RADAR calibration certificates required at trial?

[austinado16]

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

Hi All,
I'm in the process of fighting a speeding ticket for 22349(b)CVC and was cited by CHP for being over the maximum 55mph zone using Stalker Dual II RADAR.

At the recent trial, the citing officer showed up with only a photo copy of his POST approved 24hr RADAR training, and a photo copy of the page from some log book showing that on the date of my citation, (and a few days prior and after) the tuning forks were used to check the unit's calibration and the unit checked ok. Across the top of that page, the officer had written that the RADAR unit had been sent away for calibration mid-2005.

I immediately motioned for a dismissal because the officer did not have the actual calibration certificates for the RADAR unit, or its tuning forks. The judge denied my motion, telling me that he'd give me 2 weeks to find legal authority or case law that showed the officer is required to present these two documents at trial. (I did not do a discovery motion asking for them, as I prefer "trial-by-ambush")

Earlier this year, I won a LIDAR case for 22350CVC when the officer was unable to produce the calibration certificates for his LIDAR unit, and during that trail, the judge, his clerk and the officer were in a frenzy to locate the document, but couldn't find it. The judge immediately dismissed the case.

So my question is: What is the legal authority (and/or case law) that I can clearly quote to the judge? The 40802CVC doesn't seem very clear.....at least to me.

Any help would be greatly appreciated!

 

[CdwJava]

I'm on the road at the moment so don't have my stuff handy (and I have a slow internet connection at the hotel), but it will be unlikely you will EVER see THE original certificates of anything - the officer's training or the calibration or maintenance records. I believe you can seek a certified copy of these, though. Check Evidence Code 1520 et seq. for further info on writings.


- Carl

 

[austinado16]

Thanks for the quick response Carl.

I'm not looking for copies or originals of RADAR unit and tuning fork calibration certificates. That would be a pre-trial discovery issue.

I've had the trial, the officer didn't present them (as I think is required by law) and the judge is allowing me 2 weeks to produce either case law or a legal statute that shows the officer is actually required to present them in order to prove that the unit and forks have been sent away to an independant lab for calibration within 3 years of the citation date.

If you can help me locate case law or a legal statute from here in CA, I'd sure be grateful.

 

[I_Got_Banned]

I highly doubt he "has" to present them in court... Typically the officer, and while he testifies will refer to such certificates by stating "... such and such is on file with the court..."

Post the date your deadline is and I will try a few searches as well...

 

[austinado16]

Thanks for the response! My due date is Friday, Sept. 26th. So I've basically got until the 25th to compile the info and FedEx it to the court.

Here's what happened in the speeding case this past February.

Judge: "Officer, do you have the calibration certificates for the LIDAR unit?"
Officer: "Yes, and they're on file with the court."
Judge: "Very good. Explain the circumstances of this citation."
Officer: "I saw the defendant speeding, blah, blah, blah and I had check my LIDAR for accuracy at the begining of shift, blah, blah, blah, and I issued the defendant a ticket for 22350CVC."
Judge: "Defendant, would you like to ask the officer any questions?"
Me: "Yes. Officer, may I see the calibration certificate?"
Officer: "Sure the court has it in one of these binders."

Then I watched the officer, the judge and the judge's clerk spend 10min scrambling through various binders and folders looking for the cert. Finally, the judge asked the clerk to call another office and ask if it was stored there. The clerk got off the phone and told the judge. "So-n-so says we are not required to keep these. It's the officer's responsibility to bring them to court."

Judge: "Since there's no calibration certificate the case is dismissed."

 

[JIMinCA]

Take a look at the case here:

People v. Earnest [33 Cal.App.4th Supp. 18]

It speaks about the requirements of the state producing the "original or certified copies" of speed surveys. The same rules apply for all evidence presented. I have seen other cases that are more specific about the requirements of a certified true copy... I'll have to see if I can find them.

 

[You Are Guilty]

Evidence usually takes up 6 to 12 months of law school, so there's no way to post an entire treatise on the subject here. Suffice it to say, copies, even non-certified, are potentially admissible under certain circumstances.

Start your reading here:
http://caselaw.lp.findlaw.com/cacodes/evid/1550-1553.html

Then read s. 1520-1523. See where you fit in and come back with the inevitable next set of questions.

 

[austinado16]

Thanks for those links guys. I appreciate you taking the time to weigh in and help.

Got a call from Geo (of Help! I got a traffic ticket.) and we talked about the case. I did read "People v. Difiorri," and "......Ernest" etc. and while I like what I see there, all of these case laws involve 22350CVC citations for the "Basic Speed Law" aka; "unsafe speed" and they are relying on the "protection" offered by anti-speed trap legislation......so they were all wins based on either "no engineering traffic survey" or "out of date survey" or "survey not supporting the posted pimia facia speed." Not one of the cases talks about the specifics of radar calibration certs/requirements and the evidence necessary for a conviction there.

My concern is that if I use these semi-unrelated cases, the judge will refuse to dismiss stating that the case law is for 22350's, and not 22349(b)'s.

But I'm no attorney......what do you guys think?

I'll read that evidence section on findlaw and check back in. One area I think would word speaks to "best evidence" and that it's the burden of the procecution to present it. So in my case, the officer's hand written note about when the RADAR unit was calibrated means little compared to the actual certified copy of the calibration cert.

 

[CdwJava]

I'd say that the handwritten note is the weakest part of the evidence.

Typically, a document presented in court must be accompanied by testimony or some judicial acceptance of its veracity. For instance, if I go to court and present a photocopy of a document, I have to testify as to its veracity (that I made the copy, how or from whom I received it, etc.). In other words, I have to testify that it is a true copy of the original. The court may then accept motions to deny the evidence, etc.

In general, they are not going to ever present the actual certification to the court ... too many chances for the document to get lost if they are constantly hauling it back and forth to court.

- Carl

 

[seniorjudge]

...
My concern is that if I use these semi-unrelated cases, the judge will refuse to dismiss stating that the case law is for 22350's, and not 22349(b)'s.
...

As pointed out earlier, evidence law is a bit complicated.

But the "original or certified" copy rule should apply to all cases, regardless of the statute violated.

 

[JIMinCA]

The 22350 vs 22349 thing is irrelevant. The point for you to focus on is that you objected to the admission of photocopies of required evidence. The question for the appellate court will be simply, did the lower court err by accepting the photocopy over your objection. I think you have a good case. An appeal doesn't really cost you anything. Go for it!!

 

[austinado16]

I appreciate everyone weighing in on this, so thanks very much.

Right now it's not a completed trail, so it's not at the appeal stage.

And just to be clear;
There were no copies of anything showing that the RADAR unit, or it's tuning forks had been sent to an independant lab for calibration within 3 years of the citation date. Nothing at all.

There was only a photo copy from a log book which showed some "x" marks in boxes indicating that the tuning forks had been used to "check" the RADAR unit at the begining and end of shift on the date of the citation (as well as a few days before and a few days after the magic date). It was on the top of this log book page that the officer had written in the date the unit had been sent away for calibration.

He also had a copy of his training certificate showing he'd had the 24hr POST approved RADAR training.

I certainly understand that no dept. is going to send originals, that would be ridiculous, and showing up with copies could certainly work if (as you say) a foundation is laid. But trying to fly a hand written note and nothing for the forks when the certs are obviously sitting in a file somewhere and available? That's a bit of a stretch IMO.

 

[JIMinCA]

Photocopies are not ok. I had a case where a cop brought calibration and training certs in that were photocopies. I objected to their admission and the judge threw them out. So, I moved for dismissal based on a lack of evidence and eventually it was dismissed on that basis.

Once again... the rules in court are simple, yet the state (in one form or another) continuously tries to short-cut them or just ignore them outright. It really does p#&@ me off when a cop comes to court with a complaint that I broke the law when he can't follow the law himself.

 

[CdwJava]

Jim, it may be up to the judge in a particular case as I cannot see where a photocopy is NOT admissible provided there is proper foundation. Granted, I have never tried to submit a photocopy of anything as evidence at trial, but I'm not seeing where it is categorically NOT acceptable.

With the proper objection, and depending on the document in question, I can see that it could be tossed ... but, I do not see in the statutes where photocopies are not allowed.

I admit I may be missing it in the statutes, but I do not see that in the Evidence Code.

- Carl

 

[JIMinCA]

I don't think it is in the statutes... it is simply the burden of proof. A photocopy (especially a photocopy of handwritten notes) cannot be authenticated. That's why there must be a certified true copy which is certified by someone other than the officer (i.e. someone who is not a party to the case). It is the same reason why you don't have your spouse sign your proof of service (or sign it yourself).

Also, while not directly addressing the issue (due to it being accepted law is my guess), the court cases (such as the one I quoted) are filled with references to the need for documents that are ORIGNALS or CERTIFIED COPIES. If photocopies were OK, why would the courts not just say "copies"???

I agree that it is up to the particular judge. Just as many of the cases I have seen go... it is up to the judge if he intends to follow the law, or make it up as he goes along. Unfortunately, I have seen the latter way too often.