Washington State traffic court is fun to watch. Drivers bring wildly inventive defenses and a surprising number win. This post is intended to support the efforts of DIY minded folks who don't have money to hire an attorney, but desperately want a fair shake at a contested hearing for a speeding ticket.
Disclaimer
****This blog post is not legal advice ****
Each case varies and without a careful review of all the evidence in your matter there is no way to know your chances at a contested hearing. Even if you follow some of the strategies I discuss below, a judge could shoot you down because of your failure to correctly apply evidence rules, caselaw, local court rules, or statutory authority.
As well, it should be noted that the list of strategies below is not exhaustive, and they may win or lose based on your jurisdiction and local court culture. I intentionally left out a few winning arguments I have heard over the years developed by other attorneys out of respect for their practice. Finally, I refrain from an extend conversation about the rules of evidence and how they may apply, favorably, to infraction defense. Hit the law library if you want to go down that rabbit hole.
If your hearing gets set at the end of the calendar, you may want to pay attention to the arguments that happen before your case is called. Nothing beats waiting through a calendar or two to hear the arguments that work in your local jurisdiciton.
To contest, mitigate, or have found committed?
You can respond to your ticket in three ways: contest, mitigate, or have it found committed. This article is intended to help people who mailed the court the ticket with the contested box checked. Reasonable people also concede their tickets or mitigate them.
Insurance ticket caveat - At the risk of going too far afield from the purpose of this post, some jurisdicitons allow people with insurance tickets to bring proof of insurance to the clerk's office and the court will dismiss with a small fee if the driver was insured at the time of the stop. At a mitigated hearing the court will sometimes drastically lower the fee if the driver shows they got insurance after-the-fact but can prove they have it for year or more. The court clerk might be able to tip you off about the court's practices with this variety of ticket.
Discovery Request
If you sent the court notice of a contested hearing, what are you waiting for? Go ahead and file a discovery request. You'll have no idea what to argue at the hearing unless you have the evidence the prosecutor's office wants to use against you. Here's an example:
File this with prosecutor's office and the court. The court's address should be on the ticket. You may have to call the ticket jurisdiciton's prosecutor's office to ask how they accept service. Some require mail, most allow e-mail. IRLJ 3.1(b) says the discovery request must be served 14 days prior to the hearing.
All the mailing required is kind of hassle. You'd better get out your roll of stamps. To prove to the court that you sent a request to the prosecutor, you need to file a certificate of service . An example of a certificate of service can be found here. Note the certificate in the link is for a completely different variety of case and is an example, only.
Losing Arguments
After you get a response, read through all of the discovery and percolate your defense ideas. Before you get too far, though, you should understand a few arguments that are bound to lose:
"I was in a pack and everyone else was driving over the speed limit"
"I feel like the police are picking on me"
"I have a right to travel according the the uniform commercial code that my cousin showed me on the internet"
"I swear I wasn't speeding"
"The speed measurement device must have been broken".
I hear these arguments from DIY'ers just about every time I go to traffic court. They never work.
Arguing to Win
Instead, winning arguments specifically address the facts of the case, caselaw, state statute, and court rules.
Infraction Rules
A passing familiarity with the infraction rules for courts of lesser jurisdiciton (IRLJs) go a long way. Look them up and apply them to the facts of your case.
Timeliness
Was the case filed with the court within five days of the officer issuing the citation? If not, you can argue the state violated IRLJ 2.2(d) and ask the court to dismiss. Was the hearing set outside 120 days from the date the ticket was issued? IRLJ 2.6(a)(1) says this is a problem, too.
Discovery Violations
Another common motion for dismissal is based on the requirements of IRLJ 3.1(b). That rule says, more or less, that the prosecutor has to provide discovery to the driver when requested. This includes the officer's sworn report and any photographs or video the state intends to use. If they fail to do so, the rule says the court needs to suppress any information not provided. You will hear attorneys who never got a response from the prosecutor breezily move to dismiss according to this rule. Obviously, to make it work you have to file a disovery requrest with the prosecutor's office and provide a copy to the court at least 14 days before your hearing. IRLJ 3.1(b).
Speeding Ticket RADAR Device Tracking History
At infraction hearings the state has to prove its case by a preponderance of the evidence. If they fail to do so, IRLJ 3.3(d) says you can motion the judge to dismiss.
Speed measurement results are only as good as the skill of the citing officer. A close look at the the National Highway Traffic Safety Agency's (NHTSA) radar manual can help you put together a good argument for the judge for speeds captured by Radar Device. The agency authors a laser LIDAR manual as well.
Once you receive discovery from the state (you did ask for discovery right?!) take a look at the officers sworn affidavit. There you will see what mode the device was in. There are a few options. It could have been in stationary mode, following moving , or opposing moving mode. Now go to the NHTSA manual and look up the tracking history requirements for the mode listed in the ticket.
For example, the tracking history for opposite moving mode looks like this:
Check this list of requirements against the officer's sworn affidavit. If the officer failed to follow any of the steps, look through the NHTSA manual for why this is important. For example, if the officer failed to verify the speed display against the speedometer reading, read the section describing why that is necessary:
As you can see, the required speedometer check rules out the misalignment affect and is an "integral part of tracking history for moving R.A.D.A.R." So, without the speed check you can argue the state cannot prove its case by a preponderance of the evidence as required. File any materials, like the above excerpt from the NHTSA radar manual, you are relying on to the court well ahead of the hearing.
Speeding and the WSP 90 Day Speedometer Calibration
Another important document is the Washington State Patrol regulations manual. If you cannot find it online, file a records request with WSP. Inside you will find regulation 17.09.010 which holds that WSP troopers certify the calibration of their speedometers every 90 days by checking them against a radar device. If the officer failed to incorporate this in their report, bring it up with the judge, explain why it is important for the tracking history to rule out the misalignment effect, and you may have a winning argument. Again, provide the regulation ahead of time to the court if you intend to utilize it at the hearing in your argument.
Speeding, the IRLJ 6.6 Certicate, and the Speed Measurement Device Expert
Essentially, IRLJ 6.6 says that if a driver fails to demand the testimony of the speed measurement device (SMD) expert, the speed reading is admissible so long as the government provides a certificate that the device works properly.
Some courts keep the IRLJ 6.6 certificate on file according to local court rule, so the prosecutor does not even have to provide it in those jurisdictions. When you receive the cert from the prosecutor or court take a look at it to see if it matches your device. Is the calibration up-to-date? Does the device number line up with report? Are the serial numbers of the tuning forks the same as what the cop wrote down? These are good issues that you could bring up with the judge.
Some drivers take the rule up on its offer and serve the prosecutor a request for the SMD calibration expert. The rule also requires filing a copy with the court. This has to be done 30 days prior to the hearing. Then, if the expert fails to show at the contested hearing, the driver moves for suppression and dismissal under IRLJ 6.6(b). Many traffic ticket attorneys appear to do this as part of their standard appearance packet and win becuase there are simply too many infraction hearings for the couple of state experts to attend every one. BUT I have seen a couple of hearings where the expert drove for hours to the jurisdiction or appeared on zoom. Bluff called -> ticket committed.
Hearsay
IRLJ 3.3(c) says the rules of evidence apply at contested hearings. So, you may be able to use evidence rule 802, which prohibits hearsay to your advantage. Hearsay is defined in ER 801 as: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted". Wut?! It's complicated, but for purposes of a traffic ticket, hearsay boils down to statements made by a third party that end up in the officer's report. Essentially, if the officer's sworn report is based on observations of another person, or another officer who did not write the report, then you can move to strike those portions at the hearing and ask for dismissal through IRLJ 3.3(d) if the remainder of the information does not prove the infraction by a preponderance of the evidence.
This circumstance usually happens at traffic collisions where the officer arrives after the fact and the report is based on a witnesses statement. Other instances involve officers working in tandem to catch speeders where one officer operates the SMD and the other officer pulls the driver over and writes the ticket.
BEWARE THOUGH, any statements you made at the scene to the officer are not hearsay, so they ARE admissible according to ER 801(d)(2). This means if you admitted guilt and described the circumstance to the officer at the scene, and she wrote it into the sworn report, then you have a problem.
Officer's Signature
Speaking of sworn reports, look at the officer's signature line. Does it comply with RCW 5.50? Did the officer include their agency and location of signing? If not, there could be a problem with admissibility according to RCW 5.50.010(3)(e) or RCW 5.50.050.
Other Options - Negotiate or deferral
If all else fails, you may try to reach ot the prosecutor handling your ticket, if one is assigned, and ask to work out a dismissal or reduction to non-moving violation after taking a driver's safety course. Many judges accept courses from idrivesafely.com.
Deferrals are a good option for some drivers without CDL licenses. The statute is RCW 46.63.070(5). WA drivers are eligible for deferrals every seven years. If granted by the judge , you pay the fee ($175 usually), and if you stay out of infraction trouble for a year the court will dismiss the ticket and it does not count against your insurance. HOWEVER I have heard from out-of-state drivers who had their WA ticket deferral request denied. My guess is that the judge figured there was no way to monitor whether the driver picked up out-of-state infractions and because the statute is discretionary the judge did not think it appropriate. There is no way to appeal the denial of a deferral petition, so that person was stuck with a committed ticket.
Good luck. If the above looks like too much gobbldygook to you, you can always reach out to a fair priced WA traffic ticket attorney.