Speeding ticket defense in NJ

Speeding
and Radar

Proper
preparation may help keep your client’s driver’s license

By
Kenneth A. Vercammen

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.

         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, even a downgrade to an unsafe driving  “no point ticket” is still a moving violation
would probably would result in a MVC suspension. ( please rewrite this
sentence). 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.

         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.

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.

         The traffic radar method speed
detection measurement depends upon the Doppler Effect in which a radio wave
which strikes a moving object is reflected from that object at different
frequency from that of the incident wave. A radar then transmits waves and
receives reflected waves can determine their frequency difference and
calculates 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.

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. 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.

         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.

         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:

         1. By use of the internal tuning fork
built into 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.

         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.

         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.

         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. 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. In
sustaining the conviction, the judge observed that “[trial errors which are
induced, encouraged, or acquiesced in, or consented to by defense counsel
ordinarily are not a basis for a reversal on appeal.”

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.

         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.

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).

         The Law Division held 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.

         2. Appropriate training of the law
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.

         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.

         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.

         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).

         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 may help keep your client’s driver’s
license. 

         Vercammen is a trial attorney in Edison. He often lectures for the New
Jersey State Bar Association, New Jersey Institute for Continuing Legal
Education and Middlesex County College on personal injury, criminal/municipal
court law, drunk driving and contested probate estate administration.