Chance of Winning an Appeal

[wiseguy_2]

My question involves a traffic ticket from the state of: Washington
Trying to determine whether I have enough case to appeal a failed Contested Hearing?

Facts: Falsely stopped and cited for speeding 75 in 55 zone.
Officer claim: Used Radar SMD, approaching opposite direction, patrol speed 57 MPH.
I never exceeded 55 MPH (was on cruise control for 10 miles preceding stop), nor even passed the officer (or any car for 2.5 miles preceding stop). Officer traveled about a mile *behind* my car up to the stop.
Contested. Discovery. Subpoenaed officer.
Nothing in Officer sworn Affidavit/notes identifies me or my vehicle at all. Motion to suppress. Denied because "Officer's Affidavit incorporates by reference the Citation #" (even though all personal and vehicle data on the Citation were from the License and Registration documents provided to Officer during the stop).

In Cross Examination: Officer testified his initial observed 'speed in excess' was from 500 feet away, in very foggy conditions, did not maintain eye contact on the offending vehicle, never noticed any brake lights after passing. He could not remember where he was (map-wise) when clocking the radar, how far he traveled after passing that vehicle, nor where he turned around to pursue ("usually within about 500ft"), nor how long it took to get back on the road going the other direction. He was unaware his SMD had a Range setting, unaware that SMD can be affected by EMI. He admitted there were high-power transmission lines nearby. He said he signed and submitted his report about 3 minutes after the stop.
When following (pursuing) my vehicle, he did not observe any 'speed in excess', nor any brake lights come on.

County Commissioner gave Officer every benefit, including letting him changing his sworn testimony from Discovery (where his original affidavit outright said the SMD certification had expired); Ruling: 'Defendant presented no speedometer certification' (but I did present multiple photos showing my 2019 vehicle speedometer exactly matching roadside digital speed monitor signs at different speeds); Ruling: 'The Officer must have been the one to test the SMD because he said it was tested at the beginning and end of *my* shift.' (but the Officer did not testify to that... and he could not possibly have tested the SMD 'after his shift' at the time stated, because he testified his shift just began 30 mins earlier and the report was submitted 3 minutes after the stop... Ruling: "It's what they always do."); Ruling: Defendant presented no evidence of nearby high-power transmission lines (but my exhibits DID include a Google Earth screenshot of high-power lines coming right next to the highway).

Hearing via Zoom made it very challenging to present evidence for shared view. All my exhibits were submitted in advance. Commissioner said they reviewed it all (and perhaps so, but without context).
I was unfamiliar with the hearing format, so I probably jumped around too much between asking questions, making my own testimony, and afraid to pause long enough to do any math calcs on-the-fly.
The Commissioner made a final ruling before I rested. I was not allowed to present a Closing Argument.
For example: If two vehicles approach each other at 132 MPH (75 + 57) at 500 feet apart, they would pass in *2.6 seconds*, coming out of fog, disappearing into the fog. Very little time to make a positive identification. Since I never passed any vehicles for over 2 miles prior to being stopped, perhaps the offending vehicle targeted by the officer was a similar looking vehicle?

Do WA District Courts keep transcripts of Contested Traffic Hearings? To appeal, I would likely need what the Officer said (i.e. during cross examination).

[adjusterjack]

I was unfamiliar with the hearing format,

That's the problem. The judge and the officer were familiar with the hearing format. An attorney might have gotten you a dismissal.

If you are planning to appeal without an attorney you will probably get that wrong too.

If it's so important to you to beat the ticket you should have an attorney do your appeal. Or, you can try it yourself and see what happens.

Do WA District Courts keep transcripts of Contested Traffic Hearings?

I don't know. There are WA people here (if they come back) that know about WA traffic tickets. Might not be soon enough. There is a glitch on this site that's telling people it's a security risk to their computers and a lot of people aren't posting anymore.

[searcher99]

It’s unfortunate that you subpoenaed the officer, because most successful defenses involve preliminary suppression or exclusion of evidence rather than trying to challenge an officer’s testimony. You should have had an easy dismissal by moving at the beginning to suppress or exclude evidence of speed based on the officer’s written statement that the SMD calibration certificate had expired. In almost every case it’s much better not to have the officer present in a Washington State civil infraction hearing.

I have not appealed a traffic case nor do I know enough to offer anything more than basic observations, so I would concur with adjusterjack that you should probably get at least basic help from an attorney. I will quote from a 2011 post by BrendanjKeegan which I think is relevant:

You're really getting into a lot here, and I recommend talking to a lawyer...If you still are thinking about going through with the appeal: I recommend reading up on and familiarizing yourself with Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ)....It seems like you're getting into something that is way beyond the scope of these forums...I don't mean to sound discouraging, but in all honesty: it looks like an uphill battle.

Based on what you’ve stated, there are a couple of things that sort of jump out at me, although as I said before this is really above my pay grade:

1. You pointed out to the commissioner that the officer filed his affidavit early in his shift but falsely attested to testing the SMD at the end of his shift, to which the commissioner ruled "It's what they always do." I would say that the commissioner erred in that ruling because proper testing is required per ER 901(b)(9) and the “process or system” is dictated by the radar manual. “What they always do” is irrelevant.
2. You mentioned that “The Commissioner made a final ruling before I rested. I was not allowed to present a Closing Argument.” To me that looks like an error in procedure that denied you due process.

Based on previous threads in this forum, my understanding is that infraction hearings are recorded and audio should be available for purchase. After that you need to pay to get the audio transcribed. I would check with a court clerk for more details about that.

[adjusterjack]

Another point, Brendan, you don't get to raise new issues or present new evidence on appeal. You have to show that the judge erred in his decision. A good way to do that is to cite appellate cases that ruled in favor of the defendant.

See if any of these case decisions help you.

https://scholar.google.com/scholar?h...e+errors&btnG=

https://scholar.google.com/scholar?h...l+errors&btnG=

There might be some duplicate in the two searches.

You will also need to learn how to write an appeals brief. The resources in this search might be helpful.

https://duckduckgo.com/?q=washington...ef&t=h_&ia=web