BASIC PACE DEFENSE

 

This is where the sneaky officer snuck up behind you and followed you to determine your speed by pacing you and then noting the speed on his speedometer.

 

When your name is called hand over the following case laws plus appropriate case law from your sate.

If your State has appropriate case law: "Your honor, here is some appropriate case law for your consideration along with relevant case law from sister states." Hand him BOECKER plus your State case Laws.

If your State has no appropriate case law: "Your Honor, here is some appropriate case law from sister States. Unfortunately our State has no pertinent case law and as such the wisdom of High court Judges from Sister States should be considered." Hand him BOECKER

(remember you should have three copies. One for the Judge, another for the prosecutor and one for yourself)

 

 

Allow the Officer to testify: There is nothing to pay attention to during his testimony except for mention of the speed limit in to location where you were allegedly speeding.

 

The items that the prosecution must prove:

  • The speed limit where the offence took place

    Allow the officer to give his testimony and take notes as to anything he omitted from the items he must prove. The following is the another shot across the bow. You are asking for a directed verdict. A directed verdict can only be asked for after the prosecution has finished it's case in chief. The verdict can only be not guilty. The Judges other option is to deny the motion and the trial will continue.  You have a small chance that the Judge will grant the motion and the trial ends. Always ask for the directed verdict at this time if any of the above was not properly addressed. Remember you can ask, and keep asking for a directed verdict for every item listed below. You may ask several times provided each request is based on a different set of facts omitted in testimony. A Directed Verdict is seldom granted when there is no Jury. It is designed more for a Jury trial then a trial by a Judge. Don't be alarmed if the Judge tells you this. With each motion you are shaking the foundation of the prosecutions case and drawing attention to the weakness of the foundation of the prosecutions proof.

  • He did not testify as to the speed limit: Motion for dismissal: "Your honor, the prosecution has rested. The officer did not testify as to the speed limit in the location where the alleged infraction took place. I move for a directed verdict as the prosecution has failed to prove what the speed limit was. (a directed verdict is asked for after the prosecution rests. In a speeding trial the prosecution rests after the officers testimony. Once it has rested it may no longer introduce new evidence except to contradict items that may be brought up in cross examination. If the officer failed to mention the speed limit in the location where the infraction took place and the prosecution has rested, the Judge has no choice but to dismiss the case - But only if you ask for it.)

    The Prosecution or Judge in a trial where there is no prosecutor my make objection or try to ask the question that was missed. If the prosecutor or Judge starts to ask the missed question immediately object:

    Prosecutor objects or asks a question: " Your Honor, I object, the prosecutor may not open the prosecutions case in chef again even if a mistake was made and required testimony was not solicited. The prosecution has rested and must sit with the evidence it presented."

    Judge starts to ask questions: "Your Honor, I object. First the people went ahead without a prosecutor. Second I object to you acting as prosecutor."

    If the prosecutor makes an objection: "Your Honor, the people have rested. The prosecutor has no standing in making an objection to a motion requesting a directed judgment."

    The Judge makes an objection: He won't but if he does. "Your honor are you now taking the roll of prosecutor and objecting for the people on a motion you have been asked to rule upon? If so, I object and motion that you recuse yourself because you have taken a biased position acting on behalf of the prosecution."

     

     

    If the Judge does not rule in your favor:

    Now it is your turn to cross examine the witness. You should have read CROSS EXAMINATION

    1. Ask him any questions you have regarding any of his testimony that you might want clarification to: Since the list here could be endless and totally dependent on your specific trial I make no attempt to give suggestions.

    2. If you are combining your defense with the Tipmra advanced CFR strategy then ask: (note: if you did not Subpoena the material ask it anyway but leave out the part about the subpoena)

  • "Officer, please present to the court the traffic engineering speed survey as subpoenaed and required by 23 CFR 630 and MUTCD Title 23 V.S.A.. showing that the speed survey is less then five years old and that the speed posted was in compliance. (Colorado hand in COLORADO For California hand in appropriate case laws and Statutes from California Case Law section) Bring  CFR_CASE1        CFR_CASE2   CFR_THE_RULES

  • Now hand a copy of CFR_case1 and CFR_case2 to both the Judge and Prosecutor. "Your Honor, without this Engineering Survey any speed posted is arbitrary and unenforceable. The officer issued the citation Under the color of federal law by Statute irregardless if the ordinance is Local, or State. Federal Law takes precedence and no community which takes or has taken Federal Highway funds may enforce a speeding violation unless it is in compliance with Federal Law, in specific  23 CFR 630 and MUTCD Title 23. These two case laws from Michigan and Nebraska clarify this with adequate reference to the Federal law as it applies and other States that have examined and made determinations as to the law." (note: in California this is mandatory by State Statute as well - See appropriate California Case laws, and hand these to the Judge and prosecutor as well)

  • If he does not have the Traffic Engineering Survey: "Your honor, Federal Law which preempts State Local and Municipal Law on the nations highways and roads specifically forbids enforcement Under the color of federal law any speed that is arbitrary. Any posted speed not accompanied by a Traffic Engineering Survey that is less then five years old is by definition and Federal Law an arbitrary speed. Defendant motions for dismissal."

  • If the Judge or Prosecutor says something to the effect that this is not a Federal Road or that the officer is enforcing local laws and not federal laws or anything to that effect then say: "Your Honor, when this State took one cent of Federal Highway funds it agreed in writing to give sovereignty  of the roads to the Federal Government. Every municipality that has taken one cent of State money by agreement in return for this money has subrogated itself to the Federal Government. The only legal authority for speed enforcement is under the color of Federal Law even in the enforcement of local speed ordinances. The prosecution has two choices under 23 CFR and MUTCD Title 23; Produce the engineering survey or produce documentation that this State, Township or Municipality has never received one cent of  State or Federal Highway or road funds."

    You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. Handling OBJECTIONS TO CFR

     

    The purpose of the placement of this defense here is to throw the prosecution a curveball, possibly end the case right here and at worst you have seriously disrupted the prosecutions plan for an easy victory.


    Going after the calibration of the speedometer

  • "Officer, has the vehicle you used ever been in an accident?"

  • "Officer were the tires on the car on the day of my arrest the same kind and size as those when the speedometer was last calibrated and certified?"

  • "Officer please present to the court the most recent speedometer certification issued by a facility authorized to such certification and calibration?"

    You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. OBJECTIONS TO Speedometer Certification

    If he does not have the certification: "Your Honor, Defendant at the beginning of this trial presented ample case law showing that a speedometer calibration and certification is essential as to foundation to the accuracy of the device used. Without this certification no legal certainty exists as to the accuracy of the speed as noted by the arresting officer. Furthermore the case laws clearly state that in the absence of such certification that the case must be dismissed. Defendant motions for dismissal as the prosecution can not prove to a legal degree of certainty the accuracy of the device used."

    If he has the certification:

  • "Officer, since this certification has this car ever been in an accident" If he does not know or says yes then: "Your Honor a accident invalidates any certification because we have no knowledge as to what effect the accident had upon the speedometer. Defendant at the beginning of this trial presented ample case law showing that a speedometer calibration and certification is essential as to foundation to the accuracy of the device used. Without this certification no legal certainty exists as to the accuracy of the speed as noted by the arresting officer. Furthermore the case laws clearly state that in the absence of such certification that the case must be dismissed. Any accident invalidates any prior certification. Defendant motions for dismissal as the prosecution can not prove to a legal degree of certainty the accuracy of the device used."

  • "officer, were the tires on the car on the date of my arrest of the same size, make and type as those when the speedometer was last certified?" If he does not know or says yes then: "Your Honor a difference is size, make and type invalidates any certification because we have no knowledge as to what effect the tires had upon calibration of the speedometer. Defendant at the beginning of this trial presented ample case law showing that a speedometer calibration and certification is essential as to foundation to the accuracy of the device used. Without this certification no legal certainty exists as to the accuracy of the speed as noted by the arresting officer. Furthermore the case laws clearly state that in the absence of such certification that the case must be dismissed. A difference in tires invalidates any prior certification. Defendant motions for dismissal as the prosecution can not prove to a legal degree of certainty the accuracy of the device used.

    You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. OBJECTIONS

    If by a fluke of chance he has the material use the VERIFICATION DEFENSE

     

     

    If at this point you have failed to have the case dismissed it is time to rest your case and go on to closing arguments.  " Your honor, the defense rests and is prepared for closing arguments"   See CLOSING ARGUMENTS

    Suggested Reading


    CLOSING ARGUMENTS    CROSS EXAMINATION    MOTIONS    HANDLING OBJECTIONS