youtalkfunny
12-12-2004, 08:26 AM
[ QUOTE ]
You'll need to do some work, but you can also subpoena the calibration records for the gun. In California, for example, if it wasn't calibrated within the last 10 days of your stop, you win.
[/ QUOTE ]
First off, there's almost no chance that 10 days have passed since the radar's calibration was checked. It takes two seconds to do this (using a tuning fork), and I promise you that if this goes to court, the cop will say during direct examination that he did the tuning fork test that day, before and after he wrote your ticket, and that everything was working just fine.
Forget about getting a subpoena, and asking for the calibration records ahead of time. AMBUSH HIM, and ask for them when he's on the stand! Most police departments keep a logbook for each radar unit, noting the times of every tuning fork test. Ask him to present this documentation of these tests that he has claimed to have administered. He probably didn't bring this with him. When he can't produce it, motion for dismissal. Play up that fact that "That's the reason they keep a log, so they can present it to the court if questioned!" You probably won't get it dismissed that easily, but it helps you to begin to show reasonable doubt that the radar was accurate.
If you don't get it dismissed, ask him to provide some documentation showing that the tuning forks that he used that day were accurate. "Please present to the court any documentation, from a certified and licensed facility, that show that the forks were tested and found to be accurate, within a reasonable time prior to the arrest."
If at any time the prosecutor objects, saying that you should've filed a supoena if you wanted all this paperwork, just reply, "Your Honor, it's not the defense's job to bring the prosecution's evidence to the trial. They said they used accurate tuning forks. The burden of proof is still on them. They have to PROVE that the forks are accurate. If they have no such proof, the defense motions to dismiss."
I got all this from www.beatmyspeedingticket.com (http://www.beatmyspeedingticket.com)
It's an e-book, costs about $30. I went to court and tried it. I was the only speeder in the court that day who won.
(Again, I don't work for that site, and I don't make a dime from it. I'm just a happy customer, spreading the word on the coolest thing I've ever bought. If you're like me--if you watch "Law and Order" and try to predict when one of the lawyers will object, and on what grounds--you can have some fun with this.)
youtalkfunny
12-12-2004, 09:12 AM
I FOUND IT!!!
Here's the story I mentioned in last week's "get out of a speeding ticket" thread:
THE VERDICT IS IN!!!
I SHOCKED THE WORLD!!!!
"CASE DISMISSED!"
I fought the law, and the law LOST.
But only because I got VERY lucky. The judge was not
buying my "tuning fork" bullshit. But I won anyway.
Here's what happened:
I sat in that courtroom ALL DAY, waiting to be called.
Finally, at 5:45 PM, I was called.
It didn't look like any trial you've seen on TV. The
prosecutor was standing by the bench, and he called me
up. So you've got the prosecutor, the cop, and me, all
standing right in front of the bench. That's how every
trial of the day had been conducted. I've got several
pages of notes typed up, and now I've got no table to
spread them on. The people sitting in the courtroom
couldn't hear a word of it, so they didn't even bother
to pay attention. Oh well, on we go...
The judge was pretty pissed when told that the next
case would be about a speeding ticket. He had a Little
League game that he was late for, and he immediately
scowled at me when it became clear that I was intent
on going to trial. He looked back at his docket, and
grimaced at all the cases he still had to resolve
before he could call it a day.
So I took a chance. "Defense motions for dismissal, in
consideration of the docket." That drew some grins. "I
wish I could," said the judge.
The police officer and I were sworn in. The prosecutor
asked me if I would stipulate that this officer
actually works as a policeman in the town of Horn
Lake. Then the questions began:
"Were you working on the morning of April 6? What time
did you start your shift? What time did you finish?
Did you come into contact with the Defendant, Mr C?
Tell us what happened."
The young cop was caught off-guard by that last
question. Up to this point, he kept nodding and
answering simple questions. Now, he was confronted
with a full-blown "essay question", and he wasn't
ready for it. I wouldn't be surprised if this was his
first experience as a witness in a trial; he was that
green.
DA: Tell us what happened.
COP: (puzzled) huh?
DA: What did you see Mr C do? (This was probably a
leading question that I could object to, but I didn't
see the point of bothering.)
COP: I saw him driving down the street...
DA: What street?
COP: I saw him driving down Church Road. I activated
the radar. It said 61. I locked in the radar, pulled
him over, and gave him a ticket.
The DA then asked if the officer had checked the
calibration of his radar beforehand that night. Yes,
several times, came the reply. Did you check it again
after this reading? Yes, at the end of my shift. Was
your radar unit functioning properly that night? Yes,
it was fine, no problems.
No further questions. Mr C, you can ask Officer D
questions about that night. DO NOT testify as to what
your version of the events is. You can do that later
if you like, but let me very clear, you are not
required to. Do you understand?
Sure thing, judgy-wudgy.
"First, Your Honor, I'd like to give you these copies
of the relevant case laws I found that pertain to
radar. They deal with foundation, and admissability of
evidence."
The judge handed them right back to me. "You don't
give these to me now. You can later."
ME: (reading from my script; almost all of my
questions were scripted, and read in court) Officer,
D, is it important that the radar be accurate?
JUDGE: (laughs. The judge is in a better mood now. He
just found out that it's pouring rain outside, so he's
not missing any Little League time.)
COP: Yeah.
ME: You testified that you checked the calibration of
your radar instrument with tuning forks. Did you make
a record of these test in the logbook?
COP: (puzzled) No.
ME: (this wasn't in the script) Your department
doesn't keep a logbook of these tests?
COP: No.
ME: (flabbergasted) There's no paper trail? No
documentation whatever of these tests?
COP: Nope. Every now and then, the sergeant gets on
the radio, and reminds us to test our radar.
I'm heartbroken. My entire case was supposed to be,
"Oh, you didn't bring that paperwork, eh? That's my
ticket outta here!" But in this case, there was no
paperwork to bring! Dammit! NOW what do I do?
Well, I was prepared to continue on the off-chance
that he DID bring that paperwork, so continue I must.
ME: Officer, the tuning forks, are they specific to
the radar unit, or will any other tuning fork, say one
I can buy in a music store, work?
(I figured that if they laughed at the first question,
they'd laugh at this one too. But no one was laughing,
because the cop DIDN'T KNOW THE ANSWER!)
COP: I'm not sure. I don't know.
Oh my goodness, I thought. He really doesn't know the
first thing about this equipment. Gee, officer, I hate
to do this to you, really, I had no intention of doing
this to you, but I see the dismissal I want just a
motion away...
ME: Your Honor, the defense motions for dismissal. In
order for a radar reading to be admissible, the
operator of that radar unit must be competent, and
clearly, this young man is not, if he thinks that
maybe you can use any old tuning fork that you find
laying around to check the calibration of a radar gun.
The judge said he will not hear any motions for
dismissal until the end. This issue goes to the weight
of the evidence, and it *will* be considered, but
there will be no dismissal motions considered at this
time.
I'm thinking I probably just won. But the fight hasn't
been stopped yet, so I've got to keep punching:
ME: (back to the script) If the tuning fork is
damaged, bent, broken, cracked, or exposed to
excessive heat, is it likely then that the tuning fork
is as accurate as when it came from the factory?
COP: (visibly relieved to hear an easy question) I'd
guess not.
ME: For the check with the tuning forks to be
accurate, is it important that the tuning forks
themselves be accurate?
COP: I'd guess so.
ME: Are you certified to check and calibrate these
tuning forks?
COP: (confused again) No, the fork calibrates the
radar...
ME: No, not the radar, the forks themselves. Do you
have any training, to check the calibration of the
forks themselves?
COP: (understands now) No.
ME: Do you have the equipment necessary to calibrate
these forks?
COP: No.
ME: Officer, please present to the court documentation
from a certified facility that checks these tuning
forks that they have been checked and found accurate
within a reasonable period of time prior to the date
of the arrest.
DA: Objection! Uh, NO!
(That's an objection? "Uh, NO!"?)
The DA elaborated a little. He was saying something
about the officer not being an expert witness on the
scientific principles of tuning forks. When he paused
for a breath, I jumped in:
ME: Your Honor, if tuning forks are used to check the
radar, then the forks themselves must be proven to be
accurate, or those tests are of no value. For all we
know, the Horn Lake Police Department has been using
the same tuning forks since 1902, and they're held
together with Scotch Tape and Band-Aids.
At that point, an amazing thing happened. Everybody in
the courtroom laughed. Even the judge, but that's not
the amazing part. It was this laughter that made me
realize that this was the first case, ALL DAY, that
the people in the courtroom were paying any attention
to. The four or five cops sitting to the side, who had
been milling around waiting for their cases to come
up, were all pressed up against the rail, watching
this trial. I looked around the room for the first
time (remember, I'm standing at the bench, which means
everybody except the judge is behind me), and
everybody is smiling at the "scotch tape and bandaids"
line. They're also sitting on the edge of their seats,
leaning forward, trying to catch every word of this
trial!
JUDGE: I don't think we need to worry about 1902.
There was no radar then. There was no ELECTRICITY
then.
Cool, the judge is cool with all this. The judge
mentions to a clerk that Little League got rained out,
"But that's OK, I'm enjoying this." He spent the rest
of the trial sitting back, much more relaxed, almost
like a spectator.
I again motion to dismiss, as the prosecution's
inability to produce documentation as to the forks'
accuracy renders the radar reading inadmissible. Once
again, the judge tells me that he will not consider
any dismissal motions until the end. I get the feeling
this time around that I didn't score any points. The
outcome of this thing may still be in doubt.
I only have a few more questions:
ME: What does the manual for the radar gun you used
that day say about the condition of the tuning forks,
or any caution as to the handling of the tuning forks?
COP: I don't recall.
ME: Does the manual state in any way that the tuning
forks can be dropped, cracked, bent, or exposed to
excessive heat without need for re-calibration?
COP: I don't recall.
ME: Does the manual state that no matter what
condition the tuning forks are in that they will
always be accurate, irrelevant of abuse, cracking,
bending, exposure to excessive heat, and so on?
COP: I don't recall.
ME: Your Honor, I have no further questions for this
witness.
DA: (Begins his re-direct quickly, like someone who
has to plug a bunch of holes in a leaky boat.) Was the
tuning fork you used that night cracked?
COP: (Much more relaxed now that there will be no
trick questions from the DA) No, it was not.
(I kinda tuned out here for a sec. My brain was
swimming in all this stuff. I remember seeing the
officer pantomime smacking a tuning fork on the dash
board, and holding it up to an imaginary radar unit.)
DA: It was working fine?
COP: Yeah.
ME: Objection! The officer has testified that he is
not an expert in the calibration of tuning forks.
JUDGE: (the look on the judge's face at this point is
absolutely priceless. He is impressed. He nods, slowly
at first, then a little faster...) Sustained!
DA: But is wasn't bent, or cracked, or scratched? Or
scotch-taped?
COP: No, it was not.
DA: No more questions. The prosecution rests.
ME: Your Honor, I have one more thing. Re-cross, I
guess.
JUDGE: (His shoulders slump.) We don't usually do a
re-cross.
ME: Just one point that the officer just made, that I
feel I need to rebutt.
JUDGE: (shrugging slightly) Very well, go ahead, why
not?
ME: (no script for this one. I'm winging it, but
confidently) Officer, you said that the forks were not
visibly bent or scratched. Are you even aware that
these things, when struck, send out millions of
wavelengths per second? And that if they're off by
even TEN wavelengths per second, that they're useless?
Are you even aware that they can be inaccurate without
being VISIBLY damaged?
The cop didn't answer. He just stared blankly at me.
That was OK with me. I made my point.
ME: No further questions.
DA: Your Honor, the prosecution rests.
ME: Defense rests, your honor.
The judge let out a frustrated little laugh. I think
he wanted to explain the procedure, about my having
the right to testify, but not any obligation to do so.
But since I rested, I guess he may have decided to let
it go.
(Now, as I proof-read this, it dawns on me that NOW
would've been a good time to make those dismissal
motions, but by resting, I lost the chance. Dumb-ass!)
The judge said that the Rules of Evidence had recently
changed in Mississippi, and then started talking
legal-ese that I couldn't understand. He mentioned
some case that had been overturned. The prosecutor was
surprised to hear that case had been overturned. He
and the judge agreed that that particular case had
always governed cases like mine.
JUDGE: But now that that's been over-turned, I really
don't know how we're going to rule on this matter of
the tuning forks. I really don't know...however, ...
And I could tell by the tone of his voice in that
"however", that he was going to rule in my favor. I
knew it. I had a closing argument ready, but as soon
as I heard that "however", all I could think was,
"Keep your mouth shut, Bobby Boy! Don't do anything to
blow this, it's YOURS!"
JUDGE: ...however, I'm going to dismiss the charge in
this case. Mostly because (he looked at me) it was so
artfully argued. I really enjoyed it."
ME: Thank you, Your Honor.
JUDGE: But only one thing saved you. If that officer
had once said, "Based on my training and experience, I
visibly estimated the car's speed, and I believe the
defendant was exceeding the speed limit," there
would've been a different ruling in this case. But he
never said that, because YOU (points to the DA) never
asked him that. You let him side-track you with all
this other stuff. (turns to me) What do you do for a
living? Do you practice law?
(That's pretty funny. Every question I asked in this
proceeding was read from a script.)
ME: No, sir. I deal cards in Tunica. In fact (looking
at my watch), I've got to be at work in 55 minutes.
JUDGE: (pointing at my typed-up notes) You know,
you've spent more time on this than any speeding
ticket could POSSIBLY be worth. Case dismissed. Good
job.
ME: Thank you, Your Honor.
I turned to walk out. As I walked up that aisle, all
eyes in the courtroom were on me. Everybody was
smiling. People whispered "Good job!" and "Nice
going!" Really, they said that. One guy even turned
and said, "Hey, come back here and represent ME!"
The DA called me back to the bench, to sign a form. It
never dawned on me that he might be bitter about
losing, until he said, "Don't look so cocky. He ALWAYS
dismisses this late in the day, because he wants to go
home."
It wasn't until bedtime that it dawned on me that
"artfully" does not refer to "artistic", but more
along the lines of "The Artful Dodger."
Bobby
(Ironically, I was stuck in court so long, I had to
violate several traffic laws to get to work on time.
Oh yeah, when I got to work, I dealt a bad-beat
jackpot, and took home about $1100 in tokes!
Mark the calender: I had one helluva day.)
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