Speeding and Radar

Proper preparation may help keep your clients drivers

license
By Kenneth A. Vercammen
Itisnodefensetoargueunlawfularrest,selectiveenforcement,custom
andusage,nonownershipofcardriven,ignoranceormistakeoflaw,lack
ofprecisespeedproved,defectivespeedometerorcruisecontrol.Proper
preparationandfailuretoprovidediscoverymayhelpkeepyourclients
driverslicense.
As a young attorney in 1987, plea bargaining was not permitted in
municipal courts, so we routinely had trials on speeding tickets and stop
sign violations. While plea bargains now are the norm, occasionally a
client may need to win a speeding ticket trial to avoid loss of job or
license. Some companies could have a policy that discharges an employee
who receives a moving violation while on the job. Remember, even no
point tickets such as unsafe driving are still moving violations. If someone
is on probation with Motor vehicles, even a downgrade to an unsafe

driving no point ticket is still a moving violation would probably

would result in a MVC suspension. ( please rewrite this sentence). A
prosecutor or judge may threaten a license suspension if found guilty.
Therefore, sometimes we need to go to court to win the trial of a speeding
ticket, or negotiate for an outright dismissal.
It is well established that the prosecution of a defendant for a motor
vehicle violation is a quasi-criminal proceeding. In such a proceeding the
burden of proof is upon the state to establish all elements of the offense
beyond a reasonable doubt.
Defense counsel should make a written demand for discovery, and
follow up with a motion to dismiss for failure to provide discovery. If no
discovery provided and the trooper fails to show up, the state may not
object to a motion to dismiss.
How Radar Operates
In State v. Wojtkowiak 170 N.J. Super. 44 (Law Div. 1979), rev'd on
other grounds, 174 N.J. Super. 460, Judge Wells examined in detail the K55 Radar, and his conclusions were incorporated by the Appellate
Division.

The traffic radar method speed detection measurement depends upon

the Doppler Effect in which a radio wave which strikes a moving object is
reflected from that object at different frequency from that of the incident
wave. A radar then transmits waves and receives reflected waves can
determine their frequency difference and calculates the speed of the object
which produced the reflective wave.
In State v. Wojtkowiak 174 N.J. Super. 460 (App. Div. 1980), the
appeals court held the state should adduce evidence at the municipal court
level as to (1) the specific training and extent of experience of the officer
operating the radar, (2) the calibration of the machine was checked by at
least two external tuning forks both singly and in combination, and (3) the
calibration of the speedometer of the patrol car in cases where the K-55 is
operating in the moving mode.
Qualified Operator?
While it appeared to the court in State v. Wojtkowiak, supra that the K55 Radar is an accurate and reliable tool for the measurement of speed, its
accuracy and reliability in any case are no better than the skill of the
person operating the radar. The court made this emphasis as a warning to

all police departments that proper courses of instruction be developed

before the K-55 Radar device is employed in any municipality.
A calibration check is accomplished with the use of two tuning forks
and their accuracy must be the subject of the documentary proof. Use of
the K-55 does not eliminate the need for such proof.
In State v. Overton 135 N.J. Super 443 (Cty. Ct. 1975), four external
tuning forks were used to test the radar unit 12 times within a period of
approximately 90 minutes. The court noted there is authority to the effect
that a radar unit should be checked for accuracy each time it is set up at a
different location.
In State v. Readding 160 N.J. Super 238 (Law Div. 1978), the court
reiterated the decision in State v. Overton 135 N.J. Super. 443 (Cty. Ct.
1975), where the court found there are three universally accepted methods
of testing the accurate operation of a radar speed measuring device:
1. By use of the internal tuning fork built into the machine itself (which
the court found to be improper).
2. By running the patrol car with a calibrated speedometer through the
"zone of influence" of the radar machine.

3. By use of external tuning forks calibrated at set speeds and which

emit sound waves or frequencies identical to those which would come
from a vehicle traveling through the Radar bearer at the same speed for
which the tuning fork has been cut.
In State v. Van Syoc 235 N.J. Super. 463. 465 (Law Div. 1988), affd
o.b. 235 N.J. 409 (App. Div. 1989) defendant, failed to object to the
introduction of K-55 radar unit evidence of excessive speed until the trial
had been concluded, and he then argued that the charge against him should
be dismissed because the State has failed to demonstrate that the K-55 unit
was being operated in the manual mode, as required.
Upon de novo review, Judge Steinberg found that defendant, an
experienced trial attorney, failed to object to the introduction of the radar
evidence because he perceived a tactical advantage in withholding his
objection. The judge then held that defendant had waived his right to
object, noting that if an objection had been interposed in a timely fashion,
the State would have been in a position to supply the missing evidence. In
sustaining the conviction, the judge observed that [trial errors which are

induced, encouraged, or acquiesced in, or consented to by defense counsel

ordinarily are not a basis for a reversal on appeal.
The 'Pace' or 'Clock' Method
A "pace" or "clock" is performed by an officer in a patrol car with a
calibrated speedometer for a duration of distance or time wherein the
officer accelerated to a speed equivalent to the suspect's, and then keeps a
steady distance behind the suspect's vehicle following that vehicle. It is
essential that the patrol car's speedometer be calibrated and that the
certificates of calibration both before and after, be admitted into evidence.
An officer may also sometimes admit he was unable to get a good
"clock" but may say that his vehicle was going 70 mph, for example, and
he was still losing ground to the offender. The obvious shortcoming to
"clocking" as vehicle is that the officer's objective judgment may be
brought into question, the interference by other traffic, or other nonreasonable factors. It is for these reasons that the "clock" method is used
less frequently than radar and laser speed detection.

Laser Speed Detection

The landmark case on Laser speeding tickets is In the Matter of the

Admissibility of Motor Vehicle Speed Readings Produced by the LTI
Marksman 20-20 Laser Speed Detection System 314 N.J. Super. 233, 714
A.2d 381; (Law Div. 1998) affd 326 N.J. Super. 110. (App. Div 1999).
The Law Division held admissibility of such readings shall be subject to
the rules set forth below:
1. Expert testimony in support of admissibility shall not be required,
except as specifically set forth below.
2. Appropriate training of the law enforcement officer operating the
laser speed detector shall be shown in each case.
3.

Pre-operational

checking

procedures

recommended

by

the

manufacturer of the laser speed detector shall be shown to have been made
in each case.
4. Speed measurements shall be admitted whether made in daylight or
at night and within any temperature range likely to be found in New
Jersey, even if made under conditions of light or moderately heavy rainfall,
but speed measurements taken during heavy rain or while snow is falling

shall not be admitted without the support of adequate expert testimony in

the individual case.
5. Speed measurements made at any distance up to 1,000 feet shall be
admitted, but measurements made at any distance in excess of 1,000 feet
shall be admitted only with the support of adequate expert testimony in the
individual case.
This case was affirmed State v. Abeskaron (In re Admissibility Hearing
of the LTI Marksman 20-20 Laser Speed Detection Sys.), 326 N.J. Super.
110. (App. Div. 1999).
It is no defense to argue unlawful arrest, selective enforcement, custom
and usage, non-ownership of car driven, ignorance or mistake of law, lack
of precise speed proved, defective speedometer or cruise control. Proper
preparation may help keep your clients drivers license.
Vercammen is a trial attorney in Edison. He often lectures for the New
Jersey State Bar Association, New Jersey Institute for Continuing Legal
Education

and

Middlesex

County

College

on

personal

injury,

criminal/municipal court law, drunk driving and contested probate estate

administration.