Speeding and Radar

Proper preparation may help keep your client’s driver’s

license

By Kenneth A. Vercammen

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. Proper

preparation and failure to provide discovery may help keep your client’s

driver’s license.

As a young attorney in 1987, plea bargaining was not permitted in

municipal courts, so we routinely had trials on speeding tickets and stop

sign violations. While plea bargains now are the norm, occasionally a

client may need to win a speeding ticket trial to avoid loss of job or

license. Some companies could have a policy that discharges an employee

who receives a moving violation while on the job. Remember, even no

point tickets such as unsafe driving are still moving violations. If someone

is on probation with Motor vehicles, even a downgrade to an unsafe

driving “no point ticket” is still a moving violation would probably

would result in a MVC suspension. ( please rewrite this sentence). A

prosecutor or judge may threaten a license suspension if found guilty.

Therefore, sometimes we need to go to court to win the trial of a speeding

ticket, or negotiate for an outright dismissal.

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.

Defense counsel should make a written demand for discovery, and

follow up with a motion to dismiss for failure to provide discovery. If no

discovery provided and the trooper fails to show up, the state may not

object to a motion to dismiss.

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.

The traffic radar method speed detection measurement depends upon

the Doppler Effect in which a radio wave which strikes a moving object is

reflected from that object at different frequency from that of the incident

wave. A radar then transmits waves and receives reflected waves can

determine their frequency difference and calculates the speed of the object

which produced the reflective wave.

In State v. Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the

appeals court held 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.

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. 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.

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.

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:

1. By 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.

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.

In State v. Van Syoc 235 N.J. Super. 463. 465 (Law Div. 1988), aff’d

o.b. 235 N.J. 409 (App. Div. 1989) defendant, failed to object to the

introduction of K-55 radar unit evidence of excessive speed until the trial

had been concluded, and he then argued that the charge against him should

be dismissed because the State has failed to demonstrate that the K-55 unit

was being operated in the manual mode, as required.

Upon de novo review, Judge Steinberg found that defendant, an

experienced trial attorney, failed to object to the introduction of the radar

evidence because he perceived a tactical advantage in withholding his

objection. The judge then held that defendant had waived his right to

object, noting that if an objection had been interposed in a timely fashion,

the State would have been in a position to supply the missing evidence. In

sustaining the conviction, the judge observed that “[trial errors which are

induced, encouraged, or acquiesced in, or consented to by defense counsel

ordinarily are not a basis for a reversal on appeal.”

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.

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.

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).

The Law Division 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.

2. Appropriate training 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.

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.

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.

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. (App. Div. 1999).

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. Proper

preparation may help keep your client’s driver’s license.

Vercammen is a trial attorney in Edison. He often lectures for the New

Jersey State Bar Association, New Jersey Institute for Continuing Legal

Education and Middlesex County College on personal injury,

criminal/municipal court law, drunk driving and contested probate estate

administration.