WSR 97-01-062

RULES OF COURT

STATE SUPREME COURT

[December 11, 1996]

IN THE MATTER OF THE } ORDER

ADOPTION OF THE AMEND- }

MENTS TO IRLJ 2.2; } NO. 25700-A-594

IRLJ 2.6; IRLJ 3.1; }

IRLJ 3.3; IRLJ 3.5 }

and IRLJ 6.6 }

The Washington State Bar Association having recommended the adoption of the proposed amendments to IRLJ 2.2; IRLJ 2.6; IRLJ 3.1; IRLJ 3.3; IRLJ 3.5. The District and Municipal Court Judges' Association having recommended the adoption of the proposed amendment to IRLJ 6.6, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

ordered:

(a) That the amendments at attached hereto are adopted.

(b) That the amendments will be published in the Washington Reports and will become effective September 1, 1997.

dated at Olympia, Washington this 11th day of December, 1996.

Durham, C.J.

_______________________

Dolliver, J.

________________________ ________________________

Smith, J Alexander, J.

________________________ ________________________

Guy, J. Talmadge, J.

________________________ ________________________

Johnson, J.

________________________ ________________________

(a) Unchanged.

(b) Who May Issue. A notice of infraction may be issued, upon certification that the issuer has probable cause to believe, and does believe, that a person has committed an infraction contrary to law:

(1) By an enforcement a citing officer. The infraction need not have been committed in the officer's presence, except as provided by statute;

(2) By the prosecuting authority.

(c) - (d) Unchanged.

The minor change in section (b)(1) conforms the language of this rule to the definition in rule 1.2(j).

(a) Contested Hearings.

(1) Except as provided in sections (1)(i) and (ii), upon upon receipt of a response submitted pursuant to rule 2.4 (b)(2), the court shall schedule a hearing to determine whether the defendant committed the infraction. The hearing shall be scheduled for not less than 14 days from the date the written notice of hearing is sent by the court, nor more than 90 120 days from the date of written notice of the hearing date the notice of infraction or the date a default judgment is set aside, unless otherwise agreed by the defendant in writing.

(i) If authorized by local court rule, a defendant who requests a contested hearing may first be scheduled for a prehearing conference, which shall be scheduled for not less than 14 days from the date the written notice of the hearing is sent by the court nor more than 45 days from the date of the notice of infraction or the date a default judgment is set aside, unless otherwise agreed by the defendant in writing.

(ii) The prehearing conference may be waived by the defendant in writing if the waiver is received by the court before the time set for the prehearing conference. If the prehearing conference is waived, the case will be set for contested hearing. The contested hearing shall be scheduled for not more than 90 days from the date of the prehearing conference or, if the prehearing conference is waived, from the date the waiver of the prehearing conference is received by the court.

(2) The court shall send the defendant written notice of the time, place, and date of the hearing within 14 days of the receipt of the request for a hearing. The notice of the hearing shall also include statements advising the defendant of the defendant's rights at the hearing, how the defendant may request that witnesses be subpoenaed, and that failure to appear is may be a crime for which the defendant may be arrested, and, in a traffic infraction case, the defendant's privilege to operate a motor vehicle may be suspended. If a local rule is adopted implementing sections (a)(1)(i) and (ii), the court shall advise the defendant in the notice of the defendant's right to waive the prehearing conference.

(3) Unchanged.

(b) Mitigation Hearings.

(1) Upon receipt of a response submitted pursuant to rule 2.4 (b)(3) the court shall schedule a hearing to determine whether there were mitigating circumstances surrounding the commission of the infraction. The hearing shall be scheduled for not less than 14 days from the date the written notice of hearing is sent by the court, nor more than 90 days from the date of written notice of the hearing date the notice of infraction or the date a default judgment is set aside, unless otherwise agreed by the defendant in writing.

(2) The court shall send the defendant written notice of the time, place, and date of the hearing within 14 days of the request for a hearing. The notice shall also include statements advising the defendant of the defendant's rights at the hearing and stating that failure to appear is may be a crime for which the defendant may be arrested, and, in a traffic infraction case, the defendant's privilege to operate a motor vehicle may be suspended.

(3) Unchanged.

(c) Unchanged.

(d) Objection to Hearing Date. A defendant who objects to the hearing date set by the court upon the ground that it is not within the time limits prescribed by this rule shall file with the court and serve upon the prosecuting authority a written motion for a speedy hearing date within 10 days after the notice of hearing is mailed or otherwise given to the defendant. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a hearing commenced on such a date is not within the time limits prescribed by this rule. The written notice of the hearing date shall contain a copy of IRLJ 2.6(d).

(e) Dismissal With Prejudice. An infraction not brought to hearing within the time period provided by this rule shall, upon motion, be dismissed with prejudice.

The amendment to section (a)(1) provides a different mechanism for determining when a contested hearing must take place. The committee agreed that 14 days from the date written notice of hearing is sent by the court is a reasonable minimum amount of time. Regarding outside limits, however, the committee believed that the time should begin running from the date the notice of infraction was issued. This is a clearer standard than the more vague "date of written notice of the hearing date," which can affect the date of hearing if the court is late in sending out the notice.

The committee expanded the outside time limit 90 to 120 days in recognition of increased caseloads and the earlier starting time (issuance of the notice of infraction rather than sending of the notice of hearing) for the period to run. Any prejudice to a defendant is offset by the proposal to allow dismissal with prejudice, on motion, if time limits are violated. See proposed new sections (d) and (e).

Finally, the committee determined that this "time for hearing" rule should also apply if a default judgment (see rule 3.2) has been set aside.

Proposed new subsections (1)(i) and (ii) authorize, by option of the local court, a "prehearing conference." This is in effect a settlement conference. Often, defendants request a contested hearing when what they really want is a chance to explain their side of the story, though they may not understand that they should have requested a mitigation hearing. Some courts, particularly those with heavy caseloads, already schedule waivable conferences by local court rule. An exit poll taken in 1993 by the Seattle Municipal Court indicated that a large majority of defendants prefer the conference approach; most defendants who appear are satisfied with a reduction in the monetary penalty in lieu of a contested hearing. This proposal clearly establishes the authority of a local court to provide for the settlement or "prehearing" conference option.

The amendments to section (a)(2) have a threefold purpose. First, the committee believed that it was more accurate to say that failure to appear "may be" a crime. Second, state law provides for the suspension of driving privileges if a defendant fails to respond to a notice of infraction, RCW 46.20.289, and the committee believed the defendant should be so warned. Finally, if a local rule allowing a prehearing conference is adopted, the defendant is to advised of the right to waive that conference.

Sections (b)(1) and (2) are amended to conform to the changes proposed to section (a), except that the 90 day outside time limit is retained.

Sections (d) and (e) are new. The existing rules do not provide a remedy for violation of the time requirements, and courts are inconsistent in fashioning a remedy. The proposals adopt the approach taken by CrRLJ 3.3 (f)(1) by placing some burden on the defendant to demand a hearing within the time limits set by the rule; the purpose of such a rule is provide a defendant with a timely hearing, not merely to establish a dismissal procedure. Unlike the criminal rule, however, the proposals do not require that the motion be noted for a hearing.

(a) Subpoena. The defendant and the plaintiff may subpoena witnesses necessary for the presentation of their respective cases. Witnesses should be served at least 7 days before the hearing. The subpoena may be issued by a judge, court commissioner, or clerk of the court or by a party's lawyer. If a party's lawyer issues a subpoena, a copy shall be filed with the court. A subpoena may be directed for service within their jurisdiction to the sheriff of any county or any peace officer of any municipality in the state in which the witness may be or it may be served as provided in CR 45(c), or it may be served by first-class mail, postage prepaid, sent to the witness' last known address. Service by mail shall be deemed complete upon the third day following the day upon which the subpoena was placed in the mail. If the subpoena is for a witness outside the county, the a judge must approve of the subpoena.

(b) Witness List Discovery. The plaintiff's lawyer, upon request Upon written demand of the defendant at least 14 days prior to before a contested hearing, the plaintiff's lawyer shall at least 7 days prior to before the hearing provide the defendant or defendant's lawyer with a list of the witnesses the plaintiff intends to call at the hearing and a copy of the citing officer's sworn statement if it will be offered into evidence at the hearing. Upon written demand of the plaintiff's lawyer at least 14 days before the hearing, the defendant shall at least 7 days before the hearing provide the plaintiff's lawyer with a list of the witnesses the defendant intends to call at the hearing. No other discovery shall be required. Neither party is precluded from investigating the case, and neither party shall impede another party's investigation.

(c) - (d) Unchanged.

The amendments to section (a) have two purposes. First, it is recommended that subpoenas be served at least 7 days prior to the contested hearing. Not all witnesses have traditional "9 to 5" work schedules. Advance notice will permit witnesses to more easily plan their schedules for attendance at a hearing. Second, the amendment allows for service of subpoenas by first-class mail. It is adopted from CrRLJ 4.8(c).

RCW 7.84.080 and 46.63.090 provide a "contingent" hearsay exception: if the citing officer is not subpoenaed, then the sworn statement of the officer is admissible into evidence. The rules do not currently provide for discovery of that statement. The amendments to section (b) require the prosecution to provide everything the government will offer into evidence at a contested hearing. They also allow the prosecution to obtain a defendant's list of witnesses, if desired. No other discovery is required. Finally, the amendments make clear that parties are free to investigate the case, recognizing that there is a distinction between investigation and discovery.

Several grammatical changes are intended to simplify the language and improve the readability of the rule.

(a) - (b) Unchanged.

(c) Rules of Evidence. The Rules of Evidence and statutes that relate to evidence in infraction cases shall apply to contested hearings. The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing, unless the defendant has caused the officer to be served with a subpoena to appear in accordance with instructions from the court issued pursuant to rule 2.6 (a)(2).

The amendment is consistent with ER 802, allowing the admissibility of hearsay when authorized by statute or court rule. Language from RCW 7.84.080 and 46.63.090, which provides a "contingent" hearsay exception if the citing officer is not subpoenaed, is incorporated for ease of reference. The committee added the "unless" clause as a reminder that the defendant has a statutory right to "subpoena witnesses, including the officer," which the court is to advise the defendant when it issues written notice of the contested hearing. See IRLJ 2.6.

(a) Generally. The court shall examine the citing officer's report and any statement submitted by the defendant. The examination shall take place within 90 120 days after the defendant filed the response to the notice of infraction. The examination may be held in chambers and shall not be governed by the Rules of Evidence.

(b) - (e) Unchanged.

The change from 90 to 120 days is intended for consistency to the proposed amendment to IRLJ 2.6.

(a) No change.

(b) Certificate; Form. In the absence of proof of a request to produce an electronic speed measuring device (SMD) expert made served on the prosecuting authority and filed with the clerk of the court at least 7 30 days prior to trial or such lesser time as the court deems proper, a certificate in substantially the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic speed measuring device (SMD) is an issue:

I, do certify under penalty of perjury as follows:

I am employed with as a . I have been employed in such a capacity for years and hold the rank of . Part of my duties include supervising the purchase, maintenance, and repair of all electronic speed measuring devices (SMD's) used by my agency.

This agency currently uses the following SMD's:

I have the following qualifications with respect to the above stated SMD's:

Our agency maintains manuals for all of the above stated SMD's. I am personally familiar with those manuals and how each of the SMD's are designed and operated. All initial testing of the SMD's was performed under my direction. The units were evaluated to meet or exceed existing performance standards. Our agency maintains a testing and certification program. This program requires:

Based upon my education, training, and experience and my knowledge of the SMD's listed above, it is my opinion that each of these pieces of equipment is so designed and constructed as to accurately employ the Doppler effect in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator.

Dated:

[Signature]

(c) No change.

The proposed amendment would require proof of a defendant's request to produce an SMD expert, and require the request to be served on the prosecuting authority at least 30 days prior to trial. By increasing the amount of notice, smaller jurisdictions can do what larger courts currently do, i.e., group radar cases onto a single docket so a radar expert can testify in several cases.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.