Many times prosecutors will reduce a charge of DUI to Negligent Driving in the first degree.  It still will count as a prior offense if you get another DUI, but pleading guilty to Negligent Driving had one benefit: You didn’t need an interlock (assuming that you won the DOL hearing).  However, RCW 46.61.5249(4) is being amended to require: A person convicted of negligent driving in the first degree who has one or more prior offenses as defined in RCW 46.61.5055(14) within seven years shall be required, under RCW 46.20.720, to install an ignition interlock device on all vehicles operated by the person.

So, in layman terms, if you were originally charged as a DUI and either plead to a DUI or got it reduced to a reckless driving, negligent driving 1, or reckless endangerment in the past seven years and get a new conviction for a Negligent Driving in the first degree, then you have to have an interlock. The duration for the interlock could be from 1 year to 10 years, depending on any previous restrictions from the DOL.  This new law takes effect on September 1, 2011.

Examine the face of the ticket.

1. Make sure the officer signed the ticket. If the officer forgot to sign the ticket, you can win, because the ticket is no longer admissible.

2. Make sure the ticket properly lists the offense. Sometimes, the officer accuses you of the wrong infraction. Look up the RCW and list the elements out.

Request Discovery from the prosecutor.

The ticket will not contain the facts of the case. You need to file a request for any and all evidence the prosecutor intends to submit at trial. File such a request at the clerk’s office and a copy with the prosecutor. Make sure the request is at least 14 days before the contested hearing. Make sure you put down an address to send the stuff. Under court rule IRLJ 3.1(b), if the prosecuting authority provides any portion of the discovery less than 7 days before the hearing, such untimely discovery shall be suppressed only upon a showing of prejudice in the presentation of the defendant’s case. If the prosecuting authority, without reasonable excuse or justification, fails to provide any portion of the discovery prior to the day of hearing, the portion of discovery not provided shall be suppressed. If the report is suppressed, then the State has no evidence. The state has the burden to prove its case, not you.

Examine the Discovery

1. First check to see when the actual report was filed with the court. Under IRLJ 2.2(d), the notice of infraction must be filed within 5 days of the issuance of the infraction. So, if its not filed timely, it is grounds for dismissal.

2. Check to see the officer stated he was qualified to operate the radar/lidar. The officer can’t just say you were going 10 mph over the limit with his SMD (speed measuring device). He needs to state that he was trained and properly used it. That goes with pacing. He needs to state that speedometer was checked to be in working order before and after the shift.

3. Did the officer state that your car was the only one in the SMD beam? If not, the officer did not properly employ the radar.

4. Did the officer use both tuning forks to properly calibrate the radar gun? Each radar gun has specific tuning forks assigned to it. Check with the clerk’s office to find out if the proper forks were used.

Check the Radar Certifications

Talk to the clerk’s office and find out if they keep the SMD’s calibration records. The manufacturers usually require that the SMD be calibrated every 2-3 yearS. You can mount an attack on the SMD if they were not properly calibrated.

Mount Your Defense

While you might be able to poke holes in the State’s case, make sure gather favorable evidence. You need more than excuses to win at a contested hearing. It the cop states you did something that defies the laws of gravity, then you need to prepare a case of your own. Gather witnesses (declarations are fine, if you can’t get them into court), take photos, draw a map. Judges want to see proof not excuses.

Object to the admission of the report.

If your ticket was filed using the SECTOR process, then you can object to the accompanying affidavit attached to the ticket. A SECTOR ticket is an electronic ticket.  All the information is printed on the ticket.  What the officer actually does back at the patrol car is scan your driver’s license and the computer will fill out all your information.  The officer actually electronically signs the ticket. The problem is that under General Rule 30, the officer cannot sign a separate affidavit electronically, but there has to be a physical signature. Thus, the affidavit is not valid, and there is no evidence.  But be aware that if the officer puts the affidavit on the second page of the SECTOR ticket, then GR 30 will not work. Currently, the State Supreme Court is attempting to change this rule. 

Subpoena the Officer?

Take caution in subpoenaing the officer. If there are defects with how the ticket was written or there are problems with SMD, do not subpoena the officer. They can correct any defects and sink your case. Yes, you might win if the officer does not show. So if you don’t have anything, subpoenaing the officer might be the right call. However, note, officers are usually paid overtime (Spokane Police Department 4 hours overtime) for appearing in court on a traffic ticket, even though they may only testify for 15 minutes. They have incentive to be there.