Legality of pacing as speed detection

[inmemof3]

What is the name of your state? North Carolina

Is pacing a legal method for determining speeds? What criteria must be followed?

[CdwJava]

Originally Posted by inmemof3

Is pacing a legal method for determining speeds? What criteria must be followed?

The officer must drive along beside, in front, or behind of the suspect vehicle, match the vehicle's pace, and look at his speedometer for a reading. The distance should be close, but it doesn't have to be on top of the suspect.

What did you think?

- Carl

[sukharev]

Originally Posted by inmemof3

What is the name of your state? North Carolina

Is pacing a legal method for determining speeds? What criteria must be followed?

Oh, it's LEGAL allright

I got pulled over once in NY, they did it to me at night, in heavy traffic all going at 75 in 55... I had to use a lawyer to get this one dismissed. However, I did not know a squad about this at the time. Now I would have gone to court myself.

Look up pacing defense on the web. Key to it is police car speedometer calibration, and if they don't have it - you win. Request that through discovery (but don't do it explicitly, just ask for ANY speed measuring device used), together with the rest of the goodies like officer's planned testimony and certification. Follow up with this thread once you get discovery reply.

[CdwJava]

Just HOW do you get the officer's planned testimony in Discovery?? It's not like that is written down anywhere. Officer's notes or reports, sure - but planned testimony?

- Carl

[sukharev]

Originally Posted by CdwJava

Just HOW do you get the officer's planned testimony in Discovery?? It's not like that is written down anywhere. Officer's notes or reports, sure - but planned testimony?

Yep, that's tricky. Rules of discovery are different in every state. The key is that officer is an expert witness as soon as he testifies as to the speed measurement. In many jurisdictions, discovery includes planned testimony from any expert witness. Need to look up NC rules of discovery on the web.

If you do not receive appropriate discovery reply, you can argue lack of due process in court. You are not likely to get the case dismissed, but would shake the prosecutor's case considerably, and improve any odds on appeal if it happens. You can also object if any expert witnesses (like other cops) not mentioned in discovery were brougt in.

As for speedometer calibration, that's a trick that I saw on the web, kinda makes sense. If officer testified his car was going 70 mph, he has to prove the reading was true. Just like with laser, his car has to be calibrated (by a certified shop) before and after the shift. It's likely not. Anything officer says without such a proof is hearsay. If he states "I drove by the radar and it measured the same speed" that's a hearsay, unless radar operator is there in the court. Objection should take care of that. Also, judicial notice may be needed to even admit a particular car as a reliable speed measuring device without expert testimony.

The key again is to not let the cards on the table too soon. If prosecutor knows you are after this defense, he would for sure ask officer to testify about visual speed measurement. If he does not, and crossexamination is over, prosecution rests, and you can ask for directed verdict based on the lack of evidence. Read this one up on tipmra.

If officer testified about visual speed measurement, it's a challenge but that's where his training records come in. Also, independent recollection of events becomes critical, make sure you establish there is none by asking details like exact location, car model, what you were wearing, etc. Anything not on the ticket would do. In the end, much of the technicality would likely be ignored by the judge, but makes good case on appeal (sorry for pessimism there).

[CdwJava]

Originally Posted by sukharev

Yep, that's tricky. Rules of discovery are different in every state.

It must. We don't have to provide that information here.

Just like with laser, his car has to be calibrated (by a certified shop) before and after the shift.

Obviously this must vary by state as well. But I cannot imagine that ANY state would consider this as reasonable. Out here, calibration once a year is the norm.


- Carl

[sukharev]

Originally Posted by CdwJava

Out here, calibration once a year is the norm.

Sorry, I meant testing, not calibration. I agree, calibration is expected to be done within a reasonable time (6 month or 1 year in most states), but testing of any speed measurement device is required within yet another reasonable time before and after the arrest (typically less than a day). Both are likely not done, but that's what discovery is for - to test those hypotheses.

[CdwJava]

Originally Posted by sukharev

Sorry, I meant testing, not calibration. I agree, calibration is expected to be done within a reasonable time (6 month or 1 year in most states), but testing of any speed measurement device is required within yet another reasonable time before and after the arrest (typically less than a day). Both are likely not done, but that's what discovery is for - to test those hypotheses.

The fact that we don't test the speedometer every day has not proven to be a problem in CA. This may not be the case in other states, but I doubt any judge is going to look on this as a fatal error. Maybe as one small thing to try and establish reasonable doubt, but certainly not the "smoking gun" of errors.

And radar/lidar are put through their paces at the start of every shift. Not being certified in their use myself, I don't precisely know the procedure.

- Carl

[sukharev]

Originally Posted by CdwJava

The fact that we don't test the speedometer every day has not proven to be a problem in CA. This may not be the case in other states, but I doubt any judge is going to look on this as a fatal error. Maybe as one small thing to try and establish reasonable doubt, but certainly not the "smoking gun" of errors.

And radar/lidar are put through their paces at the start of every shift. Not being certified in their use myself, I don't precisely know the procedure.

- Carl

No offence, but I believe you are required to test any speed measuring device within a reasonable time, that covers the car, too. This is the only way to know the measurement was correct. Calibration a year ago is not a proof of that. Standards of proof do apply (and once again are state dependent).

FYI, after just being at the trial I can tell you: lidar was not adequately tested in my case. You can look up the operator's manual (use freedom of information act!) to find out correct procedure.

[CdwJava]

Originally Posted by sukharev

No offence, but I believe you are required to test any speed measuring device within a reasonable time, that covers the car, too. This is the only way to know the measurement was correct. Calibration a year ago is not a proof of that. Standards of proof do apply (and once again are state dependent).

As you said, it must be state dependent. This has never been an issue in CA that I have been aware of.

- Carl

[sukharev]

Originally Posted by CdwJava

As you said, it must be state dependent. This has never been an issue in CA that I have been aware of. - Carl

Hi, Carl:

with all due respect to your profession, I'd like to disagree. Here is a link to CA discussion on pacing.

[url]http://forums.mbworld.org/forums/showthread.php?t=24963[/url]

[CdwJava]

Originally Posted by sukharev

Hi, Carl:

with all due respect to your profession, I'd like to disagree. Here is a link to CA discussion on pacing.

[url]http://forums.mbworld.org/forums/showthread.php?t=24963[/url]

Okay ... nothing there is remotely close to requiring an officer have the speedometer checked before and/or after every shift when a cite is issued.

And the ruling of one traffic court is hardly binding even if one DID hold that opinion.

- Carl

[sukharev]

Originally Posted by CdwJava

Okay ... nothing there is remotely close to requiring an officer have the speedometer checked before and/or after every shift when a cite is issued.

And the ruling of one traffic court is hardly binding even if one DID hold that opinion.

- Carl

yes, you are correct, the link only has mentioning on a case where calibration was an issue, not testing. However, I am sure one can dig up more examples, including case law, where this is the case.

You are also correct, even in the same court a different judge could rule differently. All of this is a bad case of judicial system mockary. If all legal rules applied, you probably could not even make an arrest (traffic stop) without a warrant.

[CdwJava]

Originally Posted by sukharev

If all legal rules applied, you probably could not even make an arrest (traffic stop) without a warrant.

I doubt that ... Detentions with cause are perfectly lawful, and arrests for a criminal offense committed in an officer's presence is perfectly lawful. How do you figure that a traffic stop without a warrant?

Oh, and a traffic stop is a detention - not an arrest. Yes, there are some old decisions that define it as an arrest from the time the officer starts writing a ticket to the time he releases the subject, but for many purposes - such as Miranda - it is still not an arrest.

- Carl