WIN speeding 26 over

jsherk
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WIN speeding 26 over

Unread post by jsherk »

Back in April my wife got a 76 in a 50 charge and the officer knocked it down to 60 in a 50.

Checked the ticket but no fatal errors. Asked for trial and requested disclosure. Got the full radar manual and officers notes. His notes were pretty much bullet proof with tracking history and the TEST PASSED both before and after enforcement and all the other elements .

Went to court today (yes officer was there) and sat thru 3 hours of people mostly pleading guilty and setting trial dates then at 11am prosecution asked for short recess. There was only three of us left in the courtroom at this time. He spoke with the other two and sent one person off to go over notes with officer, then called me over and said "Well your charge is only a 10 over and this other guy has a failing to stop. If he wants to proceed to trial then we won't have time for yours because you filed a couple motions that we would have to deal with even before we start the trial. So if he wants a trial that will work in your favor and I will drop the charge. Any problems with that?" Of course I said "No, that sounds good to me."

When the other guy came back in from talking to officer, he told prosecutor he wanted to go to trial, so prosecutor told the officer (for my wife's charge) that he could leave and told me he would withdraw charge when JP came back in.

I will take a win anyway I can!!!

I will post all my notes and motions below so you can see the defence that I was prepared to use.
+++ This is not legal advice, only my opinion +++


jsherk
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Re: WIN speeding 26 over

Unread post by jsherk »

So here is my entire defence I had prepared including motions I filed and even disclosure requests.
https://copy.com/wzvOPlpNE6Z8nOAm

You will notice my first Notice of Motion was an Affidavit but then my second Notice of Motion was a Sworn Declaration. An affadavit must be notorized but a sworn declaration can just be signed by you, which is easier and cheaper and that's why I changed.
+++ This is not legal advice, only my opinion +++


DrSteven
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Re: WIN speeding 26 over

Unread post by DrSteven »

Just finished reading your detailed report thanks for that ! So basically prosecutor figured it would be too much work for 10 over ticket considering the 2 motions you have filed ?

I currently have a ticket from the same jurisdiction and the same court location using the same radar gun model, would it be a valid motion to file to have this particular device evidence dismissed due to lack of TAC ? Aren't the police aware that this could be easily challenged and for some reason are still using this device ? When do I file this motion , before the trial date ?


jsherk
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Re: WIN speeding 26 over

Unread post by jsherk »

Well what happened is that because I filed the motions, my file got put at the bottom of the pile. At the end of the morning they had two trials to do, but only time for one, so the prosecutor decided to work on the other one as the charge was more serious. He did say if the other person was going to plead guilty and not go to trial that he would have proceeded. They will almost always do the self-represented trials at the end, and they will almost always keep the most complicated/longest for the end as well. However I was still prepared to go ahead with the trial and was not actually planning on them dropping it before it started.

I am not sure what the police are or are not aware of as far as the device is concerned. If you present evidence to be considered ahead of time in the form of a motion, then it makes them at least have to deal with it, and rebut it. Since I did not have to deal with the motion, I am not sure yet how they will try deal with it. Maybe they have other information that I did not have. You should file it as far in advance of the trial as you can so they have adequate time to prepare. And if you do file it, you need to be prepared to present it and defend it so you have to actually read the whole thing and understand each point as best you can... copy and paste motions do not work... you need to grasp the concepts.
+++ This is not legal advice, only my opinion +++


DrSteven
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Re: WIN speeding 26 over

Unread post by DrSteven »

Do you have any knowledge if filing to have radar evidence dismissed for that particular device has worked in cases before or is this something you came up with by yourself ?

Since the radar evidence is the main evidence, if the motion gets upheld does it basically dismiss the prosecutions case ? Officer can't testify what the radar said since it would not be allowed so what other testimony would he be able to submit ?

Also honestly, if the prosecutor did not see an easy likely hood to convict, perhaps that's why he told you this ? How does another case affect yours if he can just get another conviction ? They could have easily adjuourned to another date ? What I am saying is that your 2 motions might have been too difficult to deal with in his opinion and not worth the time and hassle ?


jsherk
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Re: WIN speeding 26 over

Unread post by jsherk »

I came up with it myself and have not seen it used before.

If the radar evidence was excluded, then there is no evidence to your speed and the charge would have to be dropped.

I really can't speak to the prosecutors reasons. There was another guy that he sent out with officer to review officers notes, and while they were out there he told me that if the guy wanted a trial then he would drop mine, but if the guy was going to plead guilty then he would proceed with my trial. What I can tell you, is that sitting there for 3 hours of court and listening to the different discussions that the prosecutor was having with everybody, he seemed to me to be a very reasonable person, meaning that he was not interested in simply pressing forward and getting a conviction on everything he could, but was intead interested in the evidence and whether it was worthwhile to proceed. Yes, he could very well of asked for an adjournment for my trial (which I would have objected too), but then the police officer would have to come back again so I don't think he was concerned that it was too difficult.

You can not rely on the officer not showing up and you can not rely on the prosecutor thinking it will be to difficult. Although those are possibilities, you need to have a good defense prepared as well.

I sent you PM.
+++ This is not legal advice, only my opinion +++


jetblue
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Re: WIN speeding 26 over

Unread post by jetblue »

jsherk wrote:I will take a win anyway I can!!!
Yah, but for a split second weren't you disappointed that you didn't get to argue your case?

I had something similar happen and I was so pumped up and ready to present that it was almost a let down when the JP said I could go. Emphasis on the word "Almost"!

Congratulations!


argyll
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Re: WIN speeding 26 over

Unread post by argyll »

Nope I doubt it because there would have been much eye-rolling from the judge, and a conviction.

Even if the device isn't listed for Canada the evidence would have to show it wasn't accurate. If someone wanted to lay a charge against the officer for using an unapproved device then that would be an entirely different matter.

It's not like a breath alcohol measuring device which has to be listed in the CC.

He got it dropped because he was going to be a bigger pain in the ass than the time allowed for, not because his arguments had any merit.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


Observer135
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Re: WIN speeding 26 over

Unread post by Observer135 »

argyll wrote:
He got it dropped because he was going to be a bigger pain in the ass than the time allowed for, not because his arguments had any merit.

So lesson learned here is, that it pays to be a pain in the arse, LMAO


jsherk
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Re: WIN speeding 26 over

Unread post by jsherk »

If the link above in the second post no longer work, then PM me directly for copy of the defence.
+++ This is not legal advice, only my opinion +++


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