I believe you are correct. But I would go after the EXTERNAL calibration of the unit. Did they provide evidence that the tuning forks used were currently certified for accuracy? or if they used a pace car for the external calibration that it's speedometer was certified to a NIST traceable standard? They can fudge everything else and get away with it pretty easily. That testing they did sounds like only the internal electronics test which says very little.
270 N.W.2d 212
85 Wis.2d 233
STATE of Wisconsin, Respondent,
v.
Lawrence I. HANSON, Appellant.
No. 76-061.
Supreme Court of Wisconsin.
Argued Sept. 6, 1978.
Decided Oct. 3, 1978.
Consequently we hold, that as to the MR-7 used on the date in question, the state not only failed in showing that judicial notice should be taken as to its reliability and accuracy, but that it failed to carry its burden of proof in the prosecution of a speeding citation based upon a speed reading from an MR-7 radar device.
The court takes this opportunity to establish guidelines for the prosecution of speeding citations issued on the basis of a moving speed radar device. The courts of this state may take judicial notice of the reliability of the underlying principles of speed radar detection that employs the Doppler effect as a means of determining the speed of moving objects. To this end, expert testimony is not needed to determine the initial admissibility of speed radar readings. The radar reading may be introduced[85 Wis.2d 245] by the operating law enforcement official, if he is qualified in its use and operation.
The accuracy of any speed radar device is another matter. The accuracy of the most indisputable scientific theory is subject to its application in particular conditions. The application of any virtually undisputed scientific fact to the immediate surrounding conditions must be explained in ascertaining its accuracy.
Consequently, in Wisconsin a prima facie presumption of accuracy sufficient to support a speeding conviction will be accorded to moving radar upon testimony by a competent, operating police officer that:
1. The officer operating the device has adequate training and experience in its operation.
2. That the radar device was in proper working condition at the time of the arrest. This will be established by proof that suggested methods of testing the proper functioning of the device were followed.
3. That the device was used in an area where road conditions are such that there is a minimum possibility of distortion.
4. That the input speed of the patrol car must be verified, this being especially important where there is a reasonable dispute that road conditions may have distorted the accuracy of the reading, (I. e., presence of large trucks, congested traffic and the roadside being heavily covered with trees and signs.)
5. That the speedmeter should be expertly tested within a reasonable proximity
Page 219
following the arrest and that such testing be done by means which do not rely on the radar device's own internal calibrations.
We do not foresee these conditions to proving a prima facie speeding case will place on onerous burden upon the law enforcement of speeding violators. We believe these conditions are necessary to maintaining and improving [85 Wis.2d 246] the public confidence in the law enforcement and judicial systems. For the average law abiding American citizen, minor traffic offenses constitute the only contact such a person will have with the law enforcement and judicial systems. Public confidence rests upon the fairness of such proceedings. Until a radar device is invented that is accurate under any conditions, fairness dictates that contested prosecutions are conducted according to meaningful standards which insure the instrument's accuracy.
Judgment reversed and case remanded for proceedings not inconsistent with this opinion.
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1 For a substantially similar explanation see: People v. Magri, 3 N.Y.2d 562, 565, 170 N.Y.S.2d 335, 337, 147 N.E.2d 728 (1958).
2 Ark. Everight v. Little Rock, 230 Ark. 695, 326 S.W.2d 796 (1959); Cal. People v. MacLaird, 264 Cal.App.2d 972, 71 Cal.Rptr. 191 (1968); Conn. State v. Tomanelli, 153 Conn. 365, 216 A.2d 625 (1966); Ill. People v. Abdallah, 82 Ill.App.2d 312, 226 N.E.2d 408 (1967); Ky. Honeycutt v. Commonwealth, 408 S.W.2d 421 (1966); Minn. State v. Gerdes, 291 Minn. 353, 191 N.W.2d 428 (1971); Mo. State v. Graham, 322 S.W.2d 188 (1959, Mo.App.); N.J. State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460 (1955); N.Y. People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958); Ohio East Cleveland v. Ferell, 168 Ohio St. 298, 7 Ohio Ops.2d 6, 154 N.E.2d 630 (1958); Tenn. Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351 (1957) (dictum); Tex. Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311 (1959) (apparently recognizing rule).
3 Dr. John M. Kopper, one of the nation's leading experts on speed radar, gives a layman's explanation to the workings of a speed radar in his treatise "The Scientific Reliability of Radar Speedmeters," 33 N.C.L.Rev. 343, 16 Md.L.Rev. 1. At 344, Dr. Kopper stated:
"Searching the sky for a target by means of a radar set is like scanning the sky at night with a searchlight. If part of the light set out by the searchlight comes back to your eyes, we say that something in the sky is reflecting light, and we deduce from this fact that in the sky there is a cloud or airplane acting as a reflector. All of this is a roundabout way of saying that we see a target. In a similar way a radar set is said to 'see' a target."
Schroeder's testimony that the accuracy of a radar unit is adversely affected by the greater number of targets along a roadside is entirely logical. The greater number of targets the greater the chance the speed of the patrol car will be determined by more than one target. The time-distance differential between more than one tracked target will render the reading on the squad car speed inaccurate.
Minnesota, in giving judicial notice to the underlying principles of the stationary radar but refusing to give judicial notice as to its accuracy, noted that in proving a case necessary to support a speeding conviction there must be proof that the radar was used in an area with the minimum possibility of distortion. State v. Gerdes, 291 Minn. 353, 191 N.W.2d 428, 432 (1971).
