Fighting the law

[Speriod Ducum <htay@indiana.edu>]

My friend recently compiled this after fight with the court on his
speeding ticket.....  he challanged the validity of the radar gun and its
accuracy......  the police could not provide calibration information nor
any form of cetification and he got the ticket written off............ 
sure hope it helps  for you all :)

alfred
1985 8v scirocco

This article is designed to help you as much as possible, with 
suggestions, tactics, experiences and information, beat that speeding 
ticket.  You, however, have to do the fighting.  There is a possibility 
that in spite of following all the instructions and suggestions in this 
article, you may still not beat your ticket.  I am not to be held liable 
for your use of any of the information on the article.  But remember, you 
CAN win - the odds are in your favor.  After all, you are innocent until 
proven guilty.</P>

<P>
<B>THE DMV AND YOUR DRIVING RECORD.</B></P>

<P>
Your driving record is maintained by the Department of Motor 
Vehicles, which keeps track of your driving record using a point system.  
The DMV keeps a running tab on your tickets and points, and 
considers you a negligent driver if you exceed a certain number of points 
during a specific period of time.  Most vehicle agencies keep traffic 
violations on your record for three to five years.  If you have exceeded 
the allocated number of points, the DMV will immediately mail you a 
notice, informing you of a possible license suspension.  Unless you 
contact your local DMV and request a hearing within a 10-day period, you 
relinquish your right to do so.  At the hearing, you are required to 
present some evidence that your impending suspension is unjustified.  
Your local DMV will provide you a printout of your driving record for a 
small charge.</P>

<P>
<B>WHEN YOU GET PULLED OVER What To Say, What To Do.</B></P>

<P>
Before I begin to explain what is required at the scene of any 
traffic stop, I am going to suggest that you make a purchase of a small 
mini-cassette recorder, and carry it inside your vehicle at all times.  
Everything that is said by both the arresting law enforcement officer and 
you is crucial to your case.  As I explain why the motor vehicle stop can 
make or break your case in court, you will better understand why a 
mini-cassette recorder is so important.</P>

<P>
As soon as you realize that you are being stopped for a traffic 
offense by a law enforcement officer, there are some commonly known 
things that you must do.  The first is to remain calm and begin to pull 
your vehicle over to the side of the roadway.  Do this with caution and 
care.  It is also a wise idea to put on the vehicle hazard lights, and 
stay inside your vehicle until the officer approaches you.</P>

<P>
If you have taken my advice and purchased a mini-cassette recorder, 
it is now the time to turn it on and conceal it someplace near the 
driver's door so that it can record all conversations that is taking 
place on this traffic stop.  One word of advice though, if you have a 
radar detector, leave it where it is.  The officer has probably already 
seen it and an attempt to hide it could make him upset because you are 
now attempting to hide something.</P>  

<P>
Once he feels safe and is comfortable in this traffic stop, the 
officer will approach your vehicle and ask to see your vehicle 
registration and license.  He may then inform you of the reason behind 
the traffic stop.  Listen to him; do not volunteer any information such 
as "everyone else was going the same speed" or "I know I was speeding but 
did not know it was that fast."  Remember, the officer will record 
everything you say on paper and you should be recording everything that 
is said on your mini-cassette recorder.  It is important that you do not 
say or do anything to incriminate yourself.</P>  

<P>
You should be writing down or making some mental notes right about 
now.  How fast you were really going at the time of the stop?  Where did 
the officer come from, or where was his cruiser parked?  What were the 
other traffic conditions in the area?  Exactly where was your vehicle 
upon the roadway because you will need to return to this area at some 
point before court to make a diagram of the area and maybe take some 
photos.  Also, note any weather problems, like rain, fog, etc.  Note any 
bridges, radio towers, large signs, train tracks, high-tension wires or 
anything else that stands out, which may have caused some type of 
interference with the radar.</P>  

<P>
If the officer had used a speed detection device for the basis of the 
actual stop, ask him some questions about the apprehension and equipment 
used.  Some officers will invite you to observe the speed detection 
device within the cruiser, upon request.  At this time, you should be 
trying to find out the following important pieces of information:</P>
<OL>
<LI>The make, model and serial numbers of the unit being used.  
Familiarize yourself with the various speed detection devices used by law 
enforcement agencies.  Technical information on these devices can be 
located at the <A HREF="http://www.motorists.com/techie.htm">National 
Motorists Association</A>'s webpage.<BR> 
<LI>How it was used to obtain a reading, i.e.; stationary or moving 
mode.  If  moving mode was used, from which direction was the reading 
obtained and how fast was the cruiser's speed at the time?
<LI>Ask the officer if tuning forks were used, and if so, obtain the 
tuning forks' frequencies and serial numbers also.  
<LI>Obtain the cruiser plate and car number that the officer was using.
<LI>Ask the officer what his qualifications are as they pertain to the 
speed detection device he was operating at the time of your stop.
<LI>Obtain from the officer his full name, badge number and law 
enforcement agency.  
</OL>

<P>
If you are allowed to look at the radar or other speed detection 
device, record the readings on it.  Does it reflect the speed that you 
are being charged with?  Record the units model name, serial numbers and 
if applicable, the tuning forks' frequencies and serial numbers.</P>  

<P>
Not all members of law enforcement will cooperate with your requests 
for information.  Observe how the officer reacts to your questions and 
requests.  It may work in your favor.  This is why the mini-cassette 
recorder may be useful.  Many courts will agree that a person should be 
allowed to see the evidence that is being used to convict them of a 
violation of the law.  Being refused that opportunity can usually result 
in a dismissal of a speeding ticket.</P>  

<P>
<B>TRAFFIC COURT AND ARRAIGNMENT.</B></P>

<P>
On the bottom of your citation is the location of a municipal 
court and a date.  You must show up at that court on or before that date 
and do one of two things.  If you are pleading not guilty, you can go 
straight to the clerk, plead not guilty in writing and ask for a trial.  
Or you may choose to attend an arraignment.  Several things can happen at 
arraignment.  You are asked to enter a plea of guilty, no contest or not 
guilty.  Since you intend to fight the ticket, you would not have to 
worry about the first two options.  Just plead not guilty, and have a 
trial date set for you to return.</P>  

<P>
In some jurisdictions, and it varies from county to county and state 
to state, you may request, at the arraignment, to attend traffic school 
in exchange for having your ticket dismissed.  If it is available and you 
can afford the extra expense, I recommend taking advantage of this 
opportunity.  It will keep your ticket off your driving record and your 
insurance rates from increasing as a result.  If however, you feel you 
have a really good case and chance of winning, skip traffic school and go 
to court.  When you win, you do not pay.</P>

<P>
<B>HOW DO I FIGHT THIS TICKET?</B></P>

<P>
The key to winning your case in traffic court, is to show that the 
speed detection device or the law enforcement officer operating it, made 
an error of some kind.  There are many flaws with the various speed 
detection devices being used by law enforcement today.  This coupled with 
the training and qualifications of the officers using the equipment, can 
sometimes present a clear case of reasonable doubt for that traffic 
ticket in court.</P>  

<P>
Even if you were in fact actually speeding, and you got stopped and 
issued a speeding ticket, you need to fight that ticket in court.  You 
may have been issued that ticket by a radar unit that was not working 
properly or being operated by an unqualified operator.  It is because of 
these kinds of reasons that a speeding ticket may get thrown out of 
court.  Use my strategies, tip and tactics, and go to court and fight 
it.  You really have little to lose and much to gain.</P>  

<P>
To launch a successful attack on a speeding ticket in a court of law, 
a person must be prepared.  You must fully establish and lay out before 
the court all of the circumstances under which the traffic stop was made 
and the subsequent speeding ticket issued.  The burden of proof is on the 
state to prove that you are guilty of speeding.  You, however, need to 
offer to the court any reasonable alternative to the officer's version of 
the traffic stop.</P>  

<P>
One interesting point to keep in mind when fighting a speeding 
ticket, is that in many states, the officer who issued the ticket must 
appear in court.  He must testify about the facts concerning the actual 
motor vehicle stop.  In many instances, the officer will not show up, for 
a number of reasons.  He could be unavailable, on vacation, or be out 
sick from work.  If the officer does not appear in court, a ticket may be 
dismissed.  Call the officer's department and ask when the officer is 
planning his vacation.  Some dispatchers will give this information out 
if it is known to them.  It is worth the phone call, so try it.</P>

<P>
Incidentally, in most municipalities, you are usually allowed one 
extension over the phone, up to a maximum of 30 days.  After that, you 
must show up in court to request another extension.  It is usually a good 
idea to take a couple of extensions.  The longer the time period between 
the citation and the trial, the more the officer is likely to forget 
about the details surrounding the ticket.</P>   

<P>
As part of the preparation in building your case for a successful 
defense in court, there are some important pieces of information that you 
must obtain prior to going to court.  Some of this information will act 
as evidence for your defense.</P>

<OL>
<LI>The radar unit's calibration and maintenance records.
<LI>The officer's radar training certificates.
<LI>The tuning forks used to calibrate the radar unit and their 
calibration certificates.
<LI>The actual radar unit that was used.
<LI>The agency's FCC (Federal Communications Commission) license.
<LI>The list of models, makes and serial numbers of all radar units being 
used by that agency.  
</OL>

<P>
Here's how the procedure works.  Every state in this country has a 
public records law that allows the public access to certain records.  You 
have two possible options when requesting this information.</P>  

<P>
First, you can go directly to the issuing officer's agency and ask to 
speak to the public records custodian or officer.  You then present them 
with a list of what you want.  If they cooperate, they will probably give 
you everything they have except for the radar unit and the tuning fork.  
They will most likely inform you that the officer will bring these with 
him on your trial date.  If they do not cooperate, you have two options.  
You can either call the state attorney general, who prosecutes all 
violations of the public records law or you can file a civil lawsuit 
against the agency for punitive damages.</P>  

<P>
Second, you can request the items from the court.  During your 
arraignment, after you have entered a plea of "not guilty", you can 
request to the judge explaining exactly what it is you want.  The judge 
will probably order the prosecutor to supply you with the requested 
records and items within a period of 30 days.</P>  

<P>
When you get all the records and items, look at them carefully and 
see if you can use them to your advantage in court.  First, look to see 
that everything is up to date and accurate.  If it is not, that is almost 
as good as not getting them at all.  The absence or inaccuracy of the 
radar unit's calibration and maintenance records, the tuning forks' 
calibration certificates or the officer's radar training certificates 
make excellent courtroom ammunition for you.  They leave the officer very 
shaky ground upon which to testify.</P>  

<P>
Every law enforcement agency that uses radar must have a license from 
the FCC to do so.  If it does not, not only is your ticket history, but 
the agency is in big trouble.  This scenario, however, is VERY 
unlikely.</P>  
  
<P>
On the FCC license will be a list of models, makes, and serial 
numbers of all radar units that a particular agency is licensed to use.  
Agencies are frequently acquiring new radar units.  Sometimes they fail 
to register these with the FCC.  These units are therefore unlicensed.  
When you finally get to check out the radar unit, make sure its serial 
number is listed on that agency's license.  If it is not, they cannot use 
it against you in court.</P>

<P>
<B>A DATE WITH THE JUDGE.</B></P>

<P>
The day has arrived and the trial against you is about to begin.  
By this time, you should be prepared, complete with any passengers who 
will act as a witness for you, documents and records from the police 
department.  You should have your defense strategy ready in every aspect 
and have all your facts straight.</P>  

<P>
Usually, in most courts, the arresting officer will testify first.  
He will present his side of the story.  The officer will first state his 
name, his police department or agency, and proceed into telling the court 
the date and time of the violation and where it was committed.  He will 
also state the type of speed detection device used and the manufacturer.  
The officer will normally include how the unit was calibrated and what he 
observed prior to stopping your vehicle.  He will say he observed your 
vehicle traveling in excess of the posted speed and that the speed 
detection device confirmed this.  Subsequently a traffic stop was made 
and a ticket issued for speeding.</P>  

<P>
When the officer is telling his story, pay attention and make notes 
if necessary.  The officer may have left out something you consider 
important.  He may not recall the stop and be ad-libbing his testimony.  
You can bring this to the attention of the judge if it is important to 
your case.</P>  

<P>
The state's case is simple, basic and straightforward.  The 
prosecutor may ask the officer some additional questions concerning the 
traffic stop, like how it was made, what were the weather conditions, 
etc.  The state's case does not last too long.</P>  

<P>
You will now be given an opportunity to ask the arresting officer 
himself some questions.  Believe it or not, this will make the officer 
nervous.  Most members of law enforcement are not used to being 
challenged in court by a person whom they have arrested.  This can work 
to your advantage if you pick it up.</P>  

<P>
You will need to target several areas during your cross-examination 
of the police officer.  Remember, he is just a person like yourself and 
try not to be too afraid or intimidated by asking him questions.  Many do 
find this task difficult because the officer is usually in uniform.  You 
will need to target the following issues:</P>

<OL>
<LI>Did the offense take place in an area where the speed limit changed 
close to where you were stopped?
<LI>Are there errors in the evidence against you, namely the speeding
ticket?
<LI>The failure of the officer to detect and avoid spurious speed reading 
from non target sources, or a weather condition existed that should have 
rendered the speed detection device unreliable.
<LI>The speed detection device itself, tuning forks if applicable and its 
flaws and weak points.  Included would be the maintenance, calibration 
and accuracy documents.
<LI>The qualifications and competency of the officer who is operating 
that speed detection device.
<LI>The law enforcement agency was FCC licensed.
</OL>

<P>
Every traffic stop is different and carries its own set of facts 
and circumstances.  It is up to you to choose which defense strategy you 
will use.  Remember that the strategy could be as simple as errors on 
your speed ticket, the failure to possess or use tuning forks for 
calibration, having no certificates that qualify the officer to be 
operating that speed detection device, or the issuance of a speed ticket 
based purely on observations and no speed detection device readings to 
back that observation up.</P>  

<P>
Remember the basics as you begin cross-examining the officer.  Stay 
calm, be polite, address the judge as "Your Honor" and the officer as 
"Officer" and it is very important to sound sure, positive and to remain 
in complete control.</P>  

<P>
Your initial series of questions to the officer will elicit the basic 
information from him, such as name, department, type of speed detection 
device being used and what mode it was in, what he observed prior to 
stopping your vehicle, why he stopped your vehicle, and what are the 
qualifications of the officer to operate the speed detection device.  All 
of these can be asked of the officer and will usually be answered 
truthfully.</P>

<P>
Now is the time for you to target the area of your defense that will 
produce a reasonable doubt in the court's eyes, as to the issuance of 
your speeding ticket.  This will depend on what area you choose to 
target.</P>  

<P>
If you were issued a ticket that contained errors on it, bring this 
to the attention of the officer and court.  This is always a good way to 
get to the officer, by showing him he made mistakes.  It also keeps the 
judge's eyes open.  Ask the officer, if he issued a ticket based on 
observation only and no speed detection device reading.  If he did this, 
ask him the reason behind it, and proceed to ask how he can be sure of 
the actual speed.  This should help shed some reasonable doubt in the 
court, all to your favor.</P>  

<P>
If there was a weather problem, like rain, snow, fog, etc., ask the 
fficer why he was operating a speed detection device in inclement 
weather, and if he is aware most speed detection device produce far more 
false speed readings in that kind of foul weather.</P>

<P>
Should there have been some large object in the area, like bridges, 
radio towers, large signs, train tracks, high tension wires, question the 
officer first, as to the existence of those items, and if he was aware 
they existed in the location of the traffic stop.  Continue on asking the 
officer if he is aware that such objects very often produce false 
readings.  If you have photos of these objects, show them to the 
arresting officer as well as the judge.</P>

<P>
If you plan to challenge the speed detection device itself, target 
the area you fell would present a reasonable doubt in the eyes of the 
court.  For example, did the unit recently get repaired?  Or is it 
repaired frequently?  Has it been calibrated and certified as required by 
state law?  Were the tuning forks used and if so, were they accurate and 
calibrated yearly?  Remember, you will have obtained a lot of information 
at the scene of the stop, if you followed my guidelines.  You should 
already know if the officer had tuning forks in the cruiser.  Ask the 
officer if he offered to let you look at the speed detection device being 
used by himself that day.</P>  

<P>
Bring to the court's attention, that at the scene of the traffic 
stop, the officer refused to let you inspect the speed detection device, 
the speed shown which, according to the officer, was your speed, the 
tuning forks used, along with other important information you feel you 
had a right to see which would have assisted you, if applicable.  Tell 
the court that you believe you have a right to confront and examine the 
evidence that the state will use against you.  This includes an 
inspection of the speed detection device.</P>  

<P>
You should further state to the court that you recorded that 
conversation pertaining to the arresting officer refusing to let you look 
at the speed detection device, in applicable.  State that you recorded 
every conversation that took place.  Use this tactic if the officer was 
rude or did something unprofessional in your overall defense.  The court 
may not allow this to be admissible, but you will certainly have created 
some reasonable doubt, in addition to totally embarrassing the 
officer.</P>  

<P>
You should also question the officer as to why he did certain things 
at the scene of the stop.  Ask him why he refused to allow you examine 
the speed detection device, or why he was behaving unprofessionally, 
etc., if applicable.  He must answer these questions in court, and may 
not be prepared to do so.</P>  

<P>
Should you review the officer's training and qualification records, 
on his competency to operate that certain speed detection device, ask him 
to tell the court about his training.  You will need to ask the officer 
who trained him, where he was trained, how many hours of training he 
received, and when was the last refresher course he attended.  With any 
luck, the officer will not have much training.  It is at this time you 
make it known to the officer and the court, that the National Highway 
Traffic Safety Administration in February of 1980, issued recommendations 
to law enforcement on the training standards for speed detection 
devices.  The NHTSA further states that law enforcement officers require 
24 hours of classroom training along with 16 hours of supervised field 
training, and that they also recommend a refresher course every one to 
three years.  This line of questioning could cast doubt on the officer's 
expertise and may help establish reasonable doubt.</P>

<P>
Finally, question the officer as to the existence of an FCC license 
for his agency, if you have found in your search for records, that the 
agency does not have one.  Or that a certain speed detection device is 
not listed on the license.  As I have mentioned before, every law 
enforcement agency is required to have the FCC license if operating speed 
detection devices.</P> 

<P>
Once you feel as though you have raised the points most important in 
your case, inform the court you have no more questions for the officer.  
The prosecution may now redirect or re-question the officer.  He will be 
trying to repair any damage that you have caused in this case.  Be on the 
watch for leading questions or the attempt to present any new subject or 
line of questioning that was not already covered in either his direct or 
your cross-examination of the arresting officer.  You also have the right 
to re-cross-examine the officer should it be necessary.</P>

<P>
If you are confident that you have raised the points you feel to be 
most important in your examination of the arresting officer, excuse him, 
and call any witness to the stand now.  A witness in your case should 
only be there for one reason, and that is to state to the court that you 
were not speeding.  They can also back your theory or hypothesis about 
your traffic stop, whatever it is that you used in your defense.  Be sure 
that person testifies that you were driving safe and reasonable.  Get 
that information out and dismiss your witness.  Of course, the 
prosecution does get to ask that witness some questions, but, if they do, 
it is usually brief and to the point.  Just be sure your witness is ready 
for that and does not provide anything more than asked for.</P>  

<P>
Once the prosecution and yourself are finished with the officer, and 
witness, the court may ask you if you have anything further.  It is at 
this time, you may consider making a motion to dismiss based on the 
following number of things:</P>

<OL>
<LI>The Citation contained errors thus, showing that the officer was less 
than attentive.
<LI>The area where you were stopped for speeding was not clearly posted 
with the speed limit.
<LI>The police have not yet provided some of the requested records and 
documents, thus not allowing me to present a solid case.  This is because 
information of possible problems with the speed detection device or 
arresting officer have been withheld.
<LI>The officer's testimony revealed some flaws in the operation of the 
speed detection device by that officer such as the lack of or use of 
tuning forks.
<LI>There was a lack of documentation as to the reliability and accuracy 
of the speed detection device, its calibration and maintenance.
<LI>You should also ask for a dismissal if the officer did not allow you 
to look at the evidence against at the scene of the traffic stop, namely, 
the speed detection device he was operating at the time of the stop.
</OL>

<P>
Making a motion to dismiss may work before a judge who is 
sincerely open minded, and willing to listen to some plausible theories 
about the case, and why the ticket should be thrown out.  Such a motion 
may or may not work, but it is certainly worth a try if you feel a 
situation exists that would warrant such a motion.</P>  

<P>
Once the state and you have finished presenting the case before the 
court, you will be allowed to present a closing argument or final 
summation.  You will now put all the pieces of your case together in a 
way that supports your defense theory and sheds doubt on the state's 
case.</P>

<P>
What you want to do here is present to the court, the strongest 
points of your case based on the testimony and physical evidence that was 
presented.  You want to point out the weak parts of the state's case 
also, along with any procedures that were not followed.  Include 
statements like the arresting officer obtained a speed reading from 
another vehicle, and not yours; interference from some object in the area 
accounted for the speed reading obtained; no tuning forks were used by 
the officer or the speed detection device was not properly calibrated or 
certified to be reliable and accurate; the officer was unqualified and 
not competent to be operating that speed detection device, and a wide 
array of others.  Just be sure to tie in more than one of these 
statements to make your final argument a solid one.</P>

<P>
Do not state that the arresting officer was wrong in any way.  Use 
the work mistaken instead.  Inform the court that you are an honest, 
law-abiding citizen and believe you are innocent of the traffic violation 
that you are charged with.  Be sincere, polite and confident.  End your 
final summary with a statement to the court in which you feel the state 
has not presented or proven their case beyond a reasonable doubt, that 
you were not speeding and that you respectfully request a verdict of "not 
guilty."</P>

<P>
<B>THE END.</B></P>

<P>
In conclusion, keep this one thought in mind - GO FIGHT YOUR
TICKET!  And good luck.  If you have any comments or suggestions about the
article, <A 
HREF="mailto:lsteo@indiana.edu"><IMG SRC="aemail.gif" 
ALIGN=TOP BORDER=0 ALT="lsteo@indiana.edu"></A>.</P><BR>
<BR>



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