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Trial/disclosure strategy for Speeding ticket
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PostPosted: Mon Jul 12, 2010 1:45 pm 
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Hey everyone first off I'd like to say great website, I have been reading and it is very useful :)

I'm posting today as I'd like to get some feedback on my situation and have a couple of questions. Please excuse the vagueness in some areas - I don't want my case to be identifiable given the small town.

So I was driving up north and was pulled over by an OPP SUV for doing 31 over. Cop drove past me, u-turn and pulled me over. Ticket was reduced to 15 over. Trial is in Sturgeon Falls in less than 12 months, POA is North Bay. I'm requesting a trial as this is my 3rd ticket in 3 years and is obviously going to impact my insurance.
  1. What do people think the chances of this being put back up to original speed are?
  2. Obviously this was done with a moving radar. Do you think the best trial/disclosure strategy is:
    • Appear as simple as possible. Request basic disclosure (e.g. ticketcombat) and make it look like something from the internet. Use the element of surprise to question officer about the facts and his notes, and about calibration records of radar unit. Argue that as these are not in evidence there is no proof that the unit was working reliably (I'm assuming these are not voluntarily going to be provided). Officer might not show up, even better.
    • Go all out on the disclosure request, and ask for everything (this will tip them off for sure to be more prepared and to get officer in court). Ask for notes, details of radar unit calibration/maintenance/serial #, tuning equipment records/procedures, operator manuals for radar, manufacturer recommended maintenance schedule, etc. Perhaps argue full disclosure not provided, move to stay under charter s7/Stinchcombe.
  3. Are radar units fixed into police vehicle or can they be moved around?
  4. How concerned should I be about the bait and switch radar thing detailed here?
  5. If I go with the second option above, is it better to put in a FOI request to get the operating manuals/procedures and the maintenance records of every radar in the detachment and "records relating to training, lesson plans, internal directives, policies and the identity of various kinds of equipment used by the Police," OR better to not do FOI (and just ask in disclosure request) and then argue disclosure not provided? (see here for what you are entitled to)
  6. Does anyone have any specific information on radar calibration by the OPP? Another website I looked at mentions tuning forks which are matched to specific units via serial numbers.
  7. Anyone know where to send disclosure request? To the address on the notice of trial?


Thanks for any comments guys!


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PostPosted: Mon Jul 12, 2010 9:34 pm 
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Welcome to the board.

With regards to Question #1: I think the chances are likely. This is common practice in most jurisdictions.

With regards to the rest of your questions, I don't think either of those options are great ideas. You're probably not going to be able to come up with some brilliant question that the officer has never heard before and stump him and get the charge thrown out. However, there is a real chance that you could end up looking like you don't know what you're talking about. For example, if you request "calibration records of the radar unit" they're just going to laugh at you. There's no such thing. The radar comes out of the factory working and then it only needs to be tested at some point before and after the use, during the officers shift. So I'm just saying, be wary if you're going to try questioning the officer hard.

The second option doesn't sound much better. There is plenty of case law that says that disclosure requests can not be used as a fishing expedition for things that are not relevant. If you can't explain why you need each piece of information (beyond what's normally included) the crown will probably just ignore your request and let you try to convince the JP you need it. For example: detail of maintenance - no such thing, turning equipment records - no such thing...it's just a turning fork, manufacturer's recommended maintenance schedule - no such thing. Some of the other things like details of radar unit, testing, serial #, etc are all going to be in the officer's notes already. The only thing that's probably not going to be automatically disclosed is the manual. You can probably request this if you want, but that's not going to get your charges stayed, you're just going to get it, so you might not want to bother if you don't actually want the manual.

Some of the other things that are mentioned, like how the moving radar is affixed to the unit, are just not relevant. You can ask the officer about it and he'll tell you, but that's not going to stump him or lead to some revelation that will get your ticket withdrawn.

That being said, I don't mean to sound negative, you are certainly still entitled to fight the charge if you wish. Many people do and many are successful. I just wanted to give you my honest opinion of the tactics you outlined. I'm not really in a position to tell you what the "best strategy is" because it always depends on the merits of each unique case.

Best of luck, let me know if I can assist you further.

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NOTHING I SAY ON HERE IS LEGAL ADVICE.


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PostPosted: Tue Jul 13, 2010 2:45 pm 
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Simon Borys wrote:
With regards to Question #1: I think the chances are likely. This is common practice in most jurisdictions.

Okay good to know, thanks.

Simon Borys wrote:
For example, if you request "calibration records of the radar unit" they're just going to laugh at you. There's no such thing. The radar comes out of the factory working and then it only needs to be tested at some point before and after the use, during the officers shift. So I'm just saying, be wary if you're going to try questioning the officer hard.

Hmm well I'm no expert and have just done a whole lot of reading on various websites, and it seems to me that you are just wrong on the point above. There are numerous websites that a) state that police radar units are calibrated using tuning forks, and b) that these records should be requested during discovery. Surely if the crown can't prove that the equipment is maintained and in working order, then they cant prove you were speeding?

I quote http://www.fyst.ca/appndxc.htm

Quote:
Radar is not infallible as most people and courts believe. Although the technology has advanced a lot during the years, and the radar units have become more and more user friendly, it doesn't change the fact that radar still makes mistakes especially at the hands of a poorly trained operator. I have received emails from police officers and provincial prosecutors who read this page, telling me that today's radar units no longer need any calibration. All they need to do is to push a test button on the unit. If the unit says pass then the radar is good, if it says fail then it is bad. This is absolute nonsense. The test button on the radar unit is only a simple check of the unit's internal circuitry. Successfully completing this INTERNAL check says absolutely nothing about how accurately the radar will display speed readings from EXTERNAL inputs. Usually tuning forks are used to perform this external calibration test. Since tuning forks are extremely delicate tools, and they need regular certification, so the prosecution will want to minimize the cost of operating radar units by introducing this blatant nonsense.


And http://www.worldlawdirect.com/article/9 ... icket.html (U.S. site - but cant be much different here)

Quote:
The list of items typically needed for a radar speeding ticket are as follows:

Radar - Repair records, manufacturers manual and specifications, calibration log and the Department’s FCC License to operate the radar unit.

Tuning Fork - Certificate of accuracy and repair or calibration records.

Police Officer - Arrest record (day of offense and last three months prior to your date of offense), daily log for the date of your offense, radar training record and operator’s certification and copies of both sides of your original citation.

Patrol Car - Speedometer calibration certificate, repair and maintenance records along with the repair and service records for the actual patrol car.
...
Radar calibration log will show how often and at what times the unit was calibrated (checked for accuracy). In two cases (Wisconsin v. Hanson and Minnesota v. Gerdes) it was established that calibration checking with a tuning fork should be preformed “within a reasonable time” after the citation is issued. In two other cases (Connecticut v. Tomanelli and New York v. Struck) it was further ruled that a tuning fork calibration should be performed immediately before and after a citation is issued. All of these cases have established that tuning at the start and end of the shift is not acceptable even though this is often the normal practice.


And http://www.buyradardetectors.com/Articl ... witch.aspx

Quote:
Every state here in the United States requires by law, every law enforcement agency be it local, city, state or federal, to either annually or semi-annually send out every police radar unit in that departments inventory to an independent laboratory for a complete inspection and certification.


Not sure what it is in Canada. Any ideas how to find this out?

Simon Borys wrote:
The second option doesn't sound much better. There is plenty of case law that says that disclosure requests can not be used as a fishing expedition for things that are not relevant. If you can't explain why you need each piece of information (beyond what's normally included) the crown will probably just ignore your request and let you try to convince the JP you need it.

I can explain in detail, as you can see above. My question was more a strategic one - is it better to explain in detail in the first letter, or to submit a generic discovery request for "everything" and then suggest at trial the crown can't prove the reliability of the equipment.

Simon Borys wrote:
For example: detail of maintenance - no such thing, turning equipment records - no such thing...it's just a turning fork,
manufacturer's recommended maintenance schedule - no such thing.

Everything needs to be maintained, especially when used for evidence. RE the tuning fork maintenance, see the last sentance above from the FYST website. And this site: http://www.policeone.com/police-product ... -Off-Easy/

Simon Borys wrote:
Some of the other things that are mentioned, like how the moving radar is affixed to the unit, are just not relevant.


Well I was just curious above how mobile these radar units are, or whether they are kinda built into the car after reading this site (http://www.buyradardetectors.com/Articl ... witch.aspx)

Simon Borys wrote:
That being said, I don't mean to sound negative, you are certainly still entitled to fight the charge if you wish. Many people do and many are successful. I just wanted to give you my honest opinion of the tactics you outlined. I'm not really in a position to tell you what the "best strategy is" because it always depends on the merits of each unique case.

:) No problem. I'm a little surprised though that you aren't aware of some of these things, as I believe you were a former police officer. I guess this bodes well for me at the trial then, as long as I can dig up the relevant case law around police radar.

Simon Borys wrote:
Best of luck, let me know if I can assist you further.

I don't buy the argument that radars don't need calibration after the factory, there must be some law or regulation like in the U.S. You don't happen to know how I would find out what this is for Ontario?

Thanks!


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PostPosted: Tue Jul 13, 2010 4:21 pm 
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I'm not sure where you could find information to support the American positions you mentioned above.

With respect to your disclosure strategy, I understand now what you meant and I would personally think that the better option is to request everything you want up front. This way you're better informed when it comes to trial.

As I said, I'm not aware of any other testing or maintenance that needs to be done for radar units other than the normal testing procedure before and after use, which includes some combination of internal/display tests, area scan, and tuning fork tests. In fact, for the Genesis VP Directional, which is becoming quite popular, all the tests are included in just one push of the test button. You don't even use a turning fork for that device. I would be very interested to know if I am mistaken about this though. All I know is that in my career I've never heard of it. This is the way I was trained and the way I operated the devices and they way I testified in court and the evidence was always accepted as sufficient.

Please keep us all advised of how this goes for you, I'm sure many people here are interested to know the outcome.

_________________
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NOTHING I SAY ON HERE IS LEGAL ADVICE.


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PostPosted: Tue Jul 13, 2010 5:19 pm 
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Location: Hamilton, ON
.
Hi ftuk

THIS IS NOT LEGAL ADVICE

ftuk wrote:
So I was driving up north and was pulled over by an OPP SUV for doing 31 over. Cop drove past me, u-turn and pulled me over. Ticket was reduced to 15 over

Now, that’s a sweet deal!! 31-over on conviction means 4 demerit points to your record. The speeding offence was lowered 2 point-brackets. Not unheard of but very rare.

I would take the deal. The risk of loosing and getting stuck with 4 demerit points is a scary one to me.

ftuk wrote:
My question was more a strategic one - is it better to explain in detail in the first letter, or to submit a generic discovery request for "everything" and then suggest at trial the crown can't prove the reliability of the equipment.

Perhaps you could ask for disclosure with an “including but not limited to” statement. For instance: “This letter is to request that you provide me with full disclosure, including but not limited to, the speed testing device brand, model, serial number, it’s operation and maintenance manual and maintenance and calibration records if any, to allow me to make full answer and defence, as per Supreme Court guidelines in Stinchcombe”.

Once you have received disclosure, see if you got everything you requested and if not, ask for it again. You do not have to explain the reasons for your request in your letter. If what you asked for is not provided then you can bring that issue to the justice of the peace before arraignment on the trial date.

Keep in mind that the test for disclosure is how relevant the requested material is to allow you “to make full answer and defence”, and whether it is possible for the prosecution to get such material.

ftuk wrote:
Everything needs to be maintained, especially when used for evidence. RE the tuning fork maintenance

Tuning forks were used to test the device, but now they are not and the courts have accepted –right or wrong- that they are not necessary. I can not agree with that at all. I always make fuzz about it –not always successfully- because initially they were a fundamental part of the tests.

BTY, tuning forks are used only on devices based on microwave systems and not laser systems. They are two different technologies. Also, forks are not used to calibrate, but to test the speed measuring device.

Respectfully, I think you may face some difficulty in that area at trial and you would need a lot of experience and skills to make your questions and submissions, not only for the trial, but also for use in the case of an eventual appeal.

ftuk wrote:
Simon Borys wrote:
Some of the other things that are mentioned, like how the moving radar is affixed to the unit, are just not relevant.

Well I was just curious above how mobile these radar units are, or whether they are kinda built into the car after reading this site

Actually, this issue is quite relevant because in the case of the Genesis-II, made by Decatur Electronics, for instance, the test using the tuning forks indicate that the forks should be at a distance of about 3 inches from the antenna. When mounted on the cruiser’s dash, it is impossible to place the fork at three inches since the windshield is at more than 3 inches from the antenna.

ftuk wrote:
In two other cases (Connecticut v. Tomanelli and New York v. Struck) it was further ruled that a tuning fork calibration should be performed immediately before and after a citation is issued. All of these cases have established that tuning at the start and end of the shift is not acceptable even though this is often the normal practice.

This is not the standard accepted and applied in our courts. It is enough that the speed measuring device be tested –not calibrated- at the beginning and at the end of the officer’s shift.

ftuk wrote:
Police Officer - Arrest record (day of offense and last three months prior to your date of offense), daily log for the date of your offense, radar training record and operator’s certification and copies of both sides of your original citation.

Respectfully, this is not relevant to the offence and almost certainly it will not be admitted in evidence even if you get that information on your own.

ftuk wrote:
Surely if the crown can't prove that the equipment is maintained and in working order, then they cant prove you were speeding.

Yes; you are right. The real question, though, is what the court will accept to be satisfied that the unit had been maintained and, at the time of the offence it was in working order.

Asking for the date of purchasing and the usage log may help you to question those points, but don’t be surprised if the justice of the peace does not go along with your view.

As a final opinion, NOT LEGAL ADVICE, I would suggest that you take the 15 over deal simply because, knowing our POA court system, the alternative is very risky.

Cheers.
.


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PostPosted: Wed Jul 14, 2010 3:11 am 
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Simon Borys wrote:
In fact, for the Genesis VP Directional, which is becoming quite popular, all the tests are included in just one push of the test button. You don't even use a turning fork for that device. I would be very interested to know if I am mistaken about this though.

Well I can answer that for you :)

http://www.pbelectronics.com/decatur_radar.htm
Quote:
With batteries, charger, tuning fork, certification, hard shell foam lined carry case, and 1 year warranty. $895


Simon Borys wrote:
All I know is that in my career I've never heard of it. This is the way I was trained and the way I operated the devices and they way I testified in court and the evidence was always accepted as sufficient.

This just goes to show the level of training quality (which in no way reflects badly on you). The fact that you testified this way shows that the crown got away with this unchallenged (perhaps through lack of disclosure) for far too long. I guess it was accepted as it was never challenged - i.e. lazy defenders and misinformed citizens self-representing :)

Simon Borys wrote:
Please keep us all advised of how this goes for you, I'm sure many people here are interested to know the outcome.

I certainly will. Right now I'm leaning towards asking for disclosure outlined on ticketcombat, and going for the device manual and calibration records via FOI so as not to tip them off I'm going that route at trial. You might find this interesting, in particular the list at the top and the order at the bottom ;) http://www.canlii.org/en/on/onipc/doc/2 ... i50669.pdf


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PostPosted: Wed Jul 14, 2010 4:00 pm 
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Typically the Genesis VP Directional is tested by an internal test (push of a button), and by an external test, which involves the officer driving down the road and comparing the radar reading to what is on the vehicle's calibrated speedometer. This is actually a better test than the tuning fork. This is largely why the Genesis is not sold with a tuning fork in Canada.

ftuk wrote:
I guess it was accepted as it was never challenged - i.e. lazy defenders and misinformed citizens self-representing


Sorry to disappoint, but it is challenged on a weekly basis in POA courts in Toronto. Unless you have an expert witness who can testify that the tests conducted by police are not sufficient to prove the device was working correctly, you're in a major uphill battle, IMO.

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PostPosted: Wed Jul 14, 2010 4:34 pm 
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Quote:
Sorry to disappoint, but it is challenged on a weekly basis in POA courts in Toronto. Unless you have an expert witness who can testify that the tests conducted by police are not sufficient to prove the device was working correctly, you're in a major uphill battle, IMO.

X2

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PostPosted: Wed Jul 14, 2010 9:18 pm 
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ftuk wrote:
http://www.pbelectronics.com/decatur_radar.htm
With batteries, charger, tuning fork, certification, hard shell foam lined carry case, and 1 year warranty. $895


The fact that they sell it with a tuning fork is not proof that it is required for testing.

ftuk wrote:
This just goes to show the level of training quality (which in no way reflects badly on you). The fact that you testified this way shows that the crown got away with this unchallenged (perhaps through lack of disclosure) for far too long. I guess it was accepted as it was never challenged - i.e. lazy defenders and misinformed citizens self-representing :)


It's also possible that it's not the rest of the legal system that's wrong...

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