How should a Fairfax reckless driving lawyer object to police radar reliability?

If Charged with Reckless Driving in Virginia: your Fairfax Reckless Driving Lawyer should have a firm understanding of recent case law

fairfax reckless driving lawyer

If charged with reckless driving in Virginia, why search for a local Virginia or Fairfax reckless driving lawyer with a firm understanding of the most recent case law developments? A case from January, 2016 provides an opportunity for our Fairfax criminal lawyer to explain fundamental concepts related to trying a reckless driving or speeding case.

Radar – used to determine speed in Virginia reckless driving cases

Many speed and reckless driving cases involve the use of police radar. These devices are used to determine speed. Predictably, officers and troopers are trained to use these devices according to manufacturer’s specifications. To obtain a correct reading, the device must be calibrated and tested. If the case goes to trial and speed is at issue and contested, then the device is not deemed reliable unless the officer or trooper can produce a calibration document to certify the device was calibrated within the past six months (there are numerous other requirements as well).

But what if the defense attorney (or the defendant) fails to object or challenge the officer’s testimony as to the readout of the device?

If the prosecutor does not ask anything other than, “officer, what did the radar display read?” — the judge can allow that testimony to come in as evidence — or in other words, the prosecuting attorney does not have the burden to convince the court the device was accurate, or that the readout was reliable. This burden is on the defense.

Fairfax reckless driving lawyer illustrates why case law is important

In Wells v. Commonwealth [1], the court of appeals answers the question,

does the Commonwealth have to affirmatively show the radar used by the officer or trooper was tested and calibrated according to the law?

In other words,

does the defense have to raise an objection to the radar device’s accuracy, or should that be a task left to the commonwealth?

If the defense stays silent during the Commonwealth’s case and fails to object when the officer testifies to the radar’s reading, is it presumed accurate and reliable without any questioning about the officer’s measures to test the device on the part of the Commonwealth?

And finally, what should a Virginia criminal lawyer or local Fairfax criminal attorney do to ensure he or she does not fail to force the Commonwealth to meet the maximum burden of proof?

In Wells v. Commonwealth1 the defense argued that the admissibility of the radar reading of 94 mph was improper,

“because no evidence was presented to prove that the radar was properly calibrated.”

The defendant argued that the court should grant his motion to strike (a motion to ask the court to find the Commonwealth has not presented sufficient evidence to satisfy the elements of the offense) because the Commonwealth didn’t offer evidence that the officers’ radar had been properly set up, adjusted, and tested for accuracy.

The Court of Appeals ruled that the proper court to decipher whether or not the evidence taken from the radar was admissible was the trial court and that the Defendant had not raised this argument/objection at the proper time.

In this case the Defendant needed to question whether the scientific evidence (radar reading) was admissible (or not admissible) due to scientific reliability of the device (or lack thereof).  If this would have been raised the Commonwealth would then have the responsibility to affirmatively prove that the evidence is reliable.

A Virginia criminal lawyer and/or local Fairfax reckless driving lawyer can object to admissibility and to the sufficiency of evidence.  If the objection is to admissibility – whether or not the evidence should be allowed or considered at all – then the objection should be made when the Commonwealth tries to offer or present the evidence.

For example, if a prosecutor simply asks an officer what the radar reading showed when the defendant’s vehicle was allegedly targeted, the defense attorney must object at that time to the reliability and accuracy. Then, the Commonwealth would be required to establish the reliability enough to satisfy the court. If, during trial, a Fairfax reckless driving attorney does not object but waits until the end of the Commonwealth’s presentation of evidence and makes a “motion to strike” – it is too late.

Speed related cases are complex because scientific evidence is routinely part of trial. Challenging – or keeping out evidence – is incredibly important to defend a Virginia reckless driving charge. For more about Virginia reckless driving laws, read our main page or one of our many other articles by our local Fairfax reckless driving lawyer.

[1] Wells v. Commonwealth, 65 Va. App. 722, 781 S.E.2d 362, 2016 Va. App. LEXIS 21 (Va. Ct. App. 2016)

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


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