When one of your officers has to appear in court for a speeding citation he wrote, is that officer ready to testify?
With the state of the economy, more and more speeding citations are being challenged in court. In addition, red light cameras are being removed (the city of Los Angeles recently shut down its red light camera program), so now police departments are striving to increase their citation revenues. Unfortunately, some officers are unprepared when they get to court and their citation is dismissed.
Getting Tougher Out There
Last year, Harris County, Texas (Houston), took over 100 radar guns out of service. The reason: There was no officer training and the equipment was not recertified. In Hawaii, the Supreme Court (Assaye v. Hawaii, 2010) ruled against Honolulu’s laser gun training program and officers were not performing daily checks of accuracy as described in the manufacturer’s operator’s manual. In Ohio, an expert witness must be called for moving radar cases (Wilcox v. Ohio, Ferell v. Ohio), even though 60 years have passed since the first radar citation. The Illinois Senate voted down legislation which would have approved statewide judicial notice for laser use in the state which means that every jurisdiction must get court approval to use lasers. Presently, seven states have statewide judicial notice of laser use by law enforcement: Georgia, North Carolina, Virginia, Minnesota, Florida, Maine, and Connecticut. In Texas (Hall v. Texas), “the officer stated to the court he was not certified nor trained to use the laser gun and wasn’t sure who was responsible for the maintenance to insure its accuracy.” The case was closed and dropped.
What Officers Need to Know and What Questions to Expect
Challenges from the courts and defense attorneys are based on three areas: officer certification; daily checks of radar or laser guns for their accuracy using operator’s manual guidelines; and recertification of equipment. Let’s look at each one in detail.
The most important fact in any citation is the valid visual tracking history of the suspect vehicle by the officer – it’s prima facie evidence. A recent Ohio Supreme Court case (Barberton v. Jenny, No. 2009-1069, decided June 2, 2010) affirmed this fact by saying, “A police officer’s unaided visual estimation (visual tracking history) of a vehicle’s speed is sufficient evidence to support a conviction for speeding without independent verification (radar or laser guns) of the vehicle’s speed if the officer is trained, certified, and experienced in visually estimating vehicle speed.”
Don’t: The officer should not give specific speeds of visual tracking history.
Do: The officer should say the suspect vehicle was traveling faster than the speed limit and should give a range of speed estimated.
In many cases, the defense attorney will ask about the qualification of the officer.
Don’t: The officer should not try to be an electronics expert and get caught in this trap.
Do: The officer should state the court case used by prosecutors across the country – Honeycutt v. Kentucky (November 1996). In this case, the court said, “First, the courts will take judicial notice of the fact that a properly constructed and operated radar device is capable of accurately measuring the speed of a motor vehicle. Officers, based on visual observation (visual tracking history), must identify the vehicle and evidence the accuracy of the radar unit had been checked earlier that day by a calibrated tuning fork. It is sufficient to qualify the operator as having such knowledge and training enabling him to properly set up, test, and read the instrument. It is not required that he understand the scientific principles of radar or be able to explain its internal workings.” You must have your officers memorize what the court said – especially that officers do not have to understand the scientific principle of radar or laser. Many courts on all state and national levels have affirmed Honeycutt v. Kentucky.
Defense attorneys will ask if their radar or laser gun has ever made a mistake.
Don’t: The officer should never say his radar or laser gun has made a mistake!
Do: The officer should say that radar and laser guns must be operated within the guidelines outlined in the operator’s manual provided by the manufacturer, using the radar or laser gun to verify their visual tracking history. If pressed by the defense, the officer should concede that certain operational effects are common with both radar and laser systems, including cosine effect. This is not an error, but an effect which is always to the advantage of the driver. This means that, as the angle of the reading increases, the speed reported (indicated speed) is slightly less than the true speed of the vehicle. The officer should have a cosine angle conversion table with him during the testimony.
The defense will ask when and how their radar or laser gun was checked for accuracy.
Don’t: The officer should never say it was checked by using the test button on the device.
Do: The officer should say it was checked for accuracy per the directions of the device’s operator’s manual. The frequency of such checks varies from jurisdiction to jurisdiction and from state to state. It is best to follow what is used by the individual state police agency within a state. The NHTSA (National Highway Traffic Safety Administration) recommends that accuracy should be checked before and after each shift. Remember, this is only a recommendation. There are wide variances. Radar guns are checked for accuracy by using calibrated tuning forks and laser is checked for accuracy using two basic checks: 1) known distance, placing a reflector on the wall at the police station and shooting the laser at the reflector (the distance shown should be the same each time); and 2) the laser should also be tested for vertical and horizontal sight alignment. The tuning forks should be taken to court and, if permitted, a demonstration by the officer testing the accuracy should be done. For laser, it is best to take the laser gun to court in the range mode and have both the defense and the judge operate the device. Several new laser guns have a unique feature called Memory Log©. Each citation event is logged, along with the logging of the daily test of the laser gun by time and date. This feature eliminates the necessity of written logs and preserves the chain of evidence. The certifications of the tuning forks, the radar or laser gun, the recertification documents, and the officer’s certification should be taken to court.
The defense will ask who conducted officer certification and how it is renewed.
Don’t: The officer must not say, as in the case of Hall v. Texas, that he was not certified to use the equipment. This necessity was highlighted by Tisdale v. Ohio, 2008. The court said, “Although Officer Smith testified that he was certified to use the radar system, his training was not otherwise described, nor was his certificate of training offered into evidence.”
Do: The officer should say that he was certified to state police standards either by attending the state police curriculum, the state law officer’s association, departmental certification, manufacturer certification, or certifications offered by universities or independent certification organizations. Independent organizations were defined by the Ohio Supreme Court, Barberton v. Jenny, 2010, when the Court said, “…if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law enforcement professionals and the communities they serve and is experienced in visually estimating speeds.” Officers should present the court and the defense with copies of their certification. Copies of the accuracy logs must also be taken to court to prove the device was tested for accuracy. The NHTSA recommends recertification of equipment and officers every three years. This varies state to state. The court and department should follow the state standards of the state police organization.
The defense will ask who sets and tests the performance standards of radar and laser guns. They will also ask who performs the equipment recertification.
Don’t: Never tell the court the department or state organization sets performance standards of radar or laser!
Do: Present to the court and to the defense copies of USDOT/NHTSA performance standards of both radar and laser guns. These performance standards – DOT HS 809 912 for radar and DOT HS 809 811 for laser – are on the USDOT’s Web site at www.dot.gov and have both the logos of the United States Department of Transportation and the National Highway Traffic Administration. Further, the International Association of Chiefs of Police (www.theiacp.org) publishes a Conforming Product List (CPL) of approved radar and laser speed assessment systems. Models not appearing on the CPL listing may not be used by law enforcement. This CPL listing is published in cooperation with the NHTSA.
The necessity of testing and the development of performance standards came about as a result of the court’s decision in Aquilera v. Florida in 1979. This case was known as the national radar case when Judge Nesbitt observed a radar gun clock a palm tree at 86 miles per hour. The result of this case called for federal testing and formulation of performance standards for both radar and laser guns. These performance standards were revised in 2004, replacing those from 1994. Several states have increased performance standards to complement those set by the federal government. In Colorado (Cooke v. Colorado, 2003), the court mandated that police laser guns be checked for accuracy annually by the Colorado Department of Agriculture.
Equipment recertification should also follow the state police standard in a particular state. There are several sources for recertification of equipment, including the manufacturer, identified universities, and private equipment recertification companies. However, private recertification companies must have the necessary equipment to follow performance specifications as itemized by DOT HS 809 812, 811 and have an FCC technician performing the recertification of equipment. Copies of the recertification certificates should be presented.
About the Author: Carl Fors is President of Fort Worth, TX-based Speed Measurement Laboratories Inc. and has over 25 years of experience developing and testing highway safety devices, including radar and laser speed assessment systems. He has been published over 50 times and teaches NHTSA compliant radar and laser certification courses at law enforcement agencies in the US and abroad. He serves federal, state, and local courts as a recognized “expert witness” in radar and laser trials. He may be reached at (817)291-2396 or by visiting www.speedinglimits.com, www.radarsignals.net, or www.adoptaschoolzone.com.
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