Simple Defenses for Contesting Traffic and Speeding Tickets Via Contested Hearings

This article presumes that you are given a ticket for an automobile registered with a government. It further presumes that your ticket is not for a felony or breach of the peace. If you harmed someone or were driving recklessly, this article will not help you. Finally, it is presumed that you follow the standard process which the courts want you to follow.

This is not legal advice, it is simply what I have found via my own research. Before using any of the information within this article, be sure to verify it for yourself.

With that out of the way, this article will address tickets generally and speeding tickets in the State of Washington specifically. Other, less commonly issued types of ticket not amounting to a felony or breach of the peace follow this same process.

In all matters related to traffic tickets, there are a couple of key points of law to comprehend, at least one thing you should do if possible in preparation, and at least three ways to get tickets dismissed.

The key points of law that one needs to comprehend when fighting a traffic ticket are as follows:

1. How the infraction process works.

2. What evidence is, why it is important, what evidence exists at the time of hearing, and how to get it thrown out of court.

3. What personal and subject matter jurisdiction are.

The nature of an infraction process can be considered to be either civil or criminal, depending on what state you claim to be a part of. Although the infraction process is deemed to be judicial, it functions more as some kind of executive administrative process, lacking many elements of due process. The infraction process begins when an officer of the state makes a determination that you have committed an infraction. You then choose whether you want to agree with his determination and pay up, agree with his determination, claim mitigating circumstances, and throw yourself on the mercy of a magistrate in a hearing, or contest the determination.

To defend, it is claimed that you must request a contested hearing. The hearing is where you challenge the officers determination. While commonly considered to be a trial, it is more in the nature of an administrative appeal. Typically, the magistrate at the hearing will hold a preliminary hearing and, if demanded, follow with a full hearing where you can put the officer on the stand and question him.

At your hearing, it is the evidence which you must defeat in order to win. You can do so in a variety of ways, but the important thing is to focus on the evidence rather than making excuses, accusing anyone of lying, etc.

Jurisdiction is the right of the officer to make an initial determination as well as the right of the magistrate at the hearing to judge you. One type of jurisdiction is called in personam jurisdiction. In personam jurisdiction depends upon your political status and where you are. If you claim to be a citizen of the State of Washington, then officers within the State of Washington will typically have this type of jurisdiction so long as they are not outside of their territorial jurisdiction. A second type of jurisdiction is "subject matter jurisdiction". Subject matter jurisdiction is jurisdiction over the subject. In the case of traffic tickets this is, in part, jurisdiction over the subject of motor vehicles and drivers. Typically, police run your plates to verify that they have subject matter jurisdiction before stopping you.

To even consider jurisdiction, there must be a nexus, or tie, between you and the officer making the determination. In most cases, the nexus is controlling a registered motor vehicle, having a drivers license, or both.

When you are stopped by a police officer, you should have a few goals in mind:

1. Establish a record via audio, video, or writing.
2. Say no more than necessary concerning the stop.
3. Make notes concerning anything you think might be of use at your hearing.

If you do not have one, you should consider getting a recording device of some sort and keeping it in your automobile in case of a stop. Audio capability should be a minimum requirement. Video is even better. If you cannot manage that, be sure to keep a pen and notepad handy so you can write things down as they happen. The purpose of recording the stop is to establish what was and was not said as well as what was and was not done. While it is not necessary, it is a good idea to have your recorder in plain sight and let the officer know that you are recording your conversation to make sure of exactly what was said and done. Be polite, but firm.

Your first order of business at a stop is to make sure that the one stopping you is an actual police officer. To this end, you want to find out:

1. Are they acting as a police officer for the purposes of the stop?
2. What is the officers name?
3. Who is the officer employed by?
4. What is the officers badge number?
5. Does the officer have official ID on hand?

If the officer balks, simply explain that you have never seen him before and do not know him. Such being the case, you are simply attempting to ascertain whether he is a bona fide police officer or an impostor. Without knowing that he is an actual police officer, you will have to presume that he is an impostor should he fail to identify himself.

Once the officer identifies himself, provide your drivers license, insurance, and proof of ownership upon request. If you have a trustworthy, competent lawyer on retainer you can instead give your name and demand your right to council. If the officer threatens arrest, you might caution him against doing so before talking to a supervisor as arresting you without allowing you the right to council would be a violation of your due process rights, denying you your due process rights is not within the duties of a police officer, and so he would be acting in his individual capacity and subject to claims of false imprisonment and violating rights under color of authority at that point. Don't be rude, just present these facts as friendly advice.

Now, assuming that you do not have access to a competent, trustworthy lawyer, here is the rest of what your conversation should be limited to:

1. If for speeding, find out how, specifically the officer determined your speed.
2. Answer, "I must respectfully decline to answer that question." to all other questions asked which could possibly relate to the stop.
3. Do not consent to a search of either yourself or your car.

Above all, be polite. If possible, be friendly. Feel free to chit chat, but under no circumstances should you talk about something related to the stop.

Once the officer gives you a ticket and leaves, take some extra notes. Commonly useful information is:

1. The color of the shirt you are wearing.
2. The condition of the weather.
3. The date and time.
4. How light or dark it is.
5. Where, specifically you are. Cross streets and such are handy.

Between the time of the stop and the hearing, you will want to do the following:

1. Check the cops territorial jurisdiction if at all possible.
2. Check the time requirements for filing a ticket.
3. Read the notice of hearing carefully when you get it and do whatever is needed to demand the officer show up in court. Also, make note that you want the prosecution to bring any and all evidence related to the stop with them.
4. Find out what, specifically, is required to be on a ticket for it to be valid.
5. Find out what evidence, specifically, is required for the officer to prove his grounds for issuing the ticket.

Did the police officer have any authority to act at the location of the stop?

You can typically check a police officers territorial jurisdiction by getting your hands on a copy of the city or county ordinances covering the creation of the police force. For state patrol officers, check the state statutes and such. You really only need to bother if you were stopped in a questionable place. Some common examples of where you would want to check this:

1. Stopped by an officer of one town in a different town.
2. Stopped on a state highway by a city cop.
3. Stopped on a city road by the state patrol.

If they stop you and issue a ticket where they have no jurisdiction, the ticket is void and you should get it thrown out without problem if you can prove they had no jurisdiction. Unlike civil or criminal law, infraction process presumes you are guilty as charged and subject to the jurisdiction of the officer using it.

How soon after the stop must the police officer have filed the ticket?

Your next action should be to find out exactly how long the officer has to file your ticket and them make sure that they do so. In the State of Washington, one uses the Infraction Rules of Limited Jurisdiction (IRLJ) to find this information. For The State of Washington, we find that the date issued is the date that the infraction is signed by the officer (IRLJ 2.2)(a) and that "The notice must be filed within five days of issuance of the notice, excluding Saturdays, Sundays, and Holidays"(IRLJ 2.2)(d). You note the current day, count five days out (skipping Saturdays, Sundays, and Holidays) and then mark the following day on your calendar with a note to call and see if the infraction is on file yet. If it is not, you enter a motion to dismiss the infraction with prejudice for failure to file in a timely manner. In your motion, you quote the statute, note the date of issuance, write an affidavit denoting that you called and no such infraction was yet on file after six days, and reference your affidavit as an exhibit to your motion.

Requesting the officer and the evidence

Once you get a notice of infraction in the mail, be sure to read it carefully and do what is required to demand that the officer show up at the hearing. You might also send a "Notice" to the court that you demand any and all evidence supporting the testimony on the infraction be brought to court. You are supposed to notice the court and the prosecutor, but in many cases it can be almost impossible to find out who the prosecutor is. If you cannot, then just make sure that you note at your preliminary hearing that you want "any and all evidence supporting the testimony against" you to be at your hearing.

The reason you do this is so that (a) you can question the officer if need be and (b) the prosecutor cannot claim he did not need to bring in a particular piece of evidence.

The requirements for a valid ticket

You will also want to look up the requirements for a ticket to be valid. In the State of Washington, this information is found in IRLJ 2.1(b). In most places it should be found along with the information on how much time the issuing officer is allowed to file a ticket.

Check the ticket over carefully, see if there is anything that has been omitted, and make careful note of it. Some of these things may make the ticket void. You can determine what does and does not void a ticket by looking at the appellate and supreme court decisions in your state. For the State of Washington, you will likely find such information in the Annotated Rules of Court ( part of the Annotated Statutes of the State of Washington ). Annotated codes and statutes are very handy for finding out what the supreme courts have ruled on any particular thing.

If you find anything missing on the ticket that would make the ticket void, file a motion to dismiss for failure to state a claim, noting on it what is required but missing, which statute requires the missing information, and the relevant holding from a controlling state or appellate court. Be sure to also include a copy of the cited case for both the prosecution and the judge.

The requirements for the officer to prove his case

Finally, you need to find out what, specifically, is required in order to prove that you were in violation of the statute cited in the infraction. This is called the "prime facie case". If you question the officer on each element of the prime facie case and he cannot prove it with evidence, then he has no case and you can dismiss the ticket for lack of subject matter jurisdiction.

The prime facie case is typically the affidavit signed by the police officer called a notice of infraction. It is the primary evidence against you other than an officers testimony in court. For most infractions, you will have to use logic to poke holes in the ticket by questioning the officer. If you cannot poke a hole in what is on the ticket by questioning the officer, you must put him on the stand and impeach him.

For speeding tickets, there is some presumed evidence that you can attack rather reliably if you know what the presumptions are. Ignoring esoteric arguments that require conviction and a knowledge of law, the primary presumptions made in a speeding ticket are as follows:
1. The posted speed limit is correct.
2. The officer had jurisdiction to issue the ticket.
3. The device used to measure the speed was accurate at the time of use.

Attacking the speed limit itself is primarily useful where a city, town, etc. has lowered the speed limit below what is specified in statute. You attack the speed limit by referencing the manual on uniform traffic control devices (MUTCD), requesting that the most recent engineering survey be entered into evidence, and then attacking the survey by virtue of it being too old or having something wrong with it. If the speed limit is set to that dictated by statute, then this typically does not work.

Attacking the jurisdiction of the officer was previously mentioned, but consists of requesting that the officer enter into evidence proof that he is an officer capable of issuing infractions, proof of the territorial jurisdiction of his employer, and proof that the location of the stop was within that territorial jurisdiction.

Attacking the device used to measure your speed amounts to finding out what kind of device was used to determine your speed, becoming familiar with how the device works, and attacking some aspect of how the device or mechanism was used.

Mechanical speed measuring devices

You want the name, make, and model of the radar device as well as a copy of the manual. After all, if the determination of your speed was made by a device, the testimony of your speed is coming from said device. Because of this, you have the right to know how the device works and what the manufacturer notes is required for it to take legally reliable measurements. Typically, police maintain some kind of log of what they are doing as well as logs of when such devices were last calibrated by a professional and when the calibrating devices themselves were last calibrated. Make sure to get these logs as well.

Manual speed measuring devices such as pacing and visual determination

If an officer denotes that they determined your speed by pacing you or visually via markers, you should demand to know specifically how the speed was determined so that you can question the methods used. A little research into how either works as well as the problems with them can help a lot in determining what to question.

Subpoena

Normally, you will have the option to subpoena the officer who issued the infraction. Do so. Unless you know the court process quite well and can force the judge to take notice of proper process, you will have to have the officer testify in order to question the validity of information on the ticket.

At The Hearing

Infraction hearings vary greatly depending on where you are. In many places it is claimed that you have no right to a trial by jury, the judge acts as both prosecutor and magistrate by practicing law from the bench, and you are presumed guilty. While all of these seem to me to violate due process, they are common and widespread practice.

To prevail in court, you must know how to get things onto the record. If you want the court to do something, you must move the court to action. You do so by stating, "I move the court to (do whatever)" or "I move the court to enter an order that (target) do (whatever)". Additionally, if you want the court to take notice of some obvious fact, state, "I move the court to take judicial notice of the fact that (whatever is obvious or a matter of public record)". If you want to simply state some truth on the record concerning what is happening in court you state, "For the Record: (whatever you want the record to show)". These are powerful tools as they put evidence via testimony on to the record. Since both an appeal and a collateral attack are based upon the record, you need to make the record.

In cases where there is no prosecutor, you should put on the record that there is no prosecutor present and that a magistrate acting as both judge and prosecutor is a conflict of interest amounting to a violation of your due process rights. You should then move the court to dismiss the case with prejudice for failure to prosecute.

In cases where the prosecutor and officer are running late, you should put on the record that the they have not appeared at the appointed date and time, that both of them had plenty of notice as to when the hearing was to be held, that both failed to show up without adequate prior notice to other parties, that you have been harmed by virtue of your time being wasted, that if you had not appeared a default judgment would have been entered against you, that failure to dismiss the case against you amounts to treating the prosecution with undue favor, and that he who leaves the field of battle first loses. You should then move the court to dismiss the case with prejudice for failure to prosecute.

In cases where the officer does not show, but the prosecutor does, you should put on the record the fact that the cop has failed to appear at the agreed to date and time, that he had plenty of notice as to when the hearing was to be held, that he failed to show up without adequate prior notice to other parties, that your right to question the evidence against you is being prejudiced as the only testimony against you was provided by the officer and his failing to appear prevents you from questioning the evidence against you. You should then move the court to strike all testimony from the officer, move the court to take judicial notice of the fact that there is no evidence against you on the record, move the court to take judicial notice of the fact that without any evidence against you the court has no jurisdiction to proceed, and then move the court to dismiss the charge for lack of subject matter jurisdiction.

Of course, the judge might choose not to dismiss the charges anywise, but you have entered facts into the record clearly establishing that even if the judge is not in error, your rights have been prejudiced.

If you do any of the above, then note for the record that you are only proceeding under protest, duress, and threat of judgment being issued against you.

With process problems clearly articulated on the record, it is time to proceed to the actual hearing itself.

Do not go first. As the defendant, it is your right to have the prosecution present its case. If there is no obvious prosecuting attorney, ask, on the record for the prosecution to present its case. If the non-existent prosecutor does not present the case against you, note for the record that no one has stepped forward to present a case against you and ask if the prosecution rests its case. If the non-existent prosecutor does not say anything for five or six seconds, note on the record that the prosecution remains silent and move the court to take judicial notice of the fact that the prosecution rests its case.

If someone does step forward to present the case against you and it is not a prosecutor, ask whoever claims to present the case if they are prosecuting the case against you. A police officer is not a licensed attorney and if he represents the state in prosecuting you he is practicing law without a license. A judge who represents the state in prosecuting you is acting as both judge and prosecutor and is practicing law from the bench. Object to such actions on the record and note that you proceed only under duress, coercion, and threat of judgment being entered against you.

Whenever the prosecutor, judge, or officer is done presenting the case against you, make sure that they rest their case. If they do not explicitly state that they rest their case, ask clearly if the prosecution rests.

Once the prosecution rests, it is time to present your case.

This is when you call the officer to the stand and question him concerning his testimony on the ticket. Ask about anything you have found in your previous research concerning what is stated on the ticket. For speeding tickets, be sure to question the officer about the calibration of the unit in question and ask that he enter into evidence any logs establishing that he did in deed check any device used for accuracy both before and after the stop as well as any logs proving that the device has been properly maintained and regularly calibrated.

If he fails to provide the evidence necessary to show that his method of determining your speed was not in error, state on the record that such evidence, required to prove the speed claimed against you, has not been entered into evidence and that, as a matter of fact, the speed claimed by the officer is unsubstantiated and that you object to unsubstantiated accusations being entered as evidence. Once you have done so, move the court to dismiss the charges against you because the officer has failed to establish his prime facie case. If the judge overrules you, object.

If you were unable to come up with a way to attack the testimony on the ticket, then you might attempt to impeach the officer. This is done by getting the prosecutor ( or judge, if acting as the prosecutor ) to object to what you say on the grounds that the question requires a legal determination and the officer is not competent to testify to such matters. If they do so, they have just noted that the officer is not competent to make legal determinations...which is what the ticket is. Once the judge sustains the objection, move the court to strike all testimony by the officer involving legal determinations from the record. Doing so strikes the ticket from the record. Object if overruled. State on the record that, by virtue of the officers testimony against you being impeached, there is no testimony against you on the record. Then move the court to dismiss the ticket for failure of the officer to establish his prime facie case. Object if you are overruled.

Some good questions that will make any prosecutor who is paying attention object to your questioning of the officers testimony because the officer is not qualified to make legal determinations are as follows:

1)What, specifically, do you mean when you claimed on the that I committed this infraction in The State of Washington?
2)Is the ground upon which you stopped me, as a matter of law, within the State of Washington?
3)What, specifically, do you mean when you state that the location of the stop was the city/county of (whatever)?
4)Who is the injured party in this case?
5)When you determined that I committed this offense, in what legal capacity were you acting when doing so?

There are a lot of other good questions you can ask to elicit the same response. Everything on the ticket is a legal determination. If it is claimed that the officer is not qualified to make a legal determination, then clearly he is not qualified to issue the infraction and anything he writes on it can be challenged.

All of these things can be used properly in a court. However, you must do your own research and understand what you are doing. You should also be aware that you have the right to appeal any judgment made against you and that, if the judgment is void as a matter of law due to lack of subject matter jurisdiction you can file suit to get the judgment vacated.

You may hear about a lot of other ways to contest tickets, but those outlined here are the only ones I know of which work reliably for people who are traveling via a registered automobile and do not have a deep understanding of legal terminology. If you go into court using other arguments, make absolutely sure that you know what the arguments mean. A good rule of thumb is that if you cannot write all of the supporting arguments that you are making without help from someone else, you should avoid making them as they may not be true or they may not be applicable to you.

Again, this is not legal advice and I am not a lawyer. It is simply information that I have found via my own research and observation. I am passing it on in the hopes that others might find some value within it.

Sources:
"Washington State Infraction Rules of Limited Jurisdiction", Washington Courts