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Re: If a cop claims that your speed was 84 km/hr in 60 zone
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PostPosted: Fri Apr 10, 2015 3:59 pm 
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highwaystar wrote:
As per the Winlow decision, the prosecutor must give you the Winlow Warning (notice) BEFORE you are arraigned (i.e. enter your plea). While the prosecution can certainly notify you of their intention to 'amend up' (Winlow Warning) anytime before you plea, in practice they usually wait to see you in person---either at your resolution meeting or on the day of your trial. If they notify you on your trial date, then you are entitled to an adjournment (so as to re-consider your legal options in light of the change in circumstances). That's an entitlement set out right from the Winlow decision.

In practice, this is how it usually happens. Before you enter your plea, the prosecutor notifies you and the court that they anticipate they will be seeking an amendment to raise the rate of speed on the certificate based upon the evidence that is given. That lets the JP know that the prosecutor is planning to seek an amendment the moment the officer testifies to a higher rate of speed. The JP then asks you if you are aware of what that means and may offer you an adjournment to re-consider your position. If you turn down the offer to adjourn and say you want to proceed, then they will arraign you on the charge of speeding as it is stated on your ticket. Once the officer testifies about the higher rate of speed, the prosecutor will then move (request) to amend the certificate to the higher rate of speed.

Now, to address your other question, there is nothing that prevents you from simply entering a plea of guilty BEFORE the certificate is amended. That is, if on your trial date the officer shows up and the prosecutor gives you your Winlow warning, you can still plead guilty before they amend up. Of course, it is always wise to let the prosecutor know that you'll be pleading guilty so that they don't attempt to make the amendment BEFORE you plea and to hopefully allow you to get out of court early. Otherwise, you could be sitting in court all day while they go through their list, under the assumption that your case will be proceeding to trial.

However, keep in mind that if you ARE planning to plead guilty, then it makes more sense to simply pay the fine before you even have to enter a plea. That's because if you simply pay the fine, the amounts used are the 'set fine' rates. If however you plead guilty in court, then they must use the 'statutory rates'; which are always higher.


Thanks a lot, Highwaystar! Thanks to you I have a much better understanding of what I should or should not do . Could you please let me know if there is any misunderstanding on my part?

Now my understanding is

1. It does not matter whether or not I request the disclosure and in that disclosure the police officer claims that my speed was actually 84. It will not affect the prosecutor’s decision to notify me of their intention to 'amend up' (Winlow Warning) and, in theory, they can do it anytime.

So, I should, probably, request the disclosure and review it.

2. Even if they notify me of their intention to 'amend up' (Winlow Warning) BEFORE the trial, I can just pay the fine according to my ticket (speeding 70km/hr in 60 zone, Toatal Payable: $40, No points) before the trial or even just before entering a plea.

I guess, if I pay the fine at the very last moment I should be able to provide some kind of proof of payment.

3. Even if they notify me of their intention to 'amend up' (Winlow Warning) BEFORE the trial, I have an option of not going to the trial at all. In this case I will be found guilty and I still will have to pay the fine according to my original ticket (speeding 70km/hr in 60 zone, Total Payable: $40, No points)

The fine is not a big deal but my insurance will be affected by the conviction.

4. Alternatively, I can go to trial, hoping that the cop will not show up but, if he is there, they will let me know that the prosecutor is planning to seek an amendment the moment the officer testifies to a higher rate of speed and offer me an adjournment to re-consider my position.

My understanding is that at this point I should agree to the adjournment. Later I can decide whether I should just pay the fine according to my original ticket (speeding 70km/hr in 60 zone, Toatal Payable: $40, No points) or fight the ' amended up ticket' (speeding 84km/hr in 60 zone, Total Payable: $x, x points).

If this is a case, it looks like a no brainer. I should request disclosure, go to trial, and, if the cop is there, accept the adjournment and later pay the fine according to my original ticket (as it described in 2 or 3 of the above). That will give me

1) more months before the conviction affects my insurance
2) a chance to avoid conviction if the cop does not show up.

Sounds like a good plan, does not it? Thanks a lot again!


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Re: Must the police officer show the driver the laser readin
PostPosted: Fri Apr 10, 2015 5:34 pm 
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The side of the road isn't a courtroom. You are simply being charged. You haven't been convicted of anything.

Sometimes the officer will show the reading, but that's up the the officer. He's under no obligation to prove his case to you.

I'd agree with Stanton in that the mention of showing the device in that particular case wasn't going to swing the decision in any direction. They're just notes of the events that took place.

An officer on any other day could have easily paced your vehicle speed while following you and had no device to show you either way. It doesn't mean the charge goes away.


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Re: Must the police officer show the driver the laser readin
PostPosted: Fri Apr 10, 2015 6:01 pm 
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bend wrote:
The side of the road isn't a courtroom. You are simply being charged. You haven't been convicted of anything.

Sometimes the officer will show the reading, but that's up the the officer. He's under no obligation to prove his case to you.

I'd agree with Stanton in that the mention of showing the device in that particular case wasn't going to swing the decision in any direction. They're just notes of the events that took place.

An officer on any other day could have easily paced your vehicle speed while following you and had no device to show you either way. It doesn't mean the charge goes away.


Thank you for your reply, Bend. And I’m sure that, as always, you are correct on all points.

The reason why I’m interested about that case is that there is some similarity between that case and mine. In both cases the officers claim that the speed was actually higher than they put on the tickets. But in the first case, the officer showed the driver the laser reading and he had no doubt about it and in my case the officer didn't show the reading.

To my mind, if a cop does not show the diver the reading and claims that the speed was even higher than on the ticket, it raises the question why did he did not just one but 2 actions which, though not illegal, are not common practice at the same time. In other words, I’m thinking about requesting the disclosure which would shed some light on whether or not the officer actions can be considered as best practice or there are some better ways to handle that situation.


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What should be on disclosure request in case of speeding?
PostPosted: Fri Apr 10, 2015 6:28 pm 
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Could someone please advise me what should be on disclosure request in case of speeding?

I was given a ticket for speeding 70km/hr in 60 zone but, according to the officer, the speed was 84 km/hr. He did not show me the reading though. Also, it looks like he started clocking me BEFORE I was going up (the rode dips and rises to where officer was standing) which means that my direction of travel was not linear toward the officer (I’ve heard that the radar or laser gun has to be on the same vector as the direction of travel.)

Thanks.


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Fri Apr 10, 2015 7:19 pm 
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You're almost there! Just a few insights to ensure you're perfectly clear.

The officer's notes DO matter. If the officer makes no mention of 84km in his notes but only refers to the speed you were charged with, then you can use that to raise reasonable doubt if he testifies to a different speed. In that case, the prosecutor also can't 'amend up' since there would be no evidence of any roadside reduction prior to you entering your plea. In other words, the officer would have simply ticketed you for the speed that you were going. Only if the officer makes reference to a higher speed in his notes but tickets you at a lower speed, can the prosecutor reasonably rely upon the Winlow decision to amend up. After all, if the prosecutor only finds out about the elevated speed mid-way through the officer's testimony, it would be prejudicial to you if an amendment were allowed. After all, you would not have been given any notice in advance of such and would have already plead to the charge based on the evidence given to you. In all likelihood, even if the prosecutor did seek an amendment in such a circumstance, the court would not allow it.

The only other thing to know is that the prosecutor WILL tell you they are 'amending up' BEFORE you enter a plea. So, once they do, you simply ask for an adjournment at that point since you did not anticipate this change in circumstances! As per the Winlow decision, the court should give you the adjournment. After all, the prosecutor could have provided you such notice months before but simply chose not to do it until the last minute! So, you don't want to enter a plea and THEN ask for an adjournment-----rather, you ask for the adjournment before entering the plea----once you are told about the warning. If you DO enter your plea BEFORE the prosecutor gives you the notice that they are amending up, then the court will likely NOT allow the prosecutor to amend the certificate later. Again, it would be too prejudicial to you.

Other than those 2 things, I think you're good to go! You've figured out your options and seem to know how to 'delay' paying the matter (if necessary!). Good luck!


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Fri Apr 10, 2015 8:34 pm 
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highwaystar wrote:
You're almost there! Just a few insights to ensure you're perfectly clear.

The officer's notes DO matter. If the officer makes no mention of 84km in his notes but only refers to the speed you were charged with, then you can use that to raise reasonable doubt if he testifies to a different speed. In that case, the prosecutor also can't 'amend up' since there would be no evidence of any roadside reduction prior to you entering your plea. In other words, the officer would have simply ticketed you for the speed that you were going. Only if the officer makes reference to a higher speed in his notes but tickets you at a lower speed, can the prosecutor reasonably rely upon the Winlow decision to amend up. After all, if the prosecutor only finds out about the elevated speed mid-way through the officer's testimony, it would be prejudicial to you if an amendment were allowed. After all, you would not have been given any notice in advance of such and would have already plead to the charge based on the evidence given to you. In all likelihood, even if the prosecutor did seek an amendment in such a circumstance, the court would not allow it.

The only other thing to know is that the prosecutor WILL tell you they are 'amending up' BEFORE you enter a plea. So, once they do, you simply ask for an adjournment at that point since you did not anticipate this change in circumstances! As per the Winlow decision, the court should give you the adjournment. After all, the prosecutor could have provided you such notice months before but simply chose not to do it until the last minute! So, you don't want to enter a plea and THEN ask for an adjournment-----rather, you ask for the adjournment before entering the plea----once you are told about the warning. If you DO enter your plea BEFORE the prosecutor gives you the notice that they are amending up, then the court will likely NOT allow the prosecutor to amend the certificate later. Again, it would be too prejudicial to you.

Other than those 2 things, I think you're good to go! You've figured out your options and seem to know how to 'delay' paying the matter (if necessary!). Good luck!


Thanks a lot for your help, Highwaystar! Very much appreciated. Now I’m kind of ready for the fight))
(Except, I’m not sure what exactly should be in disclosure request)


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Re: What should be on disclosure request in case of speeding
PostPosted: Fri Apr 10, 2015 10:15 pm 
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Memo1 wrote:
Also, it looks like he started clocking me BEFORE I was going up (the rode dips and rises to where officer was standing) which means that my direction of travel was not linear toward the officer (I’ve heard that the radar or laser gun has to be on the same vector as the direction of travel.)


Hills, dips, etc are only going to benefit the reading in your favor. Arguing it's inaccuracy would be arguing you were going faster than you were recorded.


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Fri Apr 10, 2015 10:40 pm 
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Memo1 wrote:
Could someone please advise me what should be on disclosure request in case of speeding?

I was given a ticket for speeding 70km/hr in 60 zone but, according to the officer, the speed was 84 km/hr. He did not show me the reading though. Also, it looks like he started clocking me BEFORE I was going up (the rode dips and rises to where officer was standing) which means that my direction of travel was not linear toward the officer (I’ve heard that the radar or laser gun has to be on the same vector as the direction of travel.)


Disclosure request for speeding should have (and please do NOT use the "ticketcombat" generic template):

- Officer's notes
- A copy of the relevant parts of the laser/radar manual
- Any video/audio evidence, if it exists, that the Prosecutor intends to use at trial
- Any other evidence the Prosecutor intends to use at trial

That's about it. Not really a mountain of evidence.

BTW I merged all of your posts into a single topic. It is much less confusing if you keep to one thread for the same offence, otherwise you get multiple conversations going and it is difficult to keep track of them all.

_________________
* 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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Re: What should be on disclosure request in case of speeding
PostPosted: Sat Apr 11, 2015 8:27 am 
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bend wrote:
Memo1 wrote:
Also, it looks like he started clocking me BEFORE I was going up (the rode dips and rises to where officer was standing) which means that my direction of travel was not linear toward the officer (I’ve heard that the radar or laser gun has to be on the same vector as the direction of travel.)


Hills, dips, etc are only going to benefit the reading in your favor. Arguing it's inaccuracy would be arguing you were going faster than you were recorded.


Thank you for your reply, Bend. Do you happen to have some link that can help me understand it better?

So far I’ve found just this http://www2.unb.ca/gge/Pubs/TR265.pdf and it says

“Previous studies have shown that a correlation exists between the degree of terrain slope and the magnitude of errors observed on the slope. The relationship is positively correlated with errors increasing to a theoretical limit of infinity as slopes approach 90”

Thanks


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Sat Apr 11, 2015 8:43 am 
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Radar Identified wrote:
Memo1 wrote:
Could someone please advise me what should be on disclosure request in case of speeding?

I was given a ticket for speeding 70km/hr in 60 zone but, according to the officer, the speed was 84 km/hr. He did not show me the reading though. Also, it looks like he started clocking me BEFORE I was going up (the rode dips and rises to where officer was standing) which means that my direction of travel was not linear toward the officer (I’ve heard that the radar or laser gun has to be on the same vector as the direction of travel.)


Disclosure request for speeding should have (and please do NOT use the "ticketcombat" generic template):

- Officer's notes
- A copy of the relevant parts of the laser/radar manual
- Any video/audio evidence, if it exists, that the Prosecutor intends to use at trial
- Any other evidence the Prosecutor intends to use at trial

That's about it. Not really a mountain of evidence.

BTW I merged all of your posts into a single topic. It is much less confusing if you keep to one thread for the same offence, otherwise you get multiple conversations going and it is difficult to keep track of them all.


Thank you for your reply and for merging all of my post into a single topic.

Could you please let me know if there is some other template that can be used for disclosure request?


BTW There is one more post with my questions that I hope can be answered:

topic6953.html

Stanton, could you please explain what representatives can do and what they cannot do?

Can they request disclosure or stay on their behalf or it must be signed by their defendants?

Can they go to the trial instead of their defendants or just with their defendants?

Can they plead guilty or request adjournments, stays, etc. during the trial if their defendants are not present?

Thanks.


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Sat Apr 11, 2015 2:18 pm 
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If you retain legal counsel, they can do all of the above without you being present. They will act on your behalf, and will do what's in your best interest.

Unless you give them specific instructions like, "no plea-deals, go to trial".


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Sun Apr 12, 2015 7:38 am 
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Let me be a little more specific.

If I get sick and my representative appears on my behalf and requests an adjournment because I’m sick, what prevents them from telling my representative: “Ok. Memo1 is sick, but you ( Memo1’s representative) is here. So, how do you plead?”

Also, I’m not sure about the following:

Will my representative be able to request disclosure using only his name and signature (not mine)?

Will my representative be able to fill a notice of constitutional question and serve the Court, the Prosecutor, the Attorney General with Form 4F, a factum, and an affidavit of service using only his name and signature (not mine) and without me going to the court?

Will, my representative be able to request a stay or an adjournment for any particular reason at the trial without me being there?


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Sun Apr 12, 2015 9:46 pm 
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Memo1 wrote:
“Previous studies have shown that a correlation exists between the degree of terrain slope and the magnitude of errors observed on the slope. The relationship is positively correlated with errors increasing to a theoretical limit of infinity as slopes approach 90”


This has been tested in courts many times before. It works in the driver's favour, because if you are on a slope and the speed measuring device thinks you are on a flat surface, it is actually measuring a lower speed reading than your true speed.

Memo1 wrote:
Could you please let me know if there is some other template that can be used for disclosure request?


Let me rephrase: You can use the ticketcombat template provided that you DON'T cut and paste all of the stuff they suggest you ask for, such as "witness will-say statements" or (this my personal favourite) "name, address and criminal record of..." Good grief. Substitute the stuff I suggested above and you'll be okay. Some jurisdictions (e.g. Toronto) have an on-line template you can use, although I'd suggest copying most of it and tweaking it to specifically request what you need.

Memo1 wrote:
If I get sick and my representative appears on my behalf and requests an adjournment because I’m sick, what prevents them from telling my representative: “Ok. Memo1 is sick, but you ( Memo1’s representative) is here. So, how do you plead?”


You will provide instructions to your representative prior to the trial. If you get sick it is your responsibility to contact your representative/counsel and tell him/her what you want done in your absence. They can adjourn if you so request, however the delay will be charged to you.

Memo1 wrote:
Will my representative be able to request disclosure using only his name and signature (not mine)?


They can request disclosure without your signature.

Memo1 wrote:
Will my representative be able to fill a notice of constitutional question and serve the Court, the Prosecutor, the Attorney General with Form 4F, a factum, and an affidavit of service using only his name and signature (not mine) and without me going to the court?


They can file for a stay without your signature as well. They will need to use your name as the defendant since it is your ticket, however they will file/serve/do these things on your behalf. Standard legal practice stuff...

Memo1 wrote:
Will, my representative be able to request a stay or an adjournment for any particular reason at the trial without me being there?


Yes. The paralegal/lawyer, if they're worth anything, will be able to get a stay done without you being there if the avenue exists. Same for adjournment. However, you must discuss your desires with who you've chosen to represent you. Most paralegals/lawyers will review the evidence, listen to you, and then tell you what they think should be done.

_________________
* 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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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Tue Apr 14, 2015 10:10 am 
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Radar Identified wrote:
Memo1 wrote:
“Previous studies have shown that a correlation exists between the degree of terrain slope and the magnitude of errors observed on the slope. The relationship is positively correlated with errors increasing to a theoretical limit of infinity as slopes approach 90”


This has been tested in courts many times before. It works in the driver's favour, because if you are on a slope and the speed measuring device thinks you are on a flat surface, it is actually measuring a lower speed reading than your true speed.

Memo1 wrote:
Could you please let me know if there is some other template that can be used for disclosure request?


Let me rephrase: You can use the ticketcombat template provided that you DON'T cut and paste all of the stuff they suggest you ask for, such as "witness will-say statements" or (this my personal favourite) "name, address and criminal record of..." Good grief. Substitute the stuff I suggested above and you'll be okay. Some jurisdictions (e.g. Toronto) have an on-line template you can use, although I'd suggest copying most of it and tweaking it to specifically request what you need.

Memo1 wrote:
If I get sick and my representative appears on my behalf and requests an adjournment because I’m sick, what prevents them from telling my representative: “Ok. Memo1 is sick, but you ( Memo1’s representative) is here. So, how do you plead?”


You will provide instructions to your representative prior to the trial. If you get sick it is your responsibility to contact your representative/counsel and tell him/her what you want done in your absence. They can adjourn if you so request, however the delay will be charged to you.

Memo1 wrote:
Will my representative be able to request disclosure using only his name and signature (not mine)?


They can request disclosure without your signature.

Memo1 wrote:
Will my representative be able to fill a notice of constitutional question and serve the Court, the Prosecutor, the Attorney General with Form 4F, a factum, and an affidavit of service using only his name and signature (not mine) and without me going to the court?


They can file for a stay without your signature as well. They will need to use your name as the defendant since it is your ticket, however they will file/serve/do these things on your behalf. Standard legal practice stuff...

Memo1 wrote:
Will, my representative be able to request a stay or an adjournment for any particular reason at the trial without me being there?


Yes. The paralegal/lawyer, if they're worth anything, will be able to get a stay done without you being there if the avenue exists. Same for adjournment. However, you must discuss your desires with who you've chosen to represent you. Most paralegals/lawyers will review the evidence, listen to you, and then tell you what they think should be done.


Thanks a lot for your reply, Radar Identified. Can I identify my representative at any time or can it be done only once while filling out the Notice of Intention to Appear? Can I retain a representative whose name was not in the Notice of Intention to Appear?

Also, do you think the following disclosure request is good in my situation? Thanks.

General Request
With regard to the above matter and in light of the guidelines set out in R. v. Stinchcombe, 1991 CANLII 45 (S.C.C.), and subsequent cases, we are requesting that you provide us with all relevant information and documentation in order to make full answer and defense to the above charge.

Specific Request
Without limiting the generality of the above request, we ask that you also include:

o a full copy of the police officer’s notes;
o a copy of both sides of the officer’s copies of the tickets (Notices of Offence);
o a typed version of any hand written notes;
o any statements made by the defendant to the police;
o the following records relating to the incident, and to training, internal directives, policies and the identity of various kinds of equipment used by the Police:
1. Occurrence report
2. Video /Audio Evidence
3. The make, model, and serial number of the unit used to measure the velocity of the car (radar/laser or specification of the other unit), and its owner’s manual
4. The officer’s training record specific to the said unit
5. Any repair history of the unit
6. Calibration Procedures
7. Records of the calibration of the unit used to measure the velocity
8. Official procedure for radar/laser equipment testing and operator training standards
9. Traffic Stop and Vehicle Search Procedures
o any other evidence the Prosecutor intends to use at trial

Missing Information
We also request that you advise us of any information, which is not being disclosed and an explanation for such non-disclosure.

If you require further information from us or have any questions regarding our request for disclosure please do not hesitate to contact us.

Thank you.


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Re: If a cop claims that your speed was 84 km/hr in 60 zone
PostPosted: Tue Apr 14, 2015 2:00 pm 
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Officer’s notes: Must be provided
Both sides of the ticket: Won’t be provided unless notes were written on back of ticket
Typed version: Unlikely to receive on first request. Will have to justify upon reviewing notes (i.e. illegible, use of short forms that are indecipherable)
Statements made by the defendant: Unless you gave the officer a written statement, this won’t exist.
Records relating to training, internal directives, policies: Won’t be provided
Occurrence report: Won’t exist, police don’t complete reports for a simple traffic stop.
Video /Audio Evidence: Should be provided if it exists
Make, model, and serial number of speed measuring device: This would be part of the notes
Owner’s manual: You’ll likely just get the testing section.
Officer’s training record: Won’t be provided.
Repair history of the unit: Won’t be provided.
Calibration Procedures & Records: Won’t be provided
Procedure for radar/laser equipment testing and operator training standards: Won’t be provided.
Traffic Stop and Vehicle Search Procedures: Won’t be provided.

You can question the officer regarding his or her training and testing procedures at trial, but you won't receive any documentation in regards to it.


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