A. Preparing for Contested Hearing:
- Notice of Appearance and Demand for Discovery.
i. The notice of appearance and demand for discovery for a traffic infraction will typically contain requests for materials and information which are not typically included in a general notice of appearance in either a criminal proceedings or other civil actions. Attached is a sample of a notice of appearance and demand for discovery for contesting a traffic infraction.
- Remember the requirement for submitting the NOA within 7 days of the demand for contested hearing!
ii. Demand for discovery must be filed no later than 14 days before the contested hearing and served on the prosecuting attorney.
iii. The prosecuting attorney must provide no later than 7 days prior to the hearing date the following:
Copy of the citing officer’s sworn statement
Copy of video or photographic evidence sought to be introduced as evidence or a link to a website where the information may be viewed
The names of nay witnesses not identified in the citing officer’s sworn statement
No other discovery shall be required-IRLJ 3.1(b)
iv. Failure by the prosecuting attorney to provide the limited mandatory discovery:
prior to 7 days before the hearing results in suppression only upon motion and showing of prejudice in presentation of defendant’s case
prior to the actual date of the hearing without reasonable excuse and explanation shall result in suppression of the portion of discovery not provided
Issuance of Subpoena
i. Witnesses may be subpoenaed by both the prosecuting attorney and violator or violator’s counsel so long as they are served no less than 7 days prior to the hearing. IRLJ 3.1(a).
ii. To secure the presence of the officer who issued the notice of infraction, the request for that officer’s appearance must be stated on a separate writing and the officer must be served a subpoena. IRLJ 3.1; IRLJ 3.3; IRLJ 2.6(a).
- Failure to provide separate written demand for officer’s presence may result in admission of written report in lieu of actual testimony from the officer. IRLJ 3.3 (c)
iii. For cases involving use of speed measuring devices (SMD), the court will consider a certificate verifying the design, construction and accuracy of the device unless:
Demand for presence of expert is submitted on separate pleading;
Demand for expert is submitted no less than 30 days prior to hearing date;
Demand served on prosecutor and court
iv. All subpoenas issued by an attorney for the violator must also be filed with the court of jurisdiction and the prosecuting attorney for the case on the same day it is sent out for service
B. Procedure at Contested Hearing:
- Prosecuting attorney or a representative must be present as required by local court rule
i.Representative must be present where attorney appears for violator or witnesses are called on behalf of violator-LIRLJ 3.3(b)(1)-DouglasCounty
ii.Representative must be present where violator is represented by counsel or has made a demand for discovery, requested the presence of a Speed Measuring Device (SMD) expert or filed motions for relief due to failure of prosecutor to perform duties required by law. LIRLJ 3.3(b)
- Rules of Evidence apply, with exceptions, to contested hearings.
i.Court may consider written report of citing officer in lieu of live testimony unless violator has secured presence of the officer as required by the relevant provisions of the IRLJ. IRLJ 3.3(c)
- The plaintiff must prove by a preponderance of evidence that the defendant committed the infraction charged in the notice of infraction. IRLJ 3.3(d)
i.The court may permit amendment of the notice of infraction at any time prior to judgment if no additional or different infractions as charged and if substantial rights of the defendant are not thereby prejudiced
ii.Where motion to amend the notice of infraction is granted the court shall grant any motion for continuance by the violator if the defendant demonstrates need for additional time
iii.The court may call witnesses and/or question witnesses on behalf of the state in the absence of a representative of the prosecutor.State v.Moreno, 147 Wn.2d 500 (2002)
iv.Where aSMDexpert has not been required to appear by the violator, the court may take judicial notice of theSMDcertificate if properly executed and on file with the court. IRLJ 6.6;City ofBellevuev. Hellenthal, 144 Wn.2d 425 (2001)