The Radar or Laser Unit Must be Tested to Ensure its Accuracy BOTH before AND After the Officer's Shift
There are reported decisions from the Virginia Court of Appeals that absolutely require this be done and that the prosecutor establish this fact during the case in chief. Most officers who have been around understand that this must be done. However, I have seen prosecutors, on more than one occasion, forget to establish this fact during trial.
Calibration -- Statutory Compliance Issues
In any case in which speed is at issue, the prosecutor has to offer some proof of the defendant's speed. While, in theory they could offer the officer's visual estimation of the defendant's speed, this will rarely be enough to sustain the beyond a reasonable doubt burden. Instead, the prosecutor must officer an calibration certificate for a the radar or laser unit used to determine the defendant's speed. Virginia Code Section 46.2-882, in part, governs the admissibility of such certificates. A calibration certificate complies with this code section if: (1) it is an original or "true copy" (see below); (2) it shows when and by whom it was made; and (3) the testing certified to was conducted within the 6 months prior to the date of the offense. These are issues that should be examined in every Reckless Driving case. Failure to comply with each of the foregoing requirement means the officer's calibration is not admissible. As a result, he may be unable to prove what speed you were
Calibration -- Issues as to the Form of the Calibration
There are many issues that can and do arise within this category. Let me give you an example. You probably noticed the reference to "true copy" in number 2 above. What this means is that if the calibration is a copy of the original, it must be a "true copy." This seems simple enough on its face, but the phrase "true copy" is actually a term of art that is defined by Virginia Code Section 8.01-391. If you look at 8.01-391, you will see a variety of documents that can constitute a true copy. One document that cannot be a true copy is a copy made by a police department of an original document that they did not create themselves. This is important because certain police departments do not self-calibrate. They hire outside, private companies to calibrate their radar and laser machines. They receive a small number of originals of the calibration -- far too few to be given to all the officers who use those units and need a calibration to take to court. Therefore, the department makes
Issues with Accuracy or Range of Accuracy
Many times lawyers ask for the calibration sheet because they feel they should, but they never actually examine (or do not understand) what it actually says. Often times, the calibration sheet will show that the officer's speedometer (in a PACE case) is off by one or two miles per hour. Moreover, certain RADAR calibrations state that they are only accurate within one or two MPH. That means the speed stated on your ticket is overstated, or possibly overstated, by one or two miles per hour. This may not mean much if you are far in excess of any statutory limit; but, for example, if you are recorded at 75 MPH in a 55MPH, you will be charged with Reckless Driving under Va. Code 46.2-862 because you are driving at least 20 MPH over the limit. However, if the calibration is off by just 1 MPH, that will get you out of the criminal Reckless Driving grade offense and into a simple speeding charge.
I have mentioned the term "PACE" a number of times. This is a procedure police officers use to determine the speed of a vehicle without using a radar or laser unit. An officer initiates a PACE of another vehicle by either positioning himself directly behind the other vehicle or slightly in back if the vehicle in the second lane over. The officer then attempts to keep himself equidistant from the other vehicle, neither gaining nor losing ground. As the officer does this, he looks at his speedometer to determine the speed of the other vehicle. The officer must have a properly calibrated speedometer for this method to be admissible in court. This is probably the procedure people charged with Reckless Driving find most controversial. Most people are shocked to learn that a PACE is a very commonly used, and regularly accepted, method of determining speed. However, it is also fertile ground for cross-examination in a Reckless Driving case.
Heavy Traffic and User Error
This is an issue that pertains to the relevancy of the result of the radar or laser unit. Vehicles often group together as they travel on a highway. On a fairly regular basis, particularly with laser units, officers position themselves at a great distance from the vehicles being targeted so as to ensure that they are not seen. As a prosecutor, I would find that it was not uncommon for officers to be over 1000 feet away when they operated their laser (LIDAR) units. This is relevant because just a slight movement in the LIDAR unit by the officer can result in a 10 to 20 foot difference in a target location that is 1000 feet way. This could very easily mean that the result from the wrong car was obtained.
Improperly Posted Signs
In order to be convicted of a form of Reckless Driving that is based on violating the speed limit, you must have had notice of the speed limited you are charged with violating. This does not mean actual notice (i.e., that you actually knew what is was), but objective or constructive notice. That is, a reasonable person driving on that roadway, in light of the signs that were posted, would have known what the speed limit was. The prosecutor shows this by asking the officer whether the speed limit was posted and having him describe the signage. To the extent that there are issues with the signage, it is very important to take photographs and document this immediately as signs are often changed, trees and bushes cut back, lights repaired, etc.
Problems with the Officer's Memory
Officers write thousands of speeding and Reckless Driving tickets. Many times, they forget the facts of a particular case. Of course, if you were argumentative or belligerent, you can be sure they made extra notes on your case and will not forget. However, for those that were cooperative and polite, they may be one of the cases for which the officer cannot remember the details. A defense attorney with a good relationship with the officers or prosecutor will be able to obtain this information for you.
Additional resources provided by the author
This guide is a shorter version of the book “Defending Your Reckless Driving Case in Virginia - Choosing a lawyer and attacking little known weaknesses. The Effective & Successful Defense of Reckless Driving Cases in Virginia” that is available at no cost at http://criminallawdefensecenter.com/book-request.