back to Jes Beard's home page
 

The advice offered here is that of attorney Norman G. Fernandez

      If you've entered into a courtroom prior to today, you know that they are rather impressive and they leave no doubt in your mind who is in charge. Regardless of that fact you are still entitled to certain rights. Unfortunately your rights may be overlooked in court, in an effort to get you to plead guilty so that the court gets your money. Be aware of your rights as you are approaching the date of your trial. Make sure to remember the following rights and keep them in your mind as you enter into the courtroom. 

*You are entitled to a speedy trial. 
*You may request and are entitled to a court trial. Usually the only ruling body is the Judge. You may have the option in some states to request a jury. You'll probably have better luck with a Judge than a jury of your peers in most cases. 
*You are entitled to the use of an attorney. In traffic court you will usually have to pay for this service, you won't get one for free unless your offense could be subject to jail time.
*Do not attempt to subpoena the officer who was riding along in the police car when you were stopped. The only thing that would be of interest to you are documents listed in the public records in discovery sections here previously. 
*Any witnesses brought into court are subject to cross examination by you. Usually it would be the officer who wrote the ticket. That's why if the officer does not show up, there's no case against you and no conviction. 
*You have the right to remain silent. Don't ever forget this as you go into the courtroom. You never have to testify against yourself and try not to take the stand for the defense. 

      This area is important for several reasons. First of all, look up the actual violation that you were charged with. Be aware of how it's worded and any relevant laws that may pertain to that particular code. You might need to access the public records provisions to obtain necessary documentation to help you prepare your defense. You can either go to your local library or a local Law library. Try to look at the different case laws that relate to your particular violation and copy down any references that support your potential defense. Presume that you are going to prosecute your own case, and write down any laws that you would use. I shall take an example from the California Motor vehicle code to illustrate what the prosecution will need to prove in order to get a conviction against you. The traffic violation code that we shall use is CVC22350 Unsafe Speed. "No person shall drive a vehicle (you have to be identified as the driver and the witness for the prosecution needs to have observed you actually driving the vehicle) upon a highway." (The prosecution has to establish where the violation occurred). "At a speed greater than is reasonable or prudent." What do you consider reasonable or prudent? It's merely someone's opinion. "Having due regard for weather visibility, the traffic on and the surface and width of the highway." These are the factors used to establish reasonable and prudent issues "and in no event at a speed which endangers safety of a person or property." Are you guilty of endangering the person or of endangering someone's property? Try to break down the codes into bits and pieces that you can manage and figure out all the points that the prosecution needs to prove against you. If he does not prove all these points, you have grounds for dismissal after they rest their case.

       One of the rights of the defendant as part of the trial is the discovery process.  Some states try to limit this right in traffic cases.  The reason is they want you to pay your fine and go home.  Try to remember that it is your constitutional right for utilization of the discovery process.  You are going to find a list of the items you need, how to write your request, and who to send it to under the Public Records Request. Talk to your local county clerks office and find out how to issue a discovery subpoena.  Make sure that you indicate that any items on the discovery subpoena are necessary prior to the trial date.  The items you might normally need for a radar speeding ticket are the following; repair records, manufacturers manual and specifications, a log of the calibrations, and a copy of the departments FCC license to operate a radar unit, a copy of the repair calibration, and accuracy of the tuning fork. The arrest record of the police officer for three months prior to the date of your offense. His log for the day of your citation. Both copies of your original citation. A speedometer calibration certificate, all the maintenance and the repair records and the service records for the patrol car that was used in stopping you for your violation. Please be aware that the prosecution can stop this request with a motion to protect. Don't let that bother you because if this occurs just appear at your trial and make a motion to dismiss the charges. It might work, it might not. If it doesn't work, ask what the prosecution is trying to hide by denying you the information that you need to build your case. Immediately after that, file for a motion for continuance to give you enough time to get your defense ready after the materials are delivered. If the Judge still denies you access to the information that you want, you have an excellent basis for a not guilty plea during the appeals process, and reversal of a guilty verdict. Now we're going to tell you what to look for in this documentation, so that you can use it at your trial.

      The repair records for the radar unit will give indication as to the dependability of the unit.  If it has frequent repair records, you'll find that it may have a chronic problem.  If there are infrequent repairs it could mean that the unit has not been serviced properly and may not be accurate.  The manufacturers manual and specifications will tell you at what frequency maintenance is suggested on the unit.  This information should assist you with your cross examination. Check the units frequency against the FCC also.  The radar calibration log shows what time and how often the unit was calibrated. Which means how often it was checked for accuracy.  There are two court cases you can refer to: Wisconsin versus Hanson and Minnesota versus Gerdes. During those cases the Judge determined that calibration checking with a tuning fork should be performed within a reasonable time after the citation is issued. In two other cases; Connecticut versus Tomanelli, and New York versus Struck, it was ruled that a calibration by tuning fork should be performed immediately before and after a citation is issued. All four of these case have shown that tuning at the start and at the end of the shift is not acceptable, although this is the norm. The FCC license is granted for a specific frequency or a specific range of frequencies.  Check the information in the manufacturers manual and specifications against the FCC's license.  This should prove whether the officer was operating the unit legally. Calibration by tuning fork information is necessary to show that the unit had been calibrated to what we call a "traceable standard."  Without the certificate of calibration, the tuning fork is immediately suspect as being accurate enough to calibrate the radar unit. 
                                                                                                                             CONTINUED ON NEXT PAGE

Table of Contents