Sunshine Law As A Lever??

[hankrearden2000]

Greetings from Missouri.

I received a traffic violation in which the officer wrote the ticket for 11 miles above the speed I was actually traveling. I was traveling 62 in a 55, and she wrote the ticket for 73. She also wrote a different driver's license number on the ticket, inflating one number. She seems to have been on a roll, inflating numbers that night.

I determined to fight the case. So, I wrote a letter to the Chief of Police requesting ten items of information. I sent the letter by Certified Mail and received the return receipt showing that someone in the Chief's office had signed for the letter. It's been almost two months and I haven't received a response. The same with the city prosecutor. I sent a certified letter to the prosecutor and never received a response or a return receipt. The Postal Service has no idea what happened to it. So, I hand delivered another copy to City Hall and gave it to the clerk who promised to put it in his mailbox. Still no response.

Missouri has a sunshine law that requires agencies to respond to public records requests within 72 hours. My question is, is the certified letter to the police department good enough service in a legal sense? The law provides remedies and even a fine for officials who do not respond to public records requests.

Prior to this incident, I've had one ticket in my life. That was on January 1, 1982. I paid the fine before the court date because I was guilty. I'm not guilty of this so I intend to fight. Is this sunshine law violation a good enough lever to get this case dismissed? If not, is it feasible to sue the Chief or police department? His & its jobs are to follow the law the same as me!

I went to court this evening and the prosecutor requested a continuance because the officer was one of the few members of the 16 officer department who wasn't present. So, I've got about six more weeks to wait.

The section of road that this took place on is a moneymaker for the city. I was the only vehicle on the road at 1:20 AM on a Tuesday morning. So, public safety isn't what was being protected that morning.

 

[The Occultist]

Greetings from Missouri.

I received a traffic violation in which the officer wrote the ticket for 11 miles above the speed I was actually traveling. I was traveling 62 in a 55, and she wrote the ticket for 73. She also wrote a different driver's license number on the ticket, inflating one number. She seems to have been on a roll, inflating numbers that night.

If you say so. When she pulled you over, how fast did she claim you were going? Does that speed differ from what is on the ticket?

I determined to fight the case. So, I wrote a letter to the Chief of Police requesting ten items of information. I sent the letter by Certified Mail and received the return receipt showing that someone in the Chief's office had signed for the letter. It's been almost two months and I haven't received a response. The same with the city prosecutor. I sent a certified letter to the prosecutor and never received a response or a return receipt. The Postal Service has no idea what happened to it. So, I hand delivered another copy to City Hall and gave it to the clerk who promised to put it in his mailbox. Still no response.

Missouri has a sunshine law that requires agencies to respond to public records requests within 72 hours. My question is, is the certified letter to the police department good enough service in a legal sense? The law provides remedies and even a fine for officials who do not respond to public records requests.

What items of information are you requesting? Some things are inappropriate to ask for outside of Discovery, and no court will impose punishment if this is the case.

Prior to this incident, I've had one ticket in my life. That was on January 1, 1982. I paid the fine before the court date because I was guilty. I'm not guilty of this so I intend to fight. Is this sunshine law violation a good enough lever to get this case dismissed? If not, is it feasible to sue the Chief or police department? His & its jobs are to follow the law the same as me!

No and no.

I went to court this evening and the prosecutor requested a continuance because the officer was one of the few members of the 16 officer department who wasn't present. So, I've got about six more weeks to wait.

Lucky you.

The section of road that this took place on is a moneymaker for the city. I was the only vehicle on the road at 1:20 AM on a Tuesday morning. So, public safety isn't what was being protected that morning.

Irrelevant. They are going to stop speeders no matter the conditions. By stopping you from speeding now, the hope is that it will teach you not to speed next time when conditions may not be so favorable.

 

[hankrearden2000]

If you say so. When she pulled you over, how fast did she claim you were going? Does that speed differ from what is on the ticket?

Yes. She stated that I was going 72, and wrote me for 73.

What items of information are you requesting? Some things are inappropriate to ask for outside of Discovery, and no court will impose punishment if this is the case.

To the Chief:

1. Officer's name. It's not legible on the ticket.
2. Type of speed monitoring device used.
3. Serial number of device.
4. Officer's training record on device used.
5. Maintenance records for device used.
6. Calibration records for device used.
7. Make, model, and license number of patrol car officer was operating.
8. Departmental standards for the types of devices used.
9. Departmental officer training standards for devices.
10. The municipal code that the officer alleges was violated.

To the prosecutor:

The ten above and,

11. The officer's location when the violation was first alleged.
12. Location of my vehicle when the officer started and stopped clocking my vehicle.
13. Name of the second officer on the scene. Type and license number of the vehicle the second officer was driving.
14. Location of the citing officer in relation to the second officer when the citing officer first noticed the alleged violation?
15. Number of vehicles that were on the road in my vicinity when the alleged violation was first noticed.

No and no.

Why, is the chief not responsible for answering the records request? Is the service not sufficient?

 

[racer72]

My advice to you is learn the meaning of the following word and quit wasting your time and money with letters, they have no legal value. Only one of the 15 items you asked for would be considered public record and that is the officer's name.

Subpeona.

If this is beyond your grasp, at a minimum talk to a local attorney for some guidance. I'll bet whoever you sent the letters to had a good laugh then pitched in the nearest trash can.

 

[tracker2208]

I went to court this evening and the prosecutor requested a continuance because the officer was one of the few members of the 16 officer department who wasn't present. So, I've got about six more weeks to wait.

Are you saying the cop didn't show up for the court date and the prosecutor was granted an extention? That happened to me once (in MN) on a charge that I had to realistic chance of fighting (unregistered vehicle). I objected to an extention and the case was thrown out. Its the cops testimony that convicts, not the ticket. You probably could have ended all of your troubles right then and there, unless I'm misunderstanding something.

 

[hankrearden2000]

The prosecutor told the judge that since the officer wasn't present that she need to subpoena her. The judge agreed and continued the case. I was not given an opportunity to speak.

 

[loulblades]

I was not given an opportunity to speak.

What kind of opportunity were you looking for? If the prosecution makes a request I believe it would not be the norm for the judge to turn to you and ask if you object (not saying it doesn't happen).

It was up to you to register your objection to a continuance since you were there at scheduled court time and the officer not showing was disrespectful to the court etc. I believe you didn't open the door when opportunity knocked by not speaking up to object to the continuance and request a dismissal. Doesn't mean you would have received a dismissal but....now you'll never know (unless all the stars are in your favor and the officer doesn't show a second time).

 

[hankrearden2000]

I would think that it would be the norm for the judge to ask both sides for input, but he didn't. This is municipal court, where the judge, prosecutor, and cops all get part of their salaries from the proceeds of speedtraps and such. There's little incentive for the scales of justice to be balanced. There is also no record of the proceedings, so there's no way to contest them. That's why I'm particularly interested in the sunshine law violation aspect. That's a stae circuit court matter in which there is a record of the proceedings kept and there is an incentive for justice.

 

[The Occultist]

I find that to be very ignorant. By dismissing your case and thus not receiving your fines, nobody is going to see a cut in their checks because of it. They will continue to get paid. It is NOT the norm for the judge to ask both sides, hence the action of calling out an "objection". If the judge had to pause the trial every 10 seconds to see what the other lawyer thought of the situation, nothing would get accomplished. If you have a complaint, you must call out an objection. You failed to do so, so you lost your chance.

 

[CdwJava]

Most the items you are requesting are available via Discovery or subpoena. Try that avenue or hire an attorney to try and raise a "sunshine" defense. Don't be surprised if the attorney recommends the subpoena or discovery process.

- Carl

 

[cepe10]

traffic ticket cas and criminal proceedings

Sadly, there are a lot of law enforcement officers whose ethics have degraded to the point of issuing false charges, presumably to meet their quotas. it is farily obvious that traffic safety is not an issue but ease/conveniece is most imnportant.

You had a good list and did the right thing by sending it certified - there is no legitimate reason the prosecutor/law enforcement agency did not answer as a defendant you have the RIGHT to obtain the evidence used against you.

One tip: a lot of states have public information acts or if not the freedom of information act can be used to obtain records from the government. this would included the calibratiuon records of the instrument used to obtain your speed as well as well as the officers certified traing records (if he has even had any - most haven't). Using this means the law enforcement agency has violated the law by not providing the information. any reaosnably judge will have not other choice but to dismiss - as the prosecution has chosen not to present the evidence or the foundation for the evidence.

FYI, most officers will not have direct knowledge of the calibration of the instruments they use. this is because they have no advance electronics knowledge and are not certified to perfom the calibration themselves. so for them to testify that the insturment was calibrated is either untruthful or simply inadmissable hearsay.

lawyers are not worth much but may work a plea for you.

the judge should have thrown out the case when the law enforcement officerdid not show - i have had it happen before - you got screwed. the trial is scheduled at the convinience of the prosecutor and this jerk so there is no excuse for him not to show expesially without notice. next time object stating such

 

[cepe10]

FYI: mo case law

there is anotherone as well. email me at [email protected] if you want it. basically the prosecution better show up with all the records you have requested and they better match up if the case law is to be honored.

648 S.W.2d 927


CITY OF JACKSON, Missouri, Respondent,
v.
Robert LANGFORD, Appellant.


No. 45377.


Missouri Court of Appeals,
Eastern District,
Division Three.


March 22, 1983.

Page 928

Kenneth L. Waldron, Jackson, for appellant.

Jack H. Knowlan, Jr., Jackson, for respondent.

PER CURIAM.

Defendant was convicted by a jury of exceeding the speed limit in violation of a city ordinance of Jackson, Missouri, and was fined $150.00.

Lieutenant Larry Koenig of the Jackson Police Department testified that at approximately 8:30 p.m. on April 28, 1981, he established a radar speed check on Highway 61. At approximately 9:04 p.m., defendant was clocked on the radar unit traveling 55 miles per hour in a 40 mile per hour zone. He was thereupon issued a Missouri Uniform Traffic citation. His conviction and this appeal ensued. We find merit to defendant's contention that the city failed to make a submissible case and reverse his conviction.

The city was required to prove defendant's guilt beyond a reasonable doubt. Kansas City v. Bradley, 420 S.W.2d 68, 71 (Mo.App.1967). Our scope of review in determining whether the prosecution makes a submissible case for violation of a municipal ordinance was set forth in City of Kansas City v. Oxley, 579 S.W.2d 113, 115 (Mo. banc 1979):

"t becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant's guilt beyond a reasonable doubt in the minds [of the trier of the facts] ..." citing State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 52 (Mo.1936).

Defendant alleges the state failed to make a submissible case because the city failed to establish that the "radar device used to register appellant's speed was accurate and functioning properly at the time appellant's speed was checked."

Our examination of the appellate court decisions reveals that the use of radar as a speed detection device has been firmly accepted for over twenty years. 1 Nonetheless, these same cases also recognize that

Page 929

the prosecution has a prima facie duty to establish that the radar unit was tested and found to be operating properly at the site of and reasonably close in time to the arrest. State v. Weatherwax, 635 S.W.2d 34 (Mo.App.1982); City of St. Louis v. Boecker, 370 S.W.2d 731 (Mo.App.1963). The prosecution must also establish that the measuring device used to test the radar unit for accuracy was itself tested for accuracy. City of Ballwin v. Collins, 534 S.W.2d 280 (Mo.App.1976). 2

In City of St. Louis v. Boecker, 370 S.W.2d 731 (Mo.App.1963), this court stated that establishing the accuracy of the radar unit at the site of and reasonably close in time to the arrest was necessary because outside factors can easily affect the operation of the radar unit and because the unit can be affected by movement from place to place. The court stated:

We are not unmindful that excessive speed is a dominant factor in the appalling amount of injury and death which occurs daily on our streets and highways. Nor are we unaware of the difficulties encountered by the authorities in the enforcement of the traffic laws and ordinances. Such efforts are to be encouraged, and not hampered. But the requirement that proof be adduced that a radar [instrument] was tested and found to be operating properly at the site of and reasonably close to the time of an arrest should not place an undue burden on the prosecution, and should at the same time protect the rights of motorists against the possibility of error in this device which makes "delicate measurements." [citation omitted].

370 S.W.2d at 737. See State v. Weatherwax, 635 S.W.2d 34 (Mo.App.1982).

With these principles in mind, we shall set forth the evidence the city introduced to establish the radar unit was accurate and operating properly. Robert L. Emerson, an electronics technician, testified that two tuning forks, one calibrated for 30 miles per hour and one calibrated for 50 miles per hour were used to test the radar unit for accuracy. He further testified that he tested the two tuning forks with an oscilloscope on May 29, 1980, October 10, 1980, April 29, 1981, and August 31, 1981, and found the forks to be accurate. Lieutenant Koenig testified that he had been certified to operate the radar gun which he used on the evening of April 28, 1981, by the Jackson Police Department. He identified the two tuning forks used to verify the accuracy of the radar gun. Lieutenant Koenig was asked whether, prior to the time he started using the radar, he did anything to check the accuracy of the radar gun. He testified that it was the policy of the department, prior to using the instrument, to check it with the two tuning forks.

Defendant does not challenge that the tuning forks used to check the accuracy of the radar unit were properly tested for accuracy. But in light of the burden which the city had, our review of Lieutenant Koenig's testimony establishes that it was insufficient to establish beyond a reasonable doubt that the radar unit was found to be operating properly at the site of and reasonably close in time to the arrest of the defendant. State v. Weatherwax, 635 S.W.2d 34 (Mo.App.1982). At best, the city established that the unit was tested sometime prior to 8:30 p.m. on April 28. But at no point in the officer's testimony did he state that the results of the test he conducted established the unit was functioning properly, and without knowing where and at approximately what time the instrument was tested, we would only be speculating that it was reasonably close in time and place to the arrest. Thus, the city failed to make a prima facie case that the machine was functioning properly.

Page 930

Although both Lieutenant Koenig and another officer testified that defendant was traveling in excess of the speed limit, that opinion evidence in the circumstances here, does not constitute sufficient substantial evidence to find defendant guilty beyond a reasonable doubt. City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo. banc 1979). 3 It follows that the state failed to make a submissible case against the defendant.

Reversed.

All Judges concur.

 

[hankrearden2000]

Oh man, you're a Saint! I've e-mailed you about that other case.

I guess my next question is, since there was no record being kept of the proceedings as far as I could tell, how would one appeal the case to a higher court should it become necessary?

 

[lwpat]

In some states you have to hire a court reporter. You can ask the clerk of court if they record the trials.
You may also have the right to a jury trial. It depends on the city. If you are not tried by a judge that is a licensed attorney, you have a right to a trial de novo before a circuit judge. If you have a jury trial, appeal is on the record only. Here is a link to the MO bar info on tickets
http://www.mobar.org/4ddd6369-250f-4e5c-bc4e-46d5e7a1831d.aspx

 

[hankrearden2000]

Thank you!