The Follow-Up Hearing

With no more correspondence from the DA's intern since the September 6th delivery of the training records, the Tuesday of my hearing came about. Once again, after my July 25th hearing, I put on a pressed white shirt and my favorite tie, and showed up early for my 1:30 appearance. At least this time Mr. Cho, the law-student intern representing the District Attorney's office, didn't make the same mistake Mr. Martinelli had on July 25th, thinking it was a trial.

Once again, the Commissioner prioritized the cases, and once again mine was the last. It must have been a fairly mundane calendar, because I don't even clearly recall what the other cases were about - just a few "shyster attorneys," in the words of an attorney friend of mine, plugging their individual cases along in the system.

When I came up, the Commissioner fairly efficiently went through each of the items I had requested in my motion for discovery and got a status of each of them and disposed of each one in turn.

Number 2 and 3, the request for the training manual and the officer's daily log, were withdrawn. Mr. Cho stated, "as a sworn officer of the court," that he had been told by the Police Department that its officers do not keep daily logs. despite what came to me as part of Officer Jackson's training records. Not thinking quickly enough on my feet, I didn't whip out the "TEU DAILY ACTIVITY SHEET" page I had received a few days earlier.

As for the request for training manuals, it was rather puzzling - the Commissioner seemed to think that this would require the department to produce all the training manuals ever written since RADAR was put into use decades ago.  Unfortunately I wasn't quick enough on my feet to point out that the only manual being requested was the one used to train this radar operator, not every radar operator for the last 50 years. The intimidation factor was working in the prosecution's favor once more. And again, it was asserted that such a training manual is not available from the police department regardless of which one I was requesting, so I withdrew my request for that item. If it doesn't exist, it can't be discovered, right?

No matter.  We then moved on to the next page of unresolved items:

The request for the FCC license was ruled moot because of the pages given to me by Mr. Cho right during the hearing - proving false the closing statement on the previous letter saying that the training records were the last of the evidence to be produced - shown highlighted below.  The pages - faxed at 3:00pm the previous day from the City of San Jose radio shop, copies of Title 47, Chapter I, Subchapter D, Part 90, Subpart I, Sections 90.201 through 90.203 of the Code of Federal Regulations - indicate in their highlighted portions that:

... transmitters used in radiolocation stations in accordance with Subpart F authorized prior to January 1, 1974, for public safety and land transportation applications (old Parts 89 and 93)

A licensee of a radio station in this service may operate radio units for the purpose of determining distance, direction, speed, or position by means of a radiolocation device on any frequency available for radiolocation purposes without specific authorization from the Commission, provided type accepted equipment or equipment authorized pursuant to Section 90.203(b)(4) and (5) is used and all other rule requirements are satisfied.

Now, if I'd had some time to think about this material more carefully, I might have noticed that the transmitter used in the Vindicator VH1 RADAR gun was certainly not even built before January 1, 1974, let alone "authorized," so the "type acceptance" exemption doesn't apply to it. Essentially, they had not fully made the case that their particular gun is exempt from licensing, because they didn't show it was type accepted or authorized under 90.203(b)(4) and (5), and that "all other rule requirements are satisfied."

The CVC sections noted for number 10 - Vehicle Code Sections 627, 22351, and 41100 -  were indicated by Commissioner Heath as the proper source to reference for the answer to the question of how "safe speed" is established for a road. Of course, none of these sections specifically mention the term "safe speed" which is used on the face of the citation, but perhaps the presumption is that the speed limit sign shows the maximum safe speed while the "safe speed" on the citation is for situations where the maximum safe speed would be lower than that, such as in snow or rain.

And finally, saving the best for last, was the response here:

Mr. Cho had been told by the San Jose Police that the manufacturer's operator manual was not available because it was copyright, and that I would have to subpoena it. The "agreed to by stip" meant that they stipulated (legalese for "agreed" - "agreed by agreement") to providing it once a subpoena was entered. As you'll see in the next several pages, it was anything but that simple.

So, having covered all the items requested for discovery, and with me heading to the clerk's office to get a subpoena, Mr. Cho approached me and gave me Officer Schneider's phone number, noted above, and suggested that I try contacting him to see if I could at least go in to the department and look at the manual, if not copy it, before filing a subpoena. Gabriel was making an honest effort to make things go smoothly and save me some trouble, and I certainly appreciated it.

And last but not least, I got the this form showing the outcome of this hearing and the November 7th date of the trial.  "All items satisfied except item 8," it notes at the bottom. The trial date was originally going to be scheduled on November 14th, but since Commissioner Heath was going to be on vacation over Thanksgiving, I agreed to an earlier date since I wanted the continuity of having this entire matter handled by the same judge, and of course, I wanted his particular interpretation of Section 40802(b) that he expressed on July 25.  The "Time Waived" checkbox in the second section of this form indicates that I waived my right to a speedy trial, defined by law as at most 30 days later.

I went back to work and promptly called Officer Schneider and left a message for him. Because I was waiting for the resolution of that call, I didn't file my subpoena until a week later on September 19th. And indeed, after a couple of days, Officer Schneider left a message at my home phone number indicating, in essence, that he had no idea why I thought I could copy this manual, that it was copyright, and if you want it you'll need to file a subpoena.

In fact, he sounded rather annoyed. I can understand that, though - if I were part of an organization that was used to reaping hundreds of thousands of dollars a year in speeding ticket revenue without having to lift a finger except to cash the checks, I would be rather annoyed at being forced by a law-student intern of the DA's office into rummaging through musty old basement filing cabinets to dig up four-year-old training records and RADAR calibration certificates.

When I called him back to clear up the questions he had, and to tell him that Mr. Cho had suggested I call him, he asked the immortal question - "why are you doing this for a lousy $150 speeding ticket?  You must have a lot of free time on your hands."  Too bad I didn't have the quote featured at the bottom of the main page handy. Later on, a friend suggested another response to that question, such as, "So, Officer Schneider, would you like to take up a collection there at the PD in order to pay the $150 plus insurance increase for me?"

How easy it is for those writing the citations to say that we should give up our right to due process and our day in court, and voluntarily draw even one single step closer to having our drivers' license revoked!

He wanted me to serve a subpoena, so that's what I did. I wonder if he doubted that I'd actually have the nerve to do it?