Payback Time

[Island Lover]

Originally Posted by Airwaves

nothing more than an estimate and certainly fairly easy to challenge in court

You can "challenge" anything you want. But will the judge buy it.

Have you ever been to court to challenge a citation? Judges have great experience in cutting through the bull. If the MP says their estimate is 75 and you respond with 45, what do you think the judge will say? Any bets you will not like what he says?

In any event just having to take a day and go to court is a penalty. And what do you think he may say if its your second or third violation? I'd like to hear that one.

Give me a break with this "we are not going to slow down" bravado.

[Dave R]

Originally Posted by Island Lover

You can "challenge" anything you want. But will the judge buy it.

Have you ever been to court to challenge a citation? Judges have great experience in cutting through the bull. If the MP says their estimate is 75 and you respond with 45, what do you think the judge will say? Any bets you will not like what he says?

I'll take that bet. I have challenged tickets many, many times in NH. I almost always win. Half the time, the police don't show up.

I bet MP folks would be even less likely to show up than small town cops, since the hearing would be scheduled well after Summer is over and (correct me if I'm wrong) most MP are part-time. The trick is to wait until the last possible moment to send the plea in and then wait until the last possible moment to request a new trial date. It would be foolish to plead guilty or nolo and pay a boat speeding fine, unless you lived really far away.

[Island Lover]

Originally Posted by Dave R

I'll take that bet. I have challenged tickets many, many times in NH. I almost always win. Half the time, the police don't show up.

I bet MP folks would be even less likely to show up than small town cops, since the hearing would be scheduled well after Summer is over and (correct me if I'm wrong) most MP are part-time. The trick is to wait until the last possible moment to send the plea in and then wait until the last possible moment to request a new trial date. It would be foolish to plead guilty or nolo and pay a boat speeding fine, unless you lived really far away.

Thanks for the information. Its good to know we have a forum member with so much experience in breaking the law and beating the system!

[chipj29]

Originally Posted by Island Lover

Thanks for the information. Its good to know we have a forum member with so much experience in breaking the law and beating the system!

Unreal.

[webmaster]

Originally Posted by Island Lover

How do you think they determined the speed of the boat to be 28 mph in a famous Winni fatal accident.

During the Mount's shakedown cruise Lt. Dunleavy told me how they arrived at the 28 mph speed. Mr. Littlefield told the MP that he thought his RPMs leaving Meredith was about 2800 (I think that was the number). The MP then took the boat, similarly loaded, and ran it at 2800 RPM. The speed at that RPM was 28 mph.

The speed was a rough estimate at best since it relied on Mr. Littlefield's memory and honestly for the basis of the test. There was apparently no other reliable way to determine the actual speed.

[Ryan]

Originally Posted by webmaster

During the Mount's shakedown cruise Lt. Dunleavy told me how they arrived at the 28 mph speed. Mr. Littlefield told the MP that he thought his RPMs leaving Meredith was about 2800 (I think that was the number). The MP then took the boat, similarly loaded, and ran it at 2800 RPM. The speed at that RPM was 28 mph.

The speed was a rough estimate at best since it relied on Mr. Littlefield's memory and honestly for the basis of the test. There was apparently no other reliable way to determine the actual speed.

Originally Posted by Island Lover

The Marine Patrol can, has, and will use science to determine boat speed after an accident. Its CSI for boats. How do you think they determined the speed of the boat to be 28 mph in a famous Winni fatal accident. The accident recreation science is complex and involves a lot more than measuring the length of skid marks.

Science? CSI? Complex?

[Skip]

....because its starting to get "deep" once again!

First, thank you Don for providing that first hand account of how the speed in the Littlefield crime was estimated....

Secondly, while I have no doubt that there are readers out there that have more experience in the field of law enforcement than I, I have no doubt that some of the folks posting ridiculously in this and several other threads have no more experience or expertise than my daughter's favorite cat.

Specifically, since attending my first courtroom trial nearly three decades ago, I have listened to, testified at or prosecuted countless motor vehicle cases. And while during that time I have observed numerous cases where an experienced law enforcement officer has effected a car stop based on his articulated evidence that he believed a vehicle was operating too fast (visually) for the conditions observed, I have never once met an officer dumb enough to write and succesfully prosecute a speeding ticket based solely on a visually estimated speed. Those stories are nothing but urban legends at their best (or worse, depending on your point of view).

Put it another way. Even with a certified and calibrated radar unit, with the officer bringing evidence of said certification of both the instrument and his respective training in hand to court, I have seen a number of defendants make a strong enough case of doubt to have their summons placed on file or nullified.

What I have yet to see is an officer come to court with a certification from his optomologist and high school physics teacher certifying the extreme accuracy of his vision.....

In conclusion, if you operate at anytime at a speed that an experienced officer can articulate to the court was justifiable to intiate said stop, no experienced officer is going to risk his credibility with the Court by trying to prosecute a speeding summons based on his "visual estimate". And why bother, there are simply too many other customers waiting in line to be paid a visit.....Quite frankly if you find yourself in Court after being initially stopped for what appeared to be "going to fast" it is because you were discovered doing something else illegal up to or during said stop.

And any other claims here to the contrary are pure bunk....

Safe boating,

Skip

[Chris Craft]

Thanks Skip. I sat on a trial for a DUI and was set as the alternate jurror. The guy blew a .18 and they let him go. Now the evidence is such that he stopped his car, got out, and never put the car in park. Yup they let him off. From what I have read about the court systems it seems that prosecutors are having a really hard getting convictions. Probably because no one wants to have accountability....

[2Blackdogs]

Sadly, there are lawyers who advertise they get 70% of their DUI cases "off".

Lt. Dunleavy could be a great resource in this debate. I'd never read of Danny's memory being used as a speed estimate before, even though long-time posters have quoted courtroom testimony over and over.

Lt. Dunleavy remarked a few years ago that 80% of Winni boaters had alcohol on board. Not good...any of this.

[Airwaves]

Years ago, maybe even decades at this point, when MADD was changing the way people thought about drunk driving I remember asking a Marine Patrol officer at an event we were at if NH was considering an open container law for the lake. At the time he told me no and the reason was quite simple. He says every one of those large cruisers out on the lake are likely to have a bar or makeshift bar on board. In that bar will be liquor bottles with the seals broken. It simply is not feasible to enforce a law like that.

Now, as I said it was decades ago, maybe the law has changed I don't know. I do know that when I am operating a boat my beverage of choice is bottled water but that does not stop my passengers from having a beer or two while we're anchored. Drinking much of anything underway can be a little rough at times.

[2Blackdogs]

Originally Posted by Dave R

I'll take that bet. I have challenged tickets many, many times in NH. I almost always win. Half the time, the police don't show up.

I bet MP folks would be even less likely to show up than small town cops, since the hearing would be scheduled well after Summer is over and (correct me if I'm wrong) most MP are part-time. The trick is to wait until the last possible moment to send the plea in and then wait until the last possible moment to request a new trial date. It would be foolish to plead guilty or nolo and pay a boat speeding fine, unless you lived really far away.

Citing doctor appointments, work needs, extreme weather, jury duty or whatever, you can ask for multiple continuances to carry the date well past Autumn, when the part-time officers have little reason to travel far to the rescheduled hearings. Even the most dedicated and determined officer still has the weather to contend with. It's no wonder that "officers don't show up".

Now with gas nearing $4, the MP may not even provide adequate travel compensation for those former officers, much less pay them adequately for their time in court and waiting for the court to call their cases.

[Skip]

Originally Posted by 2Blackdogs

Citing doctor appointments, work needs, jury duty or whatever, you can ask for multiple continuances to carry the date well past Autumn, when the part-time officers have little reason to travel far to the rescheduled hearings.

Now with gas nearing $4, the MP may not even provide adequate travel compensation for those former officers, much less pay them adequately for their time in court and waiting for the court to call their cases. It's no wonder, "officers don't show up".

Another commonly repeated myth.

While officers do not appear on occasion for a trial due to a multitude of reasons, chronic non-appearances are noted by the Court and can result in sanctions against the officer and/or the officer's department and every officer knows that such unexcused events will have an effect in that courtroom on that officer's credibility. Recently the NH State Police came under unwanted scrutiny for antics the court system felt were inappropriate in granting speedy trials and keeping the court dockets clear, especially in summer months when arrests & subsequent trials swell.

Additionally, the inference that you can get multiple continuances for a simple violation (speed) is also more urban legend. There is a clearly defined procedure one must follow to be allowed a continuance, and abuse of the process or a mistake on the defendant's part will at a minimum result in a finding of guilt and worse case, additional charges for contempt of court.

For the readers convenience I will list below the NH District Court procedure for requesting and being granted continuances. Note the specific requirement that you will need the prosecutor/arresting officer's permission and
notification.

C'mon guys, its getting awfully hot in these waders!



RULES OF THE DISTRICT COURTS OF THE STATE OF NEW HAMPSHIRE
GENERAL RULES
Rule 1.8-A. Continuances and postponements.

A. All motions for continuance shall be in writing, signed by the moving party stating the reasons therefor and stating that the opposing party does not desire a hearing on the motion, if such is the case.

B. No motion for continuance shall be granted without a hearing unless approval of the opposing party is obtained. The moving party shall have the burden of obtaining such approval.

C. Agreement of the parties shall constitute a waiver of hearing on a motion to continue; but notwithstanding agreement of the parties, the Court shall exercise its sound discretion in granting such continuances.

D. All motions for continuance or postponement in a civil action shall be signed and dated by counsel. Other counsel wishing to join in any motion shall do so in writing. Each motion shall contain a certificate by counsel that the client has been notified of the reasons for the continuance or postponement, has assented thereto either orally or in writing, and has been forwarded a copy of the motion.

E. In exceptional situations, motions to continue may be made orally in accordance with these rules and shall be effective as such, but it shall be the burden of the moving party to establish a record thereof by confirming such request in writing. Only attorneys, police prosecutors, or parties pro se, shall be permitted to continue orally.

F. In all civil cases, no motion for a continuance, grounded on the want of material testimony, will be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is wanted, the particular facts expected to be proven with the grounds of such expectation, and what has been done to procure attendance or deposition, so that the Court may determine whether due diligence has been used for that purpose. No action shall be continued on such motion if the adverse party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated; and such agreement shall be in writing at the foot of the affidavit and signed by the party or the attorney.

G. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, paper or other evidence of like nature; or in the absence of a material witness whom the party deems it necessary to have upon the stand.

H. All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the Court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the judge. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order.

[Airwaves]

Per Usual, Skip is right.

First off, the example we're using is a speeding ticket. Assume there are no other charges so a continuance isn't really going to happen unless there are unusual circumstances that the DA agrees with.

While it would be a good defensive move to delay any and all responses that are legally required until the last minute, eventually the court date will arrive. That is when the BURDEN OF PROOF comes into play.

Because the speed limit crowd decided that USCG Nav Rule 6 wasn't good enough, there are specific speed parameters that would not otherwise exist. What was the actual speed of the vessel and how was that speed determined?

BURDEN OF PROOF on the Marine Patrol.

If the suspect was shown to be operating the vessel at over the HB847 limits can he/she show that conditions were such that 45/25 was not a dangerous speed under the conditions?

If the suspect can show that conditions at 45/25 were not dangerous then the BURDEN OF PROOF would then again shift to the Marine Patrol.

The Marine Patrol would have to PROVE that above 45/25 for those conditions was a dangerous speed. If the Marine Patrol can not PROVE that, then the case is dismissed.

Some might say, Why bother? Or, the process itself is part of the punishment!

Why bother? Because if I am convicted of a moving violation (speeding ticket) it not only goes on my driving record, but I lose my good driving discount and will pay top dollar for my car insurance (Massachusetts) for several years to come!

The process is part of the punishment? No doubt, but to pay it without a challenge is worse than taking a day out of work to deal with the court. Every court challenge also means the Marine Patrol has to pay the officer involved to show up and testify. Something the speed limit, "this bill won't cost any money", crowd also lied about.

This was a "FEEL GOOD BILL" so that certain legislators could go to their supporters and say, "See...I fixed it, vote for me"!

I thought it was very funny to see Joe Kenney announce he's running for governor on a fiscally conservative platform yet he was one of the leaders of this bill that will force the Marine Patrol to waste money!

Originally posted by Skip
C'mon guys, its getting awfully hot in these waders!

Hey, the water is still chilly it's only June

[Evenstar]

Originally Posted by Airwaves

BURDEN OF PROOF on the Marine Patrol.

If the suspect was shown to be operating the vessel at over the HB847 limits can he/she show that conditions were such that 45/25 was not a dangerous speed under the conditions?

If the suspect can show that conditions at 45/25 were not dangerous then the BURDEN OF PROOF would then again shift to the Marine Patrol.
I thought it was very funny to see Joe Kenney announce he's running for governor on a fiscally conservative platform yet he was one of the leaders of this bill that will force the Marine Patrol to waste money!

referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A case presented to a Grand Jury by the prosecution will result in an indictment."

The prima facie evidence language means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... so the burden would be on the DEFENDANT to prove otherwise.


Hey, the water is still chilly it's only June [/quote]

[codeman671]

Originally Posted by Evenstar

referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A case presented to a Grand Jury by the prosecution will result in an indictment."

The prima facie evidence language means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... so the burden would be on the DEFENDANT to prove otherwise.


Hey, the water is still chilly it's only June

[/QUOTE]

They are talking about a speeding violation, not a lawsuit or criminal prosecution at the Grand Jury level... When was the last time you saw a speeding ticket taken to the Grand Jury???

[Evenstar]

They are talking about a speeding violation, not a lawsuit or criminal prosecution at the Grand Jury level... When was the last time you saw a speeding ticket taken to the Grand Jury???

Give me a break, can't you see that I messed up my previous post? Since I can't edit my posts, I'll try to repost what I actually was trying to post:

This is the legal definition for Prima Facie: "adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment."

I was only trying to clarify that according to the legal definition, the prima facie language as used in HB 847, means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... the burden would be on the defendant to prove otherwise.

You guys seem to be forgetting that the same prima facie language is used for NH highway speed limits.

I also wanted to reply to Airwave's comment "Hey, the water is still chilly it's only June", by saying that I'm still wearing my wetsuit on most days.

Sorry for messing up - but it was late when I was replying and I hit [Submit Reply] instead of [Preview Post].

[GWC...]

Originally Posted by Evenstar

Give me a break, can't you see that I messed up my previous post? Since I can't edit my posts, I'll try to repost what I actually was trying to post:

Sorry for messing up - but it was late when I was replying and I hit [Submit Reply] instead of [Preview Post].

For someone who does not have an agenda, you spend too much time in this section of the website.

Try some diversity in your life.

[SIKSUKR]

Originally Posted by GWC...

For someone who does not have an agenda, you spend too much time in this section of the website.

Try some diversity in your life.

It's clear ES is only on this forum to argue for speed limits.I've not seen posts in other threads.There are 2 current threads related to Kayaking and I would assume she could add some insite.

[Evenstar]

Originally Posted by GWC...

For someone who does not have an agenda, you spend too much time in this section of the website. Try some diversity in your life.

Originally Posted by SIKSUKR

It's clear ES is only on this forum to argue for speed limits.I've not seen posts in other threads.There are 2 current threads related to Kayaking and I would assume she could add some insite.

I only had time for a short reply earlier and chose to fix my error, as best I could. I have been out heading out kayaking all afternoon, and I might get to those other threads later this evening, if I have time.

My "agenda" in my post was just to warn people here, who are still not understanding what prima facie actually means, and seem to believe that the lake speed limit will be easy to beat in court.

I was just trying to be helpful! Apparently you don't appreciate it. Fine.

Originally Posted by Skip

Unfortunately evenstar continues to misconstrue the meaning of "prima facie" as applied to the topic at hand.

Skip, you are wrong, in stating that I'm misconstruing the meaning.

What I posted is true: "I was only trying to clarify that according to the legal definition, the prima facie language as used in HB 847, means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... the burden would be on the defendant to prove otherwise."

I did not state that you couldn't contest the citation. What I posted was that the burden is on the defendant to prove evidence to the contrary. One of my past professors is a prosecutor for the NH State Police, and when I discussed this with her a year ago, she agreed with my understanding of what prima facie means.

Most judges aren't going to just let you off the hook for traveling well above the speed limit, just because you "felt" that your speed was reasonable and prudent - you need to prove that it was. And that is could be a very difficult task.

My point was clearly that the lake speed limit uses the exact language as NH highway speed limitations [RSA 265:60]. Yes, there is some wiggle-room for both. But getting caught doing 70 on the broads is likely to be as difficult to fight in court as doing 70 on a NH highway that has a 45 mph speed limit.

[winnilaker]

I found this document, defines what Evenstar is referring to.
http://www.nhtsa.gov/people/injury/e...oc/nhspeed.pdf

Interesting points in this document.

1. Notice the words "Based on engineering and traffic investigations"
2. Minimum speed
3. Local govt can change speed limits "based on engineering and traffic investigations"

Evenstar, I'm with you on this one, we should mimic the state's speed limits ground rules for highways/roads and based the limits on ENGINEERING AND TRAFFIC INVESTIGATIONS not another lake in another state. And people should not be putt-putting around LOL!

[Skip]

Unfortunately evenstar continues to misconstrue the meaning of "prima facie" as applied to the topic at hand.

I have covered this topic numerous times across several threads, so I will not rehash all the obvious details again.

Simply put....if you receive a summons next year for speed on Lake Winnipesaukee the complaint will reference that you operated at an unreasonable speed "to wit, x miles per hour in a X mph zone". The State has to offer a number of items into evidence including that you were the identified operator, that you were operating a boat with a horsepower in excess of 25 HP and that you were operating on Lake Winnipesaukee and most importantly, given the time and conditions present your operation was unreasonable!

Absent proof of each of those elements the defendant can move to have the case dismissed.

Isn't it fairly obvious to most that if you are being charged with unreasonable speed, that the State must show that element as a condition of conviction?

And the argument that you will give to counter the State's contention that your speed was unreasonable is called an affirmative defense.

It really is as simple as that....

As always, feel free to PM me for any additional explanation...

Skip

[Dave R]

Originally Posted by Island Lover

Thanks for the information. Its good to know we have a forum member with so much experience in breaking the law and beating the system!

You're welcome.

[Airwaves]

You forgot one vital piece of information. In this country, including New Hampshire if I'm not mistaken, a suspect is innocent until PROVEN guilty.

If the Marine Patrol officer does show up in court and says his best guess is that the suspect was traveling 75 and the suspect says 45 I seriously doubt the judge would allow the evidence since the Marine Patrol officer has no way to prove the suspect wasn't doing what he said without radar or GPS.

No, the Marine Patrol officer will have to prove that the suspect was traveling 75 in a court of law. Gee, he looked like he was going really fast won't cut it.

[ITD]

Originally Posted by Island Lover

You can "challenge" anything you want. But will the judge buy it.

Have you ever been to court to challenge a citation? Judges have great experience in cutting through the bull. If the MP says their estimate is 75 and you respond with 45, what do you think the judge will say? Any bets you will not like what he says?

In any event just having to take a day and go to court is a penalty. And what do you think he may say if its your second or third violation? I'd like to hear that one.

Give me a break with this "we are not going to slow down" bravado.

Originally Posted by Island Lover

The Marine Patrol can, has, and will use science to determine boat speed after an accident. Its CSI for boats. How do you think they determined the speed of the boat to be 28 mph in a famous Winni fatal accident. The accident recreation science is complex and involves a lot more than measuring the length of skid marks.

IL , the endlessness of your knowledge continues to impress and humble me. Your knowledge of physics, forensics, case law, judicial prudence and human nature are boundless. The ease in which you can take mere speculation, exaggeration or estimation and state it as unequivocal fact cements your reputation as a classic "know it all" in my book. Congratulations.