Reckless Driving lawyer Fairfax County Virginia

Is a Police Officer’s radar or laser infallible in court in a Reckless Driving / Speeding case?

By the end of this article, the answer is “Without expert testimony, the radar or laser cannot be defeated in Court,” but a week ago, the answer was “Yes.”  What changed?

First, let me describe the current law on speeding in Virginia.  As any experienced Reckless Driving lawyer Fairfax County Virginia, will understand, there are really two types of speeding charges.  First are the Traffic Infractions set forth in VA Code 46.2-870. Speeding 1 mph to 19 mph over the limit will normally be charged under this code section.  These charges are not “crimes.” Rather, they are Traffic Infractions. Just “tickets” that nearly everyone gets over their life time. Speeding 1-9 over gives the driver a -3 DMV demerits on the Driving Record.  Speeding 10-19 mph over results in -4 DMV demerit points. (Note: There are no -1 nor -2 offenses.) Speeding 20+ over results in -6 DMV points. But Speeding 20+ can also be written as Reckless Driving. Reckless Driving is actually a Crime.  It is a Class 1 Misdemeanor and is punishable by up to $2500 fine, 6 months loss of license, and 1 year in jail. (Look for my other articles on punishments for Reckless Driving. The normal punishments are only a fraction of this max fine, license suspension and jail.  For example, it is nearly unheard of for anyone to get one year in jail for a Reckless by Speed.) In addition to going greater than 20 mph over the limit, Reckless by Speed can also be a any speed over 80 mph. So, when a person is going 81 in a 70 mph zone, while he is only speeding 11 mph over the limit, he can still be charged with Reckless Driving.

How does a Prosecutor prove the speed?  A Reckless Driving lawyer Fairfax County Virginia, will look at VA Code 46.2-882 – Determining Speed with Various Devices.  This Code section basically allows a Prosecutor to prove speeding merely by having a Police Officer testify as to the result of his Speedometer if he paced the Defendant, or Radar or Laser if he measured the speed by pointing the Radar or Laser gun at the Defendant’s car.  The Code section states “The speed of any motor vehicle may be determined by the use of (i) a laser speed determination device, (ii) radar… The results of such terminations shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceeding where speed of the motor vehicle is at issue.”  And if a question as to the accuracy of this device comes up, the Code section goes on to say that “…a certificate … showing the calibration or accuracy…” of the device used “…shall be admissible as evidence…” More simply stated, in real life, if the Police says the Defendant was speeding as measured by the speedometer, radar or laser, the Prosecutor/Police win as long as they can produce some certificate showing the accuracy.  Why? Because the Virginia Code says so.

In my 30+ year career as a Reckless Driving Lawyer Fairfax County Virginia, I have sat in court hundreds upon hundreds of times to hear a Defendant say, “The Police Officer’s radar is wrong, there was no way I was going that fast…,” or “The laser must be broken because my car can’t possibly go that fast…”  Judges and lawyers secretly laugh every time we hear this because we know the Defendant is about to lose. There is no way the Defendant will overcome VA Code 46.2-882 where the Police Officer’s speedometer, radar or laser is automatically assumed accurate as soon as the Police whip out the “magic certificate.”  

Well, I used to laugh, until last week when my client produced his own scientific evidence of the speed of his motor vehicle.  Modern technology of radar and laser guns has been used to prosecute drivers for decades, but now, technology can be used to defend against these charges.  My client came to me being charged with Reckless for going 72 in a 50 mph zone. In my office he said, “There is no way I was going 72…” I started to secretly laugh, thinking, “I have now heard that same line the 1,000th time, ha, ha…”  But then, my client showed me his monitoring system.  He is 17, and got a speeding charge last year. His Dad installed a system that constantly tracks the car.  Using Google Maps, it records the location of the car at all times and the actual speed. So, when I looked at the ticket, which said, “Rt. X at 10:30 a.m.”, I could see the recorded speed and location.  On the map, it showed my client’s car on Rt. X, and at about 10:30 a.m. it shows a maximum speed of 59 mph and then showed the car slowing to zero and being in place for 15 minutes (the time it took the Police Officer to write the ticket).

So, what would an experienced Reckless Driving Lawyer Fairfax County do with this information?  First, we needed to find out how to get it into evidence in a trial. The Defendant does not have a “magic code section” like 46.2-882 that automatically allows this device into evidence.  Thus, I had my client and his Father go out and test it. They drove their car, made a record of all the speedometer readings for a period of time and then compare these readings to what the monitoring system recorded.  The monitoring system accurately matched their own recordings of speed. Using this testing, at trial, even though the Defendant does not have a “magic code” section that allows his monitoring system to be determined accurate, he can present evidence that it is, in fact, accurate as shown by the testing.  (Note: If my client was rich, he could use an independent analysis and have that independent person testify. But we were on a budget.) So, at trial, the Prosecutor had the Police Officer’s testimony, laser reading, and certificate of accuracy saying 72 in a 50 mph zone. I had my client’s testimony, results of the monitoring system, and personal test of accuracy saying 59 in a 50 mph zone.  What was the result? I can’t tell you because the Prosecutor gave my client a plea bargain bringing the charge down from Reckless to Speeding. My client accepted the plea bargain. Had it gone to trial, I would have argued, “The standard of proof is ‘beyond a reasonable doubt,’ and here we have two competing measurements. That, in and of itself, IS reasonable doubt.”

So, back to the beginning, prior to last week, because of the “magic code” section 46.2-882 which makes Police Officer speedometer, laser and radar readings automatically admissible as accurate, I would have said that the Police Officer’s speed reading is infallible.  But, now, I have a different opinion. If a driver has the technology installed, I believe that the reasonable doubt standard could bring fairness back to the Traffic Court.