SPEEDING and RADAR
By Kenneth A. Vercammen
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.
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.
In every charge of a
speeding violation, the complaint or summons should specify (l) the speed at
which the defendant is alleged to have driven, (2) the speed which is prima
facie unlawful, and (3) the time and place of the alleged violation.
speeding violation, the complaint or summons should specify (l) the speed at
which the defendant is alleged to have driven, (2) the speed which is prima
facie unlawful, and (3) the time and place of the alleged violation.
A sign showing a speed
limit is merely notice of the law or an ordinance or regulation prohibiting a
greater speed. The sign itself does not
set the speed limit. There can be no
conviction for violation of the edict of a posted sign, but only for violation
of the statute, ordinance, or regulation having the force of law. There are many unauthorized signs in the
state which may serve as a warning but have no effect in creating an
offense.
limit is merely notice of the law or an ordinance or regulation prohibiting a
greater speed. The sign itself does not
set the speed limit. There can be no
conviction for violation of the edict of a posted sign, but only for violation
of the statute, ordinance, or regulation having the force of law. There are many unauthorized signs in the
state which may serve as a warning but have no effect in creating an
offense.
Radar
Speed-measuring radar in various forms has been
accepted since State v. Dantonio 18 N.J. 570 (1955), where the N.J.
Supreme Court held it is not essential that the court determine the precise
speed at which the vehicle was being operated when the alleged offense
occurred, and that the operator of the vehicle must be adjudged guilty if the
evidence established, beyond a reasonable doubt, that the drive exceeded the
statutory speed limit.
accepted since State v. Dantonio 18 N.J. 570 (1955), where the N.J.
Supreme Court held it is not essential that the court determine the precise
speed at which the vehicle was being operated when the alleged offense
occurred, and that the operator of the vehicle must be adjudged guilty if the
evidence established, beyond a reasonable doubt, that the drive exceeded the
statutory speed limit.
It is not necessary for
the trial court to make a particular finding as to the precise speed in excess
of the speed limit at which the defendant was traveling at the time of the
violation. State v. Bookbinder
82 N.J. Super. 179, 183 (App. Div. 1964).
the trial court to make a particular finding as to the precise speed in excess
of the speed limit at which the defendant was traveling at the time of the
violation. State v. Bookbinder
82 N.J. Super. 179, 183 (App. Div. 1964).
However, if the defendant
is found guilty, the trial court should determine the quantum of excess was so
many miles per hour in exercising its discretion as to the penalty to be
imposed within the statutory limitation.
The precise speed a motorist was traveling thus is material only on the
question as to the penalty to be imposed, not on the question of guilt or
innocence.
is found guilty, the trial court should determine the quantum of excess was so
many miles per hour in exercising its discretion as to the penalty to be
imposed within the statutory limitation.
The precise speed a motorist was traveling thus is material only on the
question as to the penalty to be imposed, not on the question of guilt or
innocence.
State v. Readding
169 N.J. Super. 238 (Law Div. 1978), restated the general rule that in order
for the radar speedometer reading to be admissible into evidence, it should be
established that: (l) the device is scientifically reliable; (2) the particular
speedometer used in the case being tried is accurate; (3) the operator is
qualified; and (4) the device was operated properly in the case being tried.
169 N.J. Super. 238 (Law Div. 1978), restated the general rule that in order
for the radar speedometer reading to be admissible into evidence, it should be
established that: (l) the device is scientifically reliable; (2) the particular
speedometer used in the case being tried is accurate; (3) the operator is
qualified; and (4) the device was operated properly in the case being tried.
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. This case should be
read and reread for a detailed explanation of Radar by a Court.
(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. This case should be
read and reread for a detailed explanation of Radar by a Court.
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.
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.
Courts have accepted as
scientifically reliable MPH Industries' K-55 Traffic Radar. In State v.
Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the appeals court held in
all future cases 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.
scientifically reliable MPH Industries' K-55 Traffic Radar. In State v.
Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the appeals court held in
all future cases 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.
MPH Industries,
manufacturer and distributor of the K-55, sets forth the following eight points
an officer must be able to testify to:
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.
and location of the radar device at the time he made the reading.
- The officer must be able to identify the
vehicle.
vehicle.
- The officer must identify the defendant as the
operator of the vehicle
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.
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.
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.
training in radar use.
- The officer must establish that the radar was
tested for accuracy both prior and after its use.
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.
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.
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
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. MPH Industries
argues this is not necessary with moving radar.
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. MPH Industries
argues this is not necessary with moving radar.
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:
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).
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.
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.
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.
It is also important to
recognize that in State v. Readding 160 N.J. Super. 238, the court
stated: the proper operation of the device must be proved, usually by detailed
reference by the qualified operator to the procedures called for by the
manufacturer of the device.
recognize that in State v. Readding 160 N.J. Super. 238, the court
stated: the proper operation of the device must be proved, usually by detailed
reference by the qualified operator to the procedures called for by the
manufacturer of the device.
Tuning Forks
Before a radar speed reading is admissible, the
state must establish the machine was operating properly. MPH Industries' test
procedure uses two tuning forks: First,
the lower-speed fork is struck on wood or plastic and the ringing fork is held
in a fixed position two to three inches in front of the antenna with the harrow
edge of the fork facing the antenna front.
This will cause the Patrol Monitor Window to display the fork's
speed. While continuing to hold this
ringing fork in place, the higher-speed fork is struck and held next to the
lower-speed fork (both forks must be vibrating while being held an equal
distance from the antenna). The target should then display the
"speed" difference between the two forks. For example, if the forks
used are 35 mph and 65 mph, then the target window will display the difference,
which is 30 mph.
state must establish the machine was operating properly. MPH Industries' test
procedure uses two tuning forks: First,
the lower-speed fork is struck on wood or plastic and the ringing fork is held
in a fixed position two to three inches in front of the antenna with the harrow
edge of the fork facing the antenna front.
This will cause the Patrol Monitor Window to display the fork's
speed. While continuing to hold this
ringing fork in place, the higher-speed fork is struck and held next to the
lower-speed fork (both forks must be vibrating while being held an equal
distance from the antenna). The target should then display the
"speed" difference between the two forks. For example, if the forks
used are 35 mph and 65 mph, then the target window will display the difference,
which is 30 mph.
Admissibility of Evidence
The
state should establish through documentary evidence the tuning fork itself was
accurate. The state must produce and be
able to admit into evidence certificates as proof of the accuracy of the
devices used for testing the proper operation of the machine.
state should establish through documentary evidence the tuning fork itself was
accurate. The state must produce and be
able to admit into evidence certificates as proof of the accuracy of the
devices used for testing the proper operation of the machine.
In State v. Cardone
146 N.J. Super. 23 (App. Div. 1976), the court held that while certificates do
not have to satisfy the normal rules of evidence, an Evidence Rule 8 hearing
[now Evidence Rule 104] still can be held, at which the court can determine
preliminary issues of admissibility of evidence. In such a hearing, the rules of evidence --
except for Rule 4 or a valid claim of privilege -- do not apply. Id. at
28.
146 N.J. Super. 23 (App. Div. 1976), the court held that while certificates do
not have to satisfy the normal rules of evidence, an Evidence Rule 8 hearing
[now Evidence Rule 104] still can be held, at which the court can determine
preliminary issues of admissibility of evidence. In such a hearing, the rules of evidence --
except for Rule 4 or a valid claim of privilege -- do not apply. Id. at
28.
The Cardone court
found that the certificates of calibration and accuracy of the radar machine --
and for the tuning forks used to test the machine -- were properly admitted in
evidence, even though no proof was offered to qualifying the certificates as
records made in the regular course of business.
The certificates were used solely as evidence of proper operating
conditions or as a prerequisite to the admissibility of the radar reading, and
the defendant made no effort to prove the internal calibrating device or the
tuning forks were inaccurate.
found that the certificates of calibration and accuracy of the radar machine --
and for the tuning forks used to test the machine -- were properly admitted in
evidence, even though no proof was offered to qualifying the certificates as
records made in the regular course of business.
The certificates were used solely as evidence of proper operating
conditions or as a prerequisite to the admissibility of the radar reading, and
the defendant made no effort to prove the internal calibrating device or the
tuning forks were inaccurate.
In State v.
Readding, supra, the Superior Court exonerated the defendant, stating:
Readding, supra, the Superior Court exonerated the defendant, stating:
It is entirely possible for a particular
RADAR device to function properly and record accurately a 50 m.p.h. but
inaccurately at higher speeds....
RADAR device to function properly and record accurately a 50 m.p.h. but
inaccurately at higher speeds....
Accuracy of the particular speedometer
should be established by more than one
test.
should be established by more than one
test.
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.
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.
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)
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)
Reginald Stanton, Assignment Judge wrote: …the general
concept of using lasers to calculate the speed of motor vehicles is generally
accepted within the relevant scientific community and is valid. Despite the
fact that the testing conducted was far from perfect, it was adequate, and I am
satisfied from the totality of the evidence presented to me that the laser
speed detector produces reasonably uniform and reasonably measurements of the
speed of motor vehicles under conditions likely to be present on New Jersey
highways when the detector is used for law enforcement purposes.
concept of using lasers to calculate the speed of motor vehicles is generally
accepted within the relevant scientific community and is valid. Despite the
fact that the testing conducted was far from perfect, it was adequate, and I am
satisfied from the totality of the evidence presented to me that the laser
speed detector produces reasonably uniform and reasonably measurements of the
speed of motor vehicles under conditions likely to be present on New Jersey
highways when the detector is used for law enforcement purposes.
The error trapping
programs and mechanisms built into the detector are fully adequate to prevent
unreliable speed measurements when used for law enforcement purposes.
Accordingly, under the broad teaching of cases such as Romano v. Kimmelman,
96 N.J. 66, 474 A.2d 1 (1984), and State v. Wojtkowiak, 170 N.J. Super.
44, 405 A.2d 477 (Law Div. 1979), reversed on other grounds, 174 N.J. Super.
460, 416 A.2d 975 (App. Div. 1980), speed readings produced by the laser speed
detector should be received as evidence of the speed of motor vehicles without
the need for expert testimony in individual prosecutions arising under the
motor vehicle laws.
programs and mechanisms built into the detector are fully adequate to prevent
unreliable speed measurements when used for law enforcement purposes.
Accordingly, under the broad teaching of cases such as Romano v. Kimmelman,
96 N.J. 66, 474 A.2d 1 (1984), and State v. Wojtkowiak, 170 N.J. Super.
44, 405 A.2d 477 (Law Div. 1979), reversed on other grounds, 174 N.J. Super.
460, 416 A.2d 975 (App. Div. 1980), speed readings produced by the laser speed
detector should be received as evidence of the speed of motor vehicles without
the need for expert testimony in individual prosecutions arising under the
motor vehicle laws.
The Law Division
held admissibility of such readings shall be subject to the rules set forth
below:
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.
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.
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.
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.
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.
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. November 24, 1999
affirmed State v. Abeskaron (In re Admissibility Hearing of the LTI Marksman
20-20 Laser Speed Detection Sys.), 326 N.J. Super. 110. November 24, 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. Obey the
law, follow speed limits and you will have no need to know about Radar.
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. Obey the
law, follow speed limits and you will have no need to know about Radar.
About the Author
Kenneth
A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He has lectured on traffic and criminal law
for the New Jersey State Bar Association, New Jersey Institute for Continuing
Legal Education and Middlesex County College.
He often lectures for the New Jersey State Bar Association on personal
injury, criminal / municipal court law and drunk driving. He has published 55 articles in national and
New Jersey publications on municipal court and litigation topics. He has served
as a Special Acting Prosecutor in seven different cities and towns in New
Jersey and also successfully defended hundreds of individuals facing Municipal
Court and Criminal Court charges.
A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He has lectured on traffic and criminal law
for the New Jersey State Bar Association, New Jersey Institute for Continuing
Legal Education and Middlesex County College.
He often lectures for the New Jersey State Bar Association on personal
injury, criminal / municipal court law and drunk driving. He has published 55 articles in national and
New Jersey publications on municipal court and litigation topics. He has served
as a Special Acting Prosecutor in seven different cities and towns in New
Jersey and also successfully defended hundreds of individuals facing Municipal
Court and Criminal Court charges.
In his private practice, he has devoted a substantial
portion of his professional time to the preparation and trial of litigated
matters. He has appeared in Courts
throughout New Jersey several times each week on many personal injury matters,
Municipal Court trials, matrimonial hearings and contested administrative law
hearings.
portion of his professional time to the preparation and trial of litigated
matters. He has appeared in Courts
throughout New Jersey several times each week on many personal injury matters,
Municipal Court trials, matrimonial hearings and contested administrative law
hearings.
Since
1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences
as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme
Court), with the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an
Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton,
PA.
1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences
as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme
Court), with the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an
Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton,
PA.
No comments:
Post a Comment