Pacing requires a calibrated speedometer...lacking that you can motion for dismissal, or a reduction in charges. a knowledgable lawyer can help you with your plea options...
Here, as in that case, no test of the radar speedmeter used to determine defendant's speed was made at the site of or immediately preceding his arrest. The only test made was at some unknown time and at some undisclosed place. Even if it is assumed that the radar unit was operating properly at that time, such evidence would have no probative force to establish that it was accurate and functioning properly after what may have been (for all the evidence shows) a great number of individual movements, to a far distant site, over a substantial period of time.
Our views in this respect are strengthened by a comparison between the apparent operational procedures employed in the instant case and those recommended by Dr. Kopper. All that appears from the evidence here is that Officer Hoffman parked his police car, flipped the switch which activated the unit, and immediately began to check the speed of approaching motor vehicles. Dr. Kopper recommends: (1) That the set be allowed to warm up for a period of five to ten minutes before being put to work; (2) That the dial then be checked to be certain that it reads zero; and that the set be adjusted accordingly if it does not; (3) that since diathermy machines, swinging signs, swaying trees, and other outside sources can give false readings, that the meter be examined and watched for such indications; (4) that the accuracy be checked by the run-through test, both before and after the period of observation of traffic, by having a car with a calibrated speedometer run through the zone twice, once at the maximum legal rate of speed, and once at a speed 10 or 15 miles per hour greater; and (5), that if the difference between the speedometer reading and the radar meter reading is greater than 2 miles per hour, (due to the engineering tolerance inherent in the radar set) that a further check and any necessary adjustment be made. One court has gone so far as to adopt the substance of Dr. Kopper's recommendations as a requirement for conviction. People v. Sachs, 1 Misc.2d 148, 147 N.Y.S.2d 801, 809. It would appear from State v. Graham, supra, that the state highway patrol makes both the run-through test and the tuning fork test at the site where traffic is to be checked.
We are not unmindful that excessive speed is a dominant factor in the appalling amount of injury and death which occurs daily on our streets and highways. Nor are we unaware of the difficulties encountered by the authorities in the enforcement of the traffic laws and ordinances. Such efforts are to be encouraged, and not hampered. But the requirement that proof be adduced that a radar speedmeter was tested and found to be operating properly at the site of and reasonably close to the time of an arrest should not place an undue burden on the prosecution, and should at the same time protect the rights of motorists against the possibility of error in this device which makes 'delicate measurements.' State v. Graham, supra.
It is unnecessary to discuss other points raised by defendant. For the reasons stated it is apparent that the judgment must be reversed. If the record indicated that other evidence as to defendant's speed could be produced, we would remand the case for a new trial. Here, however, it is clear from the record that no other evidence of the speed of defendant's automobile would be available to the City. Officer Hoffman, a traffic officer with years of experience, testified
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on cross-examination that in the long block he followed defendant before he apprehended him he never once looked at the speedometer of his own car; and when invited on cross-examination to estimate the speed at which his own or the defendant's car was traveling, steadfastly maintained that he could not do so. The judgment should therefore be reversed. The Commissioner so recommends.
