Rec'd Disclosure - Do I have a Case? Looking for advice.

Gweedz
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Rec'd Disclosure - Do I have a Case? Looking for advice.

Unread post by Gweedz on

Fined for speeding - 89 in a 60.
Court date is April 6.

Any advice on the following:

1) Discovery info includes 3 pages of Genesis radar manual. Officer's notes show he used "Atlantic Laser" to measure speed. Didn't show model # (only s/n). The Genesis was used earlier on in the day, but not for my case. Can I grill him on this or is it simply a clerk's error in sending me the wrong manual?

2) For the laser testing after clocking me it says "retest Laser Atlanta, s/n XXX, tested OK, found to be in good working order". No mention of how it was tested.

3) For the re-testing time it clearly shows "180" with a line clearly striked through it (and then the text in item #2 above). The next entry is "1800 R.O.D.". I think the "180" was supposed to be "1800" but it's clearly not. Do I have a leg to stand on if I fight this - I don't know what time he tested it at. "180" is not a time. And it's crossed out.

4) Approx how long does it take to test a laser gun. Is it simply pushing a button and getting an instant self-test, or does it take more preparation?

5) Can he bring up any other info that was not given in the discovery? I did ask for "all other evidence to be used by the prosecution". Reason I ask is because during the stop he said I was actually doing 94, but nowhere on the ticket or notes does it mention this. In fact the typed notes state "OBT RGD OF 89 KM/H AT A DISTANCE OF 287 METERS". If he obtained the reading (I assume from the laser gun) then I don't think he can bring up the 94 km/h. Or can he? There is a statement in the discovery info that says the prosecutor will revert to the original higher speed.

6) If I go in before my court date to speak to a prosecutor I know they will try to plea bargain, but is it possible for them to throw out the case BEFORE actually going to court? If they don't have the authority to throw it out then I won't go see them and I'll wait for my court date (depending on feedback I get above), otherwise I may try with them first. This way I get 2 kicks at the cat, unless I'm missing something.


Thanks in advance to everyone for their suggestions.


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FyreStorm
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Unread post by FyreStorm on

I'd be more concerned with them entering the 94 kn/h amendment. The fine would go up from $138.75 and 3 demerits to $259 and 4 demerits. Also most insurance companies see anything 30 over and above as a MAJOR conviction which could seriously mess with your rates.

Where you going 94 km/h?

If so, pay this thing and be greatful.

I've seen dozens of people since R. v. Wannamaker leave court cursing their decision to fight their 'break'.

Also what's your record like?


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Unread post by Gweedz on

My record is clean - for 15 years.

I don't see anywhere in the notes mention of 94km/h... can the officer just bring it up from memory?

I honestly don't believe I was doing over 75 (I thought it was a 70 zone).


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Unread post by Gweedz on

I read the case law - thanks for the info.
It mentions that the "evidence indicates" that the officer told the driver his speed. In my case I don't see any evidence of this.

Also, Wanamaker was offered the chance to enter a plea before they enter the amendment - I may take this if they offer it, but I won't volunteer it as I can't see how the officer will remember this 6 months later if it's not in his notes.

What about the incorrect testing time shown in the notes? Or can I ask for an adjournment in order to receive the proper laser gun manual?

Is it worth going in beforehand to see if I can get this thrown out? My understanding is worse comes to worse I don't have to accept anything they offer and just wait for my court date.


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Unread post by FyreStorm on

Well if you admit you were doing 75 (which morally you have) you are guilty of speeding. now the only arguement is the amount.

How do you know the officer is alledging you went 94 km/h? He told you at the stop...not sure if this is sufficient regarding this case law. But if you arrive and the prosecutor requests an amendment you're screwed. See my previous post...pay your fine...


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Unread post by Gweedz on

Um, the officer kinda mentioned something like that at the stop. :wink:

But I could be wrong because I was so nervous, so I was hoping his notes would refresh my memory.

But if not in his notes then theoretically any cop can increase any speeding fine by saying "actually he was doing X over".

In the span of 99 minutes he issued 12 tickets - all without notes (1 every 8 minutes). If he can remember every single one from 6 months ago and the court believes him then I've lost all faith in our system. And I'm screwed! :shock:

This is why I hope to see a prosecutor (or whoever) before the date to work on a deal... to see what they have up their sleeve.


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Unread post by hwybear on

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Unread post by Radar Identified on

Crown did not disclose the correct manual = adjournment + delay charged to the Crown... If you act on it. Did you send another note asking them for the correct manual? Also, how long has it been since you were ticketed?

If the officer does not have a clear recollection of the events, then you should be able to win. Plea-bargaining is also an option (75 in a 60 for zero demerit points) as you indicated. The Crown may withdraw the charge prior to the trial, but that would be highly unusual.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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Unread post by Gweedz on

hwybear wrote:speed can be ammended up.... here is the post under "courts" as a "sticky"
http://www.ontariohighwaytrafficact.com/topic1393.html
I read that sticky, but I'm trying to determine if it is valid for my situation since there are no written notes of the "original" speed. Is it normal for an officer to remember a single uneventful stop from 6 months ago that lasted maybe 5 minutes? He may have said 94, but what if during the trial he says 92, or 96, or 118... is that admissible only by memory? Maybe the guy he stopped right after me was doing 118 and he's confused.

If so, then if his notes show no record of testing his radar gun then can't he just say "oh yeah, I tested it 10 times that day... I remember"?


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FyreStorm
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Unread post by FyreStorm on

THe officer's memory is as permissible as the defence's. 90% of people who appear in court do so without notes, they aren't challenged on their lack of notes...

While I agree with your assertion that the volume of traffic stops the officer conducts would lead one to wonder how they would remember...

But memory is the entire point...notes alone are useless, the officer MUST testify from memory as does the defendant.


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Unread post by Gweedz on

Radar Identified wrote:Crown did not disclose the correct manual = adjournment + delay charged to the Crown... If you act on it. Did you send another note asking them for the correct manual? Also, how long has it been since you were ticketed?
Ticketed In Oct, 2009. I sent them first disclosure request Feb 18. Second one on March 9. They sent me info on March 18. I just realized a couple days ago about the wrong manual they sent (he was using the radar shown in the manual earlier in the day, but changed to a different one when I was stopped). I haven't mentioned anything to them about the manual.
Radar Identified wrote: If the officer does not have a clear recollection of the events, then you should be able to win. Plea-bargaining is also an option (75 in a 60 for zero demerit points) as you indicated. The Crown may withdraw the charge prior to the trial, but that would be highly unusual.
I think my best shot at getting this withdrawn is there is no time indicated on the notes for the 2nd laser gun test. The "time" shows "180" but is crossed out, almost as if he had second thoughts.


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Unread post by Gweedz on

One more question... if they bring up the 94km/h issue, would they give me the chance to plea bargain at that time, or once they bring it up there's no return and I have to fight it through all or nothing?

I remember reading a case law where the defendant said if he had known they would have brought up the higher speed he would have pleaded differently and handled the case differently because of the new charge. Unfortunately I don't remember the verdict.


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Unread post by hwybear on

FyreStorm wrote: But memory is the entire point...notes alone are useless, the officer MUST testify from memory as does the defendant.
I have soley used my notes for testifying. Here is how/why. We are asked if we have an independent recollection. As soon as practicable after the stop I made an independent (my own) recollection (remembered what happened) of the events and wrote them down in my notebook. My testimony is therefore from my independent recollection.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Unread post by Gweedz on

hwybear wrote:
FyreStorm wrote: But memory is the entire point...notes alone are useless, the officer MUST testify from memory as does the defendant.
I have soley used my notes for testifying. Here is how/why. We are asked if we have an independent recollection. As soon as practicable after the stop I made an independent (my own) recollection (remembered what happened) of the events and wrote them down in my notebook. My testimony is therefore from my independent recollection.
What if your notes are missing a piece of info (such as the actual clocked speed vs reduced speed that's shown on the ticket). Does this mean you have no recollection of it and can't bring it up in court?


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Unread post by FyreStorm on

That's for the JP to decide...it's a big gamble considering what you have to lose...it could affect your insurance for years, your pocketbook straightaway...

Are you prepared to gamble...






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