OHTA.ca

Hi all...I'm hoping I can get some clarification on a couple of questions I haven't been able to research myself.

In September I got a ticket for going 79 in a 50 zone at a speed trap.

I still need to request disclosure as I was waiting for my notice of trial which came in December and I was busy with the holidays in December so I'm just getting to it now - I'll send it tomorrow and court date is in February although I need to get the date moved because I'm sure the officer will attend (he was pulling over 3-4 people every 5 minutes so probably issued a lot of tickets that are all scheduled for this day). Based on some comments he made though, I very much doubt he will attend a rescheduled trial if I'm the only one. Also, he's a local cop in a scuzzy city with real crime, not an OPP officer, and I was pulled over during a back to school blitz (not near a school though! which the officer himself said) so I don't think speed enforcement is what he usually does/cares about.

Anyway, I'm still going to prepare on the off chance he does show up to a rescheduled trial. I have two questions though as I start preparing my defense.

First, context. The officer who was using the RADAR/LIDAR (not sure which) was the one who approached me when I pulled over and the one who handed me my ticket. There were three police vehicles parked on the side street by where they were doing the enforcement. One was a completely unmarked vehicle, but parked the wrong way at the VERY end of the street (visible from the top of the hill I was coming over). This vehicle was empty. There were two other cruisers who each had at least one officer in them (in the driver's seats). There might have been passengers too but I couldn't see from where I was. So at least three officers were working the trap. The officer who was using the RADAR took my license/registration/insurance to one of the other officers, spoke a moment, then went back to pulling people over. I counted 4 warnings given to other drivers in the 5-8 minutes I was waiting before the officer went back to the cruiser, received the ticket, and brought it to me. He explained it was reduced to 65 because I have a clean record and made some other comments about how they're just trying to get people to slow down because it's back to school and he doesn't want to penalize people etc. The ticket is entirely typed, even the signature is typed. It was certainly written by one of the other officers. Also, after the officer and I concluded our little chat I was able to pull forward, do a very precise by the book 3-point turn, and turn back onto the original street I'd been traveling within 30 seconds. I had to do a wide right turn because the officer was already back on the street, radar at eye level, and waiting for cars to show up over the hill.

So the first question I have about this is, it's clear that any notes that were written weren't written by the officer who gave me the ticket and used the RADAR - they must have been written by one of the other officers. Provided the officer admits this/it gets proven in a trial, what effect would this have on the validity of the officer's testimony? If he's testifying based on notes written by another officer, and that officer wrote the notes based on what the first officer originally told him, does that count as hearsay? Is there any other way I can use this? Is this a tack I should pursue?

The second question is, I know that it is always helpful to the officer's case if they establish that they visually identified a speeder, before they start pacing or using a speed measuring device. But is it required for them to do so? There is absolutely no way the officer was visually identifying the speeders before using the RADAR - he was just using the RADAR on every car as it crested the hill. In my case, he was walking out into the middle of the street and flagging me down before I was even heading downhill (so under a second from when he could have seen me) and like I said, he was holding the RADAR at eye level pointed at the top of the hill when I was leaving, too. Is this something I can use?

One last bonus question. It's not a fatal error, but on the ticket beside my birthday there are three checkboxes. Motor vehicle involved (N), Collision involved (Y), and Witnesses (Y). The Collision involved box is checked (and the other two are blank). There was no collision. I presume the witnesses box was supposed to be checked. There weren't because the other officers in the cruisers weren't visible from the top of the hill, but that's not really relevant unless they want to testify. But even though it's not fatal, can this mistake be leveraged during the trial, either to cast doubt or to add weight to my claims that a different officer wrote the ticket/notes?

Malcolm87 wrote:Also, he's a local cop in a scuzzy city with real crime, not an OPP officer, and I was pulled over during a back to school blitz (not near a school though! which the officer himself said) so I don't think speed enforcement is what he usually does/cares about.

They get paid to show up. It's an ordinary work day and they don't get to choose to simply not show up. I'd just expect them to show up and go from there.

Malcolm87 wrote:So the first question I have about this is, it's clear that any notes that were written weren't written by the officer who gave me the ticket and used the RADAR - they must have been written by one of the other officers. Provided the officer admits this/it gets proven in a trial, what effect would this have on the validity of the officer's testimony?

None. If there are two or more officers involved, they'll both show up. I'd wait for the disclosure first though before making any assumptions.

Malcolm87 wrote:The second question is, I know that it is always helpful to the officer's case if they establish that they visually identified a speeder, before they start pacing or using a speed measuring device. But is it required for them to do so? There is absolutely no way the officer was visually identifying the speeders before using the RADAR - he was just using the RADAR on every car as it crested the hill. In my case, he was walking out into the middle of the street and flagging me down before I was even heading downhill (so under a second from when he could have seen me) and like I said, he was holding the RADAR at eye level pointed at the top of the hill when I was leaving, too. Is this something I can use?

If you're asking whether or not they have to somehow estimate speed by, lets say, using some kind of markers (eg. light posts) to determine your speed prior to using a radar device, then the answer would be no.

Malcolm87 wrote:One last bonus question. It's not a fatal error, but on the ticket beside my birthday there are three checkboxes. Motor vehicle involved (N), Collision involved (Y), and Witnesses (Y). The Collision involved box is checked (and the other two are blank). There was no collision. I presume the witnesses box was supposed to be checked. There weren't because the other officers in the cruisers weren't visible from the top of the hill, but that's not really relevant unless they want to testify. But even though it's not fatal, can this mistake be leveraged during the trial, either to cast doubt or to add weight to my claims that a different officer wrote the ticket/notes?

It's not a fatal error. Sure, if you'd like to squeeze the mistake into your trial to prove some kind of point, you're free to do so. In my opinion, it's probably not relevant enough to even bother mentioning.

When you request disclosure make sure you ask for:

-Notes of all officers involved.

-Make, model and serial number of speed measuring device used.

-A copy of the entire manual for this speed measuring device. I require the full manual in order to properly prepare and cross-examine the officer on their knowledge, understanding, training and use of the device, as well as all other information about the device, including (but not limited to) installation, display unit, remote control, communication systems, operatiing the unit, modes and settings, performance, how radar works, interference, testing, care, cleaning, storage, specifications, legal requirements, and all other sections of the manual.

If two officers are involved then they must both show up at court. However the officer that used radar/laser needs to testify of speed and the officer that gave you the ticket needs to testify to your identity and service of ticket, but in this case this is all the same officer. If you only gets noted from one officer and only this one officer shows up (call him Officer A), the issue you might be able to go after on cross-examination is how the other officer (call him Officer B) in the car was able to electronically sign the ticket with Officer A's name on it. If the ticket has Officer's B name on it, then the issue you have is that Officer B must also be there but Officer B did not serve the ticket on you but instead gave it to Officer A (improper service). And of course the issue with notes could be in question... electronic notes are acceptable but if Officer B was logged into terminal under Officer A's name then that is definitley an issue. But anyways you won't know all this until you get disclosure.

If the manual for the radar/laser says they have to "visually estimate speed" before activating it, then yes this is something you can use. However it is not a requirement and was removed from some manuals a while ago, so probably not something you can use. You could question officer on training first though and ask if estimating speed was something he was trained to do, and then go down the road of getting him to admit he did not do it so therefore he was not using device properly as he was trained to do.

What the officer puts in those checkboxes on the tickey is pretty much irrelevent and is not a fatal error and this won't help you at all.

Did you check that the charge is correct (65 in a 50 and section 128 of HTA)?

Did you check that the set fine and total paybale are correct?

They don't have to visually estimate the speed, that has been gone for quite a while. The officer must be able to say the vehicle appeared to be traveling at a rate of speed which was higher than the posted speed limit (if actually posted), or just higher than the speed limit if not posted. You can ask for the whole manual in disclosure but you won't get it. You will only get the testing procedures. You will be able to attend the police office to read the whole manual if you wish, but they will not photocopy it entirely.

To clarify, I don't believe it was possible for the officer to have been establishing that vehicles were speeding prior to clocking them. He was radar'ing everyone as soon as they were visible coming over the hill (which was pretty steep).

Jsherk, can you clarify/elaborate on what the electronic terminal is/how it works/whay are the rules surrounding it? Or what is the technical name of it and I can try to search it myself. Thanks.

PS. I requested many sections of the manual and attached a second page with rationale for why each section is necessary. When not provided I will ask for a stay based on improper disclosure. If declined I will ask for an adjournment pending a FOI for the whole manual.

Most police have some kind of "computer" in their car. If they are issuing an electronic ticket then my understanding is that there would be some kind of printer attached to this computer in their vehicle. I do not know anything more really than that.

With regards to notes, the courts have allowed electronic signatures on electronic tickets and have also allowed electronic notes recorded along with those tickets. My understanding (I am not 100% clear how this all works) would be that the officer would have to log in to the terminal and then those notes are recorded under his name and the ticket is signed by his name.

Can one officer log in and then print a ticket with another officers name on it? I do not know.

I have never dealt with an electronic ticket myself so I am only sharing what I have read and how I think it works.

You're still going under a lot of assumptions without disclosure. The fact that the officer had the radar/lidar pointed at traffic doesn't mean the device was on. If it was Lidar, the officer may have been using the optical sight to view the vehicles prior to activating it.

Agreed...courts have accepted an experienced officers abiltiy to quickly determine if a motor vehicle was speeding, even if they just popped up over a hill...That optical sight has 8X magnification