Appealing a Speeding Ticket

[djstras]

I lost my case in Municipal Court the other day. I found an error that I think the Judge made during my trial. The police officer testified that he was able to visually estimate speed. He reminded me of that 3 times during my cross examination. After the third time I pulled my keys out of my pocket, extended my arm at shoulder height, looked the officer squarely in the face and asked him to tell me how fast the keys would be traveling when I drop them to the floor. The prosecutor objected but didn't say why. The judge sustained and the officer did not have to corroborate or prove his earlier testimony that he was able to "visually estimate speed". QUESTION: Doesn't the prosecutor have to have a reason or a foundation to object to something? QUESTION: Do I have a good reason to appeal?

There were some other objections made by the prosecutor and myself but I think this is the one that resulted in my loss.

Thank you.

 

[dee_dub]

QUESTION: Doesn't the prosecutor have to have a reason or a foundation to object to something?

Yes.

Corollary: When the reason is so patently obvious that it would be insulting to the judge to state it, it need not be stated.

QUESTION: Do I have a good reason to appeal?

No.

 

[djstras]

Lame. What is so obvious? The police officer says he can visually estimate speed but is not allowed to prove it. I'm not a legal expert but seems to me that if a prosecutor objects to a witness being asked to prove that they can do what they claim if the case depends on that proof then it is the judge's DUTY to overrule. Your reply was not founded or very well thought out in my opinion.

 

[dee_dub]

I suspect you will have difficulty convincing an appeals court that your test is either probative or relevant. If you feel otherwise, take it to appeal, and good luck to you.

 

[djstras]

Oh, I'll probably lose. But because the system is rigged not for lack of probative value. Lawyers appeal cases all the time on less harmful errors than that. I could even pay a lawyer 200 dollars and he'd go downtown and clean it up without ever having to buy a transcript. What does that say about the "Judicial System"? No, I want to do this one myself. So I'll do my homework, turn it in and if I lose, I lose. I tried and had fun.

 

[dee_dub]

IMO, if you want to win, you're SOL, and it's not because the system is rigged but because the prosecutor had good grounds for her objection. If you just want to have fun, more power to you.

 

[CdwJava]

Lame. What is so obvious? The police officer says he can visually estimate speed but is not allowed to prove it.

He was trained to visually estimate the speed of motor vehicles on a roadway coming towards him or away from him. He was not trained in the visual estimation of an object being dropped from a hand to the floor four feet away.

THAT is why your little experiment was objected to.

This is one of those little tricks that you find on those "how to beat a ticket" websites, and one of many reasons why many of those sites lead readers down a primrose path.

Liken it to a professional house painter being asked to paint a pewter figurine ... yes, he can paint, he knows about paints and the required base coatings for the things he finds on a house, but will you expect him to know about how to prepare and properly paint a 6" pewter figurine?


- Carl

 

[djstras]

Unfortunately Carl, that was not the testimony that the officer gave. He stated that he was able to visually estimate speed. Not the speed of a vehicle, but speed - period. Could be a vehicle, a plane, or a marshmallow. Also, another little nugget I got out of the transcript was that when I asked the officer if he could state within a legal degree of certainty whether his radar unit was working properly at the time of my arrest his answer was, "I can only tell you that it is working now". I guess you will now tell me that won't work because I can't determine from his testimony what the meaning of the word "is" is. Thanks, Carl, but this is Texas, NOT NORTHERN CALIFORNIA (no offense).

As for the relevance of my little experiment. Think about this line from a very famous California trial - "If the glove don't fit, you must acquit". The judge let a man try to put on a glove over another glove. I'll give you a clue. It wasn't from traffic court.

 

[djstras]

I suspect you will have difficulty convincing an appeals court that your test is either probative or relevant. If you feel otherwise, take it to appeal, and good luck to you.

Not according to the case authorities I found here in Texas. Besides I found some other stuff in that transcript that will be hard for the appellate judge to walk away from. I love reading these replies. If it ain't prosecutors sticking up for prosecutors - it's cops sticking up for cops. That's good though. This is an accurate format for how the system really works. Let's me know where I stand.

 

[dee_dub]

I love reading these replies. If it ain't prosecutors sticking up for prosecutors - it's cops sticking up for cops.

Careful - the ad hominem fallacy might not go over well in court. Nor am I a prosecutor or a cop.

What case authority have you found supporting your position?

 

[CdwJava]

Unfortunately Carl, that was not the testimony that the officer gave. He stated that he was able to visually estimate speed. Not the speed of a vehicle, but speed - period. Could be a vehicle, a plane, or a marshmallow. Also, another little nugget I got out of the transcript was that when I asked the officer if he could state within a legal degree of certainty whether his radar unit was working properly at the time of my arrest his answer was, "I can only tell you that it is working now". I guess you will now tell me that won't work because I can't determine from his testimony what the meaning of the word "is" is. Thanks, Carl, but this is Texas, NOT NORTHERN CALIFORNIA (no offense).

As for the relevance of my little experiment. Think about this line from a very famous California trial - "If the glove don't fit, you must acquit". The judge let a man try to put on a glove over another glove. I'll give you a clue. It wasn't from traffic court.

Wow! Aren't we the persnippity one. Why is that? Because I dared not to agree with your little courtroom stunt? Which, by the way is ALL it is - a stunt.

First, there had been no prior mention of your jurisdiction.

Second, the theory still applies. The officer did not have to give each and every specificity of his training and experience in his reply. To do so would make any court testimony unreasonably lengthy.

Third, if there is a reasonable belief the radar was not working and he tries to introduce evidence of the radar, then that portion of the testimony can likely be tossed on appeal. However, since part of that radar training includes visual estimation, it may not be necessary for him to have included it. Radar officers are trained (though they do not always testify to this) to make a visual estimation of speed which is confirmed by their radar - not the other way around. If he failed to testify to this, his bad.

Fourth, the OJ analogy doesn't "fit".

Last, you can argue anything you want on appeal. If you think the judge or judges (however traffic appeals are handled in TX) will find it relevant and that it was unlawfully excluded, go right ahead. It has been tried here and it has never worked, so I have no reason to believe that the judges in TX will be any more inclined to let that stunt hold weight.

Good luck on the appeal.

- Carl

 

[djstras]

Thank you, Carl, for your service here. The problem I can't seem to get thru to you is that the "stunt" like you call it is not the only error I will be appealing on. I'm not a lawyer, or even a simple policeman. But I do know that the more angles I come from, the more chance that something will stick. Sound familiar? It should. That's the way the police have been doing it since the beginning of time. And if you dispute that, well, 'nuff said.

 

[djstras]

The ad hominem thing is probably what got me convicted in the first place. I have low tolerance for substandard work. I came down hard on him in court. He was dumbfounded on almost every question I asked. I probably would have won but there were 7 other police officers present waiting for their turn at the stand, and about 25 other defendants in the court room. If the judge had found me not guilty can you imagine how demoralizing that would have been for those 7 police officers.

I found enough case authorites in The Enscyclopedic Digest of Texas Reports (Criminal Cases) to fill a semi trailer. The book is almost a hundred years old but it's amazing how some things just don't change.

 

[CdwJava]

Thank you, Carl, for your service here. The problem I can't seem to get thru to you is that the "stunt" like you call it is not the only error I will be appealing on. I'm not a lawyer, or even a simple policeman. But I do know that the more angles I come from, the more chance that something will stick. Sound familiar? It should. That's the way the police have been doing it since the beginning of time. And if you dispute that, well, 'nuff said.

Well, if you have other angles, go ahead and use them. Since you haven't really mentioned them there's no way to comment on them.

However, this dropping an object to the floor stunt has been tried and failed. If that was the "angle" you sought to use, it's a long shot. But, if all you have are "Hail Mary" passes, why not give it a go? It's your time and money, so if you feel it is worth the effort, go for it.

As for your collection of criminal reports, understand that there is a difference between a judgment and a "published" decision that becomes case law. Then, of course, there is always the problem of whether the previously controlling case is STILL controlling. Services such as Lexis-Nexis have a shepherding service you can apply to and through that you might be able to find some applicable and still relevant case law. Far too often people who try and do these things themselves tend to rely on old cases, or incomplete references - often from what they read on self-help websites.

- Carl

 

[djstras]

Well, it's not like I'm up against the world's greatest prosecutor. I don't think anyone is going to be reading all of the case reviews I put in. Furthermore, you stated that if the officer's radar wasn't wasn't working properly and they throw out that testimony, the officer then won't have anything to compare his visual with. And I'll be going over other objections the prosecutor made as well. For example, the officer's competence has been questioned and objected to. I'm not sure but I think the objections made by the prosecutor are going to have to be proved by the prosecutor, every single objection. Do you really think the prosecutor wants to mess with this? Personally, I am betting that once I show these people that I am serious about this appeal they'll drop the case like a bag of dirt. Afterall, they've got more to lose than I do, at least you could agree with me on that.

 

[CdwJava]

Well, it's not like I'm up against the world's greatest prosecutor. I don't think anyone is going to be reading all of the case reviews I put in.

But the judge may well know if what you are citing is relevant. And since this is an appeal situation and not a new trial, apparently, then you won't be facing a prosecutor toe to toe. You will forward your appeal and the grounds for the appeal to the appropriate court, make an argument if you can, and the state will make its argument. The judges will have time to make considered decisions and to check on the status of any case law you cite in your appeal.

Furthermore, you stated that if the officer's radar wasn't wasn't working properly and they throw out that testimony, the officer then won't have anything to compare his visual with.

He wouldn't need anything to compare it with if he adequately set a foundation for his training and experience or if the judge believed he had the requisite training and experience.

Heck, I don't have radar certification and I have had the courts allow me to assert speed based upon articulable experience. Whether the Appeals court will decide that the lack of foundation of either experience or a functioning radar will be sufficient to toss the speed estimation will be sufficient, who knows? It might be ... it might not be.

And I'll be going over other objections the prosecutor made as well. For example, the officer's competence has been questioned and objected to.

That depends on the question of "competence" that was asked. If it was not relevant to the determination of speed or to any elements testified to, it may truly be irrelevant and outside the scope of cross examination.

I'm not sure but I think the objections made by the prosecutor are going to have to be proved by the prosecutor, every single objection.

They do no have to address each objection on appeal ... well, Texas can be peculiar, so maybe he will have to. I'd be surprised if that was the case, but, maybe.

Do you really think the prosecutor wants to mess with this?

Why not? It's merely the filing of paperwork to the Appellate division. NOT pursuing it on appeal gives a green light to anyone who disagrees with the decision of the court and says, "Appeal and you're home free." They might decide it's not worth the time and effort, but I would be surprised if they did not follow it up.

Personally, I am betting that once I show these people that I am serious about this appeal they'll drop the case like a bag of dirt. Afterall, they've got more to lose than I do, at least you could agree with me on that.

I don't see how they have more to lose than you do. What do they lose? If you prevail you either get the sentence thrown out and the chance for a retrial, or a dismissal (or whatever the appellate court there can do). I don't see that they have anything to lose. This is a run of the mill speeding case with the defendant challenging the issue of speed - those happen every day. Unless this particular officer is a buffoon and the local DA doesn't want to rely on anything he says or does, or doesn't want to risk some big stink about his actions that day, they have no reason not to follow it up the chain.

- Carl

 

[djstras]

Well, I appreciate your attention to detail, Carl. That's something that I argued the police officer that stopped me lacked. For example, on the ticket, the officer made an error and scratched it out completely beyond recognition. I questioned him about that and he testified that he thought it was more prudent to scratch out a written error completely than just drawing a single line thru it. Next, on the time, he wrote down 910. Just like that. Didn't bother to check the AM or PM box. Claimed it was military time. I said that I served in the Navy and that's not how we wrote down the time, what branch did you serve I asked. He said none. 910 should be 0910 if you want to use military time. Finally, I asked him why he drew a line thru the block where the color of the vehicle goes. He said he didn't remember. GMAFB. This guy is a joke. He's a disgrace to the uniform. Seems to me that one of the most important duties of the police officer is his attention to detail. It's an important job, not to be taken lightly which apparently is the case with this officer. Of course all that was objected to - but it's the TRUTH and the officer knows it, the prosecutor knows it, and the judge knows it. And you can't tell me, as a supervisor, that you would condone this kind of work from one of your officers. I once got a ticket in New Mexico by the State Police. They are some of the most professional officers I have ever come across. This officer was rude to me, made hand gestures and yelled at me without being provoked. I guess he forgot that his camera in his car was rolling. When I got home I called his supervisor and asked him to review the tape when the officer came in. He did, and I got a call back next day telling me to tear up that ticket. Bottom line - when you make a mistake - admit it and move on. Don't try to get someone else to pay for it. And NEVER COVER IT UP. That's the crux of my case.

I do appreciate your time, Carl. Don't think I am trying to one up you. You made me think.

 

[djstras]

QUOTE FROM CARL: "He wouldn't need anything to compare it with if he adequately set a foundation for his training and experience or if the judge believed he had the requisite training and experience."

Stated he had 15 years experience. That's it. That doesn't sound like much of a foundation to me. Sounds more like BS.

Dave