Speeding and Radar NJ 35

SPEEDING and RADAR

By Kenneth A. Vercammen

It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi­criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt.

In every charge of a speeding violation, the complaint or summons should specify (l) the speed at which the defendant is alleged to have driven, (2) the speed which is prima facie unlawful, and (3) the time and place of the alleged violation.

A sign showing a speed limit is merely notice of the law or an ordinance or regulation prohibiting a greater speed. The sign itself does not set the speed limit.

There can be no conviction for violation of the edict of a posted sign, but only for violation of the statute, ordinance, or regulation having the force of law. There are many unauthorized signs in the state which may serve as a warning but have no effect in creating an offense.

Radar Speed­measuring radar in various forms has been accepted since State v.

Dantonio 18 N.J. 570 (1955), where the N.J. Supreme Court held it is not essential that the court determine the precise speed at which the vehicle was being operated when the alleged offense occurred, and that the operator of the vehicle must be adjudged guilty if the evidence established, beyond a reasonable doubt, that the drive exceeded the statutory speed limit.

It is not necessary for the trial court to make a particular finding as to the precise speed in excess of the speed limit at which the defendant was traveling at the time of the violation. State v. Bookbinder 82 N.J. Super. 179, 183 (App. Div. 1964).

However, if the defendant is found guilty, the trial court should determine the quantum of excess was so many miles per hour in exercising its discretion as to the penalty to be imposed within the statutory limitation. The precise speed a motorist was traveling thus is material only on the question as to the penalty to be imposed, not on the question of guilt or innocence.

State v. Readding 169 N.J. Super. 238 (Law Div. 1978), restated the general rule that in order for the radar speedometer reading to be admissible into evidence, it should be established that: (l) the device is scientifically reliable; (2) the particular speedometer used in the case being tried is accurate; (3) the operator is qualified; and (4) the device was operated properly in the case being tried.

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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. This case should be read and reread for a detailed explanation of Radar by a Court.

The traffic radar method speed detection measurement depends upon the Doppler effect. Simply stated a radio wave which strikes a moving object is reflected from that object at different frequency from that of the incident wave. A radar which transmits waves and receives reflected waves can determine their frequency difference and calculate the speed of the object which produced the reflective wave.

Courts have accepted as scientifically reliable MPH Industries' K­55 Traffic Radar ­­ the primary system employed for the purpose of measuring the speed of motor vehicles in New Jersey.

In State v. Wojtkowiak 174 N.J. Super, 460 (App. Div. l980), the appeals court held in all future cases 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 K­55 is operating in the moving mode.

MPH Industries, manufacturer and distributor of the K­55, sets forth the following eight points an officer must be able to testify to: ­ The officer must establish the time, place and location of the radar device at the time he made the reading. ­ The officer must be able to identify the vehicle. ­ The officer must identify the defendant as the operator of the vehicle ­ The officer must testify that he made a visual observation of the vehicle and that it was going at an excessive rate of speed. ­ At the time of the radar reading the officer must testify that the vehicle was out front, by itself, nearest to the radar. ­ The officer must state his qualifications and training in radar use. ­ The officer must establish that the radar was tested for accuracy both prior and after its use. ­ If used in the moving mode, that at the time of the radar reading the patrol speed indicated on the unit compared to the speedometer of the police vehicle.

Qualified Operator?

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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. Id. at 174. The court made this emphasis as a warning to all police departments that proper courses of instruction be developed before the K­55 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 K­55 does not eliminate the need for such proof. State v. Wojtkowiak 170 N.J. Super. at 50, n.1 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. MPH Industries argues this is not necessary with moving radar.

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: l. 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.

It is also important to recognize that in State v. Readding 160 N.J. Super. 238, the court stated: the proper operation of the device must be proved, usually by detailed reference by the qualified operator to the procedures called for by the manufacturer of the device.

Tuning Forks Before a radar speed reading is admissible, the state must establish the machine was operating properly. MPH Industries' test procedure uses two tuning forks: First, the lower­speed fork is struck on wood or plastic and the ringing fork is

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held in a fixed position two to three inches in front of the antenna with the harrow edge of the fork facing the antenna front. This will cause the Patrol Monitor Window to display the fork's speed. While continuing to hold this ringing fork in place, the higher­ speed fork is struck and held next to the lower­speed fork (both forks must be vibrating while being held an equal distance from the antenna). The target should then display the "speed" difference between the two forks. For example, if the forks used are 35 mph and 65 mph, then the target window will display the difference, which is 30 mph.

Admissibility of Evidence The state should establish through documentary evidence the tuning fork itself was accurate. The state must produce and be able to admit into evidence certificates as proof of the accuracy of the devices used for testing the proper operation of the machine.

In State v. Cardone 146 N.J. Super. 23 (App. Div. 1976), the court held that while certificates do not have to satisfy the normal rules of evidence, an Evidence Rule 8 hearing [now NJ Evidence Rule 104] still can be held, at which the court can determine preliminary issues of admissibility of evidence. In such a hearing, the rules of evidence ­­ except for Rule 4 or a valid claim of privilege ­­ do not apply. Id. at 28.

The Cardone court found that the certificates of calibration and accuracy of the radar machine ­­ and for the tuning forks used to test the machine ­­ were properly admitted in evidence, even though no proof was offered to qualifying the certificates as records made in the regular course of business. The certificates were used solely as evidence of proper operating conditions or as a prerequisite to the admissibility of the radar reading, and the defendant made no effort to prove the internal calibrating device or the tuning forks were inaccurate.

In State v. Readding, supra, the Superior Court exonerated the defendant, stating: It is entirely possible for a particular RADAR device to function properly and record accurately a 50 m.p.h. but inaccurately at higher speeds......

Accuracy of the particular speedometer should be established by more than one test.

Division of Weights and Measures should inspect Tuning Forks and Measuring Devices.

The Municipal Judge’s Benchbook Speeding Monograph, in the section on RADAR covers the issue of “Who certifies Tuning Forks.” The section reads: “The proper entity to certify tuning forks and RADAR equipment is the Division of Weights

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and Measures in the Department of Law and Public Safety.” The section also states “N.J.S.A. 51: 1­84 requires that all weights and measures used in trade shall be tested and sealed at least once in a year.”

This Division was initially set up by N.J.S.A. 51:1­42 to establish a uniform system of weights and measures in the state. N.J.S.A. 52:17B­24 sets forth that the Division of Weights and Measures shall be headed by the a superintendent, and N.J.S.A. 51:1­ 55 provides the State Superintendent shall be the custodian of all standards of weights and measures. A standard operating procedure for the N.J. State Police to have tuning forks tested annually by Weights and Measures to be certified as accurate. N.J. State Police S.O.P. ­ Radar Operation April 25, 1983, page 5.

In State v. Kalafat 134 N.J. Super. 297 ( App. Div. 1975), the court held that in a speeding case "the Superintendent of Weights and Measures has the duty of providing a standard measure and of certifying approved measures." Id. at 301, referring to a measured distance. The State Department of Weights and Measures routinely calibrates tuning forks for the State Police and many municipalities in Central New Jersey.

State v. Van Syoc 235 N.J. Super. 463, 465 (Law Div. 1988), aff'd o.b. 235 N.J. Super. 409 (App. Div. 1989). In VanSyoc, defendant, an attorney appearing pro se, failed to object to the introduction of K­55 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 had failed to demonstrate that the K­55 unit was being operated in the manual mode, as required. VanSyoc supra, 235 N.J. Super. at 465.

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. Ibid. 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. Id. at 466. In sustaining the conviction, the judge observed that "[t]rial errors which are induced, encouraged or acquiesced in, or consented to by defense counsel ordinarily are not a basis for a reversal on appeal." Id. at 465.

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

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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 20­20 Laser Speed Detection System 314 N.J. Super. 233, 714 A.2d 381; (Law Div. 1998) aff’d 326 N.J. Super. 110. (App. Div 1999) Reginald Stanton, Assignment Judge wrote: …the general concept of using lasers to calculate the speed of motor vehicles is generally accepted within the relevant scientific community and is valid. Despite the fact that the testing conducted was far from perfect, it was adequate, and I am satisfied from the totality of the evidence presented to me that the laser speed detector produces reasonably uniform and reasonably measurements of the speed of motor vehicles under conditions likely to be present on New Jersey highways when the detector is used for law enforcement purposes. The error trapping programs and mechanisms built into the detector are fully adequate to prevent unreliable speed measurements when used for law enforcement purposes. Accordingly, under the broad teaching of cases such as Romano V. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984), and State v. Wojtkowiak, 170 N.J. Super.

44, 405 A.2d 477 (Law Div. 1979), reversed on other grounds, 174 N.J. Super. 460, 416 A.2d 975 (App. Div. 1980), speed readings produced by the laser speed detector should be received as evidence of the speed of motor vehicles without the need for expert testimony in individual prosecutions arising under the motor vehicle laws.

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.

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2. Appropriate training of the law enforcement officer operating the laser speed detector shall be shown in each case.

3. Pre­operational 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 20­20 Laser Speed Detection Sys.), 326 N.J. Super. 110. November 24, 1999 Conclusion It is no defense to argue unlawful arrest, selective enforcement, custom and usage, non­ownership of car driven, ignorance or mistake of law, lack of precise speed proved, defective speedometer or cruise control. Obey the law, follow speed limits and you will have no need to know about Radar.

About the Author Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He has lectured on traffic and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 55 articles in national and New Jersey publications on municipal court and litigation topics.

He has served as a Special Acting Prosecutor in seven different cities and towns in

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New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton, PA.

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