ATTACKING RADAR RELIABILITY: ADVANCED VIRGINIA RECKLESS DRIVING DEFENSE

ATTACKING RADAR RELIABILITY: ADVANCED VIRGINIA RECKLESS DRIVING DEFENSE It takes an advanced understanding of radar, laser-radar (LIDAR), and more to properly present an impactful trial defense to a Virginia Commonwealth’s Attorney’s prosecution. Any defendant or attorney representing a client charged with this Class 1 misdemeanor offense in Virginia, should be well-studied and prepared to attack the following three areas of any given case: 1. 2. 3.

What is a true copy, and when is a notarized calibration certificate not good enough for the prosecution to rely upon to establish speed at trial? Do all radar devices qualify as long as they are properly tested and calibrated? How can the defense attack the reliability of a radar device, even if the calibration requirements are met, and the certificate is admissible (a true copy)?

WHY IS RECKLESS DRIVING IN NORTHERN VIRGINIA SUCH A COMMON OFFENSE? -

Dulles toll road (where people rushing to make flight or drop off loved one); Fairfax county parkway, a road with few stop lights, many straightaways, but just a 55 mph speed limit; Congested highways, including 66, 495, 95, and the speed limit is 55 mph.

BEFORE THE FINER POINTS: RECAPPING THE BASICS Virginia Code section 46.2-882 explains how the speed of a motor vehicle may be determined as a result of a laser device (LIDAR), radar, or a moving radar.

THE OFFICER SHOULD HAVE A CERTIFICATE AT COURT: 

the speedometer of any vehicle used when testing the device;

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the accuracy or calibration of any tuning fork (if one was used) in testing or calibrating the radar or speed determination device;

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the method used to test the device;

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a date to indicate when it was tested; and,

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who tested it among other requirements.

THE FIRST THING EXPERIENCED LAWYERS USUALLY LOOK FOR IS THE DATE OF THE TESTING.

The current law states that the calibration of the device is only valid for six months.

THE CERTIFICATE MUST BE A TRUE COPY If the certificate is properly dated (and otherwise meets the statutory requirements), then some attorneys will next look to exclude the document based on a challenge to status as a “true copy.” A true copy is much more than just a legible copy. Virginia Code 8.01-391 explains that a copy is only admissible if it is authenticated as a true copy by: -

the custodian of the record, or by the person to whom that custodian reports…

And if they are two separate people, it has to be accompanied with verification that the person does in fact have 1 custody.

HERE IS AN EXAMPLE FROM A REAL CASE IN VIRGINIA: The Court of Appeals of Virginia held that even though a calibration certificate did include a notary public’s attestation, it did not contain any information that the notary was the custodian of the original, nor that the notary had the original in custody. The court said that the document was a mere photocopy of the certificate and not a 2 true copy.

IS THE RADAR DEVICE AN APPROVED MODEL? Is the device itself approved by the FCC? If a calibration certificate is valid, then there is a need by the defense to 3 rebut that evidence…which can be done by showing it is a device not approved by the FCC. It is beyond the scope of this post, but in a nutshell, there are guidelines and rules as far as the devices which may be used in Virginia by law enforcement agencies.

ATTACKING THE RELIABILITY OF THE DEVICE The Commonwealth must prove the device was operating properly. This seems like an easy burden, but there are nuances. In one case, for example, the radar device was tested when it was originally set up; it was operating just fine at that time, but then was moved. There was no evidence to show the device was tested when it was taken down and moved, thus there was a failure to show it was operating correctly when it registered the speed of the particular 4 defendant.

DID THE CALIBRATION TEST INCLUDE ACCURACY OF BOTH RADAR AND SPEEDOMETER? 5

The calibration and accuracy of a radar device must be shown by a speedometer test or tuning fork. It is not enough to say a radar calibration test determined the speed correctly of a vehicle it used to test the device upon. The certificate has to reflect a factual finding that the speedometer of the motor vehicle used in testing the radar 6 device was accurate. Interestingly, case law has held that it is not enough for the certificate to merely state that the speedometer of the vehicle used to test the device was calibrated…evidence sufficient for a factual finding as to accuracy is what the Commonwealth needs.

[1] Kollas v. Commonwealth, 2012 Va. App. LEXIS 349 [2] Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537 (1994) [3] Scafetta v. Arlington County, 14 Va. App. 834, 425 S.E.2d 807 (1992 [4] Royals v. Commonwealth, 198 Va. 883, 96 S.E.2d 816 (1957). [5] Gray v. Commonwealth ,18 Va. App. 663, 446 S.E.2d 480 (1994). [6] Howell v. Commonwealth, 213 Va. 590, 194 S.E.2d 758 (1973)