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  1. #11
    Join Date
    Jan 2010
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    2

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    I'm confused about one thing and I have not been able to find a good answer. Much appreciated if you can help.

    Can you file a Discovery Request before you request a hearing?

    I'd like to see what evidence there is before deciding whether to contest or mitigate, etc. Is this possible?

  2. #12
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    In theory, no, you cannot file a discovery request unless you have requested a contested hearing. The authority for requesting discovery is IRLJ 3.1 (b). However, if you notice the full title for IRLJ 3.1 is: CONTESTED HEARINGS--PRELIMINARY PROCEEDINGS. Now, in reality, there is nothing that prevents you from requesting discovery before you send in the response to the Notice of Infraction. Just be aware that there is no reason why you would receive the materials before your 15 day deadline. If you miss that deadline, "I was waiting for my discovery materials" would NOT be a good excuse.

    However, as I mention above, if you request a contested hearing, receive your discovery materials, and decide you just want to mitigate, you can ALWAYS change your plea. In fact, I've seen judges ask, "So, you wish to change your plea to 'guilty with an explanation'?" They then allow the defendant to explain why the fine should be reduced.

    Or, if a deferral is your desire, you can ask for that at EITHER a contested or mitigation hearing (with the qualifications I've listed above).

    Barry

  3. #13

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    blewis - I'm confused. Your downloaded request for discovery includes.

    3. (If radar/lidar was used) Calibration and certification log for the SMD used on ___(date)_____ in issuance of Citation #___________, if not on file with the court pursuant to IRLJ 6.6(d).


    However clearly IRLJ 3.1(b) state that other then the officer sworn statement and a list of any witnessess no other discovery is required.

    Code:
        (b) Discovery. Upon written demand of the defendant at least 14 days before
    a contested hearing, filed with the court and served on the office of the
    prosecuting authority assigned to the court in which the infraction is filed,
    the plaintiff's lawyer shall at least 7 days before the hearing provide the
    defendant or the defendant's lawyer with a copy of the citing officer's sworn
    statement and with the names of any witnesses not identified in the citing
    officer's sworn statement. If the prosecuting authority provides the citing
    officer's sworn statement less than 7 days before the hearing but not later
    than one day before the hearing, the citing officer's sworn statement shall be
    suppressed only upon a showing of prejudice in the presentation of the
    defendant's case.  If the prosecuting authority, without reasonable excuse or
    justification, fails to provide the citing officer's sworn statement, the
    statement shall be suppressed. No other discovery shall be required. Neither
    party is precluded from investigating the case, and neither party shall impede
    another party's investigation. A request for discovery pursuant to this section
    shall be filed on a separate pleading.
    What rule do you base that you can request the Calibration and certification log if not on file?

    Is this RULE CR 26 GENERAL PROVISIONS GOVERNING DISCOVERY?

  4. #14
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    There is no specific rule -- just logic. In order for the prosecution to introduce evidence from a radar/lidar/stopwatch, etc. device, that device MUST be authenticated (see ER 901 (b)(9) as upheld by BELLEVUE v. MOCIULSKI, 51 Wn. App. 855, 756 P.2d 1320 (1987).

    IRLJ 6.6 (b) allows a form to be submitted in lieu of an SMD expert for the purposes of authentication. IRLJ 6.6 (d), allows that form to be "filed" with the court and that the court can take judicial notice of it.

    Now, if the form is NOT on file with the court, my Discovery Request form simply allows me to show the court that I did, indeed, exhaust ALL avenues in trying to get a copy. Thus, if it is not on file, I can move for dismissal pursuant to IRLJ 6.6 (d) and (c) without recourse from the prosecution.

    And, yes, you're right -- I have NO right to it through discovery. I'm just covering all the bases. I hope that explains it.

    Barry

  5. #15

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Quote Quoting blewis
    View Post
    And, yes, you're right -- I have NO right to it through discovery. I'm just covering all the bases. I hope that explains it.

    Barry
    Thank you for the great explanation. Could it be considered harasment however knowing that the defendant is asking for something that is not entitled by law?

    Also according to LIRLJ 3.1 (3) should the discovery for the Calibration and certification log be served 30 days before the court date? What if notice is given within 30 days forthe court date? This makes it impossible to serve within 30 days.


    Code:
        (3)   Speed Measuring Device Expert.  Defense requests
    for a Speed Measuring Device Expert must be made to the
    Office of the Prosecuting Attorney no less than 30 days
    prior to the date set for the contested hearing.  A request
    for a SMD expert may be treated by the Court as a request
    for a continuance to the next date on which the prosecuting
    attorney has scheduled the appearance of the SMD Expert.  In
    cases where either party requests a Speed Measuring Device
    Expert (SMD Expert), those cases shall be consolidated to
    the extent possible on one calendar.  (See Exhibit LIRLJ
    3.1(a)(3).)

  6. #16
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Harassment? Nah! You can ASK for anything you like -- the law simply says they are not required to give it to you. It doesn't say you can't ask.

    Barry

  7. #17

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    Quote Quoting blewis
    View Post
    Harassment? Nah! You can ASK for anything you like -- the law simply says they are not required to give it to you. It doesn't say you can't ask.

    Barry
    OK

    How can I obtain the Calibration and certification log if it is not included in discovery and the court clerk can not find it either online or filed with the court? When I'm before the judge what proof must I show that it is not online or filed with the court?

  8. #18
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    I'm surprised you did not mention request for admissions .. Rule 36 of civil procedure ... why not ask for admission that you were going at X mph (X=speed limit); then when they dont answer, it should be deemed admitted & then you file a pre-trial motion for dismissal. Also, I think that the sworn officer's statement is no long constitutionally allowed w/o his testimony prior to it be admitted into evidence (also any cert. of calibrations too) - this would be under SCOTUS ruling in Melendez-Diaz v. State of Mass. ruled in 2009. I believe that to win a traffic case, you must win it with a motion for summary judgment or aquittal after the state rests (like you said, saying I wasn't speeding isn't going to cut it) before the defendant presents his case (what case can a defendant bring - vitually nothing in reality). So, the defendant must attack everything the state needs to prove during the state's presentation of the case. I won my case with the officer in court - I did it through objections to evidence that they wanted to get into the record & objections to the officer's testimony - when the state got done, I requested an immediate aquittal & it was granted. The Melendez-Diaz case keep critical evidence out of the record (cert. of cal. for a lidar unit) & I also argued that the officer did not have the proper training & did not follow testing procedures demanded by the manufacturer.. a defendant should not have to subpenoa the officer anymore -- asking for a witness list & getting "no-one" back should trigger a defendant to file a motion for dismissal. And asking for discovery is important - the cop can get you 3 ways: 1st) via instrument (lidar or radar?) 2nd) by pacing you in his car 3rd) by eye Defendant's needs to ask for discovery to get information to defeat each of these methods ... and since Washington state wants to be a**holes about making it a civil case, file interrogatories too ! And keep good records an bring them to court - in traffic cases the paperwork is not kept very neatly by the clerks

  9. #19
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    I see ... instead of "formal discovery" WA allows for a non-formal investigation to be initiated by the defendant. Non-cooperation in the investigation would be a violation of the court rule regarding discovery. Therefore, one can interrogate the police officer informally as well as demand to see documents via an informal request. And an investigation is broader than discovery which must be related to something that would be admissible (although a document does nt have to be admissible to be available in discover), so one can almost ask for anything in their investigation & if hindered then it would grounds for a motion to dismiss for violating the court rule.

  10. #20
    Join Date
    Oct 2010
    Posts
    1

    Default Re: Procedural Guide to Traffic Tickets in Washington State

    I was wondering. My wife just got a ticket for doing 52 in a 40 and I was curious about fighting it. The officer was on the other side of the road and it was early morning with lots of traffic in the opposite direction for the Navy base. Also the ticket does not say how the officer knew that she was going so fast i.e. RADAR or pacing and there is no spot for the unit's number or calibration. Is this an ok ticket or can we contest it on the fact that there is no evidence presented to us as to how the officer somehow knew she was going that fast even though there was heavy traffic in the other way. Also on a second note the officer was very belligerent to my wife any chance there? Thank you

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