “The methods used showed the LIDAR unit was working properly before and after the stop with the defendant.” This has not mention of when these tests were complete, could be days or months before or after. Is this enough to win the case pursuant to Rule ER 901 (b)(9)? Should I cite Mociulski as well, insofar as before the machine is deemed reliable the witness must show the machines passed the requisite checks.
    [*] Another point the officer mentioned the fixed distance test but doesn't specify any details, namely the length, again per rule ER 901 (b) (9) is this valid?
    These 2 are your best bet. I know the "when the test was done" is a long shot according the WA experts here. Leaving out further information like the fixed distance test details might strengthen it enough to get you a win but no promises.

  6. #6
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: How Specific Must Records Be for LIDAR Testing

    Quote Quoting wa12
    View Post
    The officer ticketed me on a sunny morning (I was driving westbound - sun behind me/towards officer) on a steep hill (estimated 9.3 degrees) at over 600 feet. These three events combine to significantly increase the officers probability of sweep error.

    Anything else I might have missed? Appreciate any help!

    I'll leave it to others to address the issue of what level of detail the officer had to put in his attestation of the unit certification. The above argument is quite different from your certification issues. It is an argument that even if the unit was working properly that under the given conditions the speed measurement would be inaccurate. In order to make that argument, you need expert testimony. See Washington Rules of Evidence 701 and 702. Experts do not come cheap. You will also have to know how to examine the witness properly. Questioning your own witness is different than cross examining the state’s witnesses. If you end up in a battle of experts with the state, you may find that it becomes quite expensive. So unless there is more at stake here than just the fine for the speeding offense, this attack may not be worth trying.

  7. #7
    Join Date
    Nov 2009
    Posts
    886

    Default Re: How Specific Must Records Be for LIDAR Testing

    I think free9man has got it right on your 2 best defenses. It’s important to test at multiple fixed distances. No time frame is specified but it would be a stronger argument if the officer had not indicated personal knowledge, but he/she did attest to having personally done the testing.

    These are motions to suppress for lack of foundation. You should announce that you have motions immediately when your case is called, before the officer’s statement is read into the record and before you are sworn in for testimony. If either motion is granted, then move for dismissal due to lack of evidence.

    At Bothell Municipal Court a prosecutor will usually want to speak to you before you see the judge. Offers to amend to Bothell Ordinance 10.20.120 Inattentive Driving are very common there. Your fine would be the same, but a finding of “committed” for a local ordinance does not go on your state record. If you are mostly concerned with your driving record, you could opt for less risk and just ask about the amended charge. Attorneys often go for this, so I do wonder if it might be a tough court to win at.

  8. #8
    Join Date
    May 2017
    Posts
    3

    Default Re: How Specific Must Records Be for LIDAR Testing

    Thanks for the help everyone. I was also eligible for deferral and asked the judge if he would allow me to move to deferral even if I raised a pretrial motion. The judge wasn't very explicit but basically said, you are free to do whatever you want so I moved forward with my pretrial motion. I had made motions to suppress for proper foundation before we began. PA objected under BTM IRLJ 3.1(f) but I objected that my motion was not challenging the officers authority but rather the details in the affadavit to which the judge agreed. I cited Bellevue v Mociulski and Seattle v Peterson, the judge brought up Hellenthal.

    Long story short, the PA called the officer in to testify which I don't believe happens too often in WA, before the pretrial motion would be decided. They then took a recess to allow the PA time to figure out their case - I objected to the recess but had a weak argument - wondering what others would have done? After recess, the officer testified he performed the tests to 'manufacturers specs' and then said they do the diag/hud test and delta distance. No mention of fixed distance!! I was given opportunity to cross and debated my ability to trip the officer on not doing the fixed distance but decided to call it a day and move for deferral based on the officer testimony. Judge ruled in favor of the PA with the officer testimony so I moved to deferral which was accepted.

    Good experience - but seriously left me with little to zero doubt the officer did not actually conduct the tests that day, but hard to prove. They really should mandate all relevant details of the tests be included in the discovery. The LiDAR is an electronic unit and thus has a logging that should be added to the officers affadavit in my opinion. As well as the PAs in Bothell seem to object with 3.1(f) for any pre trial motion which doesn't really seem right.

  9. #9
    Join Date
    Jul 2010
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    8,006

    Default Re: How Specific Must Records Be for LIDAR Testing

    It is very unusual for the officer to be present. Glad you were able to get the deferral.

  10. #10
    Join Date
    Feb 2010
    Posts
    1,383

    Default Re: How Specific Must Records Be for LIDAR Testing

    It is game over when there is a DPA at your hearing. You can pretty much bet that they will ask for a continuance or recess to bring in the officer, to which most judges will allow it because it is their discretion to allow such motions.

    As for BTM-IRLJ 3.1(f): The DPA was trying to pull a fast one on you by blinding with irrelevant law. 3.1(f) only deals with motions that challenge constitutionality. You weren't arguing that something was unconstitutional. A quick rebut would have put the DPA in his(her) place and would have probably put the judge on your side for a quick win. But the past has passed.

    Bothell isn't a tough court to have a ticket dismissed so long as you know the local procedures and you stand unopposed by nothing but a sworn statement.

    Given the circumstances, you seem to have left the battle unscathed. Not a lot of laymen can say that when going up against one of WSBAs finest.

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