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.
****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 follow the intracacies of the evidence rules, or because you dont have the most recent caselaw, local court rules, or statutory authority. ****
Losing Arguments
A good place to start is with the 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. Below are some of the strategies I use to contest tickets. The list is not exhaustive, and may win or lose based on your jurisdiction and local court culture.
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 what 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.
Speeding & the IRLJ 6.6 certificate
Essentially, IRLJ 6.6 says speed measurement device (SMD) results are admissible so long as the state provides a certificate that the device works properly. However, if you request the presence of the state SMD calibration expert in person for cross examination in your discovery request, and the state fails to deliver, you could move for suppression and dismissal under IRLJ 6.6(b). Many traffic ticket attorneys ask for the expert as part of their standard discovery request and win becuase there are simply too many infraction hearings for the experts to attend every one. BUT I have seen a hearing where the expert actually showed up and the attorney quickly tried to excuse them and settle on another strategy. The court refused the excusal and evicerated the attorney, and his client, when his ticket was called. Not pretty.
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. If the officer failed to verify the speed display against the speedometer reading, read the section about why this is important:
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.
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.
Hearsay
Becase the rules of evidence apply at contested hearings, you may be able to use evidence rule ER 801 prohibiting hearsay to your advantage. Essentially, if the officer's sworn report is based on observations she did not make herself, then you can move to strike those portions at the hearing and ask for dismissal according to IRLJ 3.3(d) if the remainder of the information does not prove the state's case by a preponderance of the evidence. This circumstance oftentimes arises from traffic collisions where the officer arrives after the fact and the report is based on what a witness told them. 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 officers 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
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. 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 is too much, you can always reach out to a fair priced WA traffic ticket attorney.