SPEEDING and RADAR

                          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.         

         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.  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.

[   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:

         -  The officer must establish the time, place and location of the radar device at the time he made the reading.

         - The officer must be able to identify the vehicle.

         - The officer must identify the defendant as the 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.

         -  At the time of the radar reading the officer 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.

         -  The officer must establish that the radar was 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.]

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.

         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

         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. 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

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).

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.