Moving mode: officer did not check patrol speed against speedometer

[samolet]

What is the name of your state (only U.S. law)? NJ

I've got a speeding ticket where the officer used a radar in "opposite direction" moving mode. In this mode the radar displays the police car ("patrol") speed and the target speed. The radar manual says he must testify he compared patrol speed to actual speedometer reading. He does not say so in his notes. Suppose he "forgets" to testify about this. Two questions:

1. This is clearly an inadequate procedure. He did not follow the manual. What case law should site for my defense?

2. What is the right moment to make motion for dismissal? In the closing statement after cross-examination? I know I have to rebut visual estimate too, and I have plans for that, but beating the radar is paramount.

Any advice is welcome.

 

[justalayman]

a radar manual cannot require the officer testify to anything. It is an operations manual, not a manual on court procedure.

 

[samolet]

You'd be surprised

Well, actually it requires to check the speed in the description of moving mode, and separately talks about testimony in a "legal" section. Yes, it has a legal section. BTW, I did some research and it appears that the case in point is Wisconsin v. Hanson. However, NJ judge is free to ignore it.

 

[justalayman]

Regardless of it being a "legal section" it cannot demand what an officer testify to. That is up to the courts of any given state to determine.

So, you were clocked with an MR-7 radar unit? If not, what is the model of the unit used?

Has the unit used received judicial notice in NJ?

 

[Philxxxx]

I would think that the officer must use the suggested methods to lay the foundation for the admittance of the speed reading.

If he does not state that he followed the suggested methods (even if he gives every step needed step by step) then he still has not laid a proper foundation.

Object to the testimony on speed due to lack of foundation. Object after the officer is done testifying ... if the judge wants to give him a "2nd chance", object again as the witness is done testifying for the state & the state cannot correct errors when they had the opportunity to question the witness & blew it.

I would not even mention the need to reference the speedo unless he says that he followed the suggested method.

You have to push a judge on this point but it is the law..google scholar cases in your state not only for just speeding but other cases regarding foundation requirements...

 

[justalayman]

Philxxxx;2804044]I would think that the officer must use the suggested methods to lay the foundation for the admittance of the speed reading.

since the manufacturers work primarily with law enforcement agencies (for these types of equipment), it is to their benefit to include information derived from court trials that allow their equipment to be accepted as dependable in the courts. It increases the value of the equipment to the force. If the readings by the equipment are not accepted in court, the equipment becomes a very expensive tool that provides no benefits. As such, the police agencies will not buy them.

If he does not state that he followed the suggested methods (even if he gives every step needed step by step) then he still has not laid a proper foundation.

Not necessarily true. The suggested method is typically a proven means of being accepted by the courts. It doesn't mean it is the only method. The problem though is that each state has their own laws. What is acceptable in one state may or may not be acceptable in another.

we will have to wait for the OP to come back but I see a couple possible problems with his situation:

the case he references speaks specifically to a Kustom Electronics model MR-7. The case was from 1978 (I think). Unless the same model of unit was employed in the OP's situation, that case is irrelevant for the purpose stated. If it is a different unit, that case has no applicability to the case at hand because the case was dealing with the operation of that specific unit. There has been a lot of changes to both; radar units and vehicles. Any of which that could change the need to do what was required when using an MR-7 model.



He also needs to check to determine if the unit used has been given judicial notice and if it has, the protocol required to be used to be accepted as being given such notice. That is where he would attack the actions of the officer in regards to the specific piece of equipment used.

 

[samolet]

The radar is Bee III radar. I can't find anything on it in the judicial notices.

I don't think the argument that vehicles changed significantly from 1978 will hold water - they did not. The radars - I don't know, I am not an expert in radars. But I can definitely try press NJ case law with a similar model. Thanks!

 

[justalayman]

I don't think the argument that vehicles changed significantly from 1978 will hold water - they did not.

Involving this type of situation, yes, they changed a lot. I'm not going to get into the specifics but yes, there are changes that are critical.

The radars - I don't know, I am not an expert in radars.

if you are going to contest your case based on the accuracy and dependability of the radar unit used, you have better take a crash course and become an expert. You don't get to just toss out BS without being able to support the reason that is relevant.

But I can definitely try press NJ case law with a similar model. Thanks!

what similar model? The Bee is nothing like the MR-7. The case you cited was specific to the MR-7 and has absolutely no application to a case with the Bee unit. If you cite a recommended procedure from a manual for the MR-7, the obvious question to you would be "what relevance does it have to the Bee radar unit?" Does a Bee even have a similar test function to the MR-7? How does the MR-7 determine the users car speed? How does the Bee determine the users car speed? Are the deficiencies of the MR-7 also proven to exist in the Bee?

You simply cannot compare radar units from two totally separate manufacturers and expect there to be any similarities, at least as far as the court is concerned. If you are going to attack some action recommended by the manufacturer of the Bee unit, it better be something from the manufacturers of that unit and be applicable to that unit and not to some unit from some other manufacturer and written 30 years ago.

 

[samolet]

Alright, lets separate apples from oranges here.

BEE III has an operation manual. The manual says that the officer should do so and so, in particular it should compare that patrol speed as displayed by the radar is equal to the speed as displayed by the speedometer. According to the manual, this is required to get a reliable reading.

So, basically, the officer did not (is not going to) testify that he followed the procedure prescribed in the manual. This is a fact, no BS here.

Now, the court may argue that this does not matter, since there is no case law pertaining to exactly this model and exactly this user manual. It should be kinda obvious that if the user manual says "do X" and the officer does not do X, the result may be garbage. You should not need case law for this. But speeding ticket courts tend to ignore such simple facts.

So, the question is, what is the best way to bring this point across: the officer did not follow the user manual, that's inadequate procedure.

 

[samolet]

it better be something from the manufacturers of that unit and be applicable to that unit and not to some unit from some other manufacturer and written 30 years ago.

There is some material on K-55. It is from the same manufacturer (MPH). The BEE III has been introduced only in 2007, I can find nothing on it

 

[Zigner]

So, basically, the officer did not (is not going to) testify that he followed the procedure prescribed in the manual. This is a fact, no BS here.

So, you don't think the officer (who has likely testified dozens, if not hundreds or thousands of times) will say "I followed all applicable manufacturers operating procedures."? Really?

 

[justalayman]

is there internet access to the manual for the BeeIII?

So, basically, the officer did not (is not going to) testify that he followed the procedure prescribed in the manual. This is a fact, no BS here.

how do you know?

Now, the court may argue that this does not matter, since there is no case law pertaining to exactly this model and exactly this user manual.

if the instruction is not for this particular model, it is irrelevant. You are trying to say that if my repair manual for my volkswagon (old) beetle says to lift of the rear of the car to remove the engine, that is equally applcable to changing the engine in the new beetle. If it isn't for the specific unit or you can prove it is applicable (which means you have to understand how each unit works and the purpose of the directive), it is not applicable to your situation.

 

[samolet]

So, you don't think the officer (who has likely testified dozens, if not hundreds or thousands of times) will say "I followed all applicable manufacturers operating procedures."? Really?

Easily. Besides, "I followed all procedures" is too broad a statement. I will object that it's vague.

 

[Zigner]

Easily. Besides, "I followed all procedures" is too broad a statement. I will object that it's vague.

Your objection will be overruled.

 

[samolet]

how do you know?

It's not in his notes. Most likely he will just read his notes.

if the instruction is not for this particular model, it is irrelevant.

The rule is in the manual for the particular radar model he used. Assuming he does not testify he followed the rule, the question is what is the best way to convey to the judge that this is material.

The problem is, there appears to be no _case law_ for this model. Let's concentrate on the matter, shall we?