Legal Question in Traffic Law in Virginia

I got a speeding ticket (44/30) referencing VA Law 423 (1546.2-878). I heard a judge dismiss a speeding violation once for lack of evidence when the alleged speeder quoted a part of the law regarding requirements for radar calibration -- the officer could not prove the radar was calibrated the day of the violation.

The Virginia Supreme Court has held that Va. Code � 46-215.2, the predecessor to Va. Code � 46.2-882, did "not eliminate the necessity for the Commonwealth to prove that the machine used for measuring speed had been properly set up and recently tested for accuracy." Royals v. Commonwealth, 198 Va. 876, 881, 96 S.E.2d 812, 816 (1957). The [*5] Court has upheld the Royals rule as applied to Va. Code � 46.2-882. See Gray v. Commonwealth, 18 Va. App. 663, 666, 446 S.E.2d 480, 482, 11 Va. Law Rep. 45 (1994).

In Gray, the Supreme Court held that either tuning fork tests or speedometer tests would be deemed sufficient to prove the accuracy of the device used for measuring speed. Id. Although Va. Code � 46.2-882 provides an exception to the hearsay rule for a certificate showing the accuracy of the speedometer or tuning fork used in testing the device, it does not provide such an exception for a certificate showing the accuracy of the device itself. Therefore, the "Certificate of Calibration" from Kustom Signals is not admissible as evidence that the Laser was "properly set up and recently tested for accuracy."

The only evidence offered by the Commonwealth that the Laser was recently tested for accuracy was the testimony of Officer Ocheltree that he checked the device each morning to confirm its ability to detect two specified distances. However, the Officer stated that this would not be sufficient to confirm its accuracy in its ability to determine the speed of [*6] a moving vehicle.

Accordingly, the Court finds that as the Commonwealth has not met its burden of proving that the Laser was "properly set up and recently tested for accuracy," testimony regarding the results of the Laser is inadmissible and the charge should be dismissed.... What is the preceding case really saying about the need for calibration of the radar device on the day of the alleged infraction. Are today's devices subject to that same need? (Rectangular portable device showing alleged speed.)


Asked on 9/10/12, 8:52 pm

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

There is no such need at all (in my opinion) and the case cited would not

be a basis for the dismissal of your charge, but, of course, in your

closing argument in the trial of the case, you could always attempt to

convince the court hearing the matter otherwise.

Furthermore, it would be utterly impractical for any number of reasons that will not be enumerated here for the law to require

that each speed determination device be calibrated each and every

day of its use or that any speeders cited for infractions using such a device must necessarily have their charges dismissed.

Your defense would be better served (in my opinion) to focus on whatever

credible evidence that you may have to persuade the trier of fact that in fact you

were NOT driving your vehicle at the time you were cited 14 mph in excess

of the posted speed limit rather than on whether the speed determination device was in fact properly calibrated on the day of your infraction.

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Answered on 9/11/12, 6:33 am


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