Speeding Violations in Rhode Island

This article by RI Speeding Attorney Kevin Hagan discusses some of the key cases and legal defenses to speeding violations in Rhode Island.

Speeding violations have become abundant in our little State, but the stakes have gone up as well, and sentences can regularly include suspension of driving privileges and mandated courses on dangerous driving. Speeding violations are not easy for the prosecution to prove, particularly when a lawyer has a proper knowledge of the rules of evidence and the technical and scientific concepts surrounding admissibility of the radar results.

In theory, RI Judges are relying upon the accepted theory of the Doppler Effect (in relation to the so-called tuning forks), which is generally accepted science. Therefore, the Court may be willing to take judicial notice of the acceptability of the radar gun; however, tuning forks have often times been replaced by computerized radar guns that internally regulate whether they are in proper working order, as opposed to the external calibration referenced in the famous case of State v. Sprague. In order to exclude the results of radar equipment, an Attorney must distinguish Sprague from the more modern radar devices that only calibrate internally. Rarely will a prosecutor be prepared to call a radar technician as a witness, in an effort to lay the foundation for the reliability of internal calibration. Sprague can be cited as follows and please review the pertinent language of the case:

State v. Sprague, 322 A.2d 36, 113 R.I. 351 (R.I. 1974)

The defendant next contends that the tuning fork used to test the accuracy of the radar speed meter readings must be proved accurate before the radar speed meter readings are admitted into evidence.
Trooper Francis J. Martin, the officer who stopped defendant, explained how he operated the radar set he was using. He testified that he calibrated his radar unit with [113 R.I. 356] a tuning fork. [3] When he was asked by the state's attorney whether or not the radar set was in proper working order, defendant objected on the ground that there was no proof that the tuning fork was accurate. The trial justice overruled the objection and the officer was permitted to testify that the radar set was in proper operating order.
This question is one of first impression in this state. Since we have no decisions of this court directly in point we look for guidance to analogous cases in this state and cases in other jurisdictions which have passed on this question.  
In State v. Barrows, 90 R.I. 150, 152, 156 A.2d 81, 82 (1959), the arresting officer testified that he pursued the defendant and, from his observation of the speedometer in his police car, determined that the defendant was driving at 65 miles per hour.
The defendant objected to the admission of this testimony on the ground that it was inadmissible unless evidence as to the accuracy of the speedometer was first adduced. Another officer testified that he had recently tested the accuracy of the speedometer in the arresting officer's car by comparing it at various speeds with the readings observed on the speedometer of an accompanying motorcycle. The defendant then renewed his motion to strike on the ground that there was no showing[113 R.I. 357] that the accuracy of the speedometer on the motorcycle had been determined.         

In Barrows, we held that the testimony as to the speed at which the defendant's automobile was being operated, based on an observation of the speedometer readings in the arresting officer's motor vehicle, was admissible in evidence upon a showing that the operational efficiency of the device had been tested by an appropriate method within a reasonable period of time.      
Although Barrows involved the accuracy of a speedometer while the instant case involves the accuracy of a radar unit, it seems to us that the cases are analogous and that the reasoning in Barrows should apply here.
The evidence in the case at bar shows that the operational efficiency of the radar unit was tested within a reasonable time by an appropriate method, that is, the tuning fork. If we did not require the motorcycle speedometer in Barrows to have been previously tested as accurate, why should we require the tuning fork to have been previously tested?     
When we look at the cases in other jurisdictions for an answer to this question, 322 A.2d 40 we find, as defendant admits, a split of authority on the question of whether it must be shown that the tuning fork must have been previously tested for accuracy. Some cases support defendant's view, but we think the better rule is the one stated in People v. Abdallah, 82 Ill.App.2d 312, 226 N.E.2d 408 (1967), where the court held that radar speed meter readings are admissible without a prior showing of the reliability of the tuning fork that was used to test the accuracy of the radar unit.     
Officer Martin's testimony setting forth his training and experience in the use of a radar unit, in addition to his testimony describing the tuning fork test on the day defendant was stopped, is reasonable and sufficient proof of [113 R.I. 358] the accuracy of the radar unit, and therefore the reading taken therefrom was admissible even though the tuning fork used to test the accuracy of the radar device was itself not tested for accuracy.

Just remember; always be asking how the fact finder would objectively know that the device in question was in proper working order on the day in question! If the radar equipment is only internally calibrated, without the use of a tuning fork, and there is not a radar technician available to testify, the following rules are helpful in excluding admission of the radar results:

FRE 602
– Lack of Personal Knowledge (Foundation)

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Advisory Committee Notes

[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact” is a “most pervasive manifestation” of the common law insistence upon “the most reliable sources of information.” McCormick §10, p. 19. These foundation requirements may, of course, be furnished by the testimony of the witness himself; hence personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 2 Wigmore §650. It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy.

Radar testing equipment is not self-authenticating…

FRE 902
– Evidence that is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified.
(3) Foreign Public Documents.
(4) Certified Copies of Public Records.
(5) Official Publications.
(6) Newspapers and Periodicals.
(7) Trade Inscriptions and the Like.
(8) Acknowledged Documents.
(9) Commercial Paper and Related Documents.
(10) Presumptions Under a Federal Statute.
(11) Certified Domestic Records of a Regularly Conducted Activity.
(12) Certified Foreign Records of a Regularly Conducted Activity.

Be cautiously aware of the following legal principles, as they may denigrate the integrity of the aforementioned rules of evidence concerning foundation:

FRE 201 – Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

State v. Hanson, 270 N.W.2d 212, 85 Wis.2d 233 (Wis. 1978)

In a speeding conviction based upon a stationary radar instrument, a legal explanation of the Doppler effect and its application in speed radar was presented in East Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958) at 631: "The radar speed-detecting devices commonly used in traffic control operate on what is known as the Doppler Effect and utilize a continuous beam of microwaves sent out at a fixed frequency. The operation depends upon the physical law that when such waves are intercepted by a moving object the frequency changes in such a ratio to the speed of the intercepted object that, by measuring the change of frequency, the speed may be determined." [1]         

Many states have held that judicial notice can be taken as to the reliability and accuracy of stationary radar due to the scientific acceptance of the soundness of the Doppler effect. [2] 47 A.L.R.3d 822, "Proof, by Radar 85 Wis.2d 239 or Other Mechanical or Electronic Devices, of Violations of Speed Regulations."

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