Speeding by Radar in Virginia (Part 2) -The Radar Devices

(See Part 1)This is a short primer to the Radar and other Methods LEO use to track speeds in the performance of their duty to control traffic on the public streets in your city or town.

This is not to be construed as an all inclusive expose but only as a guide to building your defense for a Speeding by Radar in Va Code 46.2-882 as used in conjunction with (Part 1) of this series. Ultimately, there are four types of radar that Virginia Law codifies in the statutes:  (1) a laser speed determination devise (2) radar (3) a microchip connected to the speedometer of the car (4) microchip aboard a plane or helicopter(VASCAR).

If  LEO is using any other type of device to obtain speed from your vehicle, it is illegal and subject to being dismissed because its not authorized by the Virginia Statute.  That does not happen as often as it used to because the Law has been molded to include almost anything that is currently on the market. Within the types of radar, The Commonwealth of Virginia has an approved list of vendors and device models.  If the device or model# used by your LEO is not authorized, again, its subject to being tossed immediately for being illegal. Most Police Departments use (2) radar units in their patrol vehicles, so I am going to address them more than the others in this document.  Additionally, (3) the installed microchip in patrol vehicles is used to track speed as well as Laser.

My locality uses radar units. Radar units can be installed in the vehicle or hand held and mobile meaning they can be removed from vehicles and held outside of the car or switched between cars.  Installed units normally have the ability to track speed going in the same direction(in front) and (from behind) as well as tracking speed from on-coming traffic.

The unit has a switch that must be toggled when moving from same direction to on-coming traffic.  Additionally, they have a stationary mode to track speed while the patrol car is not moving. Anytime, a citizen is summoned in to court on a 46.2-882 charge, the law provides that the Government has met its burden of proof by presuming that:

The results of such determinations shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceeding where the speed of the motor vehicle is at issue.

Prima Facie evidence is basically the opposite of being presumed innocent.  Basically, the Court presumes that the citizen is guilty “if” the Government can admit evidence (1) That you were tracked by LEO at speed(xyz) which is (xyz) over the speed limit.  (2) That the device used by LEO was properly calibrated and the output or reading was accurate.

So, in essence, if LEO goes into court and testifies that (1) He witnessed you speeding and then used his LE issued radar device to verify your speed and that speed was (XYZ) and (2) That he tested his unit using Tuning Forks before his shift and after his shift and that both the 35 and 65 mph forks calibrated with the device accurately – Then your screwed.  The LEO has met his prima facie presumption that you were in fact speeding by radar in violation of 46.2-882.

But Qui-Ram- I dont understand.  How can I defend myself then?  Great question..  The prima facia presumption of “speeding by radar” attaches if the defendant does not attack two elements of the Governments case against him.  The first element is the admissibility of the testimony or evidence.  The Virginia Supreme Court Rules lays out the Rules for Evidence in Section 2(Rules of Evidence).  This primer only points to the Rules that you need to study and learn so be prepared to get your feet wet when you start leraning it.  The second element is the weight of the evidence(believability)  LEO have a presumption that they are telling the truth because they are officers of the court. Impeaching the officer’s credibility, his training and his recollection of the facts can be extremely effective as a tool to tear down or reduce the weight of LEO’s testimony in the courtroom. If gets caught lying, cant explain his training or procedures for using the device or simply can not remember the facts surrounding the traffic stop – will go to the weight of how much a Judge or Jury believes the officer and is confident that he performed his duty accurately according to the statute.

If the Government is unable to get any evidence admitted into the record to prove their prima facie case for speeding by radar, then the Court will dismiss the case only if the defendant moves to strike the prosectutions case and dismiss it after the Government rests its case.

How does the defendant keep the Government from admitting their prima facie evidence into the court record?  GREAT QUESTION!  When the prosecution is putting its case on – (1st) the cop testifies that you were speeding evidenced by his witnessing the speed on the device and (2nd) that the device was working properly when he calibrated it and to prove that (3rd) here’s the calibration report from the vendor who manufactures the device.

Immediately, as the prosecution lays the foundation for that Calibration Report being admitted into evidence – He will say: “I’d like to introduce this calibration report into the record as “exhibit A”.  Here’s where you need your (already compiled case file from part 1) because you will already know the serial numbers on the device, the car, the tuning forks and the calibration certification. All of the numbers MUST match.

LEO and the whole police department have a habit of mixing and matching calibration reports that are not to the device in the car or they use the same calibration certification for every case.  Each device has its own tuning forks. Each tuning fork set has its own calibration report.

The tuning calibration report has the device name and serial numbers that match the device and the tuning forks, respectively. Objections to the Calibration Certification must be made in order to keep that document from being admitted into evidence:

(1) The Certificate is older than 6 months.  46.2-882 states all calibration certificates must be renewed every 6 months. “I Object to the admissibility of this document because it is older than (6) months in violation of of 46.2-882”

(2) The certificate serial# does not match the tuning forks serial number.  Or the tuning forks dont go with the device(analysed by your discovery in the initial case file you subpoena’d. “I object to the admissibility of this certificate because it doesnt match the forks or the device or any variant of that depending on your situation.”  This happens all the time and we just dont realize it.

(3) The law requires that the Certificate must be a True Copy or the Original of the Certificate.  A True copy is attested by the custodian of that document.  When you inspect the document that the prosecution is attempting to admit into evidence as Calibration Certificate – Check for the signature and find out who signed that certificate of calibration.  The Law is clear on admissibility of Tuning Fork Calibration Certificates. “I object to the admissibility of this certificate because its not a true copy and in violation of the Rules of Evidence for admissibility.”  Additional objection is: “I object to the admissibility of this certificate into evidence because the Custodian of the document is not here and there is no one to properly authenticate this document.  It is not a self authenticating document and doesn’t not pass the hearsay exemption rule”. 

The custodian of that document(or signer of that document) must work for the Department or the Government.  The certificate is normally signed by a vendor which is usually from out of town and most of the time another state, therefore, the document does not pass the hearsay exemption and can not be admitted into evidence based on that objection alone.

*The theory is that the Document is “self” authenticating if the Government is the custodian or the creator of that document therefore its presumed to be true.  However, if a private contractor signed the document, then the person who signed the document must appear in court and testify that the Certificate of Calibration is what it purports to be and therefore creating the authenticity for that document being properly admitted into the court record.  Otherwise – its not.

The easiest way to get out of the courtroom with a win is to attack that Certificate of Calibration and not allow it to be admitted into the record.  If you can keep it out of the record then you have deterred the prosecution from successfully making their prima facia case that you are speeding because even though the officer testified that he clocked you going (xyz); They were unable to prove to the court that, in fact, The device was working properly at the time of the traffic stop.

The defendant should immediately Motion the court to Strike the evidence and dismiss the case for failure to prove that the devise was working properly per 46.2-882.  Take your paperwork and gracefully walk out of the courtroom and count your blessings. Next – Attacking the admissibility of the Officer’s testimony (Part 3) Stay Tuned.

Disclaimer:  This is not legal advise and not all of the writers are attorneys on this site.