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  1. #11
    Join Date
    Nov 2009
    Posts
    791

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    Quote Quoting cptd
    View Post
    Thanks...take it no obvious issue with my discovery request?
    The request you posted should be ok. Basically you can request anything, but only 1 item listed in IRLJ 3.1(b) is relevant to prosecute a speed infraction based on a reading from a speed measuring device. That would be the citing officer's sworn statement, also sometimes referred to as an “affidavit of speed.” Only the radar evidence will be used to prosecute. They are not required to send a physical copy of device certifications, but again it’s ok to ask.

  2. #12
    Join Date
    Mar 2019
    Posts
    9

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    Update on this.

    Submitted the request for discovery on 3/11, stamped as filed and got a copy. I haven't yet received anything from the court. Court date is 4/5. Out of the ordinary or just wait and see?

  3. #13
    Join Date
    Mar 2019
    Posts
    9

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    So, it's the day before my court date and I never received discovery. Having a closer look at the notice of hearing, there's reference to a request for SMD expert to be 'served on prosecuting authority', I only submitted my request for discovery with the court.

    Occurs to me I have two options:
    (1) on the basis of not receiving discovery, request a dismissal as described here: https://www.expertlaw.com/forums/sho...d.php?t=104826. Will the fact I didn't serve on 'prosecuting authority' undermine this?
    (2) request a deferral of the ticket

    My hope is to request the dismissal as a pretrial motion and, ideally, get it. If it's not granted, I would request a deferral. Suggestions or input on how this is likely to proceed given my circumstances?

    Many thanks,
    Chris

  4. #14
    Join Date
    Nov 2009
    Posts
    791

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    You really don’t have option (1) because you didn’t serve the request on the opposing party. The court gets a copy but has no obligation at all to serve the request on your behalf. What you can do is ask for a continuance in order to properly request discovery.

    It’s ok to request a deferred finding if your time is worth more than money you potentially could save by contesting. Just keep in mind that you can’t have another for 7 years. However if you follow through with discovery there is always a chance to find a strong defense argument.

  5. #15
    Join Date
    Mar 2019
    Posts
    9

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    Finally got discovery back from the prosecuting attorney.

    https://imgur.com/a/15vORnk

    Any input on possible avenues aside from deferral here are appreciated.

    Many thanks,
    Chris

  6. #16
    Join Date
    Sep 2010
    Posts
    18,904

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    But that exception doesn't exist in this case. I-5 is a divided highway. Washington State (and they are unique in this) only permits a slight exceeding of the speed limit while passing cars on an undivided road.

    Unless I missed it, the RADAR unit id tag is not specified. Hence, there's no way at court to determine if the thing has been calibrated. This should be an easy win.

  7. #17
    Join Date
    Feb 2010
    Posts
    151

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    The radar unit is mentioned on the first line, above the main body.

    The affidavit states that the officer "observed the defendant approaching & receding". Clearly that is not possible, at least not at the same time. IMO this inconsistency has a decent chance of winning. As an additional chance, the patrol vehicle is not identified, so the speedometer calibration cannot be verified. Though it is not clear whether the patrol vehicle calibration is required.

  8. #18
    Join Date
    Mar 2019
    Posts
    9

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    Appreciate the thoughts. Suggestions on how to proceed with this in court then?

    Hoping to get input on this for court on Monday before folks sign off for the weekend. Many thanks fellas

  9. #19
    Join Date
    Nov 2009
    Posts
    791

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    From what I can see, nothing really jumps out strong but there are still several preliminary items you could bring up.

    However there is one possibility for a strong defense which has to do with whether or not the RADAR calibration certificate for unit R2739 is filed at the court (the cert for your ticket—not the new one). You should definitely arrive early and check for that. The reason why this is so important is because the prosecutor in his discovery response is NOT directing you to the online lookup for certifications. Rather he states that “Speed measuring … certificates are available for inspection in the courtroom. See IRLJ 6.6 (d).” That means he is following the last sentence in IRLJ 6.6 (d) which states that “Evidence shall be suppressed pursuant to subsection (c) of this rule if the evidence in the certificate, affidavit or document is insufficient, or if it has not been filed as required.

    Also it’s very important to note that you will be looking for the certificate dated 3/6/2017 expiring 3/6/19—not the new one dated 3/6/2019 which took effect a month after you were cited. If the older one is not there you can move for suppression.

    If you want to try contesting, first ask (immediately when your case is called, before the officer’s statement is read into the record and before you are sworn in for testimony) “May I make a preliminary motion and still have the option to defer?” If the answer is no, then proceed only if the cert is not at the court or if you are willing to risk possibly losing.

    Each of the following should be announced as motions to exclude or suppress evidence of speed due to lack of foundation:

    1. The device calibration certificate in effect on the day of your ticket is not filed at the court as required. This assumes that you arrived early, checked the certificates on file and can’t locate that cert. If the certificate is not filed at the court, move for suppression pursuant to IRLJ 6.6 (d).
    2. The officer’s statement that his speedometer “is checked by RADAR every 90 days at 30 and 60 MPH, as prescribed by the WSP manual” strongly implies that speedometer certification is required, yet he has not identified his patrol vehicle as would be required by ER 901 and IRLJ 6.6 in order to authenticate evidence about the speedometer.
    3. The officer does not indicate when he checked the RADAR before his shift, meaning it could have been days, weeks or months ago.
    4. It could be argued that the State Patrol certificates are not substantially compliant with the form spelled out in IRLJ 6.6(b). They cannot state beforehand that “The units were evaluated and certified” when the actual certification gets done later. If themadnorwegian is correct in this previous post, then it can be argued that the Washington Supreme Court requires an objection be granted when it relates to a defective certificate.
    5. It could maybe be argued that the electronic signature on the date of actual calibration is not sufficient. Perhaps a physical signature is required, but really I don’t know about that—just wondering. In any case, the 2 different dates/signatures would seem not to comply with the form spelled out in the rule, which looks to require a single signature after completion of specific device calibration.

    If any motion is granted, then move for dismissal due to lack of evidence.

  10. #20
    Join Date
    Mar 2019
    Posts
    9

    Default Re: Challenge or Deferral of Speeding Ticket in Wa

    This is helpful, will give it a shot.

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