No radar used but claimed; file discovery or subpoena; request notes/log/recording?

My question involves a speeding ticket from the State of California.

I have received a ticket for alleged violation of 22349 b VC (going over 55 mph upon a two-lane, undivided highway).

However, two friends of mine with a radar detector in their car, who were driving in my immediate vicinity, said no radar ever went off in the course of my being stopped for the alleged violation. The officer was not measuring my speed by following either, as he was standing by the road first and then went after me when I was passing another car, which went way below the posted speed limit. Thus, the officer must have made up the number when he informed me he "clocked me" at 71 mph. This was allegedly as the moment of my passing (I went below the speed limit before and at the limit after the passing). "Curious" that, as opposed to the speed of 70 mph or lower, the alleged 71 mph or higher qualifies me for a much higher fine amount. Additionally, my friends did exactly the same thing right after me, meaning they passed the same slow car. When the officer switched on his lights behind us, my friends pulled over (and they remained there waiting for me), but the policeman indicated he wanted me instead. We suspect the officer chose me due to my Illinois license plate, as he assumed I would not be able to come to the trial. When I asked him about the court date on my ticket, the officer indeed said that was just the date by which I needed to send in my money.

So I would like to file for a discovery or subpoena, asking for any records the police has concerning the radar being allegedly used during the incident. I understand that to begin with, I still need the maintenance log (to make sure his radar was properly calibrated), but then also any log or notes, or radar readings, the cop was supposed to make during the incident. And perhaps the video recording I have heard they have of all stops. But I do not know what records exactly they in fact make of such traffic stops. Could you advise me what exact terminology I should use to request these--I mean how would be officially called the documentation the officer was supposed to create in his log/notes/records of my alleged speeding? (And I hope that by requesting the maintenance/calibration log, I will not in fact create an impression I believe he did use one.)

If I go with the discovery option, I am thinking that effectively indicating to the police (assuming they will show my request to the pertinent officer) how seriously we are taking this (my friends would write a witness statement for me and/or join me at the trial), and that I will be appearing at the court instead of sending money from Illinois to begin with, should in fact convince the officer not to attend the trial.

However, if it is better not to let the officer know what we want to argue, I should use the subpoena.

Do you have any experience in this regard? Any recommendations?

Thank you very much for any and all your thoughts.

Keep your questions in one thread: https://forum.freeadvice.com/speeding-other-moving-violations-13/ticket-issued-across-california-border-speeding-only-while-passing-534916.html

I keep having new questions as I am doing my research, but perhaps I will create a new post with everything in it and delete the old ones. So far it seems that when some were separately, someone reacted at least to those (as opposed to being overwhelmed by the long text). Or, is it in fact a matter of policy that I get only one post for a case (no matter how many questions I have about it in the course of my research)? In that case, I apologize for the confusion and will fix issues in the above-mentioned manner.
Thank you.

antoniedvorak said:

I keep having new questions as I am doing my research, but perhaps I will create a new post with everything in it and delete the old ones. So far it seems that when some were separately, someone reacted at least to those (as opposed to being overwhelmed by the long text). Or, is it in fact a matter of policy that I get only one post for a case (no matter how many questions I have about it in the course of my research)? In that case, I apologize for the confusion and will fix issues in the above-mentioned manner.
Thank you,
Antonie

Click to expand...

I suggest that you keep all of the related items in one thread. Don't delete your previous thread - just add to it. That way, the volunteers don't have to chase the info down.

Zigner said:

Keep your questions in one thread: https://forum.freeadvice.com/speeding-other-moving-violations-13/ticket-issued-across-california-border-speeding-only-while-passing-534916.html

Click to expand...

has more than 1 thread ... many more, same exact text

There is the total of 2 threads. One of them asks about the passing and the outside of jurisdiction issue. The other about the subpoena/discovery and lack of radar use. Each text is different.

I'm not sure I understand your question. There are other ways to measure speed than by radar. Why are you asking about radar?

Good luck

Question Clarification

Dear Dave, and all,

My question is whether there are any experiences with fighting in the situation where the officer claimed he "clocked me," while at the ticket he checked the used of radar, but I and my witnesses think he never used any radar. (Please, see the details above.) I understand the fact that their radar detector never went off is not going to decide the case, but can we use this in any way at all?

My second question was whether to file a discovery or a subpoena. But I have already filled the discovery. Can I still do subpoena as well when they do not respond to the former?

Thank you very much.

antoniedvorak said:

My question is whether there are any experiences with fighting in the situation where the officer claimed he "clocked me," while at the ticket he checked the used of radar, but I and my witnesses think he never used any radar. (Please, see the details above.) I understand the fact that their radar detector never went off is not going to decide the case, but can we use this in any way at all?

Click to expand...

You can use any defense you want.. However, disputing the officer's testimony the he used Radar because your detector didn't go off will not help you one bit! Even if you can cast doubt on his Radar reading, he will likely also testify that he visually estimated your speed... That alone is sufficient for a conviction. Either way, based on what you've posted, if he appears at trial then your defenses are extremely limited! IMHO, your better option under the circumstances would be to take the traffic school option at the arraignment.

antoniedvorak said:

My second question was whether to file a discovery or a subpoena. But I have already filled the discovery. Can I still do subpoena as well when they do not respond to the former?

Click to expand...

"Discovery" is your ONLY viable option when it comes to requesting documents. See PC 1054.5(a)...

1054.5(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
​

http://law.onecle.com/california/penal/1054.5.html

If they fail to provide you with the items you requested by your trial date, then your only recourse is to request that the court order "immediate disclosure" on that date.

Hopefully for your sake, (in addition to serving your discovery request on the DA and filing a copy of it with the court) you also served it on the law enforcement agency that cited you, as they are typically the party who will respond. (Although I'm not sure what you're hoping to find out through discovery).

Good luck!

Edited to add: And before you come back asking "can I ask for a dismissal if I don't receive discovery"... The answer is you can try, but it won't work to get you a dismissal... The likely outcome will be "immediate disclosure".

Radar does need to be maintained and calibrated. You should have requested These records as part of discovery.
Assuming that you can't prove that the radar was uncalibrated and the cop testifies that he used radar then you will lose.

Good luck

Thoughts about Speed Estimate, Discovery

Thank you very much for your thoughtful response.

I_Got_Banned said:

You can use any defense you want.. However, disputing the officer's testimony the he used Radar because your detector didn't go off will not help you one bit! Even if you can cast doubt on his Radar reading, he will likely also testify that he visually estimated your speed... That alone is sufficient for a conviction.

Click to expand...

But if he says now that he estimated the speed visually, does not that affect his credibility when he told me he "clocked me," and *when he marked on the ticket* that speed was measured by radar?
And how convenient that if this was only a visual estimate, he estimated exactly 71mph as opposed to 70mph, which would still qualify for the lower fine amount.
And when he sticks with the visual estimate, do I really have no chance when my friends will testify they were slowing down as I was passing the truck, which was slowing down in front of them? That could misguide the officer's estimate--that the two other cars were slowing down as I was speeding up, but which is why I did not need to go over the speed limit in order to pass...

I_Got_Banned said:

"Discovery" is your ONLY viable option when it comes to requesting documents. See PC 1054.5(a)...

1054.5(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
​

http://law.onecle.com/california/penal/1054.5.html
If they fail to provide you with the items you requested by your trial date, then your only recourse is to request that the court order "immediate disclosure" on that date.
Hopefully for your sake, (in addition to serving your discovery request on the DA and filing a copy of it with the court) you also served it on the law enforcement agency that cited you, as they are typically the party who will respond. (Although I'm not sure what you're hoping to find out through discovery).

Click to expand...

Yes, I did serve it on all the three agencies you mentioned above (The Supreme Court, District Attorney, and California Highway patrol). What I am hoping to find is what the officer in fact plans to argue, such as whether he used the radar or just estimated the speed, as discussed above. But since I am truly convinced he was instead hoping he could get away with lying because I would stay in Chicago (where I was indeed driving when this incident occurred), just send my money, and know no better, thus he went ahead and gave me the ticket (curious that it was the last day of a month when he probably needed to make his "quota," however unofficial it may be), I am thinking that my taking steps may just convince him to give up on coming to the trial, as he is fact has no radar evidence (although he said he did). Or, do you think he could just create some documentation fraudulently?

I_Got_Banned said:

Edited to add: And before you come back asking "can I ask for a dismissal if I don't receive discovery"... The answer is you can try, but it won't work to get you a dismissal... The likely outcome will be "immediate disclosure".

Click to expand...

Yes, the Penal Code you cited above does say people should not hope for dismissal but rather disclosure then. But how would that work? Due to the closeness of my court trial date, I will be submitting my motion for dismissal due to lack of response to my discovery request very close to my trial date. Thus, I doubt there will be time for a separate hearing to decide about this my motion. Thus, should the immediate disclosure be ordered at the trial day, the officer, or even attorney (who, I understand, should really be providing the documents, as the officer is just her witness) will not have everything there to show it to me... Would that mean a continuance would be needed, or how would it work?

Thank you very much again.

Dave1952 said:

Radar does need to be maintained and calibrated. You should have requested These records as part of discovery.
Assuming that you can't prove that the radar was uncalibrated and the cop testifies that he used radar then you will lose.

Good luck

Click to expand...

I had indeed requested the calibration logs, in addition to many other documents , within my discovery.
Thank you very much for your response.

antoniedvorak said:

But if he says now that he estimated the speed visually, does not that affect his credibility when he told me he "clocked me," and *when he marked on the ticket* that speed was measured by radar?
And how convenient that if this was only a visual estimate, he estimated exactly 71mph as opposed to 70mph, which would still qualify for the lower fine amount.
And when he sticks with the visual estimate, do I really have no chance when my friends will testify they were slowing down as I was passing the truck, which was slowing down in front of them? That could misguide the officer's estimate--that the two other cars were slowing down as I was speeding up, but which is why I did not need to go over the speed limit in order to pass...

Click to expand...

An officer who is trained and certified in using Radar, will usually "visually estimate" a vehicle's speed, and then follow that up with a Radar reading...

Its part of their training, its pretty much standard operating procedure, and it is often (if not "always") included as part of their testimony.

You're free to make any claims that he's lying or making things up, that he was misguided, and/or that your friends' testimony should carry more weight than that of the officer's but my experience has been that none of that will work!

antoniedvorak said:

Yes, I did serve it on all the three agencies you mentioned above (The Supreme Court, District Attorney, and California Highway patrol). What I am hoping to find is what the officer in fact plans to argue, such as whether he used the radar or just estimated the speed, as discussed above. But since I am truly convinced he was instead hoping he could get away with lying because I would stay in Chicago (where I was indeed driving when this incident occurred), just send my money, and know no better, thus he went ahead and gave me the ticket (curious that it was the last day of a month when he probably needed to make his "quota," however unofficial it may be), I am thinking that my taking steps may just convince him to give up on coming to the trial, as he is fact has no radar evidence (although he said he did). Or, do you think he could just create some documentation fraudulently?

Click to expand...

I would rather not get into a discussion of the officer's motivation (or should I say "obligation") to cite an alleged offender or whether your "out of state" status and your "quota" hypothesis has any impact on your citation. What I will tell you is that none of what you posted in this thread is a plausible defense against a citation of 22349(b), but, again, you're free to try whatever theories you think will benefit you!

antoniedvorak said:

Or, do you think he could just create some documentation fraudulently?

Click to expand...

NO, I don't think he will just create some documentation fraudulently! In fact, there are no documentation that needs to be created for the officer to establish what speed he measured you at... He simply appears in court, testifies that he visually estimated your speed, that he followed that up with a Radar measurement... So get off that kick of yours... IT. WILL. NOT. GET. YOU. ANYWHERE!!! Not here, and certainly not in court!

antoniedvorak said:

Yes, the Penal Code you cited above does say people should not hope for dismissal but rather disclosure then. But how would that work? Due to the closeness of my court trial date, I will be submitting my motion for dismissal due to lack of response to my discovery request very close to my trial date. Thus, I doubt there will be time for a separate hearing to decide about this my motion. Thus, should the immediate disclosure be ordered at the trial day, the officer, or even attorney (who, I understand, should really be providing the documents, as the officer is just her witness) will not have everything there to show it to me... Would that mean a continuance would be needed, or how would it work?

Click to expand...

What will likely happen if they fail to provide you with the items that you requested is that the judge will order the officer to fulfill your request on the date of your trial (no, you're not going to get a separate hearing date to argue a "motion to dismiss"). You're free to request a continuance at that time so as to review the material and prepare your case. That continuance may be for a few days, or it maybe for a couple of hours (your case gets put at the end of the pile)... That decision will be up to the court and will mainly depend on a number of different factors (the circumstances of your case, how long it has been since your arraignment date and/or whether you're willing to waive your right to a speedy trial or not)... etc.

Of course all of that is going on the assumption that they will fail to provide you with the items in your request. So you'll have to wait and see what happens!

i would, at the very least, consult with an attorney.

sure, forum advice is free, but if you want the real deal then you're going to have to pay for it.

a similar thing happened to me several years ago here in NJ. the situation was a little different, in that the car was registered in state. i saw the cop entering the roadway on the opposite side (i was heading south, he entered on the north side). i had a fully operational radar detector that scanned all of the known bands at the time. he said he clocked me at 72 in a 55. since i had my detector on, and knew it functioned properly, i asked to see the readout. he put his knee up against the door and said he didn't have to show me anything. now, it had become common practice for cops to offer to show you the readout. so his insistence that he wasn't going to show me, the lack of an alert on my detector, his angle at the time he supposedly clocked me and his general attitude (he wore braces and a big chip on his shoulder, looked like he had just graduated high school) led me to hire an attorney. the case was dismissed. although i wish i had been within earshot of the two lawyers talking, so as to know the reason why, i did not hear what was said.

lawyers know more than the average citizen. while i could have just paid the fine and been done with it, it was the principle of the thing that led me to seek out a lawyer.

Hiring a lawyer

Hi, Jim,

Thank you very much for your response.

Could you, please, let me know how much it costs to consult an attorney? And since I understand you not only consulted but also brought one to your trial, could you let me know about those pertinent costs as well? I know, this was some time ago, so it is probably more expensive now, but I wonder about any kind of ballpark estimate.

I am very glad to hear things worked out for you. Could you, please, describe what happened at the trial? Is it the case that no-one even testified--as you are saying you do not know what the lawyers talked about? Does this mean your attorney and the judge, or your attorney and the attorney representing the city/People, or...? Or, do you mean they talked after everyone testified and made their statements? If so, what did the officer say?

Thank you very much.

PS: I may be just inexperienced and naive, but I totally see your point concerning "the principle of the thing."