My question involves a traffic ticket from the state of: Washington, Cowlitz County
Hi all!
I've been lurking around ExpertLaw for a few weeks now, gathering some excellent information from some of the regulars that post here. I tip my hat to blewis, BrendanJKeegan, and others who are willing to share their expertise - sometimes more useful than actual law - to help the general public deal with this nuisance.
This isn't my first rodeo, but the first in Washington. I got lasered on I-5 over Memorial Day weekend by a rather polite WSP officer, in an un-noteworthy incident. I wrote a pitiful email asking for a plea bargain, was denied, and given a contested hearing date on 7/25 (next Tuesday). I sent a discovery request postmarked 7/11, using Certified Mail. As of today (7/20), I've received no reply. I'm aware of IRLJ 3.3 and that if I get nothing at all, the law's pretty clear that my case is to be dismissed.
Question 1: Suppose I get nothing, show up, and they claim something was mailed. I have a Certified receipt, and I expect they won't have any proof of responding (but who needs proof when you have power? I digress...) What happens?
Prior to this, however, I was emailed a copy of what was said to be the officer's affidavit, but what I got was extremely vague and incomplete. I am preparing my dismissal motion based on this "affidavit", intending to revise my defense if and when I get the actual statement during discovery. Among its flaws:
1. It is untitled. There is no letterhead or anything of the sort. It says "I contacted defendant, previously identified, at the attached location and time" but nothing is attached. It mentions "a notice of infraction" (emphasis mine), but that's the closest it comes to incorporating the NOI by reference. The computer file does however list the infraction number in its name, but if it were printed there would be no such mention.
2. It is unsigned. There is no signature field at all.
3. It does not identify the defendant.
4. It does not identify the defendant's car.
5. It does not give a date, time, or location.
6. It does not state whether the defendant's car was approaching or receding.
7. It is vague about the SMD test procedures. Of three tests listed, only for one does the officer state personal knowledge of its performance and the success thereof. For the other two, it does not state who did the testing. Furthermore, the officer states - without substantiating same - that he is qualified to use the SMD, but makes no mention of his qualifications to test it.
8. It states that "WPS technicians have certified this SMD for use", but don't SMDs need to be certified by an SMD expert, not just a WSP technician?
Prior to responding to the ticket, I showed up to court just to observe (per advice in Barry's thread). I witnessed lawyers getting tickets tossed out for failure to incorporate by reference, and for numbers 3-6 above. I also observed SMD foundation being attacked for not following what seemed to be fairly strict test procedures, but...
I can't very well say "this should be dismissed because a month ago I heard your other judge dismiss cases I can't identify, for the same reasons." I feel I should have stronger backing for these arguments, because I am not a lawyer and I know I won't be taken as seriously as one, especially if I don't cite statutory and case law.
Regarding case law, I welcome the suggestion of any and all relevant precedents (I'm actively researching Mociulski and others).
Regarding statutory law, I read the entirety of the Evidence Rules but could only come up with ER 602 as it relates to #7; namely, the officer did not state personal knowledge of the SMD having passed all three tests. Any suggestions? Are there any actual statutes that require a statement to be signed, for instance? Any other comments on the points mentioned above?
I'll upload the affidavit as soon as I figure out how. Thanks in advance!
Hi all!
I've been lurking around ExpertLaw for a few weeks now, gathering some excellent information from some of the regulars that post here. I tip my hat to blewis, BrendanJKeegan, and others who are willing to share their expertise - sometimes more useful than actual law - to help the general public deal with this nuisance.
This isn't my first rodeo, but the first in Washington. I got lasered on I-5 over Memorial Day weekend by a rather polite WSP officer, in an un-noteworthy incident. I wrote a pitiful email asking for a plea bargain, was denied, and given a contested hearing date on 7/25 (next Tuesday). I sent a discovery request postmarked 7/11, using Certified Mail. As of today (7/20), I've received no reply. I'm aware of IRLJ 3.3 and that if I get nothing at all, the law's pretty clear that my case is to be dismissed.
Question 1: Suppose I get nothing, show up, and they claim something was mailed. I have a Certified receipt, and I expect they won't have any proof of responding (but who needs proof when you have power? I digress...) What happens?
Prior to this, however, I was emailed a copy of what was said to be the officer's affidavit, but what I got was extremely vague and incomplete. I am preparing my dismissal motion based on this "affidavit", intending to revise my defense if and when I get the actual statement during discovery. Among its flaws:
1. It is untitled. There is no letterhead or anything of the sort. It says "I contacted defendant, previously identified, at the attached location and time" but nothing is attached. It mentions "a notice of infraction" (emphasis mine), but that's the closest it comes to incorporating the NOI by reference. The computer file does however list the infraction number in its name, but if it were printed there would be no such mention.
2. It is unsigned. There is no signature field at all.
3. It does not identify the defendant.
4. It does not identify the defendant's car.
5. It does not give a date, time, or location.
6. It does not state whether the defendant's car was approaching or receding.
7. It is vague about the SMD test procedures. Of three tests listed, only for one does the officer state personal knowledge of its performance and the success thereof. For the other two, it does not state who did the testing. Furthermore, the officer states - without substantiating same - that he is qualified to use the SMD, but makes no mention of his qualifications to test it.
8. It states that "WPS technicians have certified this SMD for use", but don't SMDs need to be certified by an SMD expert, not just a WSP technician?
Prior to responding to the ticket, I showed up to court just to observe (per advice in Barry's thread). I witnessed lawyers getting tickets tossed out for failure to incorporate by reference, and for numbers 3-6 above. I also observed SMD foundation being attacked for not following what seemed to be fairly strict test procedures, but...
I can't very well say "this should be dismissed because a month ago I heard your other judge dismiss cases I can't identify, for the same reasons." I feel I should have stronger backing for these arguments, because I am not a lawyer and I know I won't be taken as seriously as one, especially if I don't cite statutory and case law.
Regarding case law, I welcome the suggestion of any and all relevant precedents (I'm actively researching Mociulski and others).
Regarding statutory law, I read the entirety of the Evidence Rules but could only come up with ER 602 as it relates to #7; namely, the officer did not state personal knowledge of the SMD having passed all three tests. Any suggestions? Are there any actual statutes that require a statement to be signed, for instance? Any other comments on the points mentioned above?
I'll upload the affidavit as soon as I figure out how. Thanks in advance!
Hearings and Trials: First Ticket in Wa. Help, Please
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