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  1. #1
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    Default Procedural Guide to Traffic Tickets in Washington State

    Disclaimer

    I take no responsibility for anything anyone does using the information and/or opinions contained herein. Use any information and/or opinions at your own risk. I do not guarantee the accuracy of the assertions, information, or opinions expressed herein. Due diligence is YOUR responsibility. As far as you’re concerned, everything contained in this guide might actually be fictional. ONE LAST TIME – USE AT YOUR OWN RISK!

    Furthermore, the information that I present here is applicable ONLY TO WASHINGTON STATE. Some may be useful in other states, but I make so such representation.

    Table of Contents:
    Introduction and definitions
    Receiving a ticket
    Contesting the ticket

    Part I – Introduction

    I have put together this guide to procedures for traffic infractions in the State of Washington. Please understand that I am NOT an attorney, and any “advice” I give in this guide is merely my opinion, or “what I would do in a similar circumstance.” I may be totally wrong. Just remember, you get what you pay for, and this guide is no exception. If you really want my advice, here it is: GET A LAWYER!

    That said, you also need to understand that this is NOT a “beat your ticket” guide. I am merely trying to explain the options and procedures, as well as some of the vocabulary associated with traffic infractions in WA. My goal is to provide you with the information you need to make informed decisions.

    Washington State is unique in the country for its handling of traffic citations. You can find one or more of these properties in other states, but, to my knowledge WA is the only state where ALL of these apply:
    • Most traffic infractions are “civil” in nature, not criminal. There are exceptions, of course. These include DUI, reckless driving and a host of others. You can find the exceptions listed in RCW 46.63.020. This means that for those violations that are considered “infractions”, the state will NOT provide you with an attorney, nor are you accorded MOST of the rights accorded those accused of criminal offenses. On the other hand, this means you will not have a “criminal” record as a result of a traffic infraction (as you can in some states).

    • The standard of proof is “preponderance of evidence” (see RCW 46.63.090 (3)). Many states use “beyond a reasonable doubt”, which is a much more difficult standard to meet (although, in practice, I’m pretty sure just as many people are found “guilty” in CA, say, as in WA). “Preponderance of evidence” simply means that it’s “more likely than not” that you committed the offense. That doesn’t even mean 51%. It means 50% plus just enough to tip the scale against you. So, if it’s just your word against the citing officer, guess which way the scale tips.

    • The officer who issued you the citation is NOT required to be present at the hearing. That’s not to say they won’t show up. But, the only way to ASSURE the officer’s presence is to subpoena him/her. IRLJ 3.3 (c) states:

    Quote Quoting IRLJ 3.3
    The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing, unless the defendant has caused the officer to be served with a subpoena to appear in accordance with instructions from the court issued pursuant to rule 2.6(a)(2).

    • There may or may not be a prosecutor at the hearing. It’s up to each individual jurisdiction. For example, Tacoma Municipal Court does not usually have a prosecuting attorney at the hearings.

    • There are no “points” for traffic infractions that the Washington Department of Licensing (DOL) assigns. That is not to say that some insurance companies don’t have a “point” system.
    Definitions
    • Law – I will use the word “law” when I refer to a statute (contained in the Revised Code of Washington [RCW] and written by the state legislature) or local ordinance (written by the county or city governing body).
    • Rule – This refers to a procedural directive written by the Supreme Court. For this guide, those will mostly consist of the Rules of Evidence (ER), Infraction Rules for Courts of Limited Jurisdiction (IRLJ), or Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ).
    • Case Law – Refers to a Court of Appeals or Supreme Court published opinion.
    • Discovery – A request for information about the evidence against you.
    • Subpoena – A request for the appearance of a witness. Usually this will be the officer or possibly a radar technician.

    Part II – OK, you’ve just received a ticket – now what?

    As RCW 46.63.060 states:
    Quote Quoting RCW 46.63.060
    [T]he notice represents a determination that a traffic infraction has been committed by the person named in the notice and that the determination shall be final unless contested as provided in this chapter

    Once you have received a Notice of Infraction, you have three choices, as outlined on the back of the citation and specified in RCW 46.63.070, paragraphs (2), (3), and (4). In short, you may:
    • Pay the ticket (basically, plead “guilty”).
    • Contest the ticket (plead “not guilty).
    • Explain mitigating circumstances (plead “guilty with an explanation”).
    Of these three choices, I highly recommend “NOT GUILTY”. Here’s why – if you plead guilty and send in a check, you will pay the full amount of the ticket (which can be considerable), plus it may cause your insurance to go up (which can be EVEN MORE considerable).

    As an aside, if you’re not sure, call your insurance agent – today – and ask if a ticket will affect your insurance rates. Do this now – BEFORE you receive a ticket. If your agent says it will NOT affect your rates, then “guilty” and “guilty with an explanation” become a lot more attractive.

    If your insurance rates will not be affected, and you just want to get on with your life, then, by all means, just pay it. But, understand that the infraction WILL go on your record – and your insurance company may not be as forgiving the next time around.

    Whichever option you choose, remember to return your ticket (MAKE A COPY OF BOTH SIDES) within 15 calendar days. Failure to do so may result in the license being suspended.

    Mitigation Hearing

    But, it you’re going to plead “guilty” and send in the fine anyway, for a little extra work, you can plead “guilty with an explanation” and possibly save yourself some money. If you do, the court will schedule you for a “mitigation” hearing, where you will have the opportunity to explain your story. But, please understand, if you request a mitigation hearing, you are still pleading “guilty”. The infraction CANNOT be dismissed, it WILL go on your record, and it may affect your insurance rates. The usual result of a mitigation hearing is to have the fine lowered. Sometimes it is cut in half, sometimes even more (and, of course, sometimes you still pay the entire ticket – but the fine cannot be increased). It’s up to the judge, who will base the decision on the severity of the infraction and your explanation of the circumstances, as well as your driving record. But, again, if you know it won’t affect your insurance, it’s not a bad alternative.

    One advantage of a mitigation hearing is that you can request a deferral. I’ll explain more about that option in the next section.

    Oh, some jurisdictions will let you mitigate (or even contest) by mail – officially it is called a “Decision on Written Statements” and is covered by rules in IRLJ 3.5. Some jurisdictions allow it, some don’t. Call the Clerk of the Court (or check the online website) if you’re interested – especially if you’re just going to request a deferral.

    One last word about mitigation hearings – there is NO APPEAL from the decision.

    Deferred Findings (or Deferral)

    RCW 46.63.070 (5) allows WA courts to “defer findings” in some traffic infractions. There are two restrictions: 1) You may not receive more than ONE deferral every SEVEN years, and 2) You are not eligible if you have a Commercial Drivers License (CDL) – even if the citation was issued while you were driving your personal vehicle.

    Here’s what a deferral means. Basically, the court “finds” that you are “guilty”. It will then defer entering those findings for some period of time – up to one year. If you don’t receive any more traffic citations during the deferral period, the court will DISMISS this ticket. The courts may impose an “administrative fee” (usually $100 - $150, but sometimes more). It may also impose other conditions (such as traffic school), which must also be met (this is very rare).

    Basically, what that means is that this ticket will NOT appear on your driving record, and your insurance company, therefore, will not learn of it. If you’re a young driver, that’s REALLY a good thing – I’ve heard of insurance rates going up $100/month or more as a result of ONE infraction.

    Now, the downside comes if you DO get another ticket during the deferral period, BOTH infractions will appear on your record. Some courts reinstate the original fine for your ticket (although some don’t). Your insurance costs will probably sky-rocket – assuming your insurance company doesn’t just drop you.

    Keep in mind that a deferral is NOT “automatic”. It is up to the judge. Each jurisdiction is different. For example, some courts will routinely NOT grant deferrals for “school zone” or “construction zone” violations – some will. Some will not grand deferrals for “negligent driving second degree” (a $550 fine, by the way), but some will. Some courts allow you to request a deferral by mail or even email, some don’t. MOST courts, however, will NOT allow a deferral AFTER a contested hearing. In other words, if you request a contested hearing, you will probably be given the opportunity to defer BEFORE your case begins. Also, some courts will not grant a deferral if you subpoena witnesses.

    In order to request a deferral, you must first request a “mitigation” or “contested” hearing. Then contact the Clerk of the Court and ask about their policy concerning deferrals – can you request it by mail, what will it cost, etc.

    If a deferral is granted, drive VERY CAREFULLY. Remember, you won’t be eligible for another deferral for SEVEN years.

  2. #2
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Part III – Contesting a Ticket

    If you choose a contested hearing, you may actually have to go to court TWICE. That’s because some jurisdictions have a “pre-hearing conference” that is scheduled before the actual hearing. As far as I can tell, the purpose of the prehearing conference is to offer you a deferral, if you’re eligible, or to get you to change your plea to “mitigation” – mostly so you won’t have to go back for another hearing.

    You also have the option of “waiving” the pre-hearing conference. If you do not want a deferral and intend on proceeding with the contested hearing, contact the Clerk of the Court to see if there is a special form you must fill out in order to waive the pre-hearing conference. Again, some jurisdictions are sticklers on using the proper form. In some jurisdictions, if you waive the pre-hearing conference, you also lose the ability to defer the ticket (for example, see Kent Municipal Court Rule KMC IRLJ 2.6

    The pre-hearing conference usually results in your filling out an “Order on pre-hearing conference”. This will probably be a form which you must complete and sign – be sure to read it carefully. The forms I’ve seen contain places for you to:
    List the witnesses you might call.
    You do NOT have to supply this list, however, it is proper etiquette to do so.
    Subpoena the officer(s) and/or others.
    If you wish to subpoena the officer, this makes it really easy. You may also subpoena the SMD expert with this form.
    List any pretrial motions you will make.
    Note that some courts REQUIRE you to list ANY pretrial motions or they are considered waived. Even though I may not actually MAKE any motions, I usually list “Motion to Compel Production” and “Motion to Dismiss”. That way, the prosecutor cannot object if you make those motions later.

    If you decide to contest your ticket, this is where the fun (and work) begins. After you receive your court date notice, be sure to check to see if it is within the proper time frame. Be sure to carefully read through IRLJ 2.6. Here are the salient points:

    • Written notice must be sent within 21 days. See paragraph (2).
    • If a pre-hearing conference is scheduled, it must be at least 14 days from the day the notice is sent and within 45 days of the infraction. See paragraph (a)(1)(i).
    • The contested hearing must be at least 14 days from the day the notice is sent and with 90 days of the pre-hearing conference (in one is scheduled) or 120 days of the date of the infraction (if no pre-hearing conference is scheduled). See paragraphs (a)(1) and (a)(1)(ii).
    • If your hearing is outside these times, you can make a motion for dismissal. See paragraph (f).
    • As long as the delay is not YOUR fault. See paragraph (e).
    • However, before you can move for dismissal, you must first file a motion for a speedy trial – WITHIN 10 DAYS OF RECEIVING THE NOTICE. See paragraph (d).
    Once you receive your notice, you are ready to submit a Discovery Request. I have posted a form which you can adapt to fit your jurisdiction and circumstances. You can find it here.

    Discovery is governed by IRLJ 3.1 (b). This rule entitles you to a copy of the officer’s sworn statement (which will probably be introduced into evidence) and a list of other witnesses that the prosecution may call. THAT’S IT! Do NOT ask for all those things they tell you on those “ticket killer” web sites, such as log books, a copy of other tickets written that day, vehicle maintenance records, names of the officer’s children, and a partridge in a pear tree. You will NOT get them, nor will the judge compel the prosecutor to produce them. It’s just a waste of time.

    Note that you must SERVE the request on the prosecutor and FILE a copy with the court. You must do this at least 14 days before your hearing. If the prosecutor fails to provide the requisite materials, move to have the sworn statement suppressed pursuant to IRLJ 3.1(b), then move for dismissal due to lack of evidence. If the prosecutor fails to provide them with 7 days, you may also move for suppression, but you must show prejudice – you must show how NOT having the materials in a timely manner has hurt your ability to defend yourself (that’s actually pretty hard to do – but feel free to give it a try).

    The first thing to check, when you receive your discovery materials, is the “filing” date. You materials SHOULD include a copy of the original ticket with a “filing” stamp. The date on this stamp MUST be within 5 days (not including weekends or holidays) of the date of the infraction. If it is not, you can move for dismissal pursuant to IRLJ 2.2 (d).

    Once in a while, the discovery materials will not contain a copy of your original ticket. In that case, call the Clerk of the Court and ask for the filing date.

    To Subpoena or not to Subpoena, that is the question

    You have the right to subpoena the officer or officers. The question is “Should you?” I have stated several times in these forums that I have NEVER seen ANYONE win (including defendants with attorneys) when the officer shows up for the hearing. Now, if you subpoena the officer and he/she fails to show up, you can make a motion for dismissal due to lack of evidence. See IRLJ 3.1 (a) and IRLJ 3.3 (c). If the prosecutor asks for a continuance, be sure to object. If the prosecutor tries to use the officer’s sworn statement when the officer doesn’t show, object pursuant to IRLJ 3.3 (c).

    Personally, I don’t think it’s a good idea to subpoena the officer – in most cases. There are, however, some circumstances where it can be helpful. Not long ago I indicated how it might be beneficial to let an officer make your case for you. You can read the post here. But I think these cases are rare.

    If you wish to subpoena the officer, it must be done according to instructions provided with the Hearing Notice (unless you filled out the form from a prehearing conference).

    Quote Quoting IRLJ 2.6 (a)(2)
    The notice of the hearing shall also include statements advising the defendant of the defendant's rights at the hearing, how the defendant may request that witnesses be subpoenaed….

    The Hearing

    I too have read those “trial by ambush” and “285 questions” web sites that give you all these wonderful questions literally guaranteed to have the officer quaking in the witness chair. In reality, however, it’s mostly going to be YOU doing the quaking and quivering. Most officers have been to court and testified dozens of times. They know exactly what they have to say. When you cross-examine them, you usually end up looking like a fool because they, quite literally, have no memory of the events. They testify from their notes (yes, the judge will allow them to “refresh” their memories from their notes), and to anything else they just respond – quite truthfully – “I don’t recall”.

    Now, here are some hints about the hearing itself (originally published by SeniorJudge):
    • Dress professionally in clean clothes.

    • Do not wear message shirts.

    • Don't chew gum, smoke, or eat. (Smokers...pot or tobacco...literally stink. Remember that before you head for court.)

    • Bathe and wash your hair.

    • Do not bring small children or your friends.

    • Go to court before your actual court date to watch how things go. I cannot stress how important this is. Become as comfortable as you can with the environment. Listen to arguments, especially those of attorneys. It’s best to call the Court Clerk and ask when they will be hearing “contested infractions”.

    • Speak politely and deferentially. If you argue or dispute something, do it professionally and without emotion.

    • If you have a cell phone, leave it in your car.
    The actual procedure at the hearing varies by jurisdiction. In some courts there will be a prosecutor, in others not. In some cases, or if you issue a subpoena, the officer will be there.

    If there is a prosecutor, he/she will speak first, unless you have a “pre-trial” motion, such as a motion to dismiss due to lack of discovery. If you subpoenaed the officer, the prosecutor will call the officer to the stand. The officer will answer a series of questions – carefully scripted questions – designed to prove your guilt. Of course, if you subpoenaed the officer and the officer is NOT present, move for dismissal. When the prosecutor is done questioning the officer, you will have the opportunity to cross-examine him/her. If this is your plan, you should draft a list of questions, leaving room to make notes of the answers.

    If there is no officer, and you did NOT subpoena one, the prosecutor will introduce the officer’s “sworn statement” into evidence. If you have an objection to the sworn statement (for example, the officer did not “sign” it), you must object now. The prosecutor will then present other evidence, such as the radar certificate, to complete the case. The prosecution will then rest.

    Then it will be your turn. The judge will swear you in and you will get to explain your side of the story. The prosecutor may cross-examine you. If you have other witnesses, you may call them at this time, as well.

    When you are done, the judge will deliver the verdict.

    As I suggested before, spend some time in court BEFORE your actual hearing date. It will help immensely.

    Well, that’s it – I think I’ve covered the basics. If you have comments, criticisms, or suggestions relating to this guide, please feel free to post them. If you have questions relating to your own circumstances, however, you should start you own thread.

    Good luck,
    Barry

  3. #3
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    This should get a Sticky...

    As always... An AMAZING job Barry!

  4. #4
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Thank you, St. That Guy.

    Barry

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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Decision on Written Statements

    OK, time for the last installment to this Procedural Guide. But, I must put in a caveat – I do NOT recommend a Decision on Written Statements. The reason is simple: THERE IS NO APPEAL! The judge is basically free to ignore your evidence, as well as the LAW. And, because there is no appeal, there is absolutely NOTHING you can do about it!

    Now, that being said, I also realize there are some situations (such as living out of state), where a DWS is the ONLY alternative. Therefore, here’s a quick guide.

    The first thing that’s important to remember is that a DWS is NOT available in all courts in all jurisdictions. Before you submit a DWS, call the Clerk of the Court and ask if it’s permissible in your particular court. If not, you must either appear in court for a contested or mitigation hearing, or plead guilty and pay the fine.

    Another thing to remember is that a DWS is actually the FOURTH way you can respond to your Notice of Infraction (see IRLJ 2.4). That means that if you choose to use a DWS, in some jurisdictions, it must be submitted by midnight of the day your Response to the Notice of Infraction is due. Some jurisdictions treat this a little differently. For example, the Kent Municipal Court allows you to “request” a DWS as your response to the NOI. You do not actually have to submit your DWS at that time. The actual DWS will then be due 14 days before your assigned in-court date. (See KMC-IRLJ 3.5 (b)). Island County requires that you PAY YOUR FINE when you submit your DWS. If you win, or if the penalty gets reduced, they will refund it. THIS DOES NOT APPLY TO ALL COURTS! Be sure you know the local rules for whichever court you are assigned to.

    Some courts supply DWS “forms” online – some actually REQUIRE that you use their form – be sure to ask the Clerk when you call. Check the court website (if they have one) just in case. You can find information about all District and Municipal Courts in WA from this page. Just click on a city. It will show you ALL of the courts for whatever county that city is located in (yes, that’s the second sentence I ended with a preposition). If you still cannot find it, try starting here.

    If there is no special form, be sure to use the format found in IRLJ 2.4 (b)(4):

    Code:
        I hereby state as follows:
    
        I promise that if it is determined that I committed the
        infraction for which I was cited, I will pay the monetary
        penalty authorized by law and assessed by the court.
        I certify (or declare) under penalty of perjury under the
        laws of the State of Washington that the foregoing is true
        and correct.
    
        ______________________________    ______________________________
                (Date and Place)          (Signature)
    
        I understand that if this form is submitted by e-mail, my
        typed name on the signature line will qualify as my
        signature for purposes of the above certification.)
    
        For mitigation hearings, the statement shall be executed in
        substantially the following form:
    
        I hereby state as follows:
    
        I promise to pay the monetary penalty authorized by law or,
        at the discretion of the court, any reduced penalty that may
        be set.
    
        I certify (or declare) under penalty of perjury under the
        laws of the State of Washington that the foregoing is true
        and correct.
    
        ______________________________    ______________________________
            (Date and Place)                     (Signature)
    
        I understand that if this form is submitted by e-mail, my
        typed name on the signature line will qualify as my
        signature for purposes of the above certification.

    Mitigation or Deferral

    If you are asking for a deferral, you should request that first. Then, if the court declines to grant the deferral, you can try to explain your “mitigating” circumstance in an attempt to get the fine reduced. You might write something like: “I, ______________, respectfully request the court to defer findings in this matter. I have not received a deferral within the past seven years, and I do not possess a CDL. If the court will not defer findings, please consider the following mitigating circumstances….” And explain why your fine should be reduced.

    Contested

    If you wish to contest the infraction, you must explain how you DID NOT commit the infraction, or how the officer’s statements fail to prove that you did. Statements such as “I was keeping up with the flow of traffic”, or “I don’t think I was going that fast” are NOT defenses.

    Again, this is not a “defeat your ticket” tutorial. I only hoped to explain the some of the “procedures” applicable to WA courts, which, I'll admit, can be daunting at times, especially for first-timers.

    Again, if you have comments, criticisms, or want to add something, please feel free to post it. If you have specific questions related to YOUR case, please start a new thread.

    Good luck,
    Barry

  6. #6
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Why are you not eligible for a deferral if you have a CDL?
    I was going to try and go that route but I have a Class B but I havnt used it in years.

  7. #7
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Quote Quoting wrightflyer
    View Post
    Why are you not eligible for a deferral if you have a CDL?

    That's a question for your state legislator. All I can tell you is that RCW 46.63.070 (5)(c) states:

    Quote Quoting RCW 46.63.070 (5)
    (c) A person who is the holder of a commercial driver's license or who was operating a commercial motor vehicle at the time of the violation may not receive a deferral under this section.

    Quote Quoting wrightflyer
    View Post
    I was going to try and go that route but I have a Class B but I havnt used it in years.

    If your drivers license status indicates that you have a CDL (you can check it online), I think you're out of luck in most cases. Although I do remember a guy on the forums saying that he got a deferral even though he had a CDL. I guess it depends on whether the judge is paying attention.

    Barry

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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    You wouldnt happen to know where I can find info. where it states your class B CDL reverts back to a regular drivers license if you allow your medical to expire?

  9. #9
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Beautiful write-up, glad it got the sticky.

  10. #10
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    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Thanks, Vince.

    Barry

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