Motion to dismiss radar ticket in Wisconsin Pethtigo

Free Web Hosting Provider - Web Hosting - E-commerce - High Speed Internet - Free Web Page

I, the defendant, hereby request a dismissal of my case, on grounds of lack of discovery and denial of due process. On 12/22/03 I appeared in Marinette County Traffic Court and reiterated a request for certain items of evidence in my case. This request for discovery had previously been denied to me under statute 345.421, which states that I may request to inspect the radar device which was used on me in my traffic case. However, it was ruled on 12/22/03 that I was not entitled to discovery of the officer's reports as to the use and testing of this device (or any of the maintenence records, etc.) pertaining to the device. However, upon closer reading of the statute, I believe that I am entitled to these materials, as specified in subsection 804.09, which is referred to in section 345.421. (See statutes listed below.) I have also outlined a number of cases which support this interpretation.

This motion is in regards to my traffic case. On 11/12/03 at 9:23 am, I recieved a traffic citation from Officer Les Perance in Marinette County. On 11/19/03 I filed a motion for discovery in this case. On 12/22/03 this motion was denied by the court in a hearing at the Marinette County Courthouse. I did not enter a plea at that time, but requested a continuance, which was granted. A new hearing was scheduled for Monday, January 26 at 1:00 pm. On January 20, I requested a continuance until February 25, which was granted. On February 25, the case was continued until March 24.

I was due to appear at a hearing on Monday, January 26 at 1:00 pm. This was scheduled at my previous hearing on December 22, 2003. However, I requested a continuance until Feb. 25, which was granted. The case was continued again until March 24.

On 12/22/03 I appeared in Marinette County Traffic Court and requested a number of items in discovery for preparation of my legal defense in this matter. My request for these materials was denied on grounds that, according to statute 345.421, I am only allowed to physically inspect the radar device which was allegedly used against me in my case. Upon further legal research, however, I have learned that I am entitle to these items. (1: A copy of the certification of the radar unit used by the officer. 2: A copy of the officer's report from the citation. 3: All records of when the radar unit was last calibrated. 4: Documentation that the radar unit was tested both before and after the issuance of the citation, including an internal circuit test done by the unit itself as well as a test with tuning forks. 5: Proof that the officer is certified to operate the radar system. 6: History of maintenence and repair of the radar unit itself. 7: A copy of the operator's manuel for the radar unit in question. 8: Any and all information as to the certification and/or licensure of the individuals and equipment used to calibrate and/or certify the radar unit.)

Under Wisconsin statute 345.421, I am not only entitled to inspect the radar device that was allegedly used in my case, but I am also entitled to the officer's reports as to his testing of the device and "any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of s. 804.01 (2) and which are in the possession, custody or control of the party upon whom the request is served."

Under (State of Wisconsin v. Hanson (1978)), (State of Connecticut v. Tomanelli (1966)), (State of Minnesota v. Gerdes (1971)) (People of New York v. Perlman (1977)) and (State of Delaware v. Edwards (1980)), I am entitled to pretrial access to the officer's notes showing that, among other things, he properly or improperly calibrated the radar. Without such evidence before trial, I am unable cast doubt on the validity of the alleged radar reading. My right to "due process of law" is thus denied because I am denied the necessary information to properly defend myself and refute a necessary element of the alleged offense of speeding.

I am entitled to proof that the officer was certified to operate the radar unit.

According to State of Florida v. Allweiss (1980), the radar unit must be tested using tuning forks that are not part of the actual unit itself.

Since my motion for discovery as to these items was denied, my rights to discovery and due process were violeted. Therefore, I hereby move for dismissal of the case.

This case is hereby dismissed. Signed ___________________________ Judge. Date__________

345.421 Discovery. Neither party is entitled to pretrial discovery except that if the defendant moves within 10 days after the alleged violation and shows cause therefore, the court may order that the defendant be allowed to inspect and test under s. 804.09 and under such conditions as the court prescribes, any devices used by the plaintiff to determine whether a violation has been committed, including without limitation, devices used to determine presence of alcohol in breath or body fluid or to measure speed, and may inspect under s. 804.09 the reports of experts relating to those devices.

(1) Scope. Any party may serve on any other party a request (a) to produce and permit the party making the request, or someone acting on the party's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of s. 804.01 (2) and which are in the possession, custody or control of the party upon whom the request is served.

State of Wisconsin v. Hanson (1978). In this landmark case, the Supreme Court of Wisconsin set minimum conditions for the use of radar as evidence. Sufficient evidence to support a speeding conviction with moving radar will require testimony by a competent operating officer that:

3. The radar unit was used in an area where there was a minimum possibility of distortion;

4. The input speed of the officer's car was verified, the car's speedometer was expertly tested within a reasonable period after the citation was issued; and

5. All testing was done without the use of the radar unit's own internal calibration device.

Commonwealth of Kentucky v. Honeycutt (1966). Officer must be certified to operate radar unit.

State of Connecticut v. Tomanelli (1966). Tuning forks must be proved to be accurate to be accepted as valid tests of a radar unit. In order to establish the accuracy of the radar unit the operator must testify to the following:

1. That he made tuning fork tests before and after the defendant's speed was recorded.

2. That the tests were made by activating 40, 60 and 80 mph tuning forks and by observing that the unit responded correctly in each case.

State of Minnesota v. Gerdes (1971). The Supreme Court of Minnesota ruled that where the only means of testing the accuracy of a radar unit is an internal mechanism within the unit, and there is no other evidence of the motorist's speed other than the radar reading, the conviction cannot be sustained. The court also established the following conditions for proving the accuracy of the radar unit:

1. The officer must have adequate training and experience in the operation of the radar unit.

2. The officer must testify as to how the unit was set up and the conditions the unit was operated under.

3. It must be shown that the unit operated with a minimum possibility of distortion from external interference.

4. The unit must be tested with an external source, such as a tuning fork or an actual test run with another vehicle that has an accurately calibrated speedometer.

People of New York v. Perlman (1977). Radar unit must be tested before and after use.

State of Florida v. Allweiss (1980). Officer must provide his own tuning fork for testing the radar device: "The use of such a tuning fork furnished by the manufacturer in this court's opinion is tantamount to allowing the machine to test itself. A tuning fork furnished by the manufacturer is but an extension and part of the total speed measuring apparatus which is furnished by the manufacturer upon delivery."

State of Delaware v. Edwards (1980). Radar unit must be proven to be reliable.

I, Randall Bornemann declare the following under penalty of perjury: On March 24, 2004 I served this paper to the court during my hearing as previously scheduled. Signed _________________________.March 24, 2004.