Courts are looking closely at laser and radar gun speeding evidence. You should too! In legal terms, “judicial notice” must be granted by the courts to accept laser speed readings. April 2008 saw the Ohio Court of Appeals for the Ninth District, Ohio v. Miko, refused to accept laser speed readings. Judge Clair E. Dickinson said, “Nobody has brought a reported decision of the Medina Municipal Court considering the accuracy of the LTI 20–20 device to the court's attention. The trial court, therefore, was not authorized to take judicial notice of the scientific accuracy of the LTI 20–20 laser device by Rule 201 (B)(1) of the Ohio Rules of Evidence.” She dismissed the speeding conviction of the lower court. May of 2008 saw The Ohio Eighth Court of Appeals dismiss the speeding case against the defendant, Cleveland v. Tisdale, No. 89877, as it said the Ohio Supreme Court ruling of East Cleveland v. Ferell, 1958, only upheld the judicial notice, court acceptance, of stationary radar and did not address the subject of moving radar. The court also questioned the officer's training and use of the Genesis radar gun. In summation, the court dismissed the speeding ticket based on the prosecution's inability to show the officer had received adequate training / certification and its “inability to establish the requirements of the unit's, radar gun, accuracy.” In Illinois, People v. Canulli, the Appellate Court of Illinois–Fourth District, No. 4–01–0094, said, ’ÄúNo reported cases in Illinois address the admissibility of Lidar, laser evidence to measure the speed of vehicles.” It also said, “Courts are not bound to follow decisions of equal or inferior courts,” and the prosecution ’Äúdid not present any evidence or have an expert present. We find the use of Lidar, laser technology, to measure the speed of an automobile constitutes 'new' or 'novel' evidence. Therefore a Frye evidentiary hearing was necessary to determine whether these instruments were admissible as a matter of law.” The judge dismissed the speeding ticket.
Most closely watching law enforcement professionals think the laser evidence controversy has already been settled with New Jersey Superior Court's Judge Reginald Stanton’Äôs decision in March 1998. It hasn't! Next to red light cameras, laser use is dramatically increasing with law enforcement. Judge Stanton mandated an eighteen month study comparing the speeds of laser guns to radar guns and other speed measuring devices prior to accepting laser gun speeding evidence. The New Jersey State Police reported to Judge Stanton that of the 1,908 comparisons of laser gun speeds, only 16 speed readings of other radar and other speed measuring devices showed a speed variance of by more than 1 mph or .08%. In only one case was the variance of 3 mph. Based on this field research, Judge Stanton issued “judicial notice” on the court acceptance of laser speed measuring devices. The New Jersey State Police statistics clearly fall within the performance specifications as outlined by USDOT/NHTSA, DOT HS 809 812 Radar, DOT HS 809 811 Laser. Both of these federal requirements require an accuracy of radar and laser speed devices operated in the stationary mode to show speeds +1/-2 MPH of the true speed of the vehicle. Further, strict performance guidelines for both radar and laser guns are established by the National Highway Transportation Administration (NHTSA), the National Institute of Standards and Technology (NIST), and the International Association of Chiefs of Police (IACP). The Federal Communications Commission (FCC) also issues “type acceptance” of radar guns certifying frequency accuracy. The IACP maintains a Consumer Products List (CPL), www.theiacp.org, showing which radar and laser guns meet their operating criteria after critical performance testing. The IACP requires the first two hundred (200) radar or laser guns be submitted for performance testing prior to sale by manufacturers. There are some 17,000 legal jurisdictions in the United States. It appears each needs their own “judicial notice.” Has yours?
Since Judge Stanton's mandated study of 1996–1998, no thorough comparison of radar and laser speeds on the same target vehicle has been made. The Virginia State Police conducted such a comparison as reported by the Associated Press in June 2008. A participating Fairfax County Police Department officer admitted, “It wasn't highly scientific. We didn't want a rocket scientist with a PH.D out here doing it.” They wanted officers that operate both radar and laser guns daily to do the testing. Most of the time the speeds matched exactly. Infrequent times the reported speeds were different by only one or two mph.
As with the Virginia State Police, Speed Measurement Laboratories Inc. (SML) wanted to know....Do radar and laser guns report the same speed? We wanted to know this for documented presentation to courts as we serve as an “expert witness” for the prosecution in many jurisdictions. SML, with the assistance and cooperation of several law enforcement agencies, field tested this question over a two month period at four locations in Texas. Testing involved laser guns from Kustom Signals ProLaser III, Laser Technologies Incorporated (LTI) TruSpeed and Ultralyte LR, Stalker Laser, and Laser Atlanta's SpeedLaser. All laser's used 904 nanometers infrared, three milliradian, monochromatic, wavelength with varying pulse rates. The laser gun speeds were compared to new directional radar guns from Stalker–Stalker II (34.7 GHz), Stalker DSR (34.7 GHz), Kustom Signals Inc.– Directional Golden Eagle (24.150 GHz), Kustom Signals Talon (35.5 GHz), and a MPH Industries Bee III (33.8 GHz).
To understand our testing parameters we need to give you a short course in new radar and laser technologies. As reported in Tisdale v. Cleveland, May 2008, most judicial notice on radar is based on old technology, i.e. Ohio Supreme Court–East Cleveland v. Ferell, 1958, decision of some fifty (50) years ago. Honeyecutt v. Kentucky of 1966, over forty (40) years ago, outlined officer training, understanding, and competency in radar use and Judge Nesbitt observed a radar gun clocking a palm tree at 86 MPH in the nationally famous Florida v. Aquilera, 1979. Laser precedent is also dated taking judicial notice on laser guns no longer manufactured. Laser was first patented by LTI in 1989. The first significant case involved a no longer made LTI 20/20 Marksman police laser gun in Dayton v. Kane, 1991. As with any technology, new developments change rapidly. This is true for cell phones, computers, and radar/laser guns. Unfortunately, court “judicial notice” has not kept up with evolving technological advances in police radar and laser guns.
Direction sensing radar (DSR), was introduced by Applied Concepts Inc, i.e. Stalker Radar, in 1998. All other radar gun makers followed. In the stationary mode, DSR radar only looks at cars approaching or receding eliminating half of potential erroneous targets. This is done by analyzing either compressed or stretched Doppler shifts. Compressed Doppler Shift means the vehicle is approaching while Stretched Doppler Shift means the target vehicle is going away from the radar gun. Older, non-DSR radars, would always report speeds of vehicles approaching and receding and always show the most reflective target. Kustom Signals Inc. pioneered VSS (Vehicle Speed Sensor) technology in 1998 eliminating low Doppler errors by connecting the radar directly to the patrol unit's transmission. Fast Vehicle Mode (FVM) was introduced by Kustom Signals Inc. allowing the radar to track the fastest vehicle in a group. All of these new technologies mean increased accuracy of radar readings. Police radar guns are not “calibrated” before each use. They are tested for transmission accuracy with the use of tuning forks, Connecticut v. Tomanelli, 1976. Calibrate is defined as “to adjust precisely for a particular function.” There is no adjustment with the use of tuning forks. In stationary use, only one tuning fork is used. The radar gun must report within +1/-1 MPH the speed stamped on the tuning fork. In the moving mode, two tuning forks are used. The allowable tolerance for moving radar is +1/-2 MPH of what is stamped on the two tuning forks. One tuning fork measures the low Doppler and one measures the high Doppler. A court case from Michigan, Michigan v. Ferency, speaks to increased officer training above the standards in Honeycutt v. Kentucky. In Ferency, the court ruled the officer must be able to determine if the target vehicle was in the beam width of the radar gun at the time of the alleged infraction California v. Kruger, Pantos, and Payne, mandated radar certification courses must not be conducted by manufacturer’Äôs representatives.
Radar is not alone in new technology. Laser developments abound since the first, heavy, 4.4 lb. laser gun. Now, officers can use laser while sitting in their patrol car shooting through the windshield using “inclement weather” modes found on all laser guns. New binocular laser guns from Laser Atlanta and Kustom Signals weigh less than a pound and are dangled around the officer's neck. Laser guns now accurately operate in the rain and snow and feature targeting range adjustments. New laser guns target vehicles in less than 1/3 of a second at the speed of light of 186, 282.4 miles per second. Tuning forks are used to test the accuracy of radar guns. Not so with laser guns. Laser guns should be tested for accuracy daily by two means. A Known Distance Test must be performed daily before using the laser gun. A reflector is placed on the wall of the police station and a marking on the pavement used to see if the laser gun reports the same distance daily. The laser gun should also be tested daily using the Vertical and Horizontal Sight Alignment Test. A telephone pole or light standard with a mast arm at a known distance should be used here. The laser is constantly transmitting and panned horizontally over the telephone pole or light standard giving the operator a distance. The laser gun is then turned vertically and the test repeated. The laser gun should report the same distances each day. Weekly, laser should be tested using a Known Speed Test. With another officer's help in a patrol car with cruise on, the laser should report the speed of the vehicle correctly. All these new technological introductions make past court recognition by “judicial notice” of radar or laser guns and officer training obsolete.
NHTSA and the IACP both recommend radar guns, tuning forks, and laser guns be certified every three years by an independent testing laboratory. NHTSA also recommends standard certification training for officers to operate both radar and laser guns to include twenty–four (24) hours of classroom instruction and sixteen (16) hours of supervised practical experience. NHTSA also recommend officer re–certification every three years. Most states follow the NHTSA recommendations.
To accurately compare speeds reported by radar guns and laser guns, we establish stringent testing guidelines. For a baseline we used our two HHR test vehicles. We set cones at specific distances where both radar and laser guns were triggered. The test vehicle with cruise on would call the base HHR on the radio and count down “three”, “two”, “one” arriving at a specific cone. When it arrived, both radar and laser guns were triggered. The laser guns were set in the “single shot” mode and the radar speed was locked. A distance of 670 feet was chosen to minimize cosine effect on both the radar and laser gun. Cosine effect for both radar and laser guns were identical. The cosine angle of both guns was approximately 1” at 670 feet. This results in an Indicated Speed (IS) of 56.9886 MPH for the vehicle traveling at 57 MPH, i.e. cosine of 1” is .9998. The formula is IS=TS (true speed) x Cosine Angle, i.e. 56.9886 MPH=57 MPH x .9998. Radar and laser guns truncate up such IS to 57 MPH. Radar and laser guns were placed within one foot of each other on tripods to guarantee a specific “true speed” of the test vehicle. Prior to using radar and laser guns, there accuracy was tested with a tuning fork for stationary radar and a known distance test for the laser guns. Laser guns were also tested for vertical and horizontal alignment and a known speed test. This testing was replicated at interstate speeds on passing vehicles with a limit of 80 MPH on I-20, mile post #70 outside Monahans, TX on 28–29 August 2008 and I–20 mile post #4 outside Van Horn, TX speed limit of 80 MPH on 8 August 2008. An additional metropolitan measurement was made on U.S. 80, 9900 block west in Fort Worth, TX on 3–4 September 2008 where the speed limit was 50 mph and the access road of I–820 mile post #3 in Fort Worth, TX with a 50 mph limit on 7 September 2008. Additional measurements were taken at locations with radar guns mounted on the dash board and the laser guns fired from the driver's seat.
All measurements were made with directional radar guns set in the receding mode meaning they would only measure vehicles going away. Laser by its nature is directional and all laser measurements were taken by aiming the laser at the rear of the receding target vehicles. All radar and laser guns were operated within the standards and procedures as outlined by NHTSA training and certification programs, i.e. Speed Measuring Device–Operator Training, NHTSA–R12/01–Core Module, Lidar Module, Radar Module, Understanding Police Traffic Radar And Laser–Law Enforcement Services LLC, Library of Congress #98-87615, and those specified by the International Association of Chiefs of Police.
The following combinations of radar and laser guns for analysis (1) and number of comparisons of speeds (2) was followed:
Radar and Laser Combination
% Combination Showing Same Speed
# of Comparisons
Stalker II (radar) and Stalker Laser
99.4%
316
Kustom Talon (radar) and Kustom Pro Laser III
99.1%
326
Kustom Golden Eagle Directional (radar) and LTI TruSpeed
99.0%
307
MPH Bee III (radar) and Laser Atlanta SpeedLaser
99.1%
332
Stalker DSR (radar) and LTI Ultralyte LR
99.2%
340
Stalker II (radar) and LTI TruSpeed
99.7%
318
MPH Bee III (radar) and LTI Ultralyte LR
98.8%
342
MPH Bee III (radar) and Kustom ProLaser III
99.2%
367
Average %
99.2%
Total
2,648
Discussion– Of the 2,648 comparisons of reported radar and laser gun speeds on the same target vehicle, 99.2% (2,627) were recorded as the same speed. Nineteen (19) speeds were within +1/–1 MPH or .7% and were within federal accuracy specifications for stationary speed measuring devices of DOT HS 809 812 and DOT HS 809 811 as formulated by NHTSA and U.S. DOT, June 2004. Three (3) speeds or .1% were recorded as +2/-2 MPH. The results mean the accuracy of laser guns compared to speeds recorded by radar guns, at the same cosine angle, on the same vehicle is 99.2%. Of all the recorded speeds 99.9% (2,645) of compared speeds were within the specifications of federal requirements.
Preparation is key when officers go to court. Expect defense questions in advance. In many expert witness testimonies, SML has seen officers fall into defense “gotcha” questions. Here are some “gotcha” questions you must be able to answer.
ABOUT THE AUTHOR
Carl Fors, President of Speed Measurement Laboratories Inc., has some
twenty–five years experience in field testing radar and laser devices. He serves many jurisdictions
as an expert witness in radar and laser gun trials and teaches NHTSA standard Master Radar and Laser
Instructor Certification courses at law enforcement agencies here and abroad. See
www.speedinglimits.com. He may be reached at speed@speedinglimits.com or
817–291–2396. Testing results are © by SML.