Discovery and Finding the Best Defense to a Ticket

[searcher99]

My question involves a speeding ticket from the State of: Washington

I received a speeding ticket in Oct. at a well known speed trap in Bellevue. On the front of the ticket the officer says that he measured me at 54 in a 40 zone, but cites me for a reduced amount of 45/40. He did not check any of the three boxes “SMD, pace, or aircraft.”

I requested and received notice of a late Dec. contested hearing date. I went to the court and got copies of the ticket, stationary radar affidavit, and radar certification, all filed one day after the ticket date. I also attended and took notes at 2 contested ticket hearings, with several attorneys present. I noticed that radar evidence was successfully suppressed in at least 10 cases for expired certifications (more than 1 year, even by as little as 5 days). In my case the certification is over 14 mo. old, so this looks to be a good defense.

I am wondering about discovery. After reading several posts it appears to be a normal step and I have downloaded Barry’s template. Is it to my advantage to request discovery or should I just move to suppress the radar certification already on file? Or should I request discovery, omitting the radar certification, and point out that no device is specified on the ticket? In that case, would “insufficiency” be the correct term? Would it be better to personally deliver the discovery request to the prosecutor’s office?

Here’s one more question. The officer states on his affidavit that he visually measured me at about 50 in a 40. Is there any chance that I can lose if there is only a visual estimate? In any case I don’t believe he could have actually seen me from his vantage point.

Thank you in advance for any tips you can provide, and I apologize if I am asking too many questions for one post.

[Mr. Knowitall]

If the ticket was issued based upon the officer's visual estimate of your speed, or the officer's visual estimate preceded his radar measurement, getting the radar tossed out isn't likely to help. You can try to challenge the officer's ability to see you from where he estimated your speed, but... you had best go there and take some pictures, because your speculation alone won't cut it.

[blewis]

Mr. KIA may, indeed, be correct about the visual estimate being sufficient evidence, in and of itself. But, I'm not that sure. The reason is that, unlike states like CA, many officers in WA are NOT trained in "visual speed estimating" as part of any SMD training. This is true for King County and several Municipal police forces, but I don't know about State Patrol. So, my feeling is that, unless the officer specifies training and experience in making visual estimates, that testimony could be suppressed due to lack of foundation.

Furthermore, I'd really like to get Mr. Knowitall's or Aaron's opinion about BELLEVUE v. MOCIULSKI, 51 Wn. App. 855, 756 P.2d 1320 (1988). Near the very end, the court says, "Because the radar device was reliable, the testimony of each officer as to his visual estimate of each appellant's speed and the radar reading was admissible." To me, that IMPLIES that, had the radar NOT been found to be reliable, the visual estimates of the officers might not have been admissible. Or am I reading something into this that it really doesn't say? Or perhaps it simply goes along with my ER 702 objection about the admissibility of "visual estimates", when the officer has not shown himself to be an "expert" witness in that area. What do you think?

Oh, OP, sorry, I forgot my original reason for posting. I think I would argue that lack of a check mark to determine the method -- SMD, pace, or aircraft. IRLJ 3.1 (d) states:

(d) Sufficiency. No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction which the defendant is alleged to have committed, nor by reason of defects or imperfections which do not tend to prejudice substantial rights of the defendant.

If it were me, I'd assert that the lack of knowing HOW I was "clocked" prevented me from being able to prepare a proper defense. The "substance" of what you are being charged with is, basically, unknown. Thus, your "substantial rights" are prejudiced.

Think about it, why would you attack the radar certification, when you don't know that the officer used radar. Similarly, the speedometer certification if you had been paced or the stopwatch and ASTM marks if an aircraft had been used.

Thus, I would move for dismissal due to the notice of infraction being insufficient, pursuant to IRLJ 3.1 (d). If that fails, THEN I would attack the certification being out of date. Oh, and I wouldn't file for discovery because the officer probably mentions "activating my radar unit", or some such thing. Besides, you are not likely to receive ANYTHING other that what you already have. Just hope the Clerk did NOT make an entry in your file that he/she gave you the discovery materials. If they did, go with the radar certification.

Good luck,
Barry

[searcher99]

Thanks again to both of you for the helpful information. I went back to the court and noticed that they seem to have a new procedure. They give each pro se defendant a copy of whatever is on file relating to their ticket. Then they ask each individual if he/she was able to read and understand the documents. Here’s a question for Barry: If they hand me the discovery materials just before my hearing, am I still able to argue that the infraction notice was insufficient?

[blewis]

There's no reason NOT to argue it -- just remember to stress the affect on your "substantial rights". If the court denies the motion, proceed with questioning the radar certification.

Good luck, and let us know how it works out.

Barry