Advanced Virginia Reckless Driving Defense: Attacking Radar Reliability

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Attacking Radar Reliability: Advanced Virginia Reckless Driving Attorney Defense Methods

Virginia reckless driving attorney

Introduction:

This short video clip is brought to you by Vincenzes Law, PLLC – a Fairfax county criminal defense law firm serving Fairfax County, Prince William, Loudoun, Arlington, Alexandria, and Stafford. (Ask if your case arises in another jurisdiction — we may be able to still help — or find someone for you who can).

3 Finer Points: Advanced Virginia Reckless Driving Defense

Mr. Vincenzes examines three medium to advanced issues important to the successful resolution of certain Virginia reckless driving cases, when the alleged speed is at issue and a radar device was used to determine a defendant’s speed. The basic calibration requirements have been discussed before here and on our blog; this video and article addresses three points:

  1. What is a true copy, and when is a notarized calibration certificate not good enough for the prosecution to rely upon to establish a driver’s speed at trial?
  2. Do all radar devices qualify as long as they are properly tested and calibrated?
  3. How can the defense attack the reliability of a radar device, even if the calibration requirements are met, and the certificate is admissible (a true copy)?

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Technology can fail. Radar devices are no different.

Why is reckless driving in Virginia such a common offense?

There are many reasons behind the (seemingly) high numbers of reckless offenses in Northern Virginia, and specifically, Fairfax County. For one, Fairfax County tends to have relatively low speed limits compared to areas such as Stafford, where limits are 65 mph in some places.

In this area, there are many problem spots:

  • Dulles toll road (where people from all over are rushing to make their flight or to drop off a loved one  who is running late);
  • Fairfax county parkway (267), a road with few stop lights, many straightaways, but just a 55 mph speed limit; and,
  • Infamously congested highways, including 66, 495, 95, and others…the speed limit is 55 mph most places.

Before the Finer Points: Recapping the Basics

Virginia Code section 46.2-882 explains how the speed of a motor vehicle may be determined by:

  • laser device (LIDAR);
  • radar;
  • a moving radar; or,
  • a device on an airplane or helicopters.

This article and video clip is focused on radar.

The officer should have a certificate at court that shows the device was calibrated, including:

  • the speedometer of any vehicle used when testing the device;
  • the accuracy or calibration of any tuning fork (if one was used) in testing or calibrating the radar or speed determination device;
  • the method used to test the device;
  • a date to indicate when it was tested; and,
  • who tested it, among other requirements.

The first thing a Virginia reckless driving attorney may look for is the date of the testing.

The law states that the calibration of the device is only valid for six months. Without going into detail regarding the specific police agencies in the area which tend to have problematic certificates more frequently than others…just be aware that the local Fairfax reckless driving lawyer or Northern Virginia traffic attorney who assists you may be able to elaborate based on your specific facts.

If you talk to a Northern Virginia reckless driving lawyer about your case via an initial consultation, one of the first questions he or she may ask will concern itself with the agency — for example, was the law enforcement officer a member of:

  • The Fairfax County, Loudoun County, Arlington County, or Stafford County Police Department;
  • Metro Transit Authority Officer; or,
  • a Virginia State Trooper?

Some experienced local Fairfax reckless driving attorneys or Prince William reckless driving lawyers may be able to offer insight upon learning the officer or trooper’s name.

The Certificate Must be a True Copy

After the requirements mentioned above, the next issues a Virginia criminal attorney or reckless driving lawyer in Virginia may look for is evidence to indicate the certificate is admissible in court…or in other words, that it is a true copy of the original.

A legal term to become familiar with if you are interested in the evidentiary rules relevant to documentary evidence is: true copy. A true copy is much more than just a legible copy. Virginia Code 8.01-391 explains that a copy is only admissible if it is authenticated as a true copy by:

  • the custodian of the record, or
  • by the person to whom that custodian reports…

And if they are two separate people, it has to be accompanied with verification that the person does in fact have custody.1

Here is an example from a real case in Virginia:

The Court of Appeals of Virginia held that even though a calibration certificate did include a notary public’s attestation, it did not contain any information that the notary was the custodian of the original, nor that the notary had the original in custody. The court said that the document was a mere photocopy of the certificate and not a true copy.2

Is the Radar Device an Approved Model?

Is the device itself approved by the FCC? If a calibration certificate is valid, then there is a need by the defense to rebut that evidence…which can be done by showing it is a device not approved by the FCC.3 It is beyond the scope of this post, but in a nutshell, there are guidelines and rules as far as the devices which may be used in Virginia by law enforcement agencies.

Attacking the Reliability of the Device

The Commonwealth must prove the device was operating properly. This seems like an easy burden, but there are nuances.

In one case, for example,

the radar device was tested when it was originally set up; it was operating just fine at that time, but then was moved. There was no evidence to show the device was tested when it was taken down and moved, thus there was a failure to show it was operating correctly when it registered the speed of the particular defendant.4

Did the Calibration Test Include Accuracy of Both Radar and Speedometer?

The calibration and accuracy of a radar device must be shown by a speedometer test or tuning fork.5 It is not enough to say a radar calibration test determined the speed correctly of a vehicle it used to test the device upon. The certificate has to reflect a factual finding that the speedometer of the motor vehicle used in testing the radar device was accurate.6

Interestingly, case law has held that it is not enough for the certificate to merely state that the speedometer of the vehicle used to test the device was calibrated…evidence sufficient for a factual finding as to accuracy is what the Commonwealth needs. This seems like a subtle point, and it kind of is…but a good Virginia traffic lawyer and Northern VA defense attorney should not overlook any possible defense.

[1] Kollas v. Commonwealth, 2012 Va. App. LEXIS 349

[2] Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537 (1994)

[3] Scafetta v. Arlington County, 14 Va. App. 834, 425 S.E.2d 807 (1992

[4] Royals v. Commonwealth, 198 Va. 883, 96 S.E.2d 816 (1957).

[5] Gray v. Commonwealth ,18 Va. App. 663, 446 S.E.2d 480 (1994).

[6] Howell v. Commonwealth, 213 Va. 590, 194 S.E.2d 758 (1973)

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Brenton Vincenzes

Virginia Defense Attorney at Vincenzes Law, PLLC
Actively practicing Northern Virginia criminal lawyer and community leader. I believe in making sure the justice system is held to the high standard our founders envisioned, including the protections afforded by the 4th, 5th, and 6th Amendments.