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  1. #1
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    Default Is LIDAR Inadmissible Under Hall vs. Texas

    My question involves a speeding ticket from the State of: Texas
    Just found this. My court date is Tuesday so need some help fast, please
    Hall v State of TX , 10th Court of Appeals
    http://www.10thcoa.courts.state.tx.u...OpinionId=9045
    And then STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS Hall v State 297 S.W.3d 294
    http://www.cca.courts.state.tx.us/OP...20HANDDOWN.PDF

    "In making this determination, the court observed that there are no Texas authorities confirming the reliability or admissibility of LIDAR technology." And the court states LIDAR is "novel scientific evidence". The date was Sept. 2009

    They mention Kelly v State 824 S.W.2d 568 (1992) and Rule 702 which discusses novel scientific evidence.

    So unless the prosecution meets all the points of Rule 702, once the prosecution rests, do I move the LIDAR evidence be stricken as inadmissible due to Rule 702? And then site Hall v State, Kelly v State, Hartman v State and five or so more? I realize the judge can just say "I take judicial notice of LIDAR" and I realize the cop's idea he saw me speeding may be enough to convict but I'm just trying to make sure I'm prepared.
    When I cross examine the cop, should I ask about him calibrating the device, was he trained, is he an expert, ect or if he doesn't bring it up, just move on and wait until they rest and then it's too late for them?
    Also, should I ask to approach the judge to move for the evidence to but stricken, so the jury doesn't hear the conversation or not worry about it?
    Last thing, what is the language I would use if I object, the judge overrules and I wanted it noted for appeal? Do I just say please note my objection? Or do I say something like "your honor, in Hall v State the court observed that there are no Texas authorities confirming the reliability or admissibility of LIDAR technology, I re-new my objection"? Thanks.

  2. #2
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    You can certainly object to the LIDAR reading under this...it should be pointed out that any Frye (generally known as) test case must concern the specific model in question, not just generally. If they claim a case, ask for it & when the state is done ask for a recess to examine the case cited (or ask for a recess once they cite a Frye examination case). The specific unit in question may or may not have been looked at by the court & given judicial notice. You don't tell us the model so I cannot answer. But even if so, make them highlight the case. You may wish a recess after they offer up the case citation ... to chk in the law library...ask for an hour,,,you may get 1/2 hr. Then go chk and see if the model was indeed noted in the case; if not, come back and object that the case is not similar to the case before you. The judge can say "I take judicial notice" but really the prosecution has to offer up a case citation ... demand one .. "You Honor, there may be some LIDAR units that have gone through a Frye examination but I am not aware of any regarding this specific unit; I would ask the court to insure that one has been performed by requiring the opposing party to cite one & if not, the objection is asked to be sustained". You must fight for your objections (respectfully but firmly).

    Do not ask the officer how he calibrated the device; he should give some testimony during his examination by the prosecutor. Why let he get MORE information to the judge's ear. If he does not say he calibrated it by the suggested methods nor took your measurement via suggested methods then leave that be ... ask for a summary judgment or acquittal after the state rests and this is one thing to highlight to the judge.

    You should ask background questions of the officer (education, any convictions etc) & ask if he ever published anything is any scienitific journal relating to LIDAR equipment, ever designed LIDAR instruments, etc.. When he says no, then leave it alone (he is not an expert).

    Documents related to the LIDAR should include a certificate of calibration ... object to this due to a lack of a proper foundation (the officer is not really qualified to testify to its being a business record).

    Yes, just say "Objection your Honor ... detail the reasons for each objection"...anything you do not object to will be lost for an appeal issue.

    If the officer states he visually measured your speed, object to its foundation. The judge will overrule maybe. And then give him a good cross-examination in regards to the distance and times of his observation(s).

    You can re-offer up an objection if, during your cross, you find further information that supports the objection.

    If he over-rules your objection(s) do not re-argue at that time w/o further information to offer the judge...just move on.

    Are you taking a jury trial? I don't like jury trials for speeding tickets...the technology is complicated & juriors will get lost with the objections ... they may find you guilty whereas a judge would not.

    Did you write jury instructions yet? You should....

    Waiting until today to get this stuff in order: bad move...even for a traffic ticket.

    Hope you know what is required for admissibility of documents ... foundation wise that it .... the judge does, the prosecutor may or may not know.

    And always ask for a summary judgment of acquittal (motion to the court verbally after the state rests). If the judge finds that there is not enough evidence to convict, you are not guilty right then w/o the need for you to testify (and possibly put your foot in your mouth).

    Tip: write down your cross-examination questions for the cop .. skip some if they are not needed & make sure that your questions do not help the prosecution.

    Ask about his trianing .. ask if he went through his Xhrs of formal trianing with this specific LIDAR unit. If no, do not question him further on his trianing because a no answer shows he was not trained on the unit at all.

    Others might post as well ... some will say not to ask to see a Frye case cited but I always require this....sometimes the judge will cite a case & other times the prosecution will. But someone always does...

  3. #3
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    Quote Quoting jamesnb
    View Post
    They mention Kelly v State 824 S.W.2d 568 (1992) and Rule 702 which discusses novel scientific evidence.

    So unless the prosecution meets all the points of Rule 702, once the prosecution rests, do I move the LIDAR evidence be stricken as inadmissible due to Rule 702?
    If you want to keep evidence out you need to make a timely objection, which would mean at the time the evidence is introduced and the prosecution asks for its admission. If you allow the state to introduce the evidence, as the court to admit it, and allow its admission without objection, you can expect the judge to stick with that ruling.
    Quote Quoting jamesnb
    And then site Hall v State, Kelly v State, Hartman v State and five or so more?
    String citing cases isn't likely to do you much good. You need to be able to relate how the holdings of those cases apply under the facts of the case before the court.
    Quote Quoting jamesnb
    I realize the judge can just say "I take judicial notice of LIDAR" and I realize the cop's idea he saw me speeding may be enough to convict but I'm just trying to make sure I'm prepared.
    It doesn't seem to me that it would be appropriately within the province of the judge to "take judicial notice" that LIDAR is a sound technology and that LIDAR results should automatically be admissible at trial. An officer's testimony that you were speeding based upon other evidence? Keeping LIDAR out won't of itself prevent that testimony.
    Quote Quoting jamesnb
    When I cross examine the cop, should I ask about him calibrating the device, was he trained, is he an expert, ect or if he doesn't bring it up, just move on and wait until they rest and then it's too late for them?
    Better to ask to "voir dire" the officer when the prosecution seeks to qualify him as an expert in the operation of LIDAR or to introduce the LIDAR evidence. See Texas Rules of Evidence, 705(b). As the rule indicates, voir dire should occur outside the presence of a jury.
    Quote Quoting jamesnb
    Last thing, what is the language I would use if I object, the judge overrules and I wanted it noted for appeal? Do I just say please note my objection? Or do I say something like "your honor, in Hall v State the court observed that there are no Texas authorities confirming the reliability or admissibility of LIDAR technology, I re-new my objection"? Thanks.
    If you make a proper and timely objection, the objection is made. I unfortunately can't give you language that I can guarantee will perfect the record for appeal.

  4. #4
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    Thanks Mr. Knowitall. The case was dismissed but not based on Hall v. State or LIDAR evidence. We didn't get that far. I'm curious how it would have turned out though.
    I got the "complaint" thrown out with a Motion to Quash based on Texas Code of Criminal Procedure Art.45.018.
    Art. 45.018.b states "A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint". (I asked for the complaint in my Motion for Discovery which I filed 15 days earlier and nothing I asked for was provided.) The bailiff handed me the complaint when I walked in this morning (clearly not the day before).
    In my Motion to Quash I state the complaint was not provided in a timely manner as stated in Art. 45.018, I did not waive my rights, the citation did not qualify as a complaint per Art.45.019, and I requested the complaint in my Motion for Discovery filed March 1.
    The judge took the motion to Quash "under advisement". Then I proceeded with my Motion to Suppress Evidence because I didn't receive any of the items I asked for. The next 30 minutes were wasted with the city attorney and cop trying to get the dash cam video I requested, the judge and prosecutor offering to let me come back in a couple of weeks (to help me out, you understand), and me occasionally and politely asking to approach and renewing my motion to dismiss in the interest of justice.
    I finally got to see the video and I really think the cop pulled me over by mistake. I watched it twice and the cop asked to see it again as i was leaving the little room. I won't waste time going into it but I would have wanted the jury to see it.
    The prosecution argued I wasn't entitled to the maintenance record, calibration records, Serial Number, Model and Brand of SMD used -- "there are no records for calibration because you don't need to calibrate LIDAR" (right!) and "the officer will be glad to answer any of your questions during cross examination; you can ask him anything you want." I argued this information is vital to my defense. More delays. The Sargent has the records and he's working traffic; no idea when they can be made available. Prosecution again says I'm not entitled.
    Renew my motion to dismiss. Again with the let's do you a favor and put this off so you have time to do your research and you will have your one day notice of the complaint. I argued without the SMD information, a delay does me no good; the state announced ready for trial which clearly they are not. I announced ready but with pre-trial motions. I'm here, Judge, you are here, the officer is here, the prosecutor is, and the City has gone through the expense to summon a jury that is also here and ready. If I would have shown up unprepared, there would be no delay. The Court clearly states for Jury Trials, a three day notice for a continuance is required. I ask you hold the prosecution to the same standard. I ask that you rule on my Motion to Quash.
    State's Motion for continuance denied. Motion to Quash sustained. Motion to Dismiss sustained. "Thank you, Judge, I appreciate your patience."
    Buy the way, the racket the cops are running is they camp out about 300 feet from the sign that announces the change from 35 mph to 45 mph. They measure the distance from there patrol car to the sign with the LIDAR, say 300 feet. Car drive past him and start to accelerate as they approach the 45 mph sign and when the LIDAR reads the range as say, 295 feet, they tag you for say 48 mph in a 35 mph zone. That's durty.

  5. #5
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    They are correct on the need to re-calibrate lidar; most manufacturer's do not require it to be re-calibrated after its manufacture. But there still should be the original document from the manufacturer. The unit could be 100 yrs old .. which is why I always ask to be able to inspect the unit in discovery.

  6. #6
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    Quote Quoting jamesnb
    View Post
    Thanks Mr. Knowitall. The case was dismissed but not based on Hall v. State or LIDAR evidence. We didn't get that far. I'm curious how it would have turned out though.
    I got the "complaint" thrown out with a Motion to Quash based on Texas Code of Criminal Procedure Art.45.018.
    Art. 45.018.b states "A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint". (I asked for the complaint in my Motion for Discovery which I filed 15 days earlier and nothing I asked for was provided.) The bailiff handed me the complaint when I walked in this morning (clearly not the day before).
    In my Motion to Quash I state the complaint was not provided in a timely manner as stated in Art. 45.018, I did not waive my rights, the citation did not qualify as a complaint per Art.45.019, and I requested the complaint in my Motion for Discovery filed March 1.
    The judge took the motion to Quash "under advisement". Then I proceeded with my Motion to Suppress Evidence because I didn't receive any of the items I asked for. The next 30 minutes were wasted with the city attorney and cop trying to get the dash cam video I requested, the judge and prosecutor offering to let me come back in a couple of weeks (to help me out, you understand), and me occasionally and politely asking to approach and renewing my motion to dismiss in the interest of justice.
    I finally got to see the video and I really think the cop pulled me over by mistake. I watched it twice and the cop asked to see it again as i was leaving the little room. I won't waste time going into it but I would have wanted the jury to see it.
    The prosecution argued I wasn't entitled to the maintenance record, calibration records, Serial Number, Model and Brand of SMD used -- "there are no records for calibration because you don't need to calibrate LIDAR" (right!) and "the officer will be glad to answer any of your questions during cross examination; you can ask him anything you want." I argued this information is vital to my defense. More delays. The Sargent has the records and he's working traffic; no idea when they can be made available. Prosecution again says I'm not entitled.
    Renew my motion to dismiss. Again with the let's do you a favor and put this off so you have time to do your research and you will have your one day notice of the complaint. I argued without the SMD information, a delay does me no good; the state announced ready for trial which clearly they are not. I announced ready but with pre-trial motions. I'm here, Judge, you are here, the officer is here, the prosecutor is, and the City has gone through the expense to summon a jury that is also here and ready. If I would have shown up unprepared, there would be no delay. The Court clearly states for Jury Trials, a three day notice for a continuance is required. I ask you hold the prosecution to the same standard. I ask that you rule on my Motion to Quash.
    State's Motion for continuance denied. Motion to Quash sustained. Motion to Dismiss sustained. "Thank you, Judge, I appreciate your patience."
    Buy the way, the racket the cops are running is they camp out about 300 feet from the sign that announces the change from 35 mph to 45 mph. They measure the distance from there patrol car to the sign with the LIDAR, say 300 feet. Car drive past him and start to accelerate as they approach the 45 mph sign and when the LIDAR reads the range as say, 295 feet, they tag you for say 48 mph in a 35 mph zone. That's durty.
    Thanks for posting. Funny how it feels like the court, city attorny and cops all seem to be on the same side, eh?

    Cop have any different attitude after seeing the video again?

  7. #7
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    I absolutely love your story of how the prosecutor and the judge keep trying to "help" you by giving them more time to do the job they should have done in the first place. I also love your point that if you showed up unprepared, you would have gotten no consideration!! HOW TRUE!!!

    Awesome job!!

  8. #8
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    Thanks. I hope it helps others.
    In the video, a white Ford truck drove past at a relatively high rate of speed. More cars pass, then I drive by in my white Dodge at a relatively lower rate of speed. The cop floors it like he's after Bonnie and Clyde and slams on the brakes as he pulls up behind me. The video shows I check my rear view mirror, check my blind spot, turn on the blinker and change lanes, then pull over in a text book fashion.
    The cop, Bailiff and I watched it together twice. Then the cop asked to see it again. He looked like somebody kicked him in the chest.
    It was a bitter-sweet victory, especially after seeing the video. I would have loved to discredit the cop as an "expert witness" after all the "I don't need to know how radar works; I just need to know how to use it. I'm certified" diatribe they have used in radar cases.
    Hall v. State is very clear LIDAR is "novel scientific technology". Kelly v. State and Texas' Rule 702 is even more clear an expert witness must establish the theory of "novel scientific technology".
    I'm a Physics teacher and there is no way Lackey Dog Pete knows more about lasers than I do, in spite of his 2-day class (or what ever it takes to get a certificate). Most of which I'm sure is spent emphasizing how important it is to say I observed the defendant traveling at 48 mph and I verified it with "the blue cube on [the cop's] dashboard (Justices Price, Johnson and Holcomb, Majority Opinion Hall v. State, Court of Criminal Appeals of Texas)".
    And yes, they are all on the same side (cop, city attorney, judge) in spite of how much they act like they are trying to help you. They all want a conviction.
    What's even more silly, if after all this I would have been found guilty, I could appeal to the County Court at Law. But I would have to pay an "Appeal Bond" in the amount of twice the fine and when/if the County Court at Law hears the case, it would be a trial de novo. Meaning the State could present new evidence and new witnesses.
    My advice: do your homework, be firm -- don't let them intimidate you, and if it's a trial in Texas before a Justice of the Peace or municipal court, make all your motions in writing so the judge must rule on them. Usually there isn't a court reporter.
    I've been driving (legally) since 1982. I have a clean driving record (which I would have entered into evidence) and yes, I really was innocent. I'm glad justice prevailed. Best of luck.

  9. #9
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    You have to understand that the judge who ruled in Hall ruled with the information he heard at trial ... so maybe the prosecutor did not present any evidence that LIDAR was not novel..hence my suggestion to search out the current Frye examinations in your state to see if the court, while ruling correctly based on the available evidence in that trial, was actually wrong.

    All states do not require the cop to be an expert in LIDAR , RADAR, etc only that they be trained on how to use them and that they follow the suggested methods when using the instruments. I have never heard a cop claim to be an expert..

    You may use equipment that you are not a qualified expert on but also would be afforded the same consideration if the technology has been accepted by the courts in prior cases or an expert supports the technology in the case.

    So, is the state going to follow through with perjury charges against the officer? Ha! Not likely. Texas is not a driver friendly state in motor vehicle cases (or any other cases).

    I would have asked the cop for an apology though. And if he refused, give him some choice words. Your lucky you did not have to go to the trial de novo stage. So go buy a laser jammer system now with the money you saved.

  10. #10
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    Default Re: Is LIDAR Inadmissible Under Hall vs. Texas

    That is why all agencies should have cameras installed. #1 is to prevent injustice in your case. #2 is to discredit the majority of the other people who make false claims the police did something wrong.

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