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  1. #1

    Default How to Disqualify a Police Officer's Radar Testimony

    My question involves a speeding ticket from the State of: Virginia

    Here’s my recent experience in a Virginia town. I was clocked about 8:30pm via radar going 50 in a 35. I was cited for violation VA law 46.2-875 (exceeding max speed limit of 35 in a town). I was on a dark road and the patrol lights went on about 100 yards ahead of me. I already had the Nolo “Beat Your Ticket” book. Following its advice I requested the officer’s notes and radar operator manual from the police. Police called back saying that in Virginia that such requests are made through the court. So I submitted a “subpoena duces tecum” requesting the same items which the court denied. At trial while waiting to be called I realized that the officer had switched my first and middle names. When called I made motions to dismiss for incorrect name and not getting the requested items. The judged “amended” the citation with my correct name and said that the officer’s notes and radar manual are not discoverable items. After the officer testified I asked to see the speedometer calibration and radar calibration certificates which the officer produced.

    The subsequent cross examination went like this:

    Me: Have you been trained in radar?
    Officer: Yes.

    Me: Would you please produce a training certificate?
    Officer: I don’t have to. (This starts to throw me for a loop. The judge is silent.)

    Me: What is the width of the radar beam?
    Officer: I don’t know. I don’t have to know that.

    Me: What is the maximum distance of the of the radar beam?
    Officer: I don’t need to know that.

    Me: What is the radar margin of error?
    Officer: I don’t know.

    Me: Please describe cosine error.
    Officer correctly describes the error.

    Me: Please describe beam reflectance error.
    Officer: I don’t know what that is.

    Me to the judge: I make a motion to strike the radar evidence as the witness has shown himself incompetent in the use of radar.
    Judge: Denied.

    Me: Is there not an airport adjacent to the citation location? (There was and I tried this per the suggestion of Nolo’s “Beat Your Ticket”.)
    Officer: Yes, but the runway lights were off. (I didn’t have the presence of mind to ask the judge to not allow the officer to add additional testimony.)

    Me: Can you state with certainty that no planes were flying through the radar beam when you clocked me?
    Officer: No.

    Me: I rest my case. I’ve shown reasonable doubt that my speed wasn’t clocked correctly.
    Judge: IMHO you haven’t demonstrated reasonable doubt. Generally the only radar defenses that work are scientific in nature. Guilty.

    I’ve since contacted the town police and they’ve been killing me with kindness regarding the radar the questions I’ve had including providing the radar operator manual and telling me where to get the radar training documentation.

    Anyway, I hope this Virginia experience helps any other Virginians hoping to dispute their citations. I chose not to investigate whether or not there was an out of date engineering survey for the speed limit since I believe that MUTCD engineering survey requirements are only for roads not covered by state statute.

    I believe there is case law Honeycutt vs Kentucky that establishes that the officer doesn't need to know the science behind radar, but in this case the officer didn't even need to know the dimensions of the radar beam. It doesn't seem like a fair trial to not at least be able to say how far in general the beam goes and how wide it is.

    Does anyone know where the Virginia list of discoverable traffic infraction items can be found?

    Any advice regarding how I might have improved my chances is welcome.

    In Virginia all traffic infractions can be retried in Circuit court. I have until December 23 to request retrial. I live in the county seat so I can do additional research in the law library nearby. Any advice on a Circuit Court retrial is also welcome. I think I’d at least have the presence of mind to object when the officer adds extra details and maybe a jury might not be as hardnosed as the judge regarding reasonable doubt. Thanks in advance.

  2. #2
    Join Date
    Sep 2005
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    California
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    15,059

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    Did the officer testify as to his visual estimation of your speed?

    While I cannot speak to VA law regarding discovery or elements that the state must show for a foundation when using radar (if any), the most common method of radar training involves training the officer in the visual estimation of speed and to then verify this visual estimation through the use of the radar. If the officer testified to his visual estimation and then confirmed it using the radar, then that may very well be what the court relied on to counter your claim of possible radar interference (of course, they airport and the police radar operate on different bands/frequencies, but that's a different issue).

    Since you lost your trial, you can always seek to appeal it using whatever method is available in your state. Understand that a good many of the tactics supplied by some of these websites may not be relevant in all jurisdictions, and often times they provide just enough information to annoy the judge rather than help the case.

    Others with more detailed knowledge of how to proceed in VA may be along shortly.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

  3. #3

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    First off, I originally titled the post something like "VA radar traffic trial". A moderator must have renamed it.

    Regarding the question, I think the office did mention visual estimation but can't recall for sure at this point.

    I've decided not to appeal to Circuit Court.

    Anyway, here is some additional information I gathered that may be helpful in the future. I'm not an attorney but when referencing the case law below it's probably best to have a photocopy for the judge from a legal publication that the judge would recognize (something found in a law library) as opposed to something pulled from the web.

    If you can get the list of approved radar detactors you can ask the prosecution what radar unit was used and then determine whether the radar unit is legal. It may be a long shot of course because it would seem odd for a locality to adquire an unapproved radar unit.

    The prima facie evidence may be rebutted by showing that the radar device is not an approved device. See Scafetta v. Arlington County, 13 Va. App. 646, 649, 414 S.E.2d 438, 440, aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d 807 (1992).

    If the officer does not testify to having tested the radar device itself, then make a motion to dismiss the radar evidence per this write up/case law:

    The Virginia Supreme Court has held that Va. Code § 46-215.2, the predecessor to Va. Code § 46.2-882, did "not eliminate the necessity for the Commonwealth to prove that the machine used for measuring speed had been properly set up and recently tested for accuracy." Royals v. Commonwealth, 198 Va. 876, 881, 96 S.E.2d 812, 816 (1957). The [*5] Court has upheld the Royals rule as applied to Va. Code § 46.2-882. See Gray v. Commonwealth, 18 Va. App. 663, 666, 446 S.E.2d 480, 482, 11 Va. Law Rep. 45 (1994).

    In Gray, the Supreme Court held that either tuning fork tests or speedometer tests would be deemed sufficient to prove the accuracy of the device used for measuring speed. Id. Although Va. Code § 46.2-882 provides an exception to the hearsay rule for a certificate showing the accuracy of the speedometer or tuning fork used in testing the device, it does not provide such an exception for a certificate showing the accuracy of the device itself. Therefore, the "Certificate of Calibration" from Kustom Signals is not admissible as evidence that the Laser was "properly set up and recently tested for accuracy."

    The only evidence offered by the Commonwealth that the Laser was recently tested for accuracy was the testimony of Officer Ocheltree that he checked the device each morning to confirm its ability to detect two specified distances. However, the Officer stated that this would not be sufficient to confirm its accuracy in its ability to determine the speed of [*6] a moving vehicle.

    Accordingly, the Court finds that as the Commonwealth has not met its burden of proving that the Laser was "properly set up and recently tested for accuracy," testimony regarding the results of the Laser is inadmissible and the charge should be dismissed.

  4. #4

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    Here's an interesting tidbit I found at the blog of a Fairfax attorney located at http://www.manikaslawblog.com/reckless2/williamrd.shtml.

    The attorney successfully defended someone cited for going 90 in a 55. The prosecution chose to bring the calibrating mechanic to testify. The mechanic's testimony revealed certain gaps in his memory as to what vehicles he actually calibrated. Also, even though the calibration certificate was notarized the mechanic testified that he did not sign the certificate in front of a notary. Based upon that testimony, the calibration was excluded from evidence and the case was dismissed.

    Since I'm not an attorney I don't know whether a calibrating mechanic can be subpoena'd by the defense to appear and testify since section 46.2-882 of the Virginia legal code states that the calibration certificate "shall be admissible as evidence of the facts therein stated." In other words while hearsay evidence when challenged isn't allowed in court, this is a hearsay exception written into the law to accept the certificate at face value.

  5. #5
    Join Date
    Sep 2010
    Posts
    9,858

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    The calibration certificate isn't hearsay (even without the specific exemption). The NOLO book is extremely CALIFORNIA-centric. It's pretty useless here. So is arguing radar beam widths, etc...
    GDC is a little informal, especially on infractions (90 was probalby reckless driving, a misdemeanor).

    Of course, if you're unhappy with the result in GDC, you can appeal and get a de novo trial in circuit court, but be aware, you better know what you're doing if you're going pro se there.

  6. #6
    Join Date
    Feb 2010
    Location
    CT & IL
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    5,276

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    Once he said that he did not know the error of the machine you should have stopped that line of questioning. Calibration certificate was entered into evidence w/o any objection I assume, big mistake. You did not ask followup questions to his training - you let his answer stand so the judge will think he is trained well on the equipment. You cannot allow the certificate of calibration to be introduced ; you cannot allow his training to be allowed in w/o a good cross. You did not show that he did not know how to use the RADAR unit, the judge was correct on all his points. The cop just needs to be trained in the use of the RADAR unit & the RADAR unit must be calibrated. If you want to talk the inaccuracies of the technology, you'll need an expert. A poor cross IMO.

  7. #7

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    Flyingron,
    My basis for saying that a calibration certificate is hearsay is from this video at
    http://www.monkeysee.com/play/5175-h...dar-gun-result. Since I'm just a software engineer my understanding may be incorrect. I believe that hearsay is a fact that can't be challenged because there is no one to cross exam at trial. (An example being a witness testifying that that someone else said she saw something. The someone else isn't present at the trial to be questioned.) In the case of the calibrator, no one is present at trial to be questioned about the accuracy of the certificate. Hence, that's legalized hearsay. The video referenced indicates that all states have exceptions to hearsay rules.

  8. #8

    Default Re: How to Disqualify a Police Officer's Radar Testimony

    Here are some Virginia rules regarding errors on the summons.

    Virginia Supreme Court rule 3A:4(b)

    (b) Form of Summons. A summons, whether issued by a magistrate or a law-enforcement officer, shall command the accused to appear at a stated time and place before a court of appropriate jurisdiction in the county, city or town in which the summons is issued. It shall (i) state the name of the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (ii) describe the offense charged and state whether the offense is a violation of state, county, city or town law, and (iii) be signed by the magistrate or the law-enforcement office, as the case may be.

    I believe an interpretation here is that there can be errors on the summons as long as the summons describes the offense charged.

    Virginia Supreme Court rule 3A:6(a)

    (a) Contents. The indictment or information, in describing the offense charged, shall cite the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense. Error in the citation of the statute or ordinance that defines the offense or prescribes the punishments therefor, or omission of the citation, shall not be grounds for dismissal of an indictment or information, or for reversal of a conviction, unless the court finds that the error or omission prejudiced the accused in preparing his defense.

    "shall not be grounds for dismissal unless..."

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