Speeding / Reckless driving on GW Parkway

[JohnDoe91919]

What is the name of your state? Virginia but Federal Ticket

Received a ticket for going 73 in a 40 on GW Parkway at 2 am. Also received a reckless driving ticket. Have a mandatory court date in a US Federal Court in Alexandria. What are my options? Should I seek a lawyer? Have not had a ticket in well over 3 years. Will taking a defensive driving class help?

Thanks for all your help!

[liquid8or]

You should get a lawyer. There are places in Arlington/Fairfax area that will do tests of your speedometer. If the the spedo is off, there is evidence that you might not have thought you were going as fast as you were. Sincethe car basically had wings at your speed, it isn't going to get you all the way off.

I would also suggest obtaining a concealed carry permit if you live in VA. You are required to identify yourself as having the permit at the traffic stop. Once you do, the chances of getting let off on a warning are pretty good. The last thing the police wants to do is let you sit in your car with a gun stewing about them writing you a ticket. They still need to come back and give you the citation !

No guarantee, but "slow down and keep a better eye on the speed in the future" was heard a few times when I lived in Arlington.

I know, part two has nothing to do with your question. GW sure is fun at 72 though.

[sukharev]

None of the usual tricks would help. However, federal rules of discovery and evidence are quite well defined. This may be what you can rely on. First, have full discovery request sent to prosecutor (including request for names and written plan of any expert testimony). Most likely you will get back a refusal, and that's a direct violation of federal rules for discovery (look them up on the web). Second, request discovery of officer's training records. Follow that up with FoIA request to training department for training curriculum. Also, request radar/lidar user manual (you need test procedure from that). Finally, request officer's log for radar/lidar test immediately before and after the ticket. If none exists, and you do not receive officer's testimony plan, this may be grounds for dismissal of the evidence (radar/lidar). Look up info on those points on the internet. Make sure you act immediately, as this stuff takes time.

P.S. I am sure several people would have a field day with this one, watch out for nasty posts coming our way.

[sukharev]

Originally Posted by liquid8or

You should get a lawyer. There are places in Arlington/Fairfax area that will do tests of your speedometer. If the the spedo is off, there is evidence that you might not have thought you were going as fast as you were. Sincethe car basically had wings at your speed, it isn't going to get you all the way off.

I would also suggest obtaining a concealed carry permit if you live in VA. You are required to identify yourself as having the permit at the traffic stop. Once you do, the chances of getting let off on a warning are pretty good. The last thing the police wants to do is let you sit in your car with a gun stewing about them writing you a ticket. They still need to come back and give you the citation !

No guarantee, but "slow down and keep a better eye on the speed in the future" was heard a few times when I lived in Arlington.

I know, part two has nothing to do with your question. GW sure is fun at 72 though.

a GUN??? What was that about?

Speedometer off by 33 mph? Get real, the judge would just laugh at that one

[JohnDoe91919]

What kind of penalties do you think i am looking at for these tickets?

[CdwJava]

Originally Posted by sukharev

First, have full discovery request sent to prosecutor (including request for names and written plan of any expert testimony). Most likely you will get back a refusal, and that's a direct violation of federal rules for discovery

What expert testimony?

Are you refering to the officer? If so, I think you're playing a tad fast and loose with the term. The officer does not generally fit into the category.

- Carl

[sukharev]

Originally Posted by JohnDoe91919

What kind of penalties do you think i am looking at for these tickets?

Call the court, find out who the prosecutor is and ask him. I was told by the feds (Park Police) that they don't assess points on your license, but that was for BW Parkway in MD.

[sukharev]

Originally Posted by CdwJava

What expert testimony?
Are you refering to the officer? If so, I think you're playing a tad fast and loose with the term. The officer does not generally fit into the category.
- Carl

In my case, officer was testifying that lidar is accurate and takes measurements instantly, he also stated that he used the unit according to procedure. Finally, he claimed to have estimated my speed visually and that he can do that within 3 mph. How is that not an expert testimony?

[liquid8or]

In that area the difference between 29 and 30 MPH is big.

Firearm permit, yes. Trust me it gets you out of speeding tickets.

This topic, this area, this is not a theory.

Don't believe me. I really don't care.

BANG.

[CdwJava]

Originally Posted by sukharev

In my case, officer was testifying that lidar is accurate and takes measurements instantly, he also stated that he used the unit according to procedure.

He can testify as to what he was trained to do. That is not expert testimony. His assertion that it takes measurements instantly might be able to be objected to as beyond the scope of the officer's knowledge and expertise unless you were willing to stipulate that he was an expert on the matter ... in which case the time for an outline of his arguments and such is a little in the past.

Finally, he claimed to have estimated my speed visually and that he can do that within 3 mph. How is that not an expert testimony?

It's not - it's his training. Testifying to what someone DID as per their training and experience is not generally "expert testimony". Expert testimony permits the testimony of "opinion" as fact. The officer's actions are his actions.

I'm not an "expert" in vehicle operations, but I can testify that I depressed the gas pedal and my vehicle sped up in a pursuit. One does not have to be an "expert" as defined under the law in something to use it.

From Law.com:

expert testimony
n. opinions stated during trial or deposition (testimony under oath before trial) by a specialist qualified as an expert on a subject relevant to a lawsuit or a criminal case.

expert witness
n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.

- Carl

[sukharev]

Every expert has been trained to become one. If an officer states: "visual speed estimation is an accurate method", he is an expert giving his opinion. The fact he was there and used his expertize is immaterial.

[CdwJava]

Originally Posted by sukharev

Every expert has been trained to become one. If an officer states: "visual speed estimation is an accurate method", he is an expert giving his opinion. The fact he was there and used his expertize is immaterial.

But his is not the "expert testimony" you describe that might require a prior outline of his experience, training, expertise, methodology, etc. he is not a third party being hired to offer his opinion about something he did not observe first hand. I, too, have been certified an expert in a couple of different areas. On the rare occasion that I have been called in my capacity as an expert witness I have been (well, the DA has been) tasked with providing an outline of my training and experience, a brief on the subject area to be covered, and the expected line of inquiry by the DA. When I have been called to testify to the SAME information that I was a witness to, this has NOT been an issue ... though the defense will usually conduct voir dire on the stand prior to my testimony.

Perhaps CA courts operate differently than where you are, but I suspect the rules are similar.

If the officer says that it visual estimation is "accurate", then that is a presumption that can be challenged - or you can move to strike because the witness is not qualified to make that assertion. However, the officer coud be permitted to state what his experience has been in conducting visual estimations, his success rate vis-a-vis radar/lidar hits, and his trainign results in this area as this would NOT be "expert" testimony.

Sorry, but in a traffic court situation you are NOT going to get a copy of an outline of the citing officer's "expert" testimony prior to court. You might get a copy of radar training certification, visual speed training, etc. - but not his testimony. And at least out here, failing to receive that testimony would not be sufficient to suppress his testimony.

- Carl

[CdwJava]

California's Expert Witness rules:

DISCLOSURE

Timing: on or before the date of exchange specified [C.C.P.§2034(f)]

Manner of exchange:

- meeting of attorneys or by mail [C.C.P.§2034(f)]
- mutual and simultaneous by all parties [C.C.P.§2034(a)(1)]

Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 297 [tr ct rev'd when unilateral disclosure ordered in case management conference order; "Thus, the statute provides for an earlier simultaneous, mutual exchange, but it does not permit a unilateral exchange. (See § 2034, subds. (c), (e); see also, § 2019, subd. (a)(6).) Trial courts may not adopt procedures that conflict with any statute.]

Alternative disclosures [C.C.P.§2034(f)(1)(A)&(B)]

- list of persons expect to call to offer expert opinions
- statement re no present intent to offer expert opinions

Name and address of all experts [C.C.P.§2034(a)(1)]

Any natural person whose expert opinion you expect to offer

- Parties or employees of parties
- Persons retained to form and express opinion
- Others

Expert witness declaration signed by attorney for specified experts

Experts for which required: [C.C.P.§2034(a)(2)]

- Party or Employee of Party
- Expert "retained" by Party for purpose of forming & expressing opinion

Contents of declaration [C.C.P.§2034(f)(2)]

- Qualifications of expert: brief narrative statement
- General substance of testimony expected: brief narrative statement
- Representation expert has agreed to testify
- Representation expert sufficiently familiar to submit to meaningful depo including expected opinion and basis
- Expert fees: hourly & daily for depo and for consulting with retaining attorney

Production of "discoverable" reports & writings, "if any" and if demanded [C.C.P. §2034 (a)(3), (g)]

If the state is not intending to call the officer as an "expert" in the operation of the radar/lidar, then that is certainly valid grounds to challenge any opinion he might offer. But his training and observations are NOT "opinion" as it is testimony. Saying that a lidar provides instant feedback or evaluation of speed MAY be challenged as an opinion requiring proper foundation and thus stricken. But the officer saying that he made a visual estimation of the defendant's speed and then depressed the trigger of the device as he was trained to do and it produced a reading of XX MPH is NOT "expert testimony".

- Carl

[sukharev]

I see your point. How then does the prosecutor proove that this procedure was sufficient to serve as proof of speeding? I think that unless officer or someone else testifies to the accuracy of lidar, the method itself cannot be found reliable (unlike radar, which is nowadays taken for granted when tested properly). Therefore, prosecutor needs either judicial notice or expert testimony, doesn't he?

And what about visual estimation? How can prosecutor prove it was reliable? In my case, officer testified that it was part of his training, and therefore he can reliably estimate speed within 3 mph. I believe that this is physically impossible, at least at distance of 1600 feet and ~65 mph, but I am not an expert, just a driver with experience. Why would officer's word be enough, when there should be a record of his training that is a proof? Doesn't this violate rules of evidence?

[CdwJava]

Originally Posted by sukharev

I see your point. How then does the prosecutor proove that this procedure was sufficient to serve as proof of speeding?

We don't have a prosecutor in traffic infractions. The basic foundation for the presented evidence has to do with road surveys, the officer's training on the device, maintenance and/or pre and post shift testing of the device, and the officer's testimony as to his observations.

It's like watching a vehicle roll through a stop light or a stop sign ... we testify as to what we saw. In the case of radar or lidar, the technical aspects can be challenged. However, visual estimation can be a tough nut to crack provided the training is there.

I think that unless officer or someone else testifies to the accuracy of lidar, the method itself cannot be found reliable (unlike radar, which is nowadays taken for granted when tested properly).

That's not reasonable as the officer is not trained in the technical details of it's operation. It's like the breath machines we use - the Praeger E-PAS ... I'm trained in its operation and the theory as to how it functions, but I am not qualified to explain the technical details of it's operation. If the defense wishes to challenge the device they can subpoena the DOJ labs to provide an expert. The same holds true with the radar/lidar ... if the defense wants to challenge the veracity of the device they can subpoena the manufacturer's expert. In case the defense intends to call an expert of their own, our radar and lidar providers (for my agency) have experts that we can tap at little or no cost.

Therefore, prosecutor needs either judicial notice or expert testimony, doesn't he?

It is already accepted in my state that radar and lidar is accurate. If the defense wishes to contest this, it is their burden to do so. Whether this has to asked of the judge to accept this formally or not, I don't know. I'm not familiar with the specific process. But, I do know that Judicial Notice has been granted for these devices and we have not had to go in to court to present evidence of their accuracy for many, many years - except in response to a valid defense claim.

And what about visual estimation? How can prosecutor prove it was reliable?

As with anything else, it is a matter of credibitility for the trier of fact. Either it is believed that I saw you speed, or it is not. Either the court believes I saw the dope in your pocket, or it doesn't.

It would be wise for the officer in such a case to set the foundation of his training and experience in this area (and radar certification out here requires training and success in visual estimation to +/- 3 MPH, I believe). I have actually had my visual estimations accepted in court simply due to my age and experience (years driving and years in Patrol). Whether this would hold true in every court is questionable - but it does here.

In my case, officer testified that it was part of his training, and therefore he can reliably estimate speed within 3 mph. I believe that this is physically impossible, at least at distance of 1600 feet and ~65 mph, but I am not an expert, just a driver with experience. Why would officer's word be enough, when there should be a record of his training that is a proof? Doesn't this violate rules of evidence?

It can certainly be challenged. But, as with any testimony, it is a matter of credibility. If the court believes that the officer's training and experience is sufficient to grant him that ability then it's in (and I suspect the judge knows the radar training and that it requires what I believe is a 100% success rate in the visual estimation portion to within +/- 3 MPH).

- Carl