C.F.R. Defense (Code of Federal Regulations, Title 23, Section 603)

This defense was more applicable pre-2003 when the Federal government changed the MUTCD to add the wording "statutory speed limit".  Basically if the posted speed limit is less than the state of Ohio's statutory speed limit, you would request a dismissal if the prosecutor fails to provide a traffic engineering survey supporting the lower speed limit as stated below.

Background:  Every Community and State that accepts one cent of Federal Highway or Road funds is included. As part of the acceptance of these funds they make themselves subject to the rules and regulations contained in the C.F.R. Code of Federal Regulations. As such every police officer, when he issues a ticket is doing so under color of federal law. The collection, trial and enforcement is local in nature. The speed limit they enforce is not. (exempt are private roads)

To deal with 23 C.F.R> another Federal agency was set up called MUTCD (Manual of Uniform Traffic Control Devices). The section we are concerned with it Title 23

As to the exact wording in the C.F.R. and MUTCD, forget it. It is so complicated and requires you to know at least 200 sections plus 1,000 different legislative readings to make sense of it. Here you have to trust me. This is real. The two main case laws presented are the only two times this has gone to appeals in any State. Both interpret the law the same way. To be convicted the prosecution must show that the stretch of road you were on had the correct speed limit. To do that they have to present a document called a Traffic Engineering Survey.

What the law says is that for a speed to be enforceable it must be realistic and the fastest safe speed based on a 85 percentile. Don't bother trying to figure it out. To figure out what the speed should be a Traffic Engineering Survey is required. This survey sets the speed limit. This survey must be less then five years old for the posted speed to be enforceable.

I will be presenting cases that would support the CFR defense in future postings.  I will also be presenting my view on using the "Home Rule" defense I'm developing with cases to support it from the red light and speed cameras.  It would be another way to prove the lower posted speed limit is not legal, but using the Ohio Constitution as your authority versus the Ohio administrative code (ORC) in conjunction with the Federal administrative code (CFR).

Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420 (Ohio Supreme Court Ruling)

The Ohio Supreme Court finally ruled that a visual estimation of speed from a trained police officer alone is enough to convict a person for speeding.  I think this sets a dangerous precedent that allows the lower courts and prosecutors to convict a person for speeding without sufficient proof, where they do not have to prove the accuracy of the speed measuring device or judicial notice for the device.  This allows every police officer in the state to pull over someone and state they visually estimated the person to be speeding, whether or not they were actually speeding.  I personally recommend either not speeding in the state of Ohio or avoiding travel in the state of Ohio all together AKA BOYCOTT the State of Ohio and their businesses until the legislature and governor change the laws to fix this miscarriage of justice.

The Ohio Supreme Court held: "A police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, certified, and experienced in visually estimating vehicle speed."  (No. 2009-1069 — Submitted February 17, 2010 — Decided June 2, 2010.)  APPEAL from the Court of Appeals for Summit County, No. 24423, 2009-Ohio-1985.

This is one of the points I argued in my appeal of my speeding ticket against, and I was willing to certify my case to the Ohio Supreme Court if I had lost my appeal based on the visual estimate of speed after I had the appeals court throw out the radar device.  The Ohio Supreme Court is allowing the visual estimation of speed for stationary or moving radar (where the cop is driving in the opposite direction, which is almost impossible to estimate the speed of oncoming cars for the human eye scientifically speaking).

State v. Barnes, 2010-Ohio-987 - Third District Court of Appeals of Ohio

Barnes presented GPS evidence to prove he wasn't speeding, but failed to provide follow-up evidence of the accuracy of his GPS unit in his cellular phone.  He then argued on appeal that he was denied a closing argument in addition to the fact the court ruled against the manifest of evidence, we will cover the closing argument.

CLOSING ARGUMENT:
"Thus, a trial court is not permitted to totally deny a criminal defendant the opportunity to present a closing argument whether his trial is to a jury or to the bench. Id., see also, e.g., State v. McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507, 2009-Ohio-5933, at ¶ 6. However, the right to present a closing argument may be waived. Id. at ¶ 7, citing Yopps v. State (1962), 228 Md. 204, 207, 178 A.2d 879.  Recently, the Ohio Supreme Court held that such a waiver need not be express, intentional, and voluntary. McCausland, 2009-Ohio-5933, ¶¶ 8-10. Rather, “[a] criminal defendant waives the Sixth Amendment right to present a closing argument when he or she neither requests a closing argument nor objects to its omission.”

In order to claim the trial court erred by not allowing you to present a closing argument, you must have expressley requested the closing argument or objected to the court stating you object to any ruling because you have not been granted your Sixth Amendment right to a closing argument.  Failure to do so does not allow you to win an Appeal based on the courts error.

State v. Bradley, 2010-Ohio-309 - 5th District Court of Appeals of Ohio

Bradley lost his appeal due to not bringing to the attention of the lower court that his demand for discovery was not completed by the prosecution, and by not obtaining a written full transcript of the court proceedings.  These are two items that were clearly within the control of Bradley, but are easy items to miss.  If you plan on fighting your ticket and you are going to appeal it if you lose your case, you must be thorough and collect all evidence and make all objections possible to provide to the applicable Court of Appeals.

DEMAND FOR DISCOVERY:
"The record reflects that appellant filed a discovery request on March 19, 2009. On the same day, the judge ordered the prosecutor to provide discovery to appellant within 15 days. The record does not reflect any further filings regarding discovery. While appellant now argues that the prosecutor failed to comply fully with his discovery demand, the record does not reflect that appellant brought this to the attention of the court as required by Crim. R. 16(E)(3), nor does the record reflect that appellant did not received discovery of materials to which he was entitled under Crim. R. 16.  {¶13} The second assignment of error is overruled."

I recommend demanding discovery from the prosecutor, and in this case the appellant filed a demand for discovery, but he did not raise his objection or unfulfilled demand before the trial court. In order for a discovery request to be valid on appeal, the lower court must have notice the discovery was not fulfilled. I would do this in writing as a motion, and I would bring it up at the beginning of the trial to have it on the transcript record. If the judge acknowledges the discovery was not complete but proceeds with the trial, you have a point to make on appeal.

REQUEST A WRITTEN TRANSCRIPT OF PROCEEDINGS:
When filing an appeal always remember to obtain a full transcript of the proceedings and submit it on time to the appeals court.  "However, App. R. 9(B) requires the transcript to be ordered from the court reporter.  Appellant failed to properly order a transcript of the proceedings and accordingly, the record was transmitted to this court without a transcript of the proceedings.  Absent a transcript, we must presume regularity in the proceedings in the trial court. Knapp v. Edwards Laboratory (1980), 61 Ohio St.2d 197, 400 N.E.2d 384."  Without the transcript, you cannot show what you are proving was contrary to previous case rulings or to the existing law.  If the court gives you a CD to be transcribed, the fees for the CD and transcription costs are considered refundable court costs if you win your appeal.

State v. Brooks, 2010-Ohio-1119 - Appeals Court of Ohio

State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993 - Ohio Supreme Court Ruling

Normally I do not discuss DUI cases on here because my main interest is in fighting speeding tickets, however, I think this ruling from the Supreme Court is important to all motorist. 

Syllabus of the court: In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing after being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).1 We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The Ohio Supreme Court used the case of the State v. Starnes (1970), 21 Ohio St.2d 38, 50 O.O.2d 84, 254 N.E.2d 675, paragraph one of the syllabus, this court found the implied-consent statute to be constitutional as a basis for administering breathalzyer testing. 

Driving is considered a privilege in the United States and not a universal freedom, and as such, the driver automatically consents to the administration of testing to see if the driver is intoxicated in violation of the OVI laws.

State v. Barker, 2009-Ohio-6907 - December 30, 2009

In the case of the State of Ohio vs. Barker (2009-Ohio-6907) the Ninth District Court of Appeals stated:
     The trial court committed reversible error in granting Barker’s motion to dismiss the charge of driving under suspension on the ground that the registrar lacked the authority to suspend her license. Although the statute granting the registrar authority to request proof of financial responsibility does not itself contain the penalty for noncompliance, Ohio Adm.Code 4501:1-2-08(C), promulgated “pursuant to statutory authority,” provides the penalty.  Youngstown Sheet & Tube Co., 38 Ohio St.3d at 234. See, also, R.C. 4509.101(M). Construing the statute with the Administrative Code demonstrates that the registrar is indeed authorized to issue financial responsibility noncompliance suspensions.

Basically if you receive a notice from the register to show proof of financial responsibility (auto insurance) and you do not respond, they have the right under Ohio law to suspend your license.

Additional Case Law Summaries Part II (all states):

Additional Case Law Summaries Part II (all states including Ohio):

Please note the newer cases generally have more weight when used during an appeal unless a conflicting ruling exists from a higher court, and the district court of appeals basically holds their rulings in line with their previous rulings rather than taking other districts decisions when they occur within a short period of time. These cases may show how another sister court decided an issue that hasn’t been decided in the state of Ohio.

1. U.S. District Court, Charlottesville Division, United States v. Wornom, (754 F.Supp. 517) – 1/14/1991:

• Defendant was convicted of speeding on federal property by magistrate and he appealed. The District Court, Michael, J., held that: (1) magistrate was correct in disallowing use of radar evidence under Virginia law; (2) federal regulations control over state law requirements for reducing speed limits generally; (3) magistrate's finding that defendant was speeding was supported by the evidence, even though radar evidence was not admissible; and (4) Rule 12 notice was not required for challenge to accuracy of radar equipment.

2. Missouri Court of Appeals, Eastern District, Division Three, Missouri v. MOORE, (700 S.W.2d 880) - 11/19/1985:

• Evidence in speeding prosecution that trooper tested accuracy of tuning forks which he had used to test accuracy of radar unit by holding them in front of frequency finder approximately eight months prior to defendant's arrest was sufficient; State was not required to prove accuracy of the frequency finder.
• State's burden in speeding prosecution of proving radar unit was checked for accuracy reasonably close to time of use was satisfied by testimony of trooper that he used tuning forks to check accuracy of radar unit before starting his shift and “right after” defendant's arrest.

3. Supreme Court of Colorado, En Banc, Colorado v. WALKER, (199 Colo. 475, 610 P.2d 496) - May 12, 1980:

• Reversed conviction for speeding holding that: (1) use of a single uncalibrated tuning fork provides a legally insufficient foundation to support a reading taken from a radar device; (2) where a tuning fork test is used to calibrate a radar device, it must be shown that either two forks have been used or, alternately, that the single fork used has been certified as accurate within one year of the test; and (3) where testing procedures other than tuning forks are employed it is for the trial court to determine whether such test gives sufficient indicia of reliability to warrant admission of radar readings.
• Police officer's personal observations could not be used to corroborate radar reading of 66 mph; although officer's testimony that defendant motorist “was going over the speed limit” was probative of fact that defendant was exceeding the 35-mph limit it was not helpful in determining the amount thereof.

4. Court of Appeals of Minnesota, STATE of Minnesota v. DOW, Appellant, (352 N.W.2d 125) - July 31, 1984:

• Radar unit results were properly admitted at defendant's trial for speeding where record indicated that state trooper had sufficient training to properly operate the equipment, trooper testified as to manner that unit was set up and conditions under which it was used, there were no outside sources of interference with use of unit and unit was tested properly both internally and externally, including use of tuning fork and calibrated speedometer on squad car to check unit's accuracy.
• That defendant was not provided with copy of radar training manual did not compel reversal of his speeding conviction. Appellant fails to cite a reason why he was entitled to a copy of this manual in his appeal.

5. Court of Special Appeals of Maryland, FITZWATER v. STATE of Maryland, (57 Md.App. 274, 469 A.2d 909) - Jan. 12, 1984:

• Affirmed conviction for speeding holding that: held that: (1) maintenance records were not required to prove the accuracy of internal calibration of radar equipment, in light of fact that arresting officer performed calibration tests and was a certified operator of the radar equipment, and maintenance records for the equipment did exist; (2) state trooper was competent to testify as to the accuracy of internal calibration of radar equipment, because trooper had special knowledge of the radar gained from his experience as police officer, trooper was certified on the particular radar device in his vehicle, trooper had specific knowledge as to procedures used to calibrate the radar, and trooper's testimony was of appreciable help to the jury; and (3) State was not required to establish the time of making, the authorship and the accuracy of documents used by state trooper to refresh his recollection prior to taking oath and testifying, and defense attorney was not entitled to see the contents of the documents.

6. Akron Municipal Court, Ohio. CITY OF AKRON v. GRAY, (60 Ohio Misc. 68, 397 N.E.2d 429) - Sept. 14, 1979:

• Defendant found guilty of speeding with the court holding that where it was shown that K-55 radar unit had been properly calibrated by use of tuning fork certified for calibration and by use of internal calibration device, officer issuing citation was shown to be properly qualified to operate the unit, visual identification, monitor reading and audio all corresponded to confirm that violator was target vehicle, and it was established that target vehicle was driven by defendant, defendant's guilt of operating his vehicle at 48 MPH in 35 MPH zone was established.
• The K-55 unit is found to be a scientifically reliable device for measuring the speed of a vehicle and is accorded judicial notice by this court.

7. Court of Appeals of Ohio, Sixth District, Ohio v. SHELT, (46 Ohio App.2d 115, 346 N.E.2d 345) - Feb. 20, 1976:

• Granted judicial notice to the MR-7 moving radar device.

8. Court of Appeals of New York. New York v. DUSING, (5 N.Y.2d 126, 155 N.E.2d 393, 181 N.Y.S.2d 493) - Jan. 8, 1959:

• Speeding conviction reversed holding that where there was proof of a radar reading and some showing of a test of radar equipment, although there was no indication that automobile speedometer against which radar reading had been checked was itself accurate, and there was other proof of speeding by two admittedly experienced and qualified police officers who, from separate positions, had observed motorist's oncoming automobile, such testimony was admissible and sufficient to raise question of fact as to speeding.

9. Supreme Court of New Jersey, New Jersey v. DANTONIO, (18 N.J. 570, 115 A.2d 35) - June 20, 1955:

• Speeding conviction affirmed holding that evidence of radar speedmeter readings could be received in evidence on a showing that speedmeter was properly set up and tested by police officers, without any need for independent expert testimony by electrical engineers at to its general nature and trustworthiness.

10. Court of Appeals of Kansas, Kansas v. PRIMM, (4 Kan.App.2d 314, 606 P.2d 112) - Feb. 8, 1980:

• Speeding conviction affirmed holding that: (1) evidence of radar unit's accuracy at time of the alleged offense was sufficient to establish a sufficient foundation to admit radar reading into evidence; (2) testimony was sufficient to establish trooper's qualifications to operate the radar device; (3) absence of expert testimony regarding construction and method of operation of the radar device did not preclude admission of trooper's testimony as to the radar reading obtained by him; and (4) evidence was sufficient to withstand defendant's motion for acquittal at end of State's case.
• Accuracy of a particular radar unit used to measure speed of motor vehicles can be established by showing that operator tested device in accordance with accepted procedures and the unit was functioning properly and that operator was qualified by training and experience to operate the unit.

11. Supreme Court, Appellate Term, New York, Ninth and Tenth Judicial Districts, New York v. BELLIZZI, (108 Misc.2d 209, 441 N.Y.S.2d 147) - Nov. 18, 1980:

• Reversed speeding conviction holding that reliability of speed detection device to accurately measure speed of an oncoming vehicle while unit is located in a police car traveling in the opposite direction has not been established.

12. Supreme Court of Ohio, CITY OF DAYTON v. ADAMS, (9 Ohio St.2d 89, 223 N.E.2d 822) - Feb. 15, 1967:

• Reversed speeding conviction holding that that police officer who was operating radar device in unmarked automobile in effort to detect speeders was incompetent to testify as witness for prosecution of an alleged speeder thus detected, since officer's automobile was not distinctively marked as required by statute.

13. Court of Appeals of Ohio, Ninth District, Ohio v. BECHTEL, (24 Ohio App.3d 72, 493 N.E.2d 318) - June 26, 1985:

• A motion to certify the record to the Supreme Court of Ohio was overruled on March 5, 1986 (case No. 86-11).
• Speeding conviction affirmed holding that: (1) trial court did not abuse its discretion in admitting testimony concerning tuning forks and external calibration of radar unit, and (2) it is proper for trial court to take judicial notice of scientific reliability of K-55 Doppler effect radar unit in prosecution for speeding, following arresting officer's testimony as to readings on his radar unit, his calibration of the unit, and his qualifications for using the unit.
• For purpose of establishing external calibration of radar, when two tuning forks are used to ascertain accuracy of radar unit, additional proof of accuracy of tuning forks is not necessary, because each tuning fork corroborates accuracy of the other, and it is highly unlikely that radar unit in each tuning fork would be inaccurate to same degree.
• It is proper for trial court to take judicial notice of scientific reliability of K-55 Doppler effect radar unit in prosecution for speeding.

14. Bowling Green Municipal Court, Ohio, Village of Pemberville v. DIETRICH, (7 Ohio Misc.2d 48, 455 N.E.2d 727) - July 26, 1983:

• Defendant convicted for speeding holding that: (1) evidence was sufficient to find that police officer, by training and experience, was qualified to use S-80 radar; (2) evidence was sufficient to conclude that at time of incident the S-80 radar was in good condition for accurate use; (3) evidence was sufficient to conclude that the MPH model S-80 radar while mounted in a moving patrol car is a reliable device for accurately determining speed of a target vehicle moving toward the patrol car; and (4) evidence was sufficient to conclude beyond a reasonable doubt that speed of defendant's vehicle was unreasonable for conditions existing at time of incident, and that defendant was guilty as charged.

15. Court of Appeals of Ohio, Third District, Ohio v. FERRIER, (105 Ohio App.3d 124, 663 N.E.2d 729) - July 10, 1995:

• Speeding conviction affirmed holding that: (1) radar evidence was supported by experienced officer's testimony who observed new officer's use of radar gun, and (2) evidence supported finding that defendant exceeded posted speed limit.

16. Ravenna Municipal Court, Ohio, Ohio v. WIBELT, (9 Ohio Misc. 158, 223 N.E.2d 834) - Jan. 11, 1967:

• Speeding charges dismissed holding that where ‘Speed Meter Ahead’ sign was neither reflectorized nor illuminated as required by statute, speeding offense alleged to have occurred at night was not established by evidence obtained by radar speed check.

17. Franklin County Municipal Court, Ohio, City of Upper Arlington v. LIMBERT, (138 Ohio Misc.2d 30, 856 N.E.2d 336) - Aug. 24, 2006:

• Held that Ultralyte LTI 20/20 laser speed detector, used by law enforcement officers to detect when motorists are speeding, is reliable and accurate scientific measure of speed of moving object, if the device is used in accordance with certain procedures delineated by manufacturer granting it judicial notice.

18. Supreme Court of Arkansas, City of Little Rock v. Everight, (230 Ark. 695, 326 S.W.2d 796) - 5/25/1959:

• Speeding conviction affirmed holding that where all the rules of evidence were met in introducing in evidence the speed of the automobile as indicated by the radar speed meter, such evidence was properly admitted by trial court.

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