SPEEDING and RADAR
By Kenneth A. Vercammen
As a young attorney in
1987, plea bargaining was not permitted in Municipal Courts, so we routinely
had trials on speeding tickets and stop sign violations. While plea bargains
now are the norm, occasionally a client may need to win a speeding ticket trial
to avoid loss of job or license. Some
companies could have a policy that discharges an employee who receives a moving
violation while on the job. Remember, even no point tickets such as unsafe
driving are still moving violations. If someone is on probation with Motor
vehicles, a no point ticket which is a moving violation would result in a
suspension. A Prosecutor or Judge may threaten a license suspension if found
guilty. Therefore, sometimes we need to go to court to win the trial of a
speeding ticket, or negotiate for an outright dismissal.
1987, plea bargaining was not permitted in Municipal Courts, so we routinely
had trials on speeding tickets and stop sign violations. While plea bargains
now are the norm, occasionally a client may need to win a speeding ticket trial
to avoid loss of job or license. Some
companies could have a policy that discharges an employee who receives a moving
violation while on the job. Remember, even no point tickets such as unsafe
driving are still moving violations. If someone is on probation with Motor
vehicles, a no point ticket which is a moving violation would result in a
suspension. A Prosecutor or Judge may threaten a license suspension if found
guilty. Therefore, sometimes we need to go to court to win the trial of a
speeding ticket, or negotiate for an outright dismissal.
It is well established
that the prosecution of a defendant for a motor vehicle violation is a
quasi-criminal proceeding. In such a proceeding the burden of proof is upon the
state to establish all elements of the offense beyond a reasonable doubt.
that the prosecution of a defendant for a motor vehicle violation is a
quasi-criminal proceeding. In such a proceeding the burden of proof is upon the
state to establish all elements of the offense beyond a reasonable doubt.
Defense counsel should
make a written demand for discovery, and follow up with a motion to dismiss for
failure to provide discovery. If no discovery provided and the trooper fails to
show up, the state may not object to a motion to dismiss.
make a written demand for discovery, and follow up with a motion to dismiss for
failure to provide discovery. If no discovery provided and the trooper fails to
show up, the state may not object to a motion to dismiss.
How Radar Operates
In State v. Wojtkowiak 170 N.J. Super. 44
(Law Div. 1979), rev'd on other grounds, 174 N.J. Super. 460, Judge Wells
examined in detail the K-55 Radar, and his conclusions were incorporated by the
Appellate Division.
(Law Div. 1979), rev'd on other grounds, 174 N.J. Super. 460, Judge Wells
examined in detail the K-55 Radar, and his conclusions were incorporated by the
Appellate Division.
The traffic radar method
speed detection measurement depends upon the Doppler effect. Simply stated a radio wave which strikes a
moving object is reflected from that object at different frequency from that of
the incident wave. A radar which
transmits waves and receives reflected waves can determine their frequency difference
and calculate the speed of the object which produced the reflective wave.
speed detection measurement depends upon the Doppler effect. Simply stated a radio wave which strikes a
moving object is reflected from that object at different frequency from that of
the incident wave. A radar which
transmits waves and receives reflected waves can determine their frequency difference
and calculate the speed of the object which produced the reflective wave.
In State
v. Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the appeals court held
the state should adduce evidence at the municipal court level as to (1) the
specific training and extent of experience of the officer operating the radar,
(2) the calibration of the machine was checked by at least two external tuning
forks both singly and in combination, and (3) the calibration of the
speedometer of the patrol car in cases where the K-55 is operating in the
moving mode.
v. Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the appeals court held
the state should adduce evidence at the municipal court level as to (1) the
specific training and extent of experience of the officer operating the radar,
(2) the calibration of the machine was checked by at least two external tuning
forks both singly and in combination, and (3) the calibration of the
speedometer of the patrol car in cases where the K-55 is operating in the
moving mode.
[ if too many words… cut this
part out MPH
Industries, manufacturer and distributor of the K-55, sets forth the following
eight points an officer must be able to testify to:
part out MPH
Industries, manufacturer and distributor of the K-55, sets forth the following
eight points an officer must be able to testify to:
- The officer must establish the time, place
and location of the radar device at the time he made the reading.
and location of the radar device at the time he made the reading.
- The officer must be able to identify the
vehicle.
vehicle.
- The officer must identify the defendant as the
operator of the vehicle
operator of the vehicle
- The officer must testify that he made a
visual observation of the vehicle and that it was going at an excessive rate of
speed.
visual observation of the vehicle and that it was going at an excessive rate of
speed.
- At the time of the radar reading the officer
must testify that the vehicle was out front, by itself, nearest to the radar.
must testify that the vehicle was out front, by itself, nearest to the radar.
- The officer must state his qualifications and
training in radar use.
training in radar use.
- The officer must establish that the radar was
tested for accuracy both prior and after its use.
tested for accuracy both prior and after its use.
- If used in the moving mode, that at the time
of the radar reading the patrol speed indicated on the unit compared to the
speedometer of the police vehicle.]
of the radar reading the patrol speed indicated on the unit compared to the
speedometer of the police vehicle.]
Qualified Operator?
While it appeared to the
court in State v. Wojtkowiak, supra that the K-55 Radar is an accurate
and reliable tool for the measurement of speed, its accuracy and reliability in
any case are no better than the skill of the person operating the radar. Id.
at 174. The court made this emphasis as
a warning to all police departments that proper courses of instruction be
developed before the K-55 Radar device is employed in any municipality.
court in State v. Wojtkowiak, supra that the K-55 Radar is an accurate
and reliable tool for the measurement of speed, its accuracy and reliability in
any case are no better than the skill of the person operating the radar. Id.
at 174. The court made this emphasis as
a warning to all police departments that proper courses of instruction be
developed before the K-55 Radar device is employed in any municipality.
A calibration check is
accomplished with the use of two tuning forks and their accuracy must be the
subject of the documentary proof. Use of
the K-55 does not eliminate the need for such proof. State v. Wojtkowiak 170 N.J. Super. at
50, n.1
accomplished with the use of two tuning forks and their accuracy must be the
subject of the documentary proof. Use of
the K-55 does not eliminate the need for such proof. State v. Wojtkowiak 170 N.J. Super. at
50, n.1
In State v. Overton
135 N.J. Super 443 (Cty. Ct. 1975), four external tuning forks were used to
test the radar unit 12 times within a period of approximately 90 minutes. The court noted there is authority to the
effect that a radar unit should be checked for accuracy each time it is set up
at a different location.
135 N.J. Super 443 (Cty. Ct. 1975), four external tuning forks were used to
test the radar unit 12 times within a period of approximately 90 minutes. The court noted there is authority to the
effect that a radar unit should be checked for accuracy each time it is set up
at a different location.
In State v. Readding
160 N.J. Super 238 (Law Div. 1978), the court reiterated the decision in State
v. Overton 135 N.J. Super. 443 (Cty. Ct. 1975), where the court found there
are three universally accepted methods of testing the accurate operation of a
radar speed measuring device:
160 N.J. Super 238 (Law Div. 1978), the court reiterated the decision in State
v. Overton 135 N.J. Super. 443 (Cty. Ct. 1975), where the court found there
are three universally accepted methods of testing the accurate operation of a
radar speed measuring device:
1. By use of the internal tuning fork built into
the machine itself (which the court found to be improper).
the machine itself (which the court found to be improper).
2. By running the patrol
car with a calibrated speedometer through the
"zone of influence" of the radar machine.
car with a calibrated speedometer through the
"zone of influence" of the radar machine.
3. By use of external
tuning forks calibrated at set speeds and which emit sound waves or frequencies
identical to those which would come from a vehicle traveling through the Radar
bearer at the same speed for which the tuning fork has been cut.
tuning forks calibrated at set speeds and which emit sound waves or frequencies
identical to those which would come from a vehicle traveling through the Radar
bearer at the same speed for which the tuning fork has been cut.
In State v. Van Syoc
235 N.J. Super. 463. 465 (Law Div. 1988), aff’d o.b. 235 N.J. 409 (App. Div.
1989) defendant, failed to object to the introduction of K-55 radar unit
evidence of excessive speed until the trial had been concluded, and he then
argued that the charge against him should be dismissed because the State has
failed to demonstrate that the K-55 unit was being operated in the manual mode,
as required. VanSyoc supra 235 N.J. Super. at 465.
235 N.J. Super. 463. 465 (Law Div. 1988), aff’d o.b. 235 N.J. 409 (App. Div.
1989) defendant, failed to object to the introduction of K-55 radar unit
evidence of excessive speed until the trial had been concluded, and he then
argued that the charge against him should be dismissed because the State has
failed to demonstrate that the K-55 unit was being operated in the manual mode,
as required. VanSyoc supra 235 N.J. Super. at 465.
Upon de novo review,
Judge Steinberg found that defendant, an experienced trial attorney, failed to
object to the introduction of the radar evidence because he perceived a
tactical advantage in withholding his objection. Ibid. The judge then
held that defendant had waived his right to object, noting that if an objection
had been interposed in a timely fashion, the State would have been in a
position to supply the missing evidence. Id. at 466. In sustaining the
conviction, the judge observed that “[t]rial errors which are induced,
encouraged, or acquiesced in, or consented to by defense counsel ordinarily are
not a basis for a reversal on appeal.” Id. at 465
Judge Steinberg found that defendant, an experienced trial attorney, failed to
object to the introduction of the radar evidence because he perceived a
tactical advantage in withholding his objection. Ibid. The judge then
held that defendant had waived his right to object, noting that if an objection
had been interposed in a timely fashion, the State would have been in a
position to supply the missing evidence. Id. at 466. In sustaining the
conviction, the judge observed that “[t]rial errors which are induced,
encouraged, or acquiesced in, or consented to by defense counsel ordinarily are
not a basis for a reversal on appeal.” Id. at 465
The 'Pace' or 'Clock' Method
A "pace" or "clock" is performed
by an officer in a patrol car with a calibrated speedometer for a duration of
distance or time wherein the officer accelerated to a speed equivalent to the
suspect's, and then keeps a steady distance behind the suspect's vehicle
following that vehicle. It is essential
that the patrol car's speedometer be calibrated and that the certificates of
calibration both before and after, be admitted into evidence.
by an officer in a patrol car with a calibrated speedometer for a duration of
distance or time wherein the officer accelerated to a speed equivalent to the
suspect's, and then keeps a steady distance behind the suspect's vehicle
following that vehicle. It is essential
that the patrol car's speedometer be calibrated and that the certificates of
calibration both before and after, be admitted into evidence.
An officer may also
sometimes admit he was unable to get a good "clock" but may say that
his vehicle was going 70 mph, for
example, and he was still losing ground to the offender. The obvious shortcoming to
"clocking" as vehicle is that the officer's objective judgment may be
brought into question, the interference by other traffic, or other non-reasonable
factors. It is for these reasons that the
"clock" method is used less frequently than radar and laser speed
detection.
sometimes admit he was unable to get a good "clock" but may say that
his vehicle was going 70 mph, for
example, and he was still losing ground to the offender. The obvious shortcoming to
"clocking" as vehicle is that the officer's objective judgment may be
brought into question, the interference by other traffic, or other non-reasonable
factors. It is for these reasons that the
"clock" method is used less frequently than radar and laser speed
detection.
Laser Speed Detection
The landmark case on Laser
speeding tickets is In the Matter of the Admissibility of Motor Vehicle
Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System
314 N.J. Super. 233, 714 A.2d 381; (Law Div. 1998) aff’d 326 N.J. Super.
110. (App. Div 1999)
speeding tickets is In the Matter of the Admissibility of Motor Vehicle
Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System
314 N.J. Super. 233, 714 A.2d 381; (Law Div. 1998) aff’d 326 N.J. Super.
110. (App. Div 1999)
The Law Division held
admissibility of such readings shall be subject to the rules set forth below:
admissibility of such readings shall be subject to the rules set forth below:
1. Expert testimony in support of
admissibility shall not be required, except as specifically set forth below.
admissibility shall not be required, except as specifically set forth below.
2. Appropriate training of the law
enforcement officer operating the laser speed detector shall be shown in each
case.
enforcement officer operating the laser speed detector shall be shown in each
case.
3. Pre-operational checking procedures
recommended by the manufacturer of the laser speed detector shall be shown to
have been made in each case.
recommended by the manufacturer of the laser speed detector shall be shown to
have been made in each case.
4. Speed measurements shall be admitted
whether made in daylight or at night and within any temperature range likely to
be found in New Jersey, even if made under conditions of light or moderately
heavy rainfall, but speed measurements taken during heavy rain or while snow is
falling shall not be admitted without the support of adequate expert testimony
in the individual case.
whether made in daylight or at night and within any temperature range likely to
be found in New Jersey, even if made under conditions of light or moderately
heavy rainfall, but speed measurements taken during heavy rain or while snow is
falling shall not be admitted without the support of adequate expert testimony
in the individual case.
5. Speed measurements made at any
distance up to 1,000 feet shall be admitted, but measurements made at any
distance in excess of 1,000 feet shall be admitted only with the support of
adequate expert testimony in the individual case.
distance up to 1,000 feet shall be admitted, but measurements made at any
distance in excess of 1,000 feet shall be admitted only with the support of
adequate expert testimony in the individual case.
This case was affirmed State
v. Abeskaron (In re Admissibility Hearing of the LTI Marksman 20-20 Laser Speed
Detection Sys.), 326 N.J. Super. 110. (App. Div. 1999).
v. Abeskaron (In re Admissibility Hearing of the LTI Marksman 20-20 Laser Speed
Detection Sys.), 326 N.J. Super. 110. (App. Div. 1999).
Conclusion
It is no defense to argue
unlawful arrest, selective enforcement, custom and usage, non-ownership of car
driven, ignorance or mistake of law, lack of precise speed proved, defective
speedometer or cruise control. Proper
preparation and failure to provide discovery may help keep your client’s
driver’s license.
unlawful arrest, selective enforcement, custom and usage, non-ownership of car
driven, ignorance or mistake of law, lack of precise speed proved, defective
speedometer or cruise control. Proper
preparation and failure to provide discovery may help keep your client’s
driver’s license.
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