Is Advance Request Required Forcing Officer to Have Radar Certification at Court

[r.hemphill]

I contested a speeding ticket in California Superior Court. During the hearing phase the Judge made me a plea down offer to which I chose to turn down and continue (immediately) to the trial phase. The officer claimed his Radar was last calibrated in August 2009 by San Diego State University. I understand California Law requires calibration every 3 years so o.k. fine. I then asked the officer for documentation (proof) in writing and he couldn't provide it. Based on lack of foundational evidence I made a motion for the case to be dismissed. The Judge would not act on my motion and told me that the officers word on the calibration issue was good enough. He also told me I needed to ask for that documentation in discovery and was I asking for a continuance. I said no and repeated my request for motion to dismiss, and I stated since the entire case was predicated on the radars accuracy the officer should have known full well that this issue could come up in court. He again ignored my motion and did not act on it and found me guilty. My question is whether it is called discovery or something else was I REALLY required to file something in advance to require the officer to provide this document, or is the judge merely covering for him. I want to know if I have grounds to appeal based on this issue of the radar certification.

[themadnorwegian]

Under what section of the vehicle code were you cited?

[r.hemphill]

It was 22349(A) excessive speed. I have seen several posts stating if an opposing attorney was involved that Discovery Motion must be filed and provided to that attorney. There wasn't an opposing attorney in the courtroom nor involved. Any appeal would hinge on whether ANY type of advance request on my part has to be provided forcing the officer to provide documentation to attest to the certification of the radar. August, 2009 by San Diego State University is what he testified to in the courtroom.

[That Guy]

It was 22349(A) excessive speed.

Excessive speed by how much? 3mph over? or 34mph over? It does makes a difference!

The follow up to TMN's question is: Which law or rule or code requires the officer to present a calibration certificate for a citation issued in violation of the state's maximum speed code section?

You won't find one...

The calibration requirement comes into play for citations issued in violation of the basic speed law and as part of the requirement that the prosecution prove that the officer was not maintaining a speed trap. It only applies to citations issued on segments of roadway where the Engineering and Traffic survey was conducted 5+years prior to the date of the alleged violation!

You can certainly argue "equal protection under the law", or "due process violation" or whatever... Fact of the matter is the judge is within his discretion to take the officer's word (or any other witness he chooses) as an accurate representation of the facts. The CHP makes it a habit of calibrating their SMD even more often that is required by law and this is not likely to be the exception. Even if it is, you have no reference to go back to and force a dismissal, not for a 22349 case!

Its a known fact that the margin of error for a Radar gun is +/-3mph...

You can add that 3mph to your alleged speed, and (obviously) you will still be in excess of the 65mph maximum limit...
You can also subtract that 3mph from your alleged speed and I'm betting you will still be in excess of the 65mph maximum limit!

I have seen several posts stating if an opposing attorney was involved that Discovery Motion must be filed and provided to that attorney.

Posts from where? This forum?

As to the underlined portion... It simply does not make sense!

If an opposing attorney was involved, he would have had to serve and file his own discovery request, but that by no means is an absolute guarantee that it will be provided. And provided by whom, the CHP? Or by the district attorney who isn't there and wouldn't know a thing about a traffic citation?

Any appeal would hinge on whether ANY type of advance request on my part has to be provided forcing the officer to provide documentation to attest to the certification of the radar. August, 2009 by San Diego State University is what he testified to in the courtroom.

You have no grounds for an appeal, sorry... At least, not from the direction you're looking at this matter and certainly not based on the grounds you've stated!

You were convicted of an infraction simply because the judge opted to believe the officer's testimony that the Radar unit he used was calibrated at some point in time in the past. That was sufficient for the judge to assume an accurate unit was used.

You can read a similar case in People v. Lowe, 130 Cal. Rptr. 2d 249 - Cal: Appellate Div., Superior 2002

Without the exact wording of what the judge stated, it would be difficult to try and determine what he meant... I will take a guess though... By mentioning discovery, the judge meant the following: Had you requested discovery, the officer could have/would have provided you with a copy of the calibration certificate for you to examine and attempt to undermine; the fact that you did not request it via discovery gives him the choice to testify to the calibration that he states had occurred in August of 2009, and gives me the option to place as much weight as I please to its validity...

If you feel something else was inferred, then by all means, you are still within your rights if you choose to appeal... Don't take my words for it. And here are the appeal instruction forms!

Good luck!

[themadnorwegian]

I'm hard pressed to add to what TG had already said. However, the only possible route for appeal here would be if the OP were cited for a 22349(a) and the posted speed limit was a prima facie limit instead of a maximum limit. If that were the case, the speed trap would still apply and the radar calibration issue might be germane. Unfortunately, the OP hasn't provided us with enough details to know one way or the other.

In the general case, I completely agree with TG. There's no statutory requirement that states when the police must calibrate their radar if you're cited for 22349(a).

[r.hemphill]

Thanks for the advice. Just to clarify my question was never whether the CHP had to calibrate before or after this incident. rather merely if I could get it tossed out of court on appeal based on the fact that the officer did not provide anything in the way of documentation to prove it. Of course if regardless of whether it is called discovery or not if I was supposed to make a request in advance of the hearing to examine the documentation then it is a moot point. As far as the passage that was underlined and the issue of the discovery motion not making any sense let me clarify again what I was saying is whatever you want to call it letting the opposing party know in advance that I wanted to examine the Certificate that supposedly proves the radar was calibrated when and where the officer claimed it was. Any way I appreciate the assitance in assisting me with some answers. I guess I will have to pay the thing and be done with it. I am very disapointed that without the aid of an attorney though that the deck is stacked against common citizens to fairly challenge the system in court. What a racket the legal system is for the little guy. Oh well what ISN'T a racket not what IS! There is no way you can win against the system and basically from what has been said here an officer can state whatever he pleases as far as speed of a vehicle and there isn't anything the citizen can do because the entire process is corrupt. Sorry to sound so cynical if I do but thats the way I feel. Kind of like taking your car into a dishonest repair shop and getting ripped of whhich happens every day. Sorry fellas guess I've said too much already take care and thanks again.

[davidmcbeth3]

I contested a speeding ticket in California Superior Court. During the hearing phase the Judge made me a plea down offer to which I chose to turn down and continue (immediately) to the trial phase. The officer claimed his Radar was last calibrated in August 2009 by San Diego State University. I understand California Law requires calibration every 3 years so o.k. fine. I then asked the officer for documentation (proof) in writing and he couldn't provide it. Based on lack of foundational evidence I made a motion for the case to be dismissed. The Judge would not act on my motion and told me that the officers word on the calibration issue was good enough. He also told me I needed to ask for that documentation in discovery and was I asking for a continuance. I said no and repeated my request for motion to dismiss, and I stated since the entire case was predicated on the radars accuracy the officer should have known full well that this issue could come up in court. He again ignored my motion and did not act on it and found me guilty. My question is whether it is called discovery or something else was I REALLY required to file something in advance to require the officer to provide this document, or is the judge merely covering for him. I want to know if I have grounds to appeal based on this issue of the radar certification.

You need not ask for it - they did not try to get it introduced. You could have added 6th amend right to confront as well (melendez-diaz) but in this case the judge was 100% wrong regarding the admittance of the officer's testimony.

You should have accepted the offer for an adjournment though. (you knew he was going to find you guilty).

For all the naysayers out there: if judges can allow such testimony w/o a proper foundation then they can testify to ANYTHING & our rules go right out the window. Judges like this create a hazardous environment for cops on the street.

In the general case, I completely agree with TG. There's no statutory requirement that states when the police must calibrate their radar if you're cited for 22349(a).

The OP was also arguing that the lack of evidence regarding a cert. of cal. could be seen as hurting the state's case (who could argue against that?). The maximum time required between calibrations is not set by the state but by the manufacturer of the equipment. Any state law that stretches it beyond the manufacturer's requirements would be improper (law or not). The state can make the time period shorter (LIDAR for ex. -- no man. requires re-calibration at all !). The state has no experts in the SMD equipment and should reply on the manufacturer's recommendations ~ anything else is the gov't doing bad science (what's new, right?)

[That Guy]

OK, so I'm going to try this one more time...

Whether the officer testified that his Radar was calibrated in August of 2009 or not, is not likely to be sufficient to have resulted in an automatic reversal on appeal;
Whether the officer testified that his Radar was calibrated at all or not, is not likely to be sufficient to have resulted in an automatic reversal on appeal;
Even if he had made no mention of calibration, and you had to question the officer about how long it has been since or when was the last time his Radar was calibrated and he replied with "I don't know", is still not likely to be sufficient to get an automatic reversal on appeal;

You're making such an issue with calibration and yet, when it comes to calibration and the circumstances under which it is required, proof of RADAR training and certification is ALSO required.... Why is it that you are not applying that here? Did he in fact present certified copies of his P.O.S.T. certification showing he completed 24 hours of Radar training? Is the system simply corrupt for not requiring one (calibration), and otherwise, it is wholesome, just and fair in spite of the lack of any requirement for the other (certification)?

The nature of this charge and the circumstances under which a driver is cited for exceeding the maximum speed limit does in fact leave the deck stacked against you and does indeed leave you with very little room to defend yourself; but none of that is secret, so I'm not sure how you conclude that the system is corrupt simply because it is not designed to allow you as many loopholes as you feel you are entitled to. If justice were measured by the number of loopholes then no one would ever be justly convicted of any crime!

Surely the officer can say anything he wants, but lets talk reality, let us assume that he did in fact present a certified true copy of a calibration certificate and one which meets the strictest of standards... How does that guarantee you as the defendant, that the speed he testified to measuring you at, was even close to your actual speed? You cannot calibrate honesty, can you?