funhouse said:
What is the name of your state? MA
Just found your sight so not sure if I can get quick advice on fighting a speeding ticket. I have a court hearing in an hour. The simple question is what can I say or do to help me get out of this ticket? The speeding ticket indicates that the officer got me on radar as well as estimated my speed. I was charged with with going 35 on a 25. Any advice?
little late to start now....
ask him to produce the calibration report for the tuning forks he used to calibrate the radar gun.
introduce the case law below.
Ask for dismissal...no legal certainty can be drawn as to the accuracy or reliability of the radar unit bececause the tuning forks used to calibrate the unit cannot be shown to be accurate at the time of the measurement.
set up a basis for appeal
otherwise plead guitly and ask for forgiveness.
01/03/79 COMMONWEALTH v. KATHLEEN WHYNAUGHT
[1] SUPREME JUDICIAL COURT OF MASSACHUSETTS
[2] [Editor's note: the court provided no docket number in the original opinion]
[3] 1979.MA.7 <http://www.versuslaw.com>, 384 N.E.2d 1212, 377 Mass. 14
[4] January 3, 1979
[5] COMMONWEALTH
v.
KATHLEEN WHYNAUGHT
[6] SYLLABUS BY THE COURT
[7] Evidence, Speed, Radar speed measuring device, Competency, Judicial discretion. Motor Vehicle, Operation.
[14] This court declared its intention to reverse any conviction and order that a judgment for the defendant be entered in any speeding case tried after the date of this opinion, where radar readings from untested equipment are admitted over objection and without independent corroborative evidence. [21]
[16] The defendant, Kathleen Whynaught, was convicted of speeding pursuant to G. L. c. 90, § 17, after a jury waived trial in the First District Court of Southern Middlesex. Appealing her conviction, she argues that the trial Judge erroneously admitted readings taken from an untested radar speed measuring device and that the prosecution had a statutory burden, which it failed to meet, to prove excessive operation over a one-quarter mile course. We overrule the defendant's exceptions.
[17] The facts are not in dispute. On August 19, 1976, State Trooper Michael Salzman, the detection half of a two-person traffic control unit, was operating a radar device on Route 495 near Hopkinton. Observing readings from the radar unit, Trooper Salzman determined that an automobile was travelling seventy-five miles an hour on a highway posted for fifty-five. He so notified State Trooper John Brunnetta, the apprehending half of the unit, who stopped the defendant's vehicle and issued a citation.
[18] At trial, Trooper Salzman testified that the radar unit he employed was made by the Dacatur Company and was tested for accuracy by means of an internal calibration mechanism. The testing procedure, he explained, involved the selection of two specific settings, one at thirty miles an hour and another at sixty miles an hour; if the unit when turned to those settings read out the correct number on a screen, it was accepted to be accurate. This procedure, he said, was followed approximately every hour on the date of the offense, including once forty-five minutes prior to his clocking the defendant. In addition to his own testing, Trooper Salzman stated that the instrument had been calibrated on different occasions by a radio engineer, although no specific dates were indicated.
[20] 1. Admissibility of Radar Evidence.
[23] Since our decision in Buxton, we have not been called on to decide the admissibility of evidence derived from more sophisticated speed detection devices. Other jurisdictions, however, have considered such questions and have had no difficulty in sanctioning, for evidence purposes, the use of the speedometer, Spokane v. Knight, 96 Wash. 403 (1917), State v. Tarquinio, 3 Conn. Cir. Ct. 566 (1966), or other electrical or mechanical recording instruments, see Webster Groves v. Quick, 323 S.W.2d 386 (Mo. App. 1959); People v. Pett, 13 Misc. 2d 975 (N.Y. Police J. Ct. 1958). The speed detection instrument most heavily relied on, and the one in most common use, is the radar speedmeter. *fn1 The application of radar to traffic control has been encouraged by the fact that those courts which have considered the issue have almost uniformly taken judicial notice of radar's underlying scientific principles and of the general capability of the speedmeter to measure speed accurately. See, e.g., State v. Dantonio, 18 N.J. 570 (1955); People v. Magri, 3 N.Y.2d 562 (1958); Evernight v. Little Rock, 230 Ark. 695 (1959); State v. Tomanelli, 153 Conn. 365 (1966); East Cleveland v. Ferell, 168 Ohio St. 298 (1958); United States v. Dreos, 156 F. Supp. 200 (D. Md. 1957) (applying Maryland law).
There has been a divergence in views, however, on the issue as to what tests are sufficient to prove accuracy. In this respect, some courts have found adequate foundations in various combinations of the following three means of testing radar speedmeters: (1) a "run through," in which another police car closes on the site, holding a given speedometer reading; (2) use of calibrated tuning forks, intended to produce frequencies which will cause the machine, if accurate, to read particular speeds; and (3) use of a signal generator within the machine for the same purpose. See McCormick, (supra) . *fn4
[26]
It is our opinion that some foundation requirement pertaining to the accuracy of the particular radar instrument is appropriate in order to ensure that the persuasive force of scientific results is not improperly triggered. At present, however, we do not insist that this foundation be based exclusively on any one or two of the three principal tests or that testing occur with any given frequency. Instead, in any case where the issue is raised by the defendant, we leave it to the discretion of the trial Judge to determine when a sufficient showing of the particular radar instrument's accuracy has been made. See Commonwealth v. Buxton, 205 Mass. 49, 52 (1910); Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 521-522 (1929). We assume that Judges will closely examine the nature of all testing procedures and that they will be guided in their admission decisions by the quality of the tests performed, rather than by their quantity. See People v. Perlman, supra at 978. At the same time, we expect that the testing requirements Judges impose will not be so onerous as to make use of radar devices a practical impossibility. *fn5 For example, the "run through" test referred to, (supra) , is a simple procedure in which the test automobile's speedometer and the radar unit are mutually corroborative, although neither device may have been tested by more sophisticated methods.
[27] In the instant case, the record indicates that the Judge, over the defendant's objection, required no foundation whatsoever regarding the radar unit's accuracy. In direct examination, however, Trooper Salzman testified that the radar unit in question had been the subject of repeated testing by means of its internal calibration mechanism. Yet, the testimony of Trooper Salzman fails to provide any basis for evaluating the reliability of this calibration procedure. In addition, the record contains no expert testimony or other evidence from which the foundational sufficiency of the exclusive utilization of this testing mechanism might be found. *fn6
[28] Despite our unwillingness on this limited record to sanction this type of radar testing, we affirm the conviction here for several reasons. First, the issue has not previously been raised in this Commonwealth, and there is every indication that the police followed testing habits that have been consistently acceptable and apparently unchallenged in the trial courts. More important, the radar reading, as well as the testimony of the police officer who testified from his observation of the moving vehicle, showed evidence of a speed greatly in excess of the legal limit ("seventy-six," and "approximately seventy-five" miles an hour, on a highway posted for fifty-five). Further, the observations of the officer were corroborative of the reading on the radar unit. Thus, affirming the conviction here is consistent with fairness and Justice. People v. Magri, 3 N.Y.2d 562, 566-567 (1958). Cf. State v. Bonar, 40 Ohio App. 2d 360 (1973).
We add that, in any speeding case tried after the date of this opinion, where radar readings from untested equipment are admitted over objection and without independent corroborative evidence, we shall undoubtedly reverse any judgment of guilt and order that a judgment of not guilty be entered. The issue as to what constitutes adequate testing we leave to a consideration of specific future cases as appraised in light of the general principles included in this opinion.
[37] *fn4 Among the tests for radar speedmeter devices found sufficient to demonstrate accuracy are the use of two tuning forks calibrated at different frequencies, State v. Carta, 2 Conn. Cir. Ct. 68 (1963); the use of a single tuning fork, People v. Abdallah, supra ; the use of an internal checking mechanism combined with two tuning fork tests, People v. Lynch, 61 Misc. 2d 117 (N.Y. County Ct. 1969); and a single tuning fork test coupled with comparison to a speedometer, State v. Shimon, 243 N.W.2d 571 (Iowa 1976). See also Annot., 47 A.L.R.3d 822 (1973). At least one court has found a single tuning fork test insufficient to show accuracy, see State v. Gerdes, 291 Minn. 353 (1971).
