Slowest of multiple targets, ticketed anyway....

The other day I was given a ticket for speeding 119 in a 90, on highway 17 near Marathon, ON (Speeding ticket capital of the universe, BTW). The officer claims to have "clocked" me using the vehicle mounted radar at 121 KMH and dropped it (presumably to lower fine and demerits).

I was not going that fast, but there was a larger, and faster moving, vehicle behind me, gaining fast (I was driving a tiny vintage sportscar, the following vehicle was a 4x4 pickup). I drive 30-40,000km a year on this highway and know what I can get away with, I was going 103-105, and had he actually locked on me the most he would have gotten would have been 101-103 due to cosine error from a hill and curve. Just below the "real" limit of somewhere around 105 (in this particular area their tolerance is very low, it can be less than that, and rightly so, it's also one of the best places to hit a moose....). I verify my speed with a GPS speed readout at all times and would like to maintain my clean record for insurance purposes. Also, being wrongly accused just bugs the hell out of me.

I am 100% certain the radar locked on the larger, faster, vehicle behind me, and the officer automatically attributed the reading to me, but obviously failed to visually confirm my speed. He failed to consider the possibility that the nearest target was not necessarily the strongest target.

My question - how much does a visual confirmation of a vehicles speed factor into the burden of proof? Is it required by law that there is a visual confirmation of the speed? Before, or after, the "lock"? Since I was not going 121, there's no way I could look like I was going 121.

At no time during the stop did the officer mention that I "looked" to be going that fast. When I objected to his reading he said he wasn't going to argue with me. He also said later if I wanted to come to court to talk about it I could.

I am thinking of taking him up on his offer, casting doubt on the accuracy of his choice of target, not the accuracy of the radar itself (which in my opinion is a waste of time).

I understand the court process well enough to know that this would hinge entirely on my cross examination, looking for advice on the possibility of a positive outcome?

Thanks in advance!

I would plead NOT GUILTY and ask for a Trial with the Officer present. Once you get your notice of trial you can request disclosure (copy of notes of all officers involved, copy of the manual for the speed measuring device, any audio/video). What's in the officers notes is basically what they will testify on the stand so we need to see what it says. And also need to know what kind of speed measuring device it was and need the manual as well to see if they complied with it.

Usually the officer will make a comment in their notes along the lines of "observed vehicle at a high rate of speed" and this is sufficicent (and may not even be necessary). In the old Decatur manuals (2010 and earlier) there was a requirement to "visually estimate the speed" but this requirement was removed along with the requirement to test radar with tuning forks.

Remember if you take it all the way to trial, and the officers notes mention that he got you going 121 as opposed to 119 then, once the trial starts, the prosecutor will ask for it to be amended back up to the 121 in a 90. So if you lose you will end up with a 31 over charge which is MAJOR for insurance purposes as opposed to 29 over which is a MINOR charge for insurance purposes.

Yes, the only way you can really win is to cast reasonable doubt on the officers testimony during cross examination. The problem is whether the officer will admit that there was another vehicle or not. If the officer says there was not another vehicle, then you are toast. If the officer says they do not remember, then you can use the "so it's possible there was another vehicle behind me" question. The other area you would attack in cross examination is officers understanding of how radar works from perspective of distances/ranges/target sizes.

Now the other problem you have is that you can not testify or give your side of the story because if you take the stand they will ask "But you were speeding?" and you will say "Yes but not 121" and the JP will say "it's an absolute liability offence and you admitted to speeding so you are guilty!" So in this case you should NOT take the witness stand and you should NOT testify and you should NOT answer any questions that they ask you. This unfortunately makes your case harder because you do not have the ability to testify that there was another vehicle coming up behind you. The only tool you have is cross examination of the officer.

Anyways, get disclosure and post it here so we can look it over. Can you post a copy of your ticket as well (with personal info blacked out)?

I give up..... there's just too much chance for things to go in their favor on this. If I start looking at the probability of a win, I probably have a 1 in 10 chance of fighting this, and a 9 in 10 chance of getting the MAJOR violation on my insurance record. Not worth it.

I've decided to pay the fine and get on with my life. I will just continue to keep my nose clean and hope the rest of the OPP I encounter are better at their jobs than this guy.

HOWEVER..... I went to pay the ticket online today at paytickets.ca and got an "offence not found" notice. How long does it usually take for the ticket to get filed? Is there a way of finding out when the officer filed the ticket? You would think it would show up within 6 or 7 days?

I believe that the below is correct

"Getting a speeding ticket means your insurance rates will go up.

Yes that is true. All minor speeding tickets (up to 50 km/h over the speed limit) will affect your insurance rates.

A major speeding ticket (more than 50 km/h over the speed limit) may result in your insurance being cancelled at your renewal."

jsherk wrote:

Remember if you take it all the way to trial, and the officers notes mention that he got you going 121 as opposed to 119 then, once the trial starts, the prosecutor will ask for it to be amended back up to the 121 in a 90. So if you lose you will end up with a 31 over charge which is MAJOR for insurance purposes as opposed to 29 over which is a MINOR charge for insurance purposes.

You really need to check with your insurance provider to see what they classify as a major versus minor speeding ticket. Most in my experience consider anything under 50 over as a minor offence, whereas some apparently set a lower threshold.

see my response, dont think either speed is a major but speeds are a minor

and all the insurance are concerned are with a CONVICTION, whether major or minor,

2 minor convictions are just as bad as 2 major's AFAIK

can you not go to early resolution and plead, if your NOT going to fight it, might as well do that, you DONT loose anything

At an Early Resolution, the worse that they can say is no dice !

Jonny042 wrote:

I give up..... there's just too much chance for things to go in their favor on this. If I start looking at the probability of a win, I probably have a 1 in 10 chance of fighting this, and a 9 in 10 chance of getting the MAJOR violation on my insurance record. Not worth it.

I've decided to pay the fine and get on with my life. I will just continue to keep my nose clean and hope the rest of the OPP I encounter are better at their jobs than this guy.

HOWEVER..... I went to pay the ticket online today at paytickets.ca and got an "offence not found" notice. How long does it usually take for the ticket to get filed? Is there a way of finding out when the officer filed the ticket? You would think it would show up within 6 or 7 days?

I haven't seen much info about early resolution. Do they send you contact info etc. Once you choose #3 option?

Yes on the back of the ticket it will have 3 options, I believe option 3 is early resolution,

basically, you are confirming you are guilty and want to plead a lower fine.

they won't be interested in any real explanations, although they may ask,

speeding is either you where or where not,

(I can't remember the bands) but say, you have

10-20 over, 20-30 over , 30-49over

and you where in the 20-30, they may offer you 10-20 over, which is a lower fine and less demerit points,

but remember as far as insurance are concerned they are not worried about points, only that you have OR HAVE NOT got a conviction.

I went through this process

They asked me why I was speeding, I gave them what I thought was a good reason--- PFFFT

no reason is good enough, but they gave me a lower fine

HTH

Jonny042 wrote:

I haven't seen much info about early resolution. Do they send you contact info etc. Once you choose #3 option?

It may take a few weeks before ticket is available online to pay.

But remember that they can only raise the speed back up to 121 at the actual trial itself (once the trial starts), not before.

So it is still in your best interest to plead NOT GUILTY and request the trial with the officer present, and then request disclosure. You can always just not go to the trial, or pay it before the trial date, but you should get disclosure before you decide what to do. What if the officer spilled coffee on his notes that day? No notes means officer has no testimony!

#3 it is. At least I have some chance of a positive outcome rather than 100% gaurantee that I am deemed guilty by handing them a win on a sliver platter!!!

I have about a million questions, though..... but lets start with a few:

- does the officer need to prove independent visual reference of speed as part of burden of proof, or not? If all he has to say is "I clocked the defendant at 121", and that satisfies the burden of proof beyond a reasonable doubt, then I would ask, what kind of kangaroo court is this?

- if all the officer has to do is "not recall" if there was a following vehicle, then I "am toast"...... since it's so convenient for him to forget this, the chances of him actually putting this in his notes are ZERO? Is it perjury to say you "don't recall" even if you do?

- I'm having difficulty understanding the chain of custody of the notes. If they are considered evidence, are they filed at the end of each shift? Who controls them after that point? Who controls them after you request disclosure? What is to prevent them from re-writing them in incredible detail and submitting those for disclosure? If you ask for notes on testing of the radar unit, what is to prevent them from adding them? Who copies the notes and sends them?

- I'm also having trouble understanding the role of the notes and the testimony of the officer. Can he add details during testimony and cross examination that are not in the notes? That would render the notes useless as evidence, since omission from the notes wouldn't matter - ie/ if you ask what colour of car he "clocked" and it's not in his notes, but he's looked it up on the computer the morning before the trial, it's admissible because it's his independant recollection?

- I'm really only getting started on this for instance, what ensures that the JP, Officer, and Prosecutor aren't buddies and in cahoots? In a town of 3000 people, the chances of 3 men between the ages of 30 and 50, playing on the same hockey/softball/etc team, curling club, golf club etc. are pretty good not to mention they all work in the same office with probably fewer than 20 employees? And see each other in court all the time....

Sorry that might be coming off as a bit of a rant. I am sure you can understand my frustration at this.

Thanks for all the replies!

- Officer does NOT need to prove independent visual reference of the speed. This kangaroo court is our great Canadian un-justice system at work!

- Until you get officers notes, you do not know what they put in them. But I would agree that the chances of him actually putting it in his notes are about zero. All he needs to put in his notes are the elements to prove you guilty. (1) Identified driver (2) They were driving a vehicle as defined in HTA (3) They were driving on a highway as defined in HTA (4) They were speeding above posted speed per speed measuring device (or pacing or whatever). If you lie on the stand then that is perjury, so saying you "do not recall" when you in fact do recall would be considered perjury... but you need to be able to PROVE that somebody lied on the stand to get them charged with perjury.

- That is a good question about chain of custody of notes. I don't have answer, but maybe somebody else can chime in. I would like to think that a police officer would never "re-write" their notes or add anything to them, but again how could you prove it if they did? The reality is that most police officers would not do that, but I am sure that there are some that would. A few bad apples spoils the whole bunch! What a police can do though, is add to their notes at a future date/time as long as they note the new date/time that they are adding to their notes. The police officer themselves copies the notes and sends them to prosecutor who then sends them to you.

- Yes he can add details during testimony that are not in his notes, but these are good points to bring up in cross-exmination. "You said XYZ but that is not in your notes?" It helps bring a little doubt to the officers testimony if it is not in their notes and you point that out. The officer is supposed to have independent recollection of the events, so asking lots of questions that are not in the notes (traffic, color of car, what was I wearing, number of occupants, weather, etc) could be good to add more doubt if the officer does not remember any of those things.

- You have the right to a fair trial by a fair independent Judge/JP. The police, the prosecutor and the Judge/JP all work for the same boss. See first response above about "This kangaroo court is our great Canadian un-justice system at work!"

You ask great questions, and the answer is to learn how to "play the game" yourself and stop handing them the win on a silver platter!

If you haven't already, read this:

http://www.ontariohighwaytrafficact.com/topic7039.html

and this:

http://www.ontariohighwaytrafficact.com/topic7032.html

I really appreciate the advice... even if it is mostly discouraging..... of course, all your excellent answer just lead to more questions!!!:

- when multiple vehicles ARE present, what burden of proof is there that the officer made a reasonable attempt to determine the strongest target?

- if the radar unit was left in "faster" mode, it would actually have singled out the faster target ( the vehicle behind me) even if the return signal was weaker. Do the cops have to note what mode the radar unit is in?

Can your summary and closing statements not act as a sort of testimony and be included in the proceedings towards creating reasonable doubt?

Sorry for the brief reply, typing on my device... but not while driving!!!

There is no burden of proof for the officer to prove they made a reasonable attempt to determine strongest target. Did they test unit per manufacturers instructions so it was functioning properly? Did they receive some kind of training within the last couple years? Did they say that you looked liked you were speeding? Did they say the device said you were speeding? That's all they need to say! The burden of proof is on you to somehow show some kind of reasonable doubt to what the officer said, which is done mostly thru cross examination questions and sometimes thru your own testimony.

The officer does not have to note what mode it was in, but you can ask them. But if it is not in their notes, then this again (with some related questions) could add some more doubt to their answer. And you could ask them what the difference modes do or how they work, etc. So again whatever mode they say, you need to know how they work and some questions related to those modes.

Your summary and closing statements is to point out all the issues that you brought up in cross examination and your testimony. You can not add any extra information or new details that were not brought up during the cross examination/testimony. But what you CAN do during summary/closing statements is bring in any case laws that support the points you are trying to make.

So during the cross-examination let's say we have these hypothetically perfect responses:

-Was the radar in FASTER mode? YES

-And faster mode pickups the fastest moving vehicle? YES

-But not necessarily the closest vehicle? CORRECT

-Was there another larger vehicle following me? YES

-So is it possible that the larger vehicle behind me, was going faster than I was? YES

Then during closing statements you point this out by saying:

- The officer testified the unit was in faster mode which picks up the fastest vehicle, but not necessarily the closest vehicle. The officer then testified that there was a larger vehicle behind me that could have been going faster than I was. This creates reasonable doubt as to whether it was my vehicle or the vehicle behind me that was actually speeding and therefore charge should be dropped.

Again this was a hypothetically perfect situation above and with the answers you would like to get, but probably very unlikely that you will get all the answers the way you want.

That's certainly a hypothetically perfect scenario!!

I am going to go for trial option 3 and at least ask for disclosure. There is also a trial option without requesting the officers presence, what good would that be?

So, given enough time to prepare cross examination questions, the cross examination could take a while. Is there a time limit or can you just keep hammering away at various aspects until you are sure you've taken it far enough? Or will the JP just cut you off and say that's enough, time to wrap it up?

Thanks again!!

Asking for a trial without the officer is basically saying that you agree to everything the officer has in notes and that you do not want to cross examine him. Just a confusing option that should not be there in my opinion.

There is no specific time limit, but the JP could tell you to move on to something else if he feels you are just going over the same point again and again.

I keep waffling back and forth on this, wether to fight it, or not. I've decided to go with a #3 (request trial) and at least review disclosure, before making up my mind. At least waste some of their time so the don't make any money off me!!

I have a few other specific questions that may be better added to general discussion as new topics but I will also keep this thread alive as it relates to the case.