Ohio Supreme Court Okays "Visual Estimates" As Basis for Ticket

[blewis]

Currently, this concerns the State of Ohio. But, I think it's going to spread.

I don't know if you've all seen this article. Simply put, it states that a police officer's "visual estimate" -- without SMD verification "can be" used to convict a driver of speeding.

In WA state, at least, an officer's "visual estimate" has always been considered "probable cause" for a traffic stop, but there are NO cases as to whether a visual estimate alone can be considered a "preponderance of evidence", resulting in a conviction. Yet, Ohio's burden of proof is "beyond a reasonable doubt".

Anyway, I'll let the article speak for itself.

Barry

[jojo]

Oh my! That doesn't even make sense.

[BOR]

aHey Barry, I read this decision a few weeks ago myself. The syllabus is as follows:


A police officer’s unaided visual estimation of a vehicle’s speed is sufficient
evidence to support a conviction for speeding in violation of R.C.
4511.21(D) without independent verification of the vehicle’s speed if the
officer is trained, certified, and experienced in visually estimating vehicle
speed.



http://www.supremecourt.ohio.gov/rod...-ohio-2420.pdf

The officer MUST have specialized training if it is the sole evidence presented and expected to be weighed.

The OSC used to have what is known as the "Syllabus rule" where they spoke through the syllabus, meaning the law was stated there, now they speak through the body of the opinion, but still provide a syllabus.

Yes, Ohio's burden of proof for all "offenses" is beyond a reasonable doubt. We do not have "infractions" to lower the burden to a Preponderance.

Edit: there was a decision sometime ago where a Municipality, under home rule, could lower a minor traffic violation from an MM to an infraction, I believe, but the proof is still BRD, I believe.

That case concerned camera violations only, caught on tape.

[That Guy]

Good article, thanks Barry

Visual estimates have (as far as I know) always been an integral part of the P.O.S.T. (Peace Officer Standards and Training) RADAR training that CA officers receive. And they always do include it as part of their scripted testimony... "... observed vehicle traveling at a high rate of speed, visually estimated the speed to be at approximately Xmph, confirmed that estimate with (whatever SMD they were using or with a pace)..."

In fact, (and this is from a CHP officer friend of mine) they have to successfully estimate 100 speeds with a margin of error of +/-5mph in order for them to pass the course and be certified.

California's traffic infraction cases are not published (at times not even transcribed/recorded) so it would be difficult to ascertain as to how much influence a visual estimate has on whether a defendant is convicted or not with or without the presence of an SMD measurement.

Personally, I was convicted of speeding a couple of years back and the officer claimed he performed what he described as a "bumper pace" (his words) and yet the funny thing was, his lights were on before he even moved off the shoulder... When I asked him to describe what he meant by a "bumper pace", the pro-tem (a family law attorney in her time off the bench) cut me off and answered on his behalf . I appealed and lost (because my oral argument was scheduled while I was overseas ).

Basically, he cited me based on his visual estimate and yet he wrote "Pace" on the citation... I have since forgiven him

[freedomminute]

The good news is that there has been a bill introduced in the Ohio Legislature to overturn this ruling and disallow convictions based solely on visual estimates.

A B I L L
To amend section 4511.091 of the Revised Code to prohibit a person from being arrested, charged, or convicted for speeding on a public street, highway, private road, or driveway based on a peace officer's unaided visual estimation of the
speed of a motor vehicle, trackless trolley, or streetcar.

Full text here:
http://www.thenewspaper.com/rlc/docs/2010/oh-sb280.pdf

[cdwjava]

Visual estimates have (as far as I know) always been an integral part of the P.O.S.T. (Peace Officer Standards and Training) RADAR training that CA officers receive. And they always do include it as part of their scripted testimony... "... observed vehicle traveling at a high rate of speed, visually estimated the speed to be at approximately Xmph, confirmed that estimate with (whatever SMD they were using or with a pace)..."

In fact, (and this is from a CHP officer friend of mine) they have to successfully estimate 100 speeds with a margin of error of +/-5mph in order for them to pass the course and be certified.

This is correct.

Courts here have also been known to use visual estimates based upon an officers articulated training and experience outside of radar training. A more precise speed may not be allowed by a court, but testimony that someone was going 40+ in a 25 is likely to fly where testimony articulating 30 in a 25 might not.

I have made a number of traffic cases for speed without the benefit of radar training, but never for speeds close to the posted limit.

As far as I know CA does not have any case or statutory law prohibiting visual estimation even without radar training. If such a law existed, well, most officers might never be able to make a 22350 (unsafe speed) stop ever again unless the speed resulted in a collision, or, the state put every officer through radar school. Heck, in my city they'd be racing up[ and down the streets because we would have too few radar trained officers to be out there making visual estimations or working radar.

[freedomminute]

I have made a number of traffic cases for speed without the benefit of radar training, but never for speeds close to the posted limit.

In these cases you refer to, the defendants were convicted with solely your visual estimation absent any other evidence? In these cases, on average, how much faster than the speed limit were the defendants going? Did any of the defendants in these cases put up any type of vigorous defense?

As far as I know CA does not have any case or statutory law prohibiting visual estimation even without radar training. If such a law existed, well, most officers might never be able to make a 22350 (unsafe speed) stop ever again unless the speed resulted in a collision, or, the state put every officer through radar school.

What about pacing? And I think the issue at hand here is not prohibiting visual estimation, but whether someone can be convicted solely on visual estimation absent any other evidence or observation. I don’t think a law prohibiting this would mean officers would never be able to make a 22350 stop ever again. Besides, how often, in your experience, do you think officers make 22350 stops now using visual estimation as their sole evidence? Does that happen frequently?

Heck, in my city they'd be racing up and down the streets because we would have too few radar trained officers to be out there making visual estimations or working radar.

Please define “racing up and down the streets”. And are you suggesting that the only reason drivers stay at or near the speed limit (assuming it’s set properly at the 85th percentile) is fear of punishment?

[cdwjava]

In these cases you refer to, the defendants were convicted with solely your visual estimation absent any other evidence? In these cases, on average, how much faster than the speed limit were the defendants going? Did any of the defendants in these cases put up any type of vigorous defense?

In the cases I have personal knowledge of, yes, visual estimation absent pacing or radar. As for a vigorous defense, that might depend on how you define "vigorous." I had a traffic attorney in San Diego try to beat one of mine, and the judge (not a pro tem, a real judge) allowed my testimony after making inquiry as to training and experience.

In most cases we are talking about 40 in a 25, or 50 in a 35, or some similar high speed where it is not all that difficult to tell that someone is zipping along at far greater than the posted or safe limit. I wouldn't even try to do a 35 in 30 based upon estimation without being certified at radar school (though I am usually good at +/- 3 when I practice such estimation with a radar).

What about pacing? And I think the issue at hand here is not prohibiting visual estimation, but whether someone can be convicted solely on visual estimation absent any other evidence or observation.

I cannot speak as to the issue of visual estimation or pacing in another state, only my own. I work in a small town these days. As such, I rarely have the opportunity to get a pace on someone unless they are on a highway or a major road and are darn near blind because they do not see me behind them. Where we get a lot of speeders is when we approach residential intersections and observe drivers zipping along perpendicular to us at speeds far greater than the posted limit. If we were not able to utilize visual estimation, then these drivers would get away with speeding all the time unless we were running radar. And unless the car has a hand-held radar device, getting a speed at a right angle ain't gonna happen. And by the time they pass us, they see us, so a pace is also unlikely. So, without the estimation, these speeders would not be caught.

Is it common? No. It is far more often for officers to use that visual estimation to make the stop and issue a warning (after checking to see that the driver is valid, not wanted, etc.). Such intervention can sometimes have the desired effect to alter the unwanted behavior ... at least for a while.

I don’t think a law prohibiting this would mean officers would never be able to make a 22350 stop ever again. Besides, how often, in your experience, do you think officers make 22350 stops now using visual estimation as their sole evidence? Does that happen frequently?

It depends on the officer and the jurisdiction. If you work an area with long stretches of highway or freeway, pacing is going to be higher. In my town, getting a good pace is rare. So, it is either radar or visual estimation. The radar trained officers can easily make a case for visual estimation. The rest of the officers are not able to do so as readily. Me, I have many years on the job doing traffic enforcement and can get away with it in court. Most my officers haven't the age or experience to do this.

Please define “racing up and down the streets”. And are you suggesting that the only reason drivers stay at or near the speed limit (assuming it’s set properly at the 85th percentile) is fear of punishment?

In many cases. Yes. Fear of punishment is the only reason they don't race up and down the street. I live in a small town with wide residential streets and many children. The MOST COMMON complaint from the citizens is speeding cars on residential streets. Most the streets are short, but cars come off the turns from longer streets and get zipping along. My street is only one block long (6 houses on either side) yet we have a lot of teens that rip off of a longer residential street and accelerate down mine where there are some 20 children under the age of 15 that reside and play. The problem has subsided since I started bringing home a marked police car and parking it in front of my house. But, this is a common complaint throughout the city. In fact, it is THE most common complaint. Unfortunately, we are least equipped to address it as the layout of the streets make running radar difficult as drivers can see you coming from a long way off, and pacing is impractical on all but a handful of main thoroughfares (besides a freeway only three more come to mind ... yes, we are rather small). Unfortunately we are unable to adequately address the speed complaints due to a lack of equipment and manpower.

Only one of the streets that have been surveyed (and we only run radar on the surveyed streets) has an 85th percentile that does not justify the posted 35 MPH limit, and that is because the county engineer did not properly articulate the justifications for the adjustment downward.

In short, the visual estimations are rarely used for citations, but are more often used for a catch and release. Most our officers are radar certified, so the visual estimation is valid. It is more easily challenged when used by those of us who are not ... though I have never lost one, yet. However, in all honesty, it has probably been over a year since I wrote any citations for speed and then it was with a pace on a long residential street without stop signs where the guy was oblivious to my being behind him for four blocks pacing him at 50+ in a 25!