Prosecutor filed continuance at the last minute, can I file for dismissal?

[inthetrailer]

What is the name of your state (only U.S. law)? The great state of OH-IO

Hi all, and thanks in advance for your opinions.

I am defending myself against a speeding ticket of 68 in a 55, given to me on a 2-lane road while the trooper was driving towards me and two vehicles were between us. I am absolutely innocent of this but I'll spare you the details. I do have the time to spend to defend myself. I just need to learn how to do it well (if that's even possible).

I've already filed for discovery within the time permitted by the local court rules. I am not asking for anything crazy, I just want the video and radio from the patrol car to prove the other vehicles were between us. My trial date was scheduled for earlier this morning, however the prosecutor called me last night and left a message stating they "MAY" file for a continuance since they have not been able to produce the discovery I requested. I called the court this morning and they were indeed granted a continuance of 3 weeks, less than an hour before my court appearance was due.

Now, I've scheduled time off work and done a lot of preparation for this date, so to change it at the last moment is a problem. And now I will need to take more time off work for the continued court date, right before the holidays. If the prosecutor had given me more notice I could have rescheduled my time off and saved it. Is it the end of the world, no, but the way it was done at the last minute is just ridiculous, especially for a speeding ticket.

I would like to file a motion asking for a dismissal but I am not sure how to word it. Should I claim undue hardship because of the last minute continuance or something like that? Or just state the facts that I was prepared to defend myself at the time appointed and the State was not... any (helpful ) thoughts you can provide would be greatly appreciated.

Thanks,
Patrick

 

[Zigner]

The continuance was granted (apparently)

As for your request for Video - why do you think there was any?
As for your request for radio records - how do you think that will help?

 

[HighwayMan]

Welcome to world of court. Expect to perhaps lose more time from work the longer this goes on.

According to what you said the court already granted the prosecution's request. There's probably nothing you can to about it now.

The radio tapes will likely provide you with no information to help or hurt your case.

The video will likely show nothing.

Radar can be used while in motion and while driving in the opposite direction from the target vehicle. Since you don't know when the trooper locked you in with the radar I think it would be hard for you to say any other vehicle interfered with that.

Besides, his independent speed estimation is merely confirmed with the radar.

How far were these other two vehicles from yours?

 

[inthetrailer]

The continuance was granted (apparently)

As for your request for Video - why do you think there was any?
As for your request for radio records - how do you think that will help?

The continuance was granted, yes. I called the clerks office an hour before my bench trial was to start and they told me it was granted.

The video will prove there were cars in between the radar unit and my car, which I can then use to show reasonable doubt as to the accuracy of the speed measurement. I believe it is standard practice to run video in patrol cars...

I am not sure if the radio records will help or not. But I did (respectfully) tell the trooper when he stopped me that I was not going anywhere near 68mph, and there were cars in between us, AND he lost visual on my car when he turned around and I went over a hill. I want to know what he said on the radio after I told him that.

 

[OHRoadwarrior]

Trooper cams in OH only operate while the lights are on. Your video will only show from that point onward. How could the Trooper not have had a clear view to shoot your vehicle if you passed each other? Just because there were cars in front of you, does not mean you were not speeding up their tails, planning on passing.

 

[Captain Picard]

And in Ohio, they apparently have substituted SMD in officer's to replace their eyes as the courts have ruled that an officer's speed estimate is good enough to convict. And the people of Ohio have not passed a law overturning this goofy court ruling.

So be prepared to argue the visual speed estimate ... 'cause that's all they need to convict in the boring state of Ohio.

 

[inthetrailer]

I was definitely not speeding. I was in my old car that I use to save on gas, it's a '98 Nissan 1.6l car with 115 horsepower, loaded down with me and my 3 kids and a trunk full of soccer and baseball gear. The car can barely do 55 in 5th gear, let alone 68 going uphill with all that weight. But it gets 35mpg all day long and beats the 12mpg I get from my truck even if it is small, uncomfortable, and slow.

The layout was this: it's a pretty straight two lane road. Bright and sunny, around 5pm. Sun behind me. I was behind a car in my lane, perhaps 5 seconds in front of me, maybe a bit more. I wouldn't consider it "close". The car in front disappeared over a short, steep hill. I followed over the hill and as I reached the top, a car passed in the opposite lane. There was a trooper behind that car in the opposite lane, I would estimate a few hundred yards away, and he flipped on his lights. I saw his lights come on at virtually the same instant I crested the hill and the car in the opposite lane passed. The trooper disappeared down the hill I had just come up and I lost sight of him. I assumed he was going to stop the car that was in his lane, but about 30 seconds later he was zooming up behind me and told me I had been going 68 miles an hour. Which is simply not true.

I've gotten tickets before when I WAS speeding and asked the prosecutor for a deal to turn it into a no-points/non-moving violation. I don't mind paying a little more to not have the points on my license. But in this case I was absolutely not speeding and want to be able to prove that.

So back to the original question though, it sounds like now that the motion is granted I am out of luck. Should I have showed at my appointed time today anyway and filed an objection to the continuance or something? Was that my only hope? Thanks for your input.

 

[OHRoadwarrior]

Feel free to object if it makes you feel better. It won't have any effect on bolstering your case. Your best bet is the loss of visual. You need to tear the Trooper's testimony up and create doubt it was your car he clocked.

 

[You Are Guilty]

I was definitely not speeding. I was in my old car that I use to save on gas, it's a '98 Nissan 1.6l car with 115 horsepower, loaded down with me and my 3 kids and a trunk full of soccer and baseball gear. The car can barely do 55 in 5th gear, let alone 68 going uphill with all that weight.

Friendly word of advice here. Do not go with this "defense". It ain't gonna work, and you'll like PO the judge.

And as for why that might be, I also owned a 98 Nissan with the 1.6L and it had no problem going up hills with 4 passengers at speeds well over 55. Granted, it would be at 6k rpm in 3rd gear, but it did it. Heck, I had an '88 Ford that had 88hp when it was new that [allegedly] could do just over 100mph. Judges are not morons. (Well, most judges).

 

[Zigner]

My 1974 Pinto (2.0L, 86hp, 4 speed manual transmission) could easily exceed 70 mph in 4th gear uphill.

ETA: Ok, "easily" is a bit of an exaggeration I suppose. But it COULD do it

 

[Ozark_Sophist]

My 82 Ford EXP 1.6l two seat hatchback could go 110 mph with four people in the car (spedo topped out at 85).

 

[HighwayMan]

I was definitely not speeding.

So how fast were you traveling?

The layout was this: it's a pretty straight two lane road. Bright and sunny, around 5pm. Sun behind me. I was behind a car in my lane, perhaps 5 seconds in front of me, maybe a bit more. I wouldn't consider it "close". The car in front disappeared over a short, steep hill. I followed over the hill and as I reached the top, a car passed in the opposite lane. There was a trooper behind that car in the opposite lane...

Based on this it sounds like there was plenty of space all around you. I can't see how anyone could argue that it was impossible for the trooper to lock you vehicle in on his moving radar set due to confusion about which vehicle was which. It just doesn't make sense.

But in this case I was absolutely not speeding and want to be able to prove that.

You really have no way of doing that.

Should I have showed at my appointed time today anyway and filed an objection to the continuance or something? Was that my only hope?

You could have tried. But if you really had any chance the judge would not have allowed the prosecution's request until you were there. I really don't think you had a chance in person either - the request for the continuance does not seem unreasonable.

 

[inthetrailer]

Maybe that gave the wrong idea. I'm not using the "my car can't go that fast" excuse... I've had that little thing over 90 before, so it'll do it, and I know how to make it go fast. I'm a licensed race car driver and instructor. But I do my fast driving on a closed course, not public roads. And to make it go like that with the kids in the car would be pretty dumb...

HighwayMan, I would estimate my speed at 51 or 52mph at the top of that hill. I didn't bother shifting out of 5th gear and the car was really lugging, probly ~1500rpm or so. But I didn't care. I wasn't in a hurry. I am pretty good at estimating my speed just by the sound of the engine and road alone.

I do believe there was some kind of error in the radar reading. Whether it was caused by the other cars on the road, an uncalibrated radar unit, or something else I just don't know. I have read a few explanations of radar error on some web sites and need to find a more scientific explanation, so if you can link to a good (free?) resource that would be helpful.

Other than that it sounds like I need to focus on the trooper losing visual contact. I could say since he lost visual with me, how can he know with 100% certainty the vehicle he stopped is the same one he ID'd with the radar. If such a thing exists I would like to read an OSHP manual or procedures for writing speeding tickets. I think that would be helpful.

 

[davidmcbeth3]

how can he know with 100% certainty the vehicle he stopped is the same one he ID'd with the radar. .

what the cop thinks is not relevant; what the judge thinks is. And the cop will say it was you ... what's the judge's conclusion going to be? Take a guess.

RADAR does not have the errors that other SMDs have -- most cases hinge on the RADAR certificates of calibration & training testimony of the officer.

Also, as Picard has noted, OH does allow for just an eye estimation for a guilty verdict. Clearly OH only wants your money.

 

[HighwayMan]

I would estimate my speed at 51 or 52mph.

So you don't know.

And what qualifies you to perform speed estimations?