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  1. #1

    Default Appeal Wa Speeding Ticket

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

    Just a brief synopses.. Grays Harbor, District 2 court.

    I presented A motion to dismiss pursuant to 2.1(b)(4) before court rules.... Missing Subsection - Violation of State v Leach.

    The infraction notice did not contain the statutory element which states the particular alleged violation. I notified the court that because of this, I could not move forward as I could not formulate a defense without knowing the actual subsection I was being charged under.

    The judge immediately warned me that State v. Leach was a criminal case and I argued that it still applied.

    The bewildered judge took a few mins to look up 46.61.400 "The WA Basic Speed Law" which he should have been somewhat familiar with already.. Looked through the statute and mumbled...

    "Okay 46.61.400 your citation was for forty in a thirty five, five miles over the limit that's the charge and you say that's constitutionally defective because he didn't put the the second prong of the statute in there, well subsection 1 is too fast for conditions subsection threes got nothing to do with anything in this case the issue in the case is due process and you're charged with going 40 and a 35 and this gives you fair notice of that, your motion is denied."

    The officer who presented little to no statement on the NOI or in his testimony was then questioned as to whether he knew which subsection I was being charged under. The officer did not know and had no personal knowledge of the statute or the basic Washington speed law. I moved to dismiss and was denied.

    During the cross-examination the officer repeated over and over that he could not remember or just didn't know answers to questions.

    I made a certain objection, because the officer seemed incompetent and lacked knowledge of vital elements, the officer stated several times that he did not know what his Patrol speed was from his moving vehicle when he visually observed me or when he used the radar to clock my speed.

    The objection was that the state did not have vital elements to prove its case- Motion to dismiss. The judge paused the hearing and went silent, seeming to consider this motion do dismiss.

    The judge then intervened and reopened the state's case as to manufacturer evidence by coaxing the officer into presenting a narrative to create a fact that was not in evidence and change his story.

    The judge went on to ask the officer leading questions, and once the judge finally got the what he wanted, the judge then entered the officers answer into testimony evidence, the judge then denied my motion to dismiss.

    Ok, well that's only small snippet. the question is to Appeal or Not Appeal.

    I feel that the issue of Abuse of Discretion, bias and prejudiced along with Violating Due Process because I have not been notified properly may be in play.

    I've got 9 more days to file.. Any thoughts?

    Had to edit.. please delete this thread as it is a double post

    I didn't realize that you can't edit or delete a thread after a it's been posted. .. So please bare with the clerical errors.

  2. #2
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    Default Re: Appeal Wa Speeding Ticket

    Yeah, your argument is specious. Leach doesn't say that a subsection MUST be provided. In Leaches case the citation was for a statute that had two charges (with differing penalties). This is not the case with 46.61.400. There's only one offense there. There's no need to further specify the offense.

    How is it you had the officer there to begin with? Very unusual in Washington.

  3. #3

    Default Re: Appeal Wa Speeding Ticket

    Yeah, your argument is specious. Leach doesn't say that a subsection MUST be provided. In Leaches case the citation was for a statute that had two charges (with differing penalties). This is not the case with 46.61.400. There's only one offense there. There's no need to further specify the offense.

    How is it you had the officer there to begin with? Very unusual in Washington.
    Had him subpoenaed, I was shocked at how incompetent the officer was to testify and how unfamiliar the judge was with the Statute.

    Yes, I was a little iffy and reluctant about citing Leach, but I had very little time. This is why, during the hearing, I directly asked the Judge and the officer "Which subsection am I accused of violating?" Both failed to state which sub-section applied as well as the actual alleged violation of the statute, neither of them knew the answer, it was shocking.

    The Statute 46.61.400 has 3 sub sections and 3 paragraphs within subsection 2. The subsections vary wildly and there are many ways to violate it. WA state rules under the Basic Speed LAW, it is not an Absolute Speed Law. This is why the subsections matter, they are there for a reason.

    And as for Different penalties :

    What are the current speeding fines in Washington state?

    1 to 5 mph over the speed limit: $125.
    6 to 10 mph over the speed limit: $136.
    11 to 15 mph over the speed limit: $166.
    16 to 20 mph over the speed limit: $207.
    21 to 25 mph over the speed limit: $259.
    26 to 30 mph over the speed limit: $310.
    31 to 35 mph over the speed limit: $361.
    More than 35 mph over the speed limit: $423.

    There are many different situations in which speeding is determined within the Wa Basic Speed Law, the statute maps that out. For instance, under subsection 1, exceeding a posted limit isn't necessarily a violation depending on whether you were driving at a speed that is not greater than prudent under the conditions, but, exceeding a posted limit IS a violation under subsection 2 because of special hazards/conditions on the road and that is governed by specific speed limits, and subsection 3 changes the rules into another direction. So, you have to ask... What am I being charged with and which subsection am I defending? Unless you want to take it lying down and defend against all 3 or whatever they want to accuse you of.

  4. #4
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    Default Re: Appeal Wa Speeding Ticket

    Your question tot he officer is nonsensical, so you can't really be surprised he couldn't answer.
    The various penalties have nothing to do with the level of offense as it pertains to subsections. Not quoting a subsection doesn't change the penalty.

  5. #5
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    Default Re: Appeal Wa Speeding Ticket

    Appeal. The judge erred in denying your motion to dismiss. If you were driving 40mph in a city, you could have been guilty of either 46.61.400(1) or 46.61.400(2), and they have different statutory elements. So failing to specify which of the two you were charged with is the same as failing to state them altogether. From State v Leach: "We affirm the Court of Appeals and uphold superior court dismissal of Respondent Duncan Leach's public indecency conviction. The Superior Court and Court of Appeals properly based their decisions on Holt which requires that a criminal complaint allege all statutory elements of the offense charged."

  6. #6

    Default Re: Appeal Wa Speeding Ticket

    Quote Quoting zeljo
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    Appeal. The judge erred in denying your motion to dismiss. If you were driving 40mph in a city, you could have been guilty of either 46.61.400(1) or 46.61.400(2), and they have different statutory elements. So failing to specify which of the two you were charged with is the same as failing to state them altogether.
    This was my exact argument.

    From State v Leach: "We affirm the Court of Appeals and uphold superior court dismissal of Respondent Duncan Leach's public indecency conviction. The Superior Court and Court of Appeals properly based their decisions on Holt which requires that a criminal complaint allege all statutory elements of the offense charged."
    The judge did not seem to think that Leach was relevant because it was a criminal complaint and he alluded that it did not apply to the civil offense of infraction. But both courts are of Limited Jurisdiction.

  7. #7
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    Default Re: Appeal Wa Speeding Ticket

    Quote Quoting Court Jester
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    The judge did not seem to think that Leach was relevant because it was a criminal complaint and he alluded that it did not apply to the civil offense of infraction. But both courts are of Limited Jurisdiction.
    Also from Leach: "[1] In holding that a charging document which omits a statutory element of the crime charged violates a defendant's constitutional rights, the court in Holt did not distinguish between misdemeanors and felonies, nor between complaints and citations. In applying the Holt rule, there is no logical reason to distinguish between complaints and citations or felonies and misdemeanors. If a misdemeanor citation or complaint omits a statutory element of the charged offense, the document is constitutionally defective for failure to state an offense and is subject to dismissal. "

  8. #8
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    Default Re: Appeal Wa Speeding Ticket

    Quote Quoting Court Jester
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    Ok, well that's only small snippet. the question is to Appeal or Not Appeal.

    I feel that the issue of Abuse of Discretion, bias and prejudiced along with Violating Due Process because I have not been notified properly may be in play.

    I've got 9 more days to file.. Any thoughts?
    I can offer some thoughts, but have no experience with appeals and cannot assess your chances. If you haven’t already, you would definitely want to read the entire Washington State Rules for Appeal of Decisions of Courts of Limited Jurisdiction. I know it will involve some expense including the filing fee and cost to order a transcript. Also it will cost you time to write and research. The whole process would best be viewed as an adventure and learning experience, and if you choose to proceed I would encourage you to share on this forum regardless of outcome.

    The missing subsection argument has been successful in some courts, although I’m inclined to think not as much in recent years. The current SECTOR electronic ticketing system probably doesn’t even allow a subsection to be entered (every speeding ticket I’ve seen lately lacks a subsection). For a recent example of this argument not succeeding, you might want to read this previous post from a thread last December.

    However the poster in the above linked thread did win based on the officer not stating personal knowledge of device testing. That’s where I think you might have shot yourself in the foot by subpoenaing the officer, because your strongest defense probably had to do with him not checking the moving radar patrol speed against his speedometer.

    Based on what you described about how the judged behaved on that issue, I’m guessing the officer’s sworn written statement lacked that required evidence. In the officer’s absence, his written statement is the only evidence available and if insufficient (not containing all required elements) the judge would have been forced to dismiss. Instead the judge was able to coax that necessary element from the officer, and also I’m pretty sure judges in general are more reluctant to dismiss whenever the officer is present.

    Also based on your description, it would appear that you never served a discovery request on the prosecutor, and probably based your defense only on the notice of infraction and cross examination of the officer. Your entire defense should have been based on the written statement.

    Anyway you did object to the officer’s apparent failure to conduct a patrol speed/speedometer check, and I’m inclined to believe denial of that objection could quite possibly be your best chance for winning an appeal. A more correct initial motion should have been to exclude or suppress the evidence of speed, followed by a motion to dismiss due to lack of evidence--but I’m not sure that technicality would hurt you much since what’s most important is that you objected. Probably in an appeal argument you would want to try to illustrate how the judge was leading the witness prior to denying your objection.

  9. #9
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    Default Re: Appeal Wa Speeding Ticket

    Judges want to hear the facts of why you (the OP) are not guilty, not some cryptic legalese that is likely not applicable. I've been in court where the judge himself vetted the officers statement to ensure that the device was calibrated and the officer stated such in his report.

  10. #10
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    Default Re: Appeal Wa Speeding Ticket

    Quote Quoting MaltbyMark
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    Judges want to hear the facts of why you (the OP) are not guilty, not some cryptic legalese that is likely not applicable. I've been in court where the judge himself vetted the officers statement to ensure that the device was calibrated and the officer stated such in his report.
    In appeal, you bet they want to hear some "cryptic legalese".

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