My situation was “simple”. Clocked doing 81 mph in a 65, on I-90 west of exit two in Massachusetts, mile marker 8 or so, in violation of 730 CMR 7.08(6)(c), on March 20, 1999.
I elected to go contest the ticket, primarily because I felt I was innocent and it goes against my grain (read stubborn and thickheaded) to plead guilty to something I did not do. I sent it in almost immediately and received a court date for May 5, 1999. I did some research of the statute, and quickly found the “no fix” section (Chapter 90C: Section 2) of the Massachusetts General Laws which basically states the officer is supposed to have the violator sign the citation and a few other requirements or the violator has grounds for defense (read must be found not responsible).
So, on May 5, 1999, I went up and my case was called in front of the Court Magistrate. We were sworn in. A general officer read a statement (“my” officer did not show – and does not need to show according to a precedent I came across) prepared by the officer who issued the citation. Then it was my turn. I stated I felt there were circumstances that lead to an error with regard to the radar speed measurement device or the assignment of the speed measured by the device to my vehicle, and that while it would be difficult for me to prove this I should be found not responsible anyway, because the citation was out of compliance with MGL 90C section 2.
The Magistrate offered a reduction in charges, basically a citation for 66mph. (Read – $50 fine, still two points on your record, we cover our costs, you cut your losses) I said, I guess I’ll have to come back, I feel I am innocent of these charges. So, he then renders his judgment – I find for the defendant, does the prosecution want a de Novo trial? Prosecuting officer for the Commonwealth: we do. Trial scheduled for May 17th. I leave thinking, I won the first round, but they are bleeding income out of me.
I went back feeling pretty bummed. Stopped at a Law school library on the way home. I went to a campus library and found out everything about how radar generally works. Specifically, that there are many ways it can misread speeds. And I FedExed a public records request on the 7th to the Trooper barracks for information to prove my case:
Under the Massachusetts General Law Chapter 66: Section 10 (Public Inspection and Copies of Records), I am requesting information necessary to contest a citation written by Officer XXXXX on March 20, 1999, within the jurisdiction of the SOUTH BERKSHIRE DISTRICT COURT. The citation number is XXXXX, and was for violating 730 CMR 7.08(6)(c). I believe there was an error within the RADAR device used to measure my speed, or interference from outside of the machine, which caused it to either (1) incorrectly measure, or (2) attribute someone else's, speed to the vehicle described in the citation. In order to investigate this I am requesting the following records: Training records pertaining to Officer XXXXX certification and continuing education relating to traffic speed enforcement Documentation of Officer XXXXX training on the device used to measure my speed, prior to the issuance of citation XXXXX. Officer XXXXX daily log for the day of March 20, 1999. Officer XXXXX RADAR log for the day of March 20, 1999. The name, model, and serial number of the speed measurement device used to ascertain the speed of the vehicle described in citation XXXXX. The maintenance and certification records of the speed measurement device used to ascertain the speed of the vehicle described in citation XXXXX. The serial number of the tuning forks used to calibrate the speed measurement device to ascertain the speed of the vehicle described in citation XXXXX. The certification and test results of the tuning forks used to calibrate the speed measurement device used to ascertain the speed of the vehicle described in citation XXXXX. A copy of the FCC license that allows the agency to operate the RADAR lawfully on the frequency or range of frequencies used to ascertain the speed of the vehicle described in citation XXXXX. A reproduction of both sides of Officer XXXXX copy of citation XXXXX. I am requesting that the records be sent to me at the following address: XXXXX Signed:_______________________________________ Date______________
Of course they did not act on my request, never mind the law states that records requested by a defendant should be considered public, unless the prosecution proves they fall outside the public domain, etc.
I arrive at District Court on the 17th. I’ve done leg work for two independent arguments. First, I have a plausible scenario how the officer could be in error and I know how the machine can be influenced even given proper calibration and usage. Second, the law supports dismissal based on the flaws in the citation itself. Adding the public records request pulls in many more issues and stacks multiple precedents in my favor. After dispensing with the more serious charges, the speeders are brought up to face the judge. The officer who wrote the citation is there. He and I are standing elbow to elbow, sworn in and just stand there during the entire process. Unnerving as all hell. Anyway, the judge is surprised the prosecution requested the de Novo trial, and not me. The officer gives the same statement, adding in he calibrated the RADAR before and after his (my) reading and that he is trained. The judge asked me if I had anything to add. So, I gave the standard the Radar measurement could’ve been affected by many things unknown to the officer, to give a higher than accurate speed. I stated that the other cars had slowed down to ~50 mph, while I continued at 65mph. This would make me look like I was traveling at 30% faster than traffic. If he thought traffic was still going at 65mph that would place me at 84-85mph, confirming the radar measurement. The judge understood and agreed.
I then said I initiated a public records request to look for any obvious problems with the radar, but it was unanswered by the trooper. The judge asked me if I knew the legal turn around time for the request. I stated I wasn’t a lawyer, but I did request it as soon as it became apparent (in the hearing) the commonwealth wasn’t satisfied of my innocence. The officer produces a copy of the request and gives it to the bailiff, to show the judge. He states he was under the impression he didn’t have to comply with anything short of a court order. The judge looks it over and says while trying to gather evidence is laudable it doesn’t prove innocence. He also said the only thing actually subject to the request was the FCC license. And that many of the records were not actually in existence – citation books, radar log, etc…. (which is odd because the law states they are to be kept, but this never came into play). He offered to permit discovery of those records which were available, but I would have to come back to argue the case yet again. I stated I would come back if necessary. The judge asked me if I had anything else. I stated yes, there were also flaws with my citation. I didn’t and wasn’t requested to sign it. It isn’t indicated how it was served to me. The violation itself was truncated. At this the judge flipped immediately to the section of law. Read the section which states both he and I have to sign it and it should be certified given in hand to violator (if this was the case – and it was). Judge: Did you ask the defendant to sign it? Officer: No. Officers prerogative/safety. Judge: I find the defendant not responsible. Me: Is that it? Judge: They are issuing a receipt. (Basically a court record of no fine, not responsible judgment, have a nice day) (OK I added the last part.) And I hadn’t even begun a questioning of the officer!
They didn’t seem to know all the specific laws involved. There were many legal aspects given their non-response to my public records request, but there was a complete lack of concern on their part. (Well, the officers hand was a little shaky handing it over, but they have a really tough schedule in terms of hours and rotations – coupled with all the coffee and doughnuts…)
Well, Ivan, thanks for all the help, I know this was long winded, but I hope some of it will be useful to somebody.
– xxx