I found this awhile back...haven't gotten a ticket so I don't know if it works or not...but I thought I would post it for discussion. Personally..I would like to know if it works.
This is what your supposed to do if the officer shows up for the courtdate.
Officer Takes The Stand:
The prosecution’s direct examination will go something like this:
PROSECUTOR – Please state your name and number of years on the force.
OFFICER – My name is Officer Griffith and I have been on the force for 15 years.
PROSECUTOR – Would you please tell the court how you observed the defendant speeding?”
OFFICER – On Jan 21, I was situated in the median of the highway on
I-95 facing south in-between mile marker 26 and 27 when I clocked the defendant traveling at 72 mph, 12 miles above the posted speed limit in his white 99 Pontiac Grand Am, license plate number HHT-810. I clocked him speeding with my hand held radar unit. Before using it, I checked the unit for any outside interference and concluded that there was none substantial that could have altered the reading in any way.
PROSECUTOR – Did you have a clear look at the defendant’s vehicle?
OFFICER – Yes I did, traffic was light that day and no barriers or obstructions between our paths.
PROSECUTOR – This radar unit used to measure the defendants speed, was it functioning properly? If so, how do you know?
OFFICER - Yes, the radar gun was functioning properly at the time the violation occurred. Earlier that day, I tested the unit by pushing the internal check button. The preprogrammed speed showed on the screen. I then checked the device using special tuning forks set at different speeds. Later, after the ticket was issued, I went back to my vehicle and conducted a second test with the tuning forks. Everything was working just fine.
PROSECUTOR - With regards to the radar gun, what kind of training do you have?
Now the officer will go on and on about his training and certifications and how he's the best and he's been working with radar guns for 15 years and how he recently finished mandatory training school and blah blah blah. He will do a very good job at convincing you and everyone in the courtroom how much of a “professional” he is on radar guns.
Now the prosecutor will emphasize the fact that the radar gun was in working order.
PROSECUTOR – In your professional judgment, was there anything wrong with the radar gun prior to stopping the defendant that could have altered the reading? Has the radar gun undergone any major repairs?
OFFICER – No, there was absolutely nothing wrong with the unit. It is only several months old. I conducted all required procedures to ensure an accurate reading. I also checked for any outside interferences.
PROSECUTOR – Prosecution rests its case Your Honor.
Now, the prosecution thinks it's got you right where it wants you. The prosecution will sit down and the judge will ask you if you would like to cross examine the witness.
Now it is your turn to ask the questions. Make it short and sweet. The fewer questions you ask the better. Get this over with as soon as possible. Attack with your very first question and take him down from there.
Stick to the objective and don't get side tracked. You're only here to attack the prosecution’s evidence and not prove your innocence.
SPECIAL NOTE: It is assumed that you have thoroughly listened to the officer’s testimony for any required steps he may have omitted. For the sake of simplicity we will also assume that the officer testified to everything he was supposed to testify to. If he didn’t, refer back to The Testimony Counterattack.
Officer Testifies To Testing The Radar Gun:
DEFENDANT – Officer, who conducted the testing on the radar gun?
Many times a first shift officer will test the radar gun and hand it over to the second shift which in turn will hand it over to the third shift officers. Other times there are two officers in the squad car and only one of them tested the unit.
If the officer on the stand is not the same officer who conducted the test, I would motion for a dismissal if the officer that performed the actual test is not present in court. Remember that only the officer that actually performed the test can testify to doing so.
OFFICER – Officer Dugan performed the test.
DEFENDANT - Is Officer Dugan in the courtroom today?
OFFICER – No he is not.
DEFENDANT – Your Honor, the officer has just testified that he was not the one who performed the accuracy test on the radar gun. He has also testified that the officer who performed these tests is currently not in the courtroom today. Unless the officer who performed these tests is in court to testify right now as to performing the tests, I motion for a dismissal.
If the officer on the stand is the same one who performed the test on the radar unit:
DEFENDANT – Officer, you claim that you tested the radar gun on the day I was ticketed. Can you provide an arrest log or activity log showing the time and date you performed this test? (It's important that he show you BOTH before and after the arrest).
If the officer can not provide an arrest log (or activity log) that documents these tests being performed I would ask for a dismissal.
If he does provide a log, check for these things:
1. Original document (Best Evidence Rule).
2. The arrest log is for the exact radar gun being used (match serial numbers).
3. Performed the test before and after the ticket was written.
4. The radar gun was checked out that day by the same officer. (Police officers must sign for the radar gun they will be using that day. The arrest log will show who the radar gun was issued to. Match up the names).
5. The arrest log is for the exact date and time you were ticketed.
Okay, let’s handle each one separately:
Let's say the officer does provide an activity log. Make sure it is not a photocopy.
If it is...
DEFENDANT- Your Honor, this activity log the officer has provided is not the original. I ask that an original copy be presented if available as stated in the Best Evidence Rule. If an original is not available please have the prosecution submit evidence that the original activity log is not available and prove that this is a genuine copy of the original. If they fail to do so, I object to a photocopy being introduced as evidence.
Let's say the judge denies your motion or the activity log the prosecution has presented is an original document. Next you will want to match the serial number of the gun being used that day with the one in the activity log.
Make sure they match!
DEFENDANT- Officer, what is the serial number of the radar gun used to clock my speed?
If he says he doesn’t know, I would request that the activity log be inadmissible as evidence:
DEFENDANT- Your Honor, the police officer doesn’t know the serial number of the radar gun he used to clock my speed. Since he does not know this crucial piece of information he can not, to a legal degree of certainty, say that this activity log the prosecution has furnished is for
the exact radar gun he used. I motion for the court to reject this activity log as evidence.
If the officer does know and the activity log shows a different serial number:
OFFICER - The Serial # is 12302.
DEFENDANT- Your Honor, the radar gun I was clocked with is serial number 12302. The activity log the prosecution has presented is for radar gun 23450. Since these are not one in the same radar guns, I motion to the court for a dismissal. (Paper work always gets mixed up.)
Check to see that the officer performed the test before and after the arrest. If it shows that the officer only performed the test before the arrest, I would ask for a dismissal.
DEFENDANT- Your Honor, this activity log only shows a test before the officer ticketed me. There is nothing in here that shows a test being performed after the arrest was made, as every radar manual suggests and as dictated in the case laws I have furnished. Since this vital test was not done, the radar gun can not be considered accurate in the eyes of the law. I motion for a dismissal.
While looking at the activity log, make sure the officer testifying is the same one on the log. Before the officer goes to court someone else will usually give him the log to bring with him. It’s very possible that this other person gave the officer the wrong log book. Actually, from my experience this happens about 40% of the time.
If that’s the case...
DEFENDANT- Your Honor, the prosecution has presented an activity log that has a different officer’s name on it. Since this is not the same officer who administered the traffic stop and is not here to testify, I motion for a dismissal. (Again, paper work gets mixed up.)
Compare dates and times on the activity log with the exact date and time you were ticketed. If they don't match up, ask for a dismissal.
I told you this stuff is pretty easy. So far so good, right? As you can see, it's pretty straight forward. Just look for certain things that must be present and if they are not or if things don't match up, simply ask for a dismissal.
DEFENDANT – Mr. Officer, when you target vehicles using a stationary radar unit, that is when you are situated on the side of the road, is there a scope for you to look through so that you can clearly aim at specific vehicles to ensure you are targeting the right vehicle?
OFFICER – Yes.
DEFENDANT – Being that you used moving radar, did you use this scope to target my vehicle?
OFFICER – No. (He will say no because it is impossible and not to mention dangerous for him to look through the scope of the radar unit while it is fixed to his dash and drive his vehicle at the same time.)
DEFENDANT – Then officer, how did you determine that my vehicle and only my vehicle was the one that gave the speed reading on your radar unit?
Now it really doesn’t matter what he says. You have damaged his testimony enough to have your case dismissed.
DEFENDANT – Your Honor, the laws of physics prove that as a radar beam travels it also widens. This width can be as wide as 400 feet. As such, since the officer did not specifically target my vehicle, he can not to a legal degree of certainty say that my vehicle and only my vehicle caused the reading on his radar unit. I motion for a dismissal.
If you’ve made it this far and the judge has still not dismissed the case, you’re last recourse is to make known the numerous errors that can occur with moving radar. The more you can give… the better. The objective here is to reiterate the fact that some or all of these errors could have occurred while the officer was attempting to calculate your speed.
DEFENDANT – Mr. Officer, what is a shadow effect and how can it contribute to a false speed reading?
A shadow effect error occurs when the second beam used to calculate the officer’s patrol car speed - by locking on to nearby objects on the road - instead locks on to a nearby vehicle in front of the patrol car (usually a large truck).
For example, a patrol car is traveling at 50 mph. It is approaching a large truck directly in front traveling at 40 mph. The low doppler shift beam of the radar unit locks onto the back of the large moving truck and returns a strong low doppler shift back to the receiving end of the radar unit.
The radar gun will then read the closing speed of the patrol car on the truck. This will make the radar unit think that the patrol car is only traveling at 10 mph
(50 – 40 = 10).
When a vehicle approaches from the opposite direction, at let’s say 60 mph, the radar unit will actually calculate this vehicle’s speed as 100 mph. Because the radar unit has calculated the officer’s speed as 10 mph and is closing in on the approaching car at 110 mph (vehicle’s actual speed + patrol’s actual speed).
As a result, the radar unit calculates the approaching vehicle’s speed as 100 mph (110 – 10 = 100) or (closing speed – officer’s speed = vehicle’s speed). This inaccurate speed is 40 mph over the actual speed of the target vehicle!
Look Past Error:
DEFENDANT – Mr. Officer, what is a look past error and how can it contribute to a false reading?
A look past error is when the radar “overlooks” the target vehicle and instead bounces off of a different vehicle. This is especially true with moving radar since the officer doesn’t scope out an individual vehicle and the radar gun bypasses a small reflection in exchange for a larger one further down the road (as with a large truck).
Studies have shown that the readings from a radar unit can often be from a larger vehicle as far as ¾ miles down the road!
Fan Interference Error:
DEFENDANT – Mr. Officer, what is fan interference error and how can it contribute to a false reading?
A fan interference error is when a radar unit mounted inside the patrol car will have the tendency to read the pulse of the fan motor (a/c, heater, or defroster). This will override patrol car speed reflected from the roadway. When this happens the false speed reading produced from the fan will be substituted for patrol speed in the moving radar’s calculation of target speed. Since the fan speed is considerably less than the patrol’s speed, this will calculate the approaching vehicle’s speed as being higher than what it actually is.
DEFENDANT – Mr. Officer, what is batching and how can it contribute to a false reading?
Already discussed above.
DEFENDANT – Mr. Officer, what is bumping error and how can it contribute to a false reading?
Bumping error is when the officer slows down, as when to turn around and give chase in the opposite direction. The turn around lessens the patrol car’s speed and increases or “bumps” the target vehicle’s speed.
DEFENDANT – Mr. Officer, what is cosine error and how can it contribute to a false reading?
Already discussed above.
If at any time, the officer says that he does not know a particular error, ask him when was the last time he read his radar manual. Tell him that these errors are clearly listed in his manual and that a properly trained person should at least be familiar with such errors in order to prevent them from happening. This will also be a good time to motion for a dismissal.
If at any time the officer says he is not supposed to know the technical workings of the radar unit I would ask him if these errors are listed in his handbook. If he says they are, then I would ask him when was the last time he read it and why he’s not required to know them. This is also a good time to motion for a dismissal.
It is highly unlikely that you will have to give a closing argument. More than likely your case will be dismissed by then. But it is still a good idea to have one ready just in case.
It’s not possible for me to write one for you here because there are just too many factors involved and each particular case is different. However, I can give you a couple of pointers.
First, you will want to mention the fact that no judicial notice exists in your state and that the judge still allowed the case to continue without expert testimony and that the prosecutor failed to prove judicial notice does exist.
Also, remind the judge of all of the different errors you brought up during cross examination that could have occurred and that the police officer has not proven that they didn’t.
Finish off by saying that the police officer has not proven, to any legal degree of certainty, that he clocked your vehicle with a reliable method of speed enforcement and that you ask for a verdict of not guilty.
You may use this Moving Radar Defense in conjunction with the MUTCD Defense further below. Ask for a traffic survey if all else fails. You may begin
your line of defense with the MUTCD Defense or you may start with the defense you see here and if the judge still hasn’t dismissed the case you can start asking for a traffic survey for the stretch of road you were caught speeding.