Yesterday on December 21st, the 3rd District Court of Appeals of the State of Ohio reversed a speeding ticket conviction against me, in the case of State v. Everett holding, "Appellant's conviction for speeding is reversed because the city failed to properly lay a foundation for admitting the radar reading, and there was insufficient evidence based solely upon the trooper's visual estimation of speed." Link to the opinion on the Ohio Supreme Court's website: http://supremecourtofohio.gov/rod/docs/pdf/3/2009/2009-ohio-6714.pdf
Now I'm hoping you picked up on the last part of the sentence where there was insufficient evidence based solely upon the trooper's visual estimate of speed. The reason there was insufficient evidence to use the visual estimate of speed was due to the fact the officer never testified concerning his training to visually estimate the speed of vehicles, nor the degree of accuracy the officer was able to "visually estimate" the speed of vehicles. Some of the Appellate Courts in the State of Ohio, including the 3rd District Court of Appeals, have held that a visual estimate can be used to convict a defendant of speeding, as long as his training and accuracy of estimating the speed of vehicles is described. To me this is a dangerous precedent set by the courts and should not be allowed, because it allows police officers to pull motorist over for speeding without the requirement for a speed measuring device. The Ohio Supreme Court has never addressed the issue of visual estimates of speeding vehicles without a speed measuring device (radar, calibrated speedometer, laser, or VASCAR) to convict a defendant of speeding.
In fact, it has been 51 years since the Ohio Supreme Court addressed the requirements to convict a person of speeding using a stationary radar speed measuring device, and this case should be your foundation when defending yourself on appeal. The case of "East Cleveland v. Ferell" (1958), granted stationary radar judicial notice for the Doppler principle for measuring the speed of moving vehicles. Expert witness testimony is still required by a court who has never heard any previous expert witness testimony or any superior court (Appeals Court or Supreme Court) for the particular stationary radar speed measuring device being used to prove that it applies the Doppler principle correctly when taking speed measurements.
The Ohio Supreme Court has not addressed the standards of admissibility of evidence from moving radar devices or stationary laser devices. The case that established the criteria to admit a moving radar device as evidence was State v. Wilcox (1974). The ruling in the case said the state must prove and the record must contain (1) expert witness testimony of the construction of the device and its method of operation in determining the speed of the approaching vehicle, (2) evidence the device was in good condition for accurate work, and (3) evidence the officer using the device is one qualified for its correct use by training and experience. A court may satisfy the first prong by hearing expert witness testimony or by taking judicial notice to establish the reliability of the speed-measuring device by (1) a reported municipal court decision, (2) a reported or unreported case from the appellate court, or (3) the previous consideration of expert witness testimony about a specific device where the trial court notes it on record.
In my specific case, the Appellate Court stated, "Regardless as to whether the radar unit is stationary or moving, or what method the state uses to satisfy the first evidentiary prong, the state must always prove the second and third elements concerning the accuracy of the particular speed meter involved and the qualifications of the person using it." In my case, the judges decided to concentrate on the third element concerning the qualifications of the person using the moving radar device, and ignored my major argument that the court improperly took judicial notice without meeting the requirements as set forth by the multitude of appellate cases in the past. I successfully convinced the Appellate Court that the officer was not qualified to use the moving radar device thru the certificate of training as presented by the prosecution, and by my interrogation of the officer on the witness stand where he could not answer questions concerning the parameters, errors, and specifications of the MPH Industries, Inc's Python II moving radar unit.
Your cross examination of the prosecution's witnesses should create doubt in the mind of the jurors that you may not be guilty. This is done by having the officer admit he doesn't recall details of the traffic stop, does not know how potential errors affect the electronic speed measuring device (ESMD), other outside factors may have interferred with the ESMD, or that he pulled over the wrong vehicle. DO NOT ASK THE OFFICER ABOUT HIS TRAINING FOR THE ESMD OR VISUAL ESTIMATE, because if he produces a certificate of training and describes his training for visual estimates you may lose your case on appeal.
The intent of this website is to educate you and provide resources to help you defend yourself against a speeding ticket in the State of Ohio. My example is available for you to read and analyze to see if the circumstances of your case could benefit from citing my case as well as past cases, but also to know what case(s) the prosecutor may use against you on appeal. This is not legal advice and should not be construed as such.
Once again, if you are planning on buying any radar/laser detectors or books to help your defense, please click the links embedded to help me continue to support the fight against Ohio speeding tickets.
© Copyright 2009 by Jeremy Everett. All rights reserved.
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