IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO IRLJ 1.2, 2.1, 2.2, 2.4, 2.6, 3.1, 3.3, 3.4, 3.5, 4.2, 6.6 AND 6.7	) ) ) )	ORDER NO. 25700-A-843

     The District and Municipal Court Judges' Association having recommended the adoption of the proposed amendments to IRLJ 1.2, 2.1, 2.2, 2.4, 2.6, 3.1, 3.3, 3.4, 3.5, 4.2, 6.6 and 6.7, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

     Now, therefore, it is hereby

     ORDERED:

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

     (b) That pursuant to the emergency provisions of GR 9 (j)(1), the amendments will be published expeditiously and become effective upon publication.

     DATED at Olympia, Washington this 1st day of December 2005.

	Alexander, C.J.
C. Johnson, J.	Chambers, J.
	Owens, J.
	Fairhurst, J.
Bridge, J.

     (a) Infraction Case. "Infraction case" means a civil proceeding initiated in a court of limited jurisdiction pursuant to a statute that authorizes offenses to be punished as infractions.

     (b) Notice of Infraction. "Notice of infraction" means a document initiating an infraction case when issued and filed pursuant to statute and these rules.

     (c) Defendant. "Defendant" means a person named in a notice of cited for an infraction, a registered owner of a vehicle cited for a parking infraction, or the person who responds to the parking infraction or requests a hearing.

     (d) Court. "Court" means a court of limited jurisdiction organized pursuant to RCW Title 3, RCW Title 35, or RCW Title 35A.

     (e) Judgment. "Judgment" means any final decision in an infraction case, including but not limited to, a finding entered after a hearing governed by these rules or after payment of a monetary penalty in lieu of a hearing.

     (f) Plaintiff. "Plaintiff" means the governmental unit issuing the notice of infraction, including, but not limited to, the state, a county, or a municipality.

     (g) Department. "Department" means the Washington State Department of Licensing.

     (h) Lawyer. "Lawyer" means any person authorized by Supreme Court rule to practice law.

     (i) Statute. "Statute" means any state statute, local or county ordinance, resolution, or regulation, or agency regulation.

     (j) Citing Officer. "Citing officer" means a law enforcement officer or other official authorized by law to issue a notice of infraction.

     (k) Prosecuting Authority. "Prosecuting authority" includes prosecuting attorneys, city attorneys, corporation counsel, and their deputies, and assistants, or such other persons as may be designated by statute.

     (l) Judge. "Judge" means any judge of any court of limited jurisdiction and shall include every judicial officer authorized to preside over infraction cases.

     (m) Community Restitution. "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the defendant.

     (b) Contents. [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 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) Service of Notice. A notice of infraction may be served either by:

     (1) The citing officer serving the notice of infraction on the person named in the notice of infraction at the time of issuance;

     (2) The citing officer affixing to a vehicle in a conspicuous place the notice of a traffic infraction if it alleges the violation of a parking, standing, or stopping statute; or

     (3) The citing officer or the prosecuting authority filing the notice of infraction with the court, in which case the court shall have the notice served either personally or by mail, postage prepaid, on the person named in the notice of infraction at his or her address. If a notice of infraction served by mail is returned to the court as undeliverable, the court shall issue a summons.

     (d) Filing of Notice. When a notice of infraction has been issued, the notice shall be filed with a court having jurisdiction over the infraction or with a violations bureau subject to such court's supervision. The notice must be filed within two five days of issuance of the notice, excluding Saturdays, Sundays, and holidays. A In the absence of good cause shown, a notice of infraction not filed within the time limits of this section may shall, upon motion, be dismissed without with prejudice.

     (b) Alternatives. A person may respond to a notice of infraction by:

     (1) Paying the amount of the monetary penalty in accordance with applicable law, in which case the court shall enter a judgment that the defendant has committed the infraction;

     (2) Contesting the determination that an infraction occurred by requesting a hearing in accordance with applicable law;

     (3) Requesting a hearing to explain mitigating circumstances surrounding the commission of the infraction in accordance with applicable law; or

     (4) Submitting a written statement either contesting the infraction or explaining mitigating circumstances, if this alternative is authorized by local court rule. The statement shall contain the person's promise to pay the monetary penalty authorized by law if the infraction is found to be committed. For contested hearings Tthe statement shall be executed in compliance with RCW 9A.72.085, in substantially the following form:

     I hereby state as follows: certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true:

     I promise that if it is determined that I committed the infraction for which I was cited, I will pay the monetary penalty authorized by law and assessed by the court.

     I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

	[Date and Place]			[Signature]

     (I understand that if this form is submitted by e-mail, my typed name on the signature line will qualify as my signature for purposes of the above certification.)

     For mitigation hearings, the statement shall be executed in substantially the following form:

     I hereby state as follows:

     I promise to pay the monetary penalty authorized by law or, at the discretion of the court, any reduced penalty that may be set.

     I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

	(Date and Place)			(Signature)

     (I understand that if this form is submitted by e-mail, my typed name on the signature line will qualify as my signature for purposes of the above certification.)

     (c) Method of Response. A person may respond to a notice of infraction either personally, or if allowed by local rule by mail or by e-mail. If the response is mailed or e-mailed, it must be mailed postmarked or e-mailed not later than midnight of the day the response is due.

     (1) Except as provided in sections (1)(i) and (ii), 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 120 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.

     (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 to 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 prehearng 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 21 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 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) The court may schedule the hearing on a contested infraction for the same time as the hearing on another infraction alleged to have been committed by the defendant. The court may schedule the hearing on a contested infraction for the same time as the trial on a misdemeanor arising out of the same occurrence as the infraction.

     (4) The infraction may be dismissed upon a showing of prejudice if the court does not send a defendant written notice of a hearing within 21 days of receipt of the request for a hearing.

     (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 120 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.

     (2) The court shall send the defendant written notice of the time, place, and date of the hearing within 14 21 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 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) The court may schedule the mitigation hearing for the same time as the mitigation hearing on another infraction alleged to have been committed by the defendant.

     (c) Decisions on Written Statements. If the court has adopted a local rule authorizing decisions on written statements submitted by mail, and/or e-mail, it shall, upon receipt of a statement pursuant to rule 2.4 (b)(4), consider the case in accordance with rule 3.5. The requirements of GR 30.5 are not applicable to e-mail statements submitted pursuant to rule 2.4 (b)(4). The court is not required to notify the parties of a date for the examination of the statements.

     (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) Time for Hearing; Effect of Delay or Continuances. A motion for dismissal for the failure to hold a hearing within the time period provided by this rule shall not be granted if the failure to hold the hearing was attributable to the defendant or the defendant's counsel.

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

     (g) Change of Judge. The provisions of CRLJ 40(f) apply.

     (b) Discovery. Upon written demand of the defendant at least 14 days before a contested hearing, filed with the court and served on the office of the prosecuting authority assigned to the court in which the infraction is filed, the plaintiff's lawyer shall at least 7 days before the hearing provide the defendant or the 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 and with the names of any witnesses not identified in the citing officer's sworn statement a list of the witnesses the defendant intends to call at the hearing. If the prosecuting authority provides the citing officer's sworn statement less than 7 days before the hearing but not later than one day before the hearing, the citing officer's sworn statement shall be suppressed only upon a showing of prejudice in the presentation of the defendant's case. If the prosecuting authority, without reasonable excuse or justification, fails to provide the citing officer's sworn statement, the statement shall be suppressed. No other discovery shall be required. Neither party is precluded from investigating the case, and neither party shall impede another party's investigation. A request for discovery pursuant to this section shall be filed on a separate pleading.

     (c) Amendment of Notice. The court may permit a notice of infraction to be amended at any time before judgment if no additional or different infraction is charged, and if substantial rights of the defendant are not thereby prejudiced. A continuance shall be granted if the defendant satisfies the court that the additional time is needed to defend against the amended notice of infraction.

     (d) Sufficiency. No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction which the defendant is alleged to have committed, nor by reason of defects or imperfections which do not tend to prejudice substantial rights of the defendant.

     (e) Disposition. If the court determines that the infraction has been committed, it may assess a monetary penalty against the defendant. The monetary penalty assessed may not exceed the monetary penalty provided for the infraction by law. The court may waive or suspend a portion of the monetary penalty, or provide for time payments, or in lieu of monetary payment provide for the performance of community service restitution as provided by law. The court has continuing jurisdiction and authority to supervise disposition for not more than 1 year.

     (c) Disposition. The court shall determine whether the defendant's explanation of the events justifies reduction of the monetary penalty. The court shall enter an order finding the defendant committed the infraction and may assess a monetary penalty. The court may not impose a penalty in excess of the monetary penalty provided for the infraction by law. The court may waive or suspend a portion of the monetary penalty, or provide for time payments, or in lieu of monetary payment provide for the performance of community service restitution as provided by law. The court has continuing jurisdiction and authority to supervise disposition for not more than 1 year.

     (b) (1) Factual Determination. The court shall determine whether the plaintiff has proved by a preponderance of all evidence submitted that the defendant has committed the infraction.

     (c) (2) Disposition.- If the court determines that the infraction has been committed, it may assess a penalty in accordance with rule 3.3.

     (d) (3) Notice to Parties. The court shall notify the parties in writing whether an infraction was found to have been committed and what penalty, if any, was imposed.

     (e) (4) No Appeal Permitted. There shall be no appeal from a decision on written statements.

     (b) Mitigation Hearings. Mitigation hearings based upon written statements may be held in chambers.

     (a) Failure to Pay or Complete Community Service Restitution. Unless the traffic infraction is a parking, standing, stopping, or pedestrian infraction, the court shall notify the Department within 10 days:

     (1) If the defendant fails to pay the monetary penalty assessed after a hearing to contest the traffic infraction or a hearing to explain mitigating circumstances, or after a decision on written statements, if authorized by local court rule, or

     (2) If the defendant fails to meet a time payment authorized by the court or fails to complete community service restitution approved by the court.

     (b) Notice to Department. The notice to the Department shall be in the form prescribed by the Department.

     (c) Removal of the Failure to Pay or Complete Community Service Restitution. When the defendant has paid all monetary penalties owing, including completion of community service restitution, the court shall notify the Department within 10 days of payment or of completion of community service restitution on a form prescribed by the Department.

     (b) Speed Measuring Device Certificate; Form. In the absence of proof of a request on a separate pleading to produce an electronic or laser speed measuring device (SMD) expert served on the prosecuting authority and filed with the clerk of the court at least 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 or laser speed measuring device (SMD) is an issue:

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

     This agency currently uses the following SMD's:

     (List all SMD's used and their manufacturers and identify which SMDs use laser technology.)

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

     (List all degrees held and any special schooling regarding the SMD's listed above.)

     This 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. On __________ (date) testing of the SMD's was performed under my direction. The units were evaluated to meet or exceed existing performance standards. This agency maintains a testing and certification program. This program requires:

(State the program in detail.)

     Based upon my education, training, and experience and my knowledge of the SMD's listed above, it is my opinion that each of these electronic 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 or, in the case of the laser SMDs, each of these pieces of equipment is so designed and constructed as to accurately employ measurement techniques based on the velocity of light 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.

	(Signature)
	Dated:

     (c) - (d) [No changes.]

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

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.