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Your Defense

REQUEST PUBLIC RECORDS

This is important for several reasons. First of all, look up the actual violation that you were charged with. Be aware of how it’s worded and any relevant laws that may pertain to that particular code. You might need to access the public records provisions to obtain necessary documentation to help you prepare your defense. You can either go to your local library or a Law library. Look at the different case laws that relate to your specific violation and copy down the references that support your potential defense. You must presume that you are going to prosecute your own case, and so write down any laws that you would use. I shall take an example from the California Motor Vehicle code to illustrate what the prosecution will need to prove in order to get a conviction against you. The traffic violation code that we shall use is CVC22350 Unsafe Speed: “No person shall drive a vehicle (you have to be identified as the driver and the witness for the prosecution needs to have observed you actually driving the vehicle) upon a highway.” (The prosecution has to establish where the violation occurred). “At a speed greater than is reasonable or prudent.” How do you define what is reasonable or prudent? It’s based merely on personal opinion. “Having due regard for weather visibility, the traffic, and the surface and width of the highway.” These are the factors used to establish reasonable and prudent issues “and in no event at a speed which endangers safety of a person or property.” Are you guilty of endangering the person or of endangering someone’s property? Try to break down the codes into bitesize chunks, so that you can manage and figure out all the points that the prosecution needs to prove against you. If he does not prove all these points, you have grounds for dismissal after they rest their case.

DISCOVER

One of the defendant’s rights as part of the trial is the discovery process. Some states try to limit this right in traffic cases because they want you to pay your fine and go home. Remember that it is your constitutional right for utilization of the discovery process. You are going to find a list of the items you need, how to write your request, and who to send it to under the Public Records Request. Talk to your local county clerks office and find out how to issue a discovery subpoena. Make sure you indicate that any items on the discovery subpoena are necessary prior to the trial date. The items you might normally need for a radar speeding ticket are the following:

  • Repair records

  • Manufacturer’s manual and specifications

  • A log of the calibrations

  • A copy of the departments FCC license to operate a radar unit

  • A copy of the repair calibration

  • Accuracy of the tuning fork

  • The arrest record of the police officer for three months prior to the date of your offense,

  • His log for the day of your citation,

  • Both copies of your original citation,

  • A speedometer calibration certificate

  • All maintenance and repair records, and service records for the patrol car that was used in stopping you for your violation.

Beware of the possibility of the prosecution stopping this request with a motion to protect. Don’t let it bother you though, because if this occurs you can just appear at your trial and make a motion to dismiss the charges. It might work, it might not. If it doesn’t work, ask what the prosecution is trying to hide by denying you the information that you need to build your case. Immediately afterwards, file for a motion for continuance, to give you enough time to get your defense ready after the materials are delivered. If the judge still denies you access to the information you want, you have an excellent basis for a not guilty plea during the appeals process, and reversal of a guilty verdict. Now we’re going to tell you what to look for in this documentation, so that you can utilise it during your trial.

REVIEWING EVIDENCE

The repair records for the radar unit will give indication as to the dependability of the unit. If it has frequent repair records, you’ll find that it may have a chronic problem. If there are infrequent repairs it could mean that the unit has not been serviced properly and may not be accurate. The manufacturer’s manual and specifications will tell you at what frequency maintenance is suggested on the unit. These facts should assist you with your cross examination. Also check the units frequency against the FCC. The radar calibration log shows what time and how often the unit was calibrated which means how often it was checked for accuracy. There are two court cases you can refer to; Wisconsin versus Hanson and Minnesota versus Gerdes. During those cases the judge determined that calibration checking with a tuning fork should be performed within a reasonable time after the citation is issued. In two other cases (Connecticut versus Tomanelli and New York versus Struck) it was ruled that a calibration by tuning fork should be performed immediately before and after a citation is dealt out. All four of these cases have shown that tuning at the start and at the end of the shift is not acceptable, even though this is the norm. The FCC license is approved for a specific frequency or range of frequencies. Check the information in the manufacturer’s manual and specifications against the FCC’s license. This should prove if the officer was operating the unit illegally or not. Calibration by tuning fork information is necessary to show that the unit was calibrated to what we call a “traceable standard.” Without the certificate of calibration, the tuning fork is immediately doubted as being accurate enough to calibrate the radar unit.

The police officer’s daily log record may reveal that he prefers to ticket cars of a specific color, make, model, or year. If there is a pattern, there may be a particular location where he writes the majority of those tickets. It could be that the location has bad engineering, problems with traffic control, or poor visibility of the signs, and this could contribute to the amount of citations that are issued. The reason for this is that it introduces doubt into the minds of the court. The daily log of the police officer will list all of the citations that were issued on the day that you received yours. Look for a listing of citations that are similar to yours, such as same speed, same location etc. This would generally indicate that the radar unit was possibly locked in, causing the same reading to be used for several vehicles.

The officer’s radar training should show 24 hours of classroom instruction followed by 16 hours of supervised field training. Usually the officers are trained for a very brief period of time. The National Highway Transportation Safety Administration has endorsed and established the 24/16 hour criteria for training. Both sides of the police officer’s copy of the citation can be informative. He usually writes down his own notes to refresh his memory and if you know what he will be remembering, you can bring up other factors that he won’t. The calibration of the speedometer on the patrol car should show that it has been suitably repaired and is accurate. This is extremely important if the patrol car was moving when the radar unit was used. Maintenance records of the patrol car may reveal any mechanical or electrical problems which could interfere with the correct operation of the radar unit.

RETURN TO THE SCENE WHERE YOU GOT YOUR TICKET

Returning to the area where you got your ticket can have a variety of benefits. You may remember some additional details that you forgot to write down on the day the citation was issued. It will also provide the opportunity to look at the situation in more depth. If you discover some factors at the scene which may sway the decision of the court, you’ll need to prepare documentation to prove them at the trial. Your best evidence to present at trial about the scene would be a large diagram that documents every relevant fact. Try to include the following: All the roads including the markings on them and their widths; all traffic signals that includes signs or lights; the location of your vehicle and the officer’s vehicle at the moment you were pulled over. Also detail the locations after you stopped. Note down any structures in the area like walls, buildings, fences, etc. Note any foliage, shrubs, hedges, trees, as well as any structures around the area such as billboards, advertising banners, street signs, and anything that has the potential to distract a driver. Put down any power line antennas or such like. It might be important for you to take some pictures from the driver’s viewpoint in order to highlight any obstructing signage which may have caused you to miss seeing a speed sign.

The size of your diagram should be the size that would be easily viewed by anyone in the courtroom. Keep it at a minimum of 8 x 10. Just bring these reference materials to court if they will have a direct bearing on your case. If what you have described on the diagram is basically what is described in your citation, it won’t be necessary to bring it up because it will only be helping the prosecutor with their case. If it does reveal some type of serious contributing factor, don’t show the items until the trial when you introduce them as evidence for the defense.

CHECK OUT THE COURTROOM AHEAD OF TIME

If you have time, spend a few hours in traffic court to get a general ‘lay of the land’. Often the judge will be the same person that does your case, but the prosecutor may well be different. Pay attention during your visit to the way the judge addresses the defense, motions or objections. You might even be lucky enough to see another citizen try to defend their own case, and see how he fares going down the paths of justice. Has he prepared as well as you have in your case? And, if he makes any mistakes, what can you learn from them? If you’re lucky there will also be a defense attorney there and you could be able to learn from his methods. Study the relationships between the assistant district attorney, who is the prosecutor, and the testifying officer. Usually this will indicate how comfortable they are working together, and also the amount of detail they require during a normal proceeding. Remember that 95% of all traffic violations are paid without question. This will give you some kind of expectation as to what you can look forward to before you have your turn in court.

Finally, if you find that the judge is overruling any defense objections, you might want to file for a continuance immediately. It can only help your cause if you transfer to another court, if it seems that you are going to appear before a judge who will benefit to your case.

PLAN YOUR DEFENSE

Right, you’ve gone over all the evidence that you are going to review and you’ve looked at the scene for the second time whilst also checking out all of the documentation required to support your case, so now it’s time to think of a defense strategy for your trial. Be aware that most traffic tickets are argued from two different areas; a false radar reading, or a mistaken identity of the vehicle. Your defense strategy should be comprised of several elements. They include some of the following: The lack of a prosecution witness. This is your best chance for a mistrial. If there’s no police officer, then there’s no witness and you cannot be guilty.. Prosecution doesn’t prove the case against you. You should be familiar with all the specifications of the code that you are charged with violating. If the prosecuting attorney doesn’t prove every single item in the section of code, you should file a motion of dismissal and it is likely that you will win. If there are technicalities, for example the officer being out of his jurisdictional area, citing the wrong code, or writing the address incorrectly on the ticket. They are worth trying but don’t expect them to get you a dismissal unless over a jurisdictional issue. If you plan to use this as your sole form of defense, you could be caught unaware when the judge overrules on your motion to dismiss, simply because of a simple error.

The next item could be a factual error on the ticket, whereby you were not the driver, or you were not driving at an unsafe speed, the calibration of the unit was inaccurate, or it wasn’t your vehicle that was targeted by the radar. You will need specific evidence, such as the unit not being calibrated, or you’ll have to prove a procedural error on the part of the police officer. Ensure that you keep a checklist handy of everything that you want to cover during your time in court. If the officer shows up for the trial, don’t fret, just move onto your next defense level. If the prosecutor has covered all of his bases, move onto the next level after that. All that you can hope for is the best job that you can possibly do in your own defense.

Arrange an alternative plan for every possible circumstance. Being prepared will give you the best possible advantage. Be prepared to change your tactics at any time and have a good knowledge of your case.

 
 

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