Aug 22, 2011 Beware speed radar and laser testimony
When police stop a car using radar or laser for speeding charges, I ordinarily only step into the picture for motions to suppress the stop and for jailable reckless driving charges in Virginia, as I do not tend to defend non-jailable moving violation charges.
When I challenge radar and laser speed checks at suppression motion hearings, judges often allow police to testify to their lay opinion that the defendant was exceeding the speed limit, with judges reasoning that the standard of proof to stop a car is only reasonable articulable suspicion of a moving violation, versus the beyond a reasonable doubt standard of proof for speeding in the criminal courts where I practice.
In Virginia, many speeding charges are jailable as reckless driving prosecutions, carrying up to one year in jail and zero days to six months of suspended driving (with the possibility of restricted driving privileges). Although I oppose laws charging reckless driving based on speed alone, my opposition to such a law, by itself, is not going to strike Virginia’s speeding reckless law from the books, and defendants will still need competent defense for such cases.
Too many judges seem to accept radar and laser as gospel, even though such gospel does not exist. First of all, I argue, the prosecution must prove with admissible evidence that the radar or laser was properly calibrated and properly functioning at the time of the incident, the certification for the equipment was current, the operator was properly trained, and s/he was properly operating the equipment.
Tracking history is an essential part of properly operating the radar equipment. Congratulations to Virginia lawyer David Michael Good for revealing at trial a Petersburg, Virginia, police officer who had no idea what tracking history was, which led a judge to dismiss a slew of his speeding cases.
Police being human, their badges, service revolvers and power of arrest do not eliminate their fallibility. Judges and jurors need to be constantly reminded of this.