Court this week - Final Prep Help

[Stealth1]

I finally have my court date tomorrow, I made an initial post when it happened and figured it best to start a new one with my final questions.

Original Thread - http://www.gtamotorcycle.com/vbforum...light=speeding

My first defense is going to be with regards to the following link. My request for disclosure was specific in requesting testing procedures of the radar unit, the complete officers notes along with a bunch of other requests for specific evidence. It was not a general request, I can pull up the exact list tomorrow if necessary for further advice.

http://www.gtamotorcycle.com/vbforum...t=91173&page=2

On the copy of the ticket and the disclosure I received there is no indication of testing of the radar before or after the stop at all. I am hoping this should be enough to have the ticket thrown out. MY question is how do I present this case to the court? Do I bring it up before any proceedings? Should I ask the officer "What times did you test the radar in relation to the enforcement stop?" And when/if he says I don't have specific times but it is my usual practice to test before and after a stop would I then ask to present the case "R. v. Schlesinger, 2007 ONCJ 266 (CanLII) - 2007-05-04" to the court?

I am interested in the proper way or procedure for presenting this evidence.

If this first part fails I am under the impression it is required for the officer to make a visual judgment that a vehicle is speeding and then verify with the laser/radar separately? In this I mean that an officer cannot simply see his radar go off and base his decision that someone is speeding simply upon that. Is this thinking correct?

Another problem I found is that there is no date, time or specifics in his notes that directly relate to my vehicle. There is note a time of entry, a date of entry, a license plate, vehicle description or anything that ties his notes to my vehicle specifically. Can this be used to infer that any notes written could very well be written about any vehicle stop that he had and not specifically to mine?

Thank you for your time and advice

[Grimmy]

Regarding the time question:

BE SPECIFIC. If you do not know the answer, do not ask the question, or pose the question in such a manner as to expose it as not in the disclosure, and therefore you can argue that it is irrelevant.

I would ask:
"Could you please indicate in your notes, the precise time that the radar equipment was tested before, and after, the traffic stop."

Again, being specific, and presuming you know the answer in advance, due to your disclosure.

If you ask the question as you have stated as "What times did you test the radar in relation to the enforcement stop?", the officer may see where you are going (depending on court and case knowledge) and fib the answer to suit the case, thereby circumventing your defense attack.

[Stealth1]

Awesome, thats exactly the advice I need!

Is there anything you would suggest to ask leading into that question?

I am thinking of starting with the basics such as the following.

"What point along the 401 Eastbound did you identify my vehicle?"

"What indicated to you that I was allegedly speeding?"

"Can you indicate the conditions at the time of the incident?"

Based on his answers obviously I will branch from them but I am hoping these will be ok. This is the first ticket I am having to fight so I am a little new at the proper way to word and ask questions.

[MarcosSantiago]

Another suggestion... There are two things you have to ask, just to understand what the officer did - First, Was the device tested prior to the incidend? And Second, HOW was the device tested?

I have send you a PM

[Grimmy]

It helps a great deal if you ask questions in the third person, or generically.

I'd word the questions the following ways.

"What point along the 401 Eastbound did you identify my vehicle?"

"Referring to your notes, at what specific point on the 401 Eastbound did you identify the alleged vehicle travelling at a rate above the speed limit?"

"What indicated to you that I was allegedly speeding?"

"What indicated to you that the alleged vehicle was potentially speeding?"

"Can you indicate the conditions at the time of the incident?"

"Refering to your notes, can you indicate the (road?) conditions at the time of the alleged infraction?"

These are all good starter questions, but all FAR TOO OPEN to the police officers interpretation and for him to "fill in the blanks", and all will most likely help the officer to establish himself as an even more expert witness.

Always ask questions to which you know the answer (ie, already mentioned in his notes and the disclosure), especially if you can prove the notes were incorrect. IE) his notes say that the day was overcast, and you have the Weather Canada report showing that it was in fact sunny.

The goal is to either disprove evidence, so as to remove that critical evidence and disprove the offense, or to discredit the officers testimony so that his testimony is far from credible.

Asking open ended questions (where the answer is not yes or no) makes it difficult for a rookie to control a witness.

REMEMBER, during cross examination, you can ask leading questions. IE) Isn't it true that from where you were was positioned on the 401, that there is a hill just west of that location? (yes) And if there is a hill at that location, wouldn't it would be difficult to observe a vehicle for a period of time long enough to establish visually that the car was speeding? (yes)

You get the idea.

[7073]

your getting some great advise here especially in phrasing the questions. as mentioned, don't ask a question that you don't all ready know or you'll get squished like a bug.

keep in mind that officers aren't obligated to test the radar after each ticket. most test the radar at the beginning of the shift and again at the end of the shift. this shud be captured in their notes and disclosed to you. they also don't need to list exactly how it was tested as long it was noted as being according to manufactures specifications/guidelines. an officers notebook is to merely refresh their memory.

lastly, remember to be polite, respectful and to never lose your temper or get upset even if you disagree with what is being said....FWIW

Good luck and let us know the outcome!!

[Grimmy]

keep in mind that officers aren't obligated to test the radar after each ticket. most test the radar at the beginning of the shift and again at the end of the shift. this shud be captured in their notes and disclosed to you. they also don't need to list exactly how it was tested as long it was noted as being according to manufactures specifications/guidelines. an officers notebook is to merely refresh their memory.

Not wholey true.

[7073]

Not wholey true.

what's not wholey true? please expand...

[Rob MacLennan]

what's not wholey true? please expand...

http://www.gtamotorcycle.com/vbforum...ad.php?t=91173

[Salos Dafee]

I posted this thread elsewhere. I hope it gives you some helpful ideas.

Maybe the detector is confused by vibrations, or by physics.

---

I do not know how all detectors work, but consider this:

I understand that the detector must be checked before and after it is used to measure the speed of vehicles, and I think radar (and perhaps other technologies) is tested by use of a tuning fork.

The cop taps a tuning fork marked "50KPH" and holds it in front of the unit and sure enough the unit registers 50 (plus or minus one or two, perhaps).
Ditto with smaller tuning forks that vibrate faster and are calibrated for 80KPH, 100 KPH, and beyond the highest rate the cop needs to detect.

OK, fast forward to the hearing, at which you are entitled to ask the cop questions.

Ossifer, you say you tested the unit. Please tell us exactly how you tested it.

Cop explains what he did.

Ossifer, let's be certain about something. Did you hold the tuning fork still, or did you move it.

Cop says he held it still.

Ossifer, you say that the unit reported the stationary tuning fork was travelling 50, then 80, then 100 KPH. How do you explain this discrepancy?

Cop explains the unit measures the speed at which the tuning fork is vibrating.

Ossifer, I understand that tuning forks are made of metal. Is any part of a motorcycle made of metal?

Cop says yes, or perhaps yes *******.

Ossifer, do any metal parts of a motorcycle vibrate?

You kinda need to get a yes on this one, and the cop may be reluctant to say it. It might be necessary to ask if the cop has ever touched a motorcycle while the engine was running ... and did you feel any sort of vibration when you touched it, ossifer?

OK, Ossifer, how are you going to prove that the unit, which says a stationary but vibrating object is moving up to 100 KPH, is not measuring the speed of the vibrations of the metal parts of my motorcycle?

DISCLAIMER - I have not had to use this in court, but I sure have it ready in case of need, and I can tell you that I look forward to seeing how it comes out.

And there is some truth to the concept, but I think it lies in the way a front wheel's spokes move. Understand that, from the point of view of a stationary observer, your front wheel is NOT rotating about its axle, but IS rotating about the point of contact of the wheel with the road. The bottom part of your front tire is stationary for an instant (if it were not still, then you would be skidding, right?), and the rest of the tire is pivoting about that point of contact. Hence the front axle is going whatever your speedometer says, and the parts of the front wheel momentarily above the axle are moving forward faster than the motorcycle is going. I am not making this up and I am not kidding.

And here is what I have observed, very often. I sometimes see portable speed-display units, generally near construction sites, here in Florida. They display the speed of vehicles, and generally blink or display red digits if I am going faster than they like. When I am the only vehicle in sight, the unit will display 55 ... 56 ... 55 ... 54 ... 54 ... just slight variations until the unit is at 1 o'clock from me. THEN IT GOES NUTS, in my opinion because it starts being able to see my (six) front spokes, whizzing toward it faster than I am going. 67 ... 63 ... 84 ... 75 ... and then I am past it and cannot see it.

So who is to say that a radar unit looking, perhaps obliquely, at a motorcycle might be displaying the instantaneous speed of spokes approaching the unit much faster than the motorcycle is going.

Some history. In 1963, the boss of Toronto Honda, a fellow named Derek Browne, used this argument and got his speeding charge dismissed.

You have only to watch a few minutes of police testimony to realize fershoooor that cops do not feel any need to tell the truth, so you should also feel free to give the testimony that furthers your case, not necessarily letting reality intrude.

Good luck! <=== That matters a lot too!

[7073]

http://www.gtamotorcycle.com/vbforum...ad.php?t=91173

I'm familiar with this case which is a "Laser" Case law specific, so it doesn't help the OP's situation and that's what I was referring to in my initial response to testing. My fault, I should have clarified that point.

BTW, in the cited case, the officer lost credibility and probably the case when the testing times were 1 minute after time of offence, for having difficulty reading his own notes and then back peddling and relying on his usual practices.

Going back to testing, I guess what I was trying to say is that they don't need to test the traditional radar after each ticket. So for example if the officer is targetting an area for 3 hours, the court wants to know that it was tested before and after this period and found to be operating properly.

[turbodish]

I posted this thread elsewhere. I hope it gives you some helpful ideas.

Maybe the detector is confused by vibrations, or by physics.

---

I do not know how all detectors work, but consider this:

I understand that the detector must be checked before and after it is used to measure the speed of vehicles, and I think radar (and perhaps other technologies) is tested by use of a tuning fork.

The cop taps a tuning fork marked "50KPH" and holds it in front of the unit and sure enough the unit registers 50 (plus or minus one or two, perhaps).
Ditto with smaller tuning forks that vibrate faster and are calibrated for 80KPH, 100 KPH, and beyond the highest rate the cop needs to detect.

Tuning forks? You need to get into this century. Tuning forks haven't been part of radar unit testing for a long time now.

[dankyyz]

Isnt this a HUGE fishing trip?

AS in...is there ANY possibility that the cop is NOT prepared for this defense? And that he'll have the accompanying paperwork that is NOT part of his notes, that pertain to calibration and such? I find it very hard to believe that there is a "did you calibrate the gun" loophole that some rookie is going to try to wiggle through successfully.

The disclosure of the notes are only the ones pertaining to this particular ticket. Not the ENTIRE day in question.

Is there any other advice as to a generic jedi trick to get out of this ticket? The calibrate the gun one sounds pretty thin.

Luck dude. Will be a learning experience for SURE.

[GSPLover]

If this is all you are going in with as a defense you are toast......and wasting tax $$$.

[Grimmy]

what's not wholey true? please expand...

http://www.gtamotorcycle.com/vbforum...ad.php?t=91173

Thanks Rob! Exactly what I was going to point to.

[MarcosSantiago]

I'm familiar with this case which is a "Laser" Case law specific, so it doesn't help the OP's situation and that's what I was referring to in my initial response to testing. My fault, I should have clarified that point.

There is no "laser" laws and "radar" laws.
The original case that outlines the evidenciary requirements for speeding and speed-measuring devices (R v Vancrey) was dealing with radar, and it is now extensive to laser. It is the same case law... perhaps slightly different questions, but the same strategy...

[MarcosSantiago]

Isnt this a HUGE fishing trip?

AS in...is there ANY possibility that the cop is NOT prepared for this defense? And that he'll have the accompanying paperwork that is NOT part of his notes, that pertain to calibration and such? I find it very hard to believe that there is a "did you calibrate the gun" loophole that some rookie is going to try to wiggle through successfully.

The disclosure of the notes are only the ones pertaining to this particular ticket. Not the ENTIRE day in question.

Is there any other advice as to a generic jedi trick to get out of this ticket? The calibrate the gun one sounds pretty thin.

Luck dude. Will be a learning experience for SURE.

I have to agree with you there, R. v. Schlesinger is no silver bullet to win every case

On the other hand, it is worth to try it because it has worked out for some people... the OP should definitely get well prepared...

[Grimmy]

Isnt this a HUGE fishing trip?

AS in...is there ANY possibility that the cop is NOT prepared for this defense? And that he'll have the accompanying paperwork that is NOT part of his notes, that pertain to calibration and such? I find it very hard to believe that there is a "did you calibrate the gun" loophole that some rookie is going to try to wiggle through successfully.

The disclosure of the notes are only the ones pertaining to this particular ticket. Not the ENTIRE day in question.

Is there any other advice as to a generic jedi trick to get out of this ticket? The calibrate the gun one sounds pretty thin.

Luck dude. Will be a learning experience for SURE.

An experienced police officers, when preparing their notes copy for a disclosure package will include the segment for their shift start, Equipment testing at start, the notes regarding the specific offense, equipment testing at end, and end of shift note.

I've handled MANY cases for clients (in my days gone past) and almost all had that basic format. Some were more specific, in where the officer spells out the testing process, and some where it was very basic, noting "Tested xxx equipment, test OK", or similar notes.

Evidence in a murder, or in a traffic ticket irregardless, still needs to be processed and noted properly. If specific equipment is used, it needs to be tested properly as well. Hence, case law regarding testing practices and procedures.

It might all seem silly, especially for a $100 fine, but it still is a trial. The evidence is on trial effectively, not the defendant. Remember, the defendant does not have to prove their innocence - the prosecutor needs to prove his guilt, and that is with the evidence provided by the police officer and the equipment he/she used.

R. v. Schlesinger isnt the be all and end all. A Judge or JP could dismiss or disregard a presentation of case precedence. That is where the defendant (or their representation) comes into play. A presentation of case precedence should be such that it would be impossible to ignore the presentation and the case laws validity to the specific matter being heard.

[7073]

There is no "laser" laws and "radar" laws.
The original case that outlines the evidenciary requirements for speeding and speed-measuring devices (R v Vancrey) was dealing with radar, and it is now extensive to laser. It is the same case law... perhaps slightly different questions, but the same strategy...

Actually, Vancrey adopted positions from D'Astous v. Baie-Comeau (Ville) which I couldn't read because it was in french. But your right about the Vancrey case, which I quickly skimmed - it's the same priniciple. However, I still see the JP's ruling as being open for interpretation.

“In my view, the position of the Crown is correct.” Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop.

Nowhere does it say immediately before or immediately after the stop. In fact, the officer tested the radar after at 7:25 pm, which is about 8 hours after the actual offence time. That was accepted by the court, but the the problem was that the officer tested the radar at 11:25 am, which was 1 minute after the noted time of the offence, so of course that raises reasonable doubt wether the device was working properly at the time of the offence!

[Salos Dafee]

Tuning forks? You need to get into this century. Tuning forks haven't been part of radar unit testing for a long time now.

I bow to your expertise ... IF you explain just how radar units are tested nowadays. If you describe some complicated machinery that tests the radar or laser detection device, then that in turn must be verified ... and we may be arguing this quite a long time.