# How Was Your Speed Measured?

The key to challenging a speeding ticket is to know what method the officer used to determine your speed. It may not be obvious to you which method was used. First, remember to politely ask the officer when you are stopped. Second, you'll want to obtain a copy of the officer's notes before your trial (see Chapter 9 on "discovery") to learn what method was used.

Here we discuss the five most common methods of speed detection. If you know for certain what method was used to nab you, go directly to that section.

## Pacing

Many speeding tickets result from the police officer following or "pacing" a suspected speeder and using his or her own speedometer to clock the suspect's speed.

### How Pacing Works

With this technique, the officer must main tain a constant distance between the police vehicle and the suspect's car long enough to make a reasonably accurate estimate of its speed. Some states have rules that the officer must verify speed by pacing over a certain distance. (For example, at least one-eighth or one-fourth of a mile.) In practice—even in states that don't require pacing over a minimum distance—most traffic officers will usually try to follow you for a reasonable distance to increase the effectiveness of their testimony, should you contest the ticket.

Road configuration may help prove inadequate pacing. Hills, curves, traffic lights, and stop signs can all help you prove that an officer did not pace you long enough. For example, an officer following your vehicle a few hundred feet behind will often lose sight of it at a curve, not allowing enough distance to properly pace the vehicle. Similarly, if you were ticketed within 500 feet of starting up from a stop sign or light, the officer will not be able to prove having paced your car for a reasonable distance.

### How Pacing Fails

Now let's discuss the most common ways pacing can be shown to be inaccurate.

#### The Farther Back the Officer,  the Less Accurate the Pace

Your goal is to use the speeds that the officer testified to be going while pacing you to argue that the officer used his or her speed while closing in on you as you were driving under the speed limit. Here is how to do this:

1. Read the material on how to cross-examine the officer in Chapter 11.
2. Pin down the officer during cross-examination on the distance the officer was behind you during the pace and the distance the officer paced you. (See above for how to do this.) At that point, you can use a calculator to figure—based on the officer's answers, pacing and tailing distances—whether these speeds and distances, inserted into the formula, will result in a speed that is below the speed limit.
3. Later, when your turn comes to testify, emphasize (if true) how you initially saw the patrol car some distance back in your rearview mirror, then saw it bear down on you quickly.
4. Be sure to also testify (if true) that you periodically glanced at your speedometer, which indicated a steady speed, and that you didn't slow down when you saw the patrol car.
5. During your final argument, you should emphasize the point that your testimony and the officer's both show that the officer was actually closing in on you when the officer claimed to be measuring your speed, not truly pacing you at a constant speed. Then, if the above formula will result in your speed being below the limit, explain that there is a simple mathematical formula to show your true speed. Show how it is derived (see above), and how, when the numbers are plugged in, it shows your speed was below the speed limit. (See Chapter 12 for closing arguments before a judge and Chapter 13 for closing arguments before a jury.)

Practice, practice, practice. If you are pretty sure your defense will turn on whether the officer really paced you properly, practice explaining the speed formula ahead of time. Bring a large piece of thick white paper to court, so that after the officer testifies to her speed you can plug in this number.

#### Pacing at Dusk or Night

Pacing is much more difficult in the failing light of dusk or in complete darkness, unless the officer is right on your tail. In darkness, the officer's visual cues are reduced to a pair of taillights. Also, if an officer paces a speeder's taillights from far back in traffic, he or she will have trouble keeping the same pair of taillights in view. In Chapter 11, we include a few cross-examination questions to bring this out during the trial.

#### Road Conditions Can Affect Pacing

Pacing is easiest and most accurate on a straight road, with no hills, dips, or other obstacles and where the officer can see your vehicle continuously as the officer follows you. This allows the officer to keep the patrol car at a constant distance behind you while pacing your speed. Hills, freeway interchanges, dips, curves, busy intersections, and heavy traffic make for a poor pacing environment. All of these obstacles can be used to challenge the pacing of your vehicle for accuracy.

## Aircraft Speed Detection

Many drivers are ticketed for speeding when a ground patrol unit is alerted to their speed by a radio report from an airplane. Obviously, this is especially common in states with lots of wide-open highway. If your ticket was based on information from one of these aircraft patrols, there are several possible ways you may be able to challenge it.

### How Aircraft Speed Detection Works

There are two ways an aircraft officer determines your speed. The first is to calculate your speed by timing how long it takes for your vehicle to pass between two highway markings at a premeasured distance apart. The second involves a kind of "pacing" of the target vehicle, but from the aircraft. The pilot uses a stopwatch to time its own passage over highway markings that are a known distance apart. Then the aircraft is used to pace your vehicle's speed. As we'll see, this second method is less accurate and therefore easier to attack.

Under either system, if a car is found to be speeding, a waiting ground patrol car is radioed. If that ground patrol car does not independently verify your speed, your chances of successfully fighting your ticket go up. For starters, that's because both the aircraft and ground officer will have to be present in court. The aircraft officer must testify as to how he or she measured your speed, and the ground officer must say that you were, in fact, the driver. If the pilot appears in court but the ground officer does not, the prosecution cannot prove its case in the majority of states that treat traffic cases as minor criminal violations. In part, this is because you are not required to testify, because the Fifth Amendment to the Constitution gives you the right to remain silent. However, in states that treat traffic violations as "civil offenses," you may not have this right to remain silent (see Chapter 3).

Ask for a dismissal if either officer fails to appear. If both officers are not in court, ask the judge to dismiss the case. If the prosecution tries to introduce an absent officer's police report or other written record into court in place of live testimony, simply object on the basis that it is hearsay. Without an officer present, the written report is inadmissible hearsay testimony. For more on how to object and insist that the case be dismissed, see Chapter 12.

Even if both officers show up, you still may have a decent opportunity of winning a case where an airplane is involved. To maximize your chances, ask the judge to exclude one officer from the courtroom while the other is testifying. (See Chapter 12 for more on why and how to do this.) Don't worry, you are not being impolite but only exercising your right to prevent the two cops from taking cues from each other's remarks.

### How Aircraft Speed Detection Fails

Fortunately for you, there are several good ways to challenge tickets based on an aircraft's measuring your speed.

#### Stopwatch Error/Reaction Time

If the timing is not performed properly from the aircraft, the speed of your vehicle will be wrong. Since this speed is calculated by dividing distance by time, the shorter the distance your speed was measured over, the more likely it is that a timing error on the part of the sky cop will result in a too-high speed reading. If the officer hesitated even slightly before pushing the timer as you passed the first ground marker, the measured time would be shorter than the true time your vehicle took to traverse the distance to the second marker.

EXAMPLE: Officer Aircop sees Dawn Driver pass between two markings an eighth of a mile apart. At a speed of 65 mph—the speed limit—Dawn's car should cross the two marks in 6.9 seconds. But if Officer Aircop starts the stopwatch a second too late or stops it a second too early and gets 5.9 seconds, he incorrectly figures Dawn's speed to be (0.125 mile/5.9 sec.) x 3,600 = 76 mph.

The longer the distance between the ground markings, the more accurate the officer's reading is likely to be. A one- second error in starting the stopwatch will result in only about a 1-mph error where the distance between markers is a mile. (See Chapter 11 for cross- examination questions that highlight this error.)

#### Difficulty in Keeping Your Car in View

If two markers are a mile apart, it takes a car doing 75 mph some 48 seconds to travel between the two markers. It's hard to stare continuously at anything for that long, especially from a plane. If many other cars are on the road, it would be easy for the sky officer to lose sight of your car while looking at the flight instruments.

You should raise this possibility on cross- examination by asking the airplane officer about procedures during the flight. Your goal is to get the officer to admit to not continuously watching your car during the pacing. Hopefully, you will learn that the officer must keep a log for every vehicle he or she paces, recording the vehicle's basic description, the time between the two points, and the calculated speed. In short, the officer is usually also keeping track of other cars. If you establish this during cross-examination, you can argue in your final argument that the officer might have started to pace your car but mistakenly focused on another car that looked like yours after looking up from taking notes. (See Chapter 11 on cross-examination.)

#### Using the Aircraft to Pace You

The second method by which an officer in an aircraft can determine your speed involves two steps: (1) timing the aircraft's passage over two separate highway markings a known distance apart to get the aircraft's speed and then (2) using the aircraft to "pace" your vehicle. For example, if the aircraft passes over two markings a mile apart in 60 seconds, the aircraft's speed is 1 mile/60 seconds, or 0.0167 mile per second. Since there are 3,600 seconds in an hour, this 0.0167 mile per second is multiplied by 3,600 to get miles per hour, or 60 mph. If the car below stays ahead of the aircraft, it's going 60 mph; if it's pulling away, it's going faster. The officer in the plane then radios this information to the officer on the ground. This method is less accurate than timing a car's passage between two points for the following reasons:

• Inconsistent distance while pacing. It's much more difficult for an aircraft pilot than for the driver of a police car to maintain the same distance behind the paced vehicle.
• Inaccuracy in ascertaining reference points from the air. For the officer in the air to determine his speed, he or she has to time the passage of the plane over two markers several thousand feet below. This is done by starting a stopwatch as the plane passes the first marker on the roadway and by stopping the watch as the second marker is crossed. The speed is then determined by dividing the distance between the markers by the elapsed time. This sounds reliable enough, but it often isn't. For starters, it is difficult for a pilot to know exactly when the plane passed a spot on the ground. An inconsistency in the aircop's body position within the aircraft, by even a few feet, as he or she times the passage, can add several miles per hour to your estimated speed.
• Wind conditions can also affect the speed of the aircraft. If a headwind comes up after the aircraft has timed its passage over two markers its airspeed would be decreased. That would make it appear to the aircop as if you were going faster than you actually were.

#### Problems Identifying the Vehicle

After testifying about how the speed was computed, the aircraft officer will next testify about radioing the information to the ground officer who stopped you. Here you'll again want to raise the possibility that the ground cop stopped the wrong car. Given that license plate numbers are too small for the airborne officer to see, and many modern cars look very much alike, this is a real possibility.

Ask the pilot how many cars he or she was tracking. Often aircraft officers relay information on several speeding cars at the same time. This, of course, increases the possibility that the ground officer might confuse different cars. If the ground officer is excluded from the courtroom, that officer will take the copy of the ticket along, since he or she issued it. This means the aircraft officer won't be able to use the ticket to "refresh his or her memory" while testifying. In Chapter 11 we discuss cross-examination techniques, including suggested questions for this situation.

 Converting Miles Per Hour to Feet Per Second Some judges will insist that you explain your math when you talk about translating miles per hour into feet per second. Here is how to do it: There are 5,280 feet in a mile, so one mile per hour is 5,280 feet per hour. Since there are 60 seconds in a minute and 60 minutes in an hour—or 60 x 60 seconds in an hour (3,600 seconds)—one mile an hour, or 5,280 feet per hour, is really 5,280 feet per 3,600 seconds, or 1.47 feet per second. If one mile per hour is 1.47 feet per second, you multiply the speed, in miles per hour, by 1.47, to get the speed in feet per second. MPH Ft/Sec 20 29.4 30 44.1 40 58.8 50 73.5 60 88.2 70 102.9

## VASCAR

Most states allow police officers to catch speeders using technology called VASCAR (Visual Average Speed Computer and Recorder). Despite the fancy name, VASCAR amounts to a stopwatch coupled electronically with a calculator. The calculator divides the distance the target vehicle travels (as recorded by the stopwatch) by the time it took to travel that distance. For example, a car passing between two points 200 feet apart, over two seconds, is traveling an average speed of 200/2 or 100 feet per second, which converts to 68 miles per hour.

### How VASCAR Works

VASCAR is not like a radar or laser gun, which gives a readout of a vehicle's speed by simply pointing and pulling the trigger. A VASCAR unit requires far more human input than radar or laser guns. As we will see, this also greatly increases the possibility of mistakes.

VASCAR works like this: The officer measures the distance between the two points by using a measuring tape or uses the patrol car's odometer, which is connected to the VASCAR unit. When the officer sees the target vehicle pass one of two points, the officer pushes a button to start the electronic stopwatch, then pushes it again to stop it when the vehicle passes the second point.

EXAMPLE 1: On a busy street, the officer uses a tape to measure the distance between two road signs, which comes to 234 feet. The officer then goes back to the car and dials this number on the VASCAR unit. When a car passes the first sign, the officer presses the "time" switch, then presses it again when the car passes the second sign. If the elapsed time is 2.75 seconds, the VASCAR unit calculates the average speed as 234 feet divided by 2.75 seconds, or 85.1 feet per second (57.9 mph).

EXAMPLE 2: Another officer picks one point at a marked crosswalk and another at a manhole cover in the street. The officer drives the distance between the two points, making sure to press the distance button on the VASCAR unit when driving over the crosswalk and again when reaching the manhole cover. The odometer connected to the VASCAR unit measures a distance of 0.12 mile or 633 feet and records this in its memory. The officer then picks a hidden spot that has a clear view of both points, and waits. A motorcycle passes the crosswalk line, and the officer clicks the "time" button, then clicks it again when the vehicle crosses over the manhole cover 6.78 seconds later. The VASCAR unit calculates the speed as 633 feet in 6.78 seconds, or 93.4 feet per second (63.5 mph).

A VASCAR unit is normally connected to an officer's odometer to allow the measure ment of a distance between two preselected points while driving past them. This also allows an officer to use the unit while moving. VASCAR units are engineered to take into account the police unit's speed and the suspected vehicle's speed by pressing the "time" switch twice as your car passes the two preselected points, and by pressing the "distance" button twice as the patrol car traverses those same two points.

The officer can use a VASCAR unit in five ways:

• While stationary. The officer manually measures a certain distance with a tape or other measuring device, dials that measurement into the VASCAR unit, then clicks the "time" switch when the car passes the first and second distance marks.
• While stationary, after having driven a set distance in his or her vehicle and using the odometer to enter that distance into the VASCAR unit. Again, the cop clicks the "time" switch when the car passes the first and second distance marks.
• While following you and allowing the VASCAR unit to take into account that the patrol car is also moving.

EXAMPLE: While 200 feet behind you on a downgrade where the officer has a good field of vision, he watches you pass a no-parking sign and clicks the "time" switch. He pushes the "distance" switch as he passes the same sign, then pushes the "time" switch again after you pass a shadow made across the road by a telephone pole. Finally, he pushes the "distance" switch a second time as he passes that same phone-pole shadow. The VASCAR calculator divides the distance by the time to calculate the speed.

• While ahead of you, by pressing the "distance" switch twice as the officer passes between the two points, then the "time" switch twice as the officer watches you—through the rearview or side-view mirror—pass over the same two points.
• While driving in the opposite direction, by clicking the "time" switch as you pass a point well ahead of the patrol car and by simultaneously pressing the "time" and the "distance" buttons as your cars go past each other—setting the second point. Then the officer presses the "distance" switch as he or she reaches the first point where he or she started to time you. (The officer then makes a quick U-turn to pull you over.)

VASCAR is obviously a much more flexible tool than pacing, since the officer does not have to be going the same speed as you are or follow you over any particular distance. As long as the officer manipulates the "time" and "distance" switches correctly and consistently, while accurately observing when your vehicle and the patrol car pass over the same two points, the officer can accurately track your speed.

But fortunately (from your point of view) using VASCAR correctly isn't easy. For example, it is no easy thing to accurately push the "time" and "distance" buttons while observing the target pass between two points, at least one of which is almost sure to be far away from the officer. And, of course, doing this accurately is even harder when the patrol car is moving.

### How VASCAR Fails

Because speed is defined as distance traveled per unit of time, timing an object's passage between two measured points seems foolproof. But because VASCAR measurement depends entirely on human input—accurately pushing the button for "time" and "distance"—it is easy for errors to creep in. The most common three mistakes that can cause error in a VASCAR measurement are:

• the inability of the officer to accurately see when a distant car passes a distant point
• the officer's reaction time (how long it takes him or her to push the button when a car passes a marker), and
• the accuracy of the odometer on the officer's car.

In its Legal Defense Kit for defending traffic tickets, the National Motorists Association of Waunaukee, Wisconsin (www .motorists.org) includes a scientific study entitled "An Error Analysis of VASCAR-Plus," by Kenneth A. Moore of JAG Engineering, Manassas, Virginia. Through numerous calculations, charts, and graphs, Moore demonstrates that VASCAR is most prone to error where the distance between the two clocking points is 1,500 feet or more. (He also agrees that it is prone to error below 500 feet.)

The possibility of VASCAR error is so well known that Pennsylvania lawmakers have taken action. Pennsylvania law (Title 75, Section 3368) forbids a VASCAR speeding conviction—where the speed limit is less than 55 mph—if the VASCAR speed readout isn't more than 10 mph over the limit. That's another way of saying, "We don't trust the accuracy of a VASCAR unit that says ‘44 mph' when the speed limit is 35."

If you're charged with speeding and the officer used VASCAR, you should try to bring up these possibilities for inaccuracy at trial. The best way to do this is to cross-examine the officer, knowing what questions to ask (see Chapter 11).

#### Officer's Observation of Distant Point

When an officer times the passage of a car between two points, the officer must accurately record when the car passes each. This becomes more difficult the farther the officer is from either point. This is especially true at dusk, at night, and during bad weather, particularly fog or rain. For example, while VASCAR can be used at night, the officer must be able to see when vehicle headlights pass objects that may be illuminated poorly or not at all. Obviously, this is far more difficult than watching a car pass two nearby points at noon in good weather.

EXAMPLE: At dusk, the officer is parked near the first point—a crosswalk. The second point—a phone pole—is 500 feet away. The officer can see and accurately react to your car passing the crosswalk near him. But due to poor visibility and a poor visual angle, he slightly misjudges when you passed the distant shadow of the telephone pole. It took you six seconds to drive that distance (your speed was 500/6=83.3 feet per second, or 56 mph). However, because the officer misjudges when your car passed the second point, he clicks the VASCAR "time" switch after only five seconds and your speed is calculated erroneously at 500/5=100 feet per seconds or 68 mph. In short, his one-second error results in your speed being recorded as 12 mph too fast.

It follows that in court, whenever a VASCAR ticket turns on an officer's ability to record when your car passes a distant spot, you'll want to challenge the testimony that the officer could see your vehicle clearly. (See Chapter 11 on cross- examination.)

#### Officer's Reaction Time

Reaction time is the time between observing something and responding to it. Especially where the distance between the two points is only a few hundred feet, an officer's reaction time will greatly affect the speed calculated by the VASCAR unit. Here's why: The shorter the distance between the two points, the lower the elapsed time a speeding car will take to pass through those two points. For example, if the distance is only 100 feet, the car will pass the second point in only a second or two, meaning a reaction-time error of only a few tenths of a second will affect the accuracy by 20% or 30%. On the other hand, if the distance between the two points is 1,000 feet—which takes 15 seconds for a car going 40 mph to pass—a reaction-time error of a few tenths of a second will affect the accuracy by only 1% to 2%.

EXAMPLE: The speed limit is 45 mph. The distance between the two points is 100 feet, and your car covers that distance in 1.54 seconds. Your speed is 100/1.54=64.9 feet per second, or 44.2 mph, which is legal. But if the officer pushes the "time" switch 0.124 seconds after you pass the first point (the average reaction time of race car drivers) and then he or she records your passage past the second point more accurately (which is likely because the officer can anticipate, rather than react), the VASCAR elapsed time will be 1.42 seconds. Your speed will be incorrectly read as 100/1.42=70.4 feet per second, or 48 mph, which is illegal.

In promotional materials, VASCAR manu facturers claim reaction time isn't a factor, because they assume that the officer will anticipate, rather than react to, your car passing each point. They also argue that any delayed reaction will be the same for each click of the VASCAR unit, thereby canceling out the error. This is faulty reasoning. There's no guarantee that the officer will delay the same interval when pushing the button as you pass the first and then the second points. In fact, the officer may do a much better job at the second point because the officer's eyes have now been fixed on your car for quite some time, making the officer better prepared to press the button. The result can easily be that the officer has erroneously shortened the time and, thereby, increased your recorded speed.

Reaction-time error is likely to be worst in the situation where the officer's vehicle is approaching yours from the opposite direction. For example, if you're doing 65 mph northbound, and an officer is doing the same speed southbound, your closing speed is 130 mph, or 191 feet per second. If you're 500 feet away, the officer has little more than two seconds to look ahead, watch your vehicle pass one point, hit the "time switch," then hit the "time" switch again simultaneously with the "distance" switch as your cars pass each other. The officer then has a few more seconds to hit the "distance" switch a second time, hopefully just as the officer passes the same point you passed when he or she hit the "time" switch the first time. Operating VASCAR in the opposite direction is so difficult to do well that some police agencies discourage officers from using it this way.

Your main goal is to attack the officer's reaction time through cross-examination (see Chapter 11), focusing your questions on the difficulty in timing a car's passage past a distant point. When it is your turn to testify, tell the judge in detail (if true) that your speed was at or under the limit—or safely above it in a "presumed" speed limit state. Finally, be prepared to argue during your closing argument (see Chapters 12 and 13) how your testimony as well as the officer's responses to your cross- examination questions raise a reasonable doubt over whether you were violating the speeding law.

#### Odometer Error

The VASCAR unit's accuracy depends on the accuracy of the police vehicle's odometer, except where the distance between the two points is independently measured with a tape and dialed into the VASCAR unit. That is because the VASCAR gets its distance information via the patrol vehicle's speedometer/odometer, to which it is connected.

As the patrol vehicle moves forward, the cable linking the VASCAR unit to the speedometer/odometer turns, calculating how far the vehicle has moved from Point A to Point B. It is supposed to be recalibrated at least once a year. Tire wear and pressure can affect the accuracy of a speedometer. These factors will also affect odometer accuracy, because the odometer and speedometer both run off the same cable.

For example, low tire pressure and tire wear on the police vehicle can result in a tire with a slightly smaller circumference than a new and properly inflated tire. The smaller wheel must make more revolutions to cover the same distance as a new tire. This results in erroneously high speedo meter readings and in an exaggerated odometer distance reading. Since speed is distance divided by time, an erroneously high odometer distance fed into the VASCAR unit will result in an erroneously high speed reading.

This type of error, however, is usually fairly small. For example, a 24-inch diameter tire that has lost one-quarter inch of tread will be 23.75 inches in diameter, a mere 2% less, so that the recorded distance and speed will be only 2% high. Still, this type of error, when added to other types of errors—like the ones listed above—may well result in an erroneous VASCAR reading. So, during cross-examination, ask when the VASCAR unit was last tested. If it was not tested recently, or the officer does not know when it was tested last, you should attack the accuracy of the test in your closing argument. (See Chapters 12 and 13.)

Because so many speeding tickets involve the use of radar measurement systems, let's briefly examine how radar works. Of course, the point of doing this is so you'll be well positioned to cast doubt on the accuracy of your radar ticket. It can sometimes be an uphill battle trying to convince a judge that a sophisticated electronic radar device is fallible. But it is definitely possible to do this. After you've read what follows, you'll know more about radar than most judges and some police officers, and may be able to use your knowledge to beat your ticket.

Don't confuse radar with laser. You need to determine how you were caught. You can ask the ticketing officer what method was used, and testify to that in court. Or you can demand to see the officer's notes, which will indicate what method was used to clock your speed. While radar and laser detection systems work in a similar way, the ways to fight them in court have significant differences. Be sure you know which one was used against you.

The word "radar" is an acronym for "Radio Detection And Ranging." In simple terms, radar uses radio waves reflected off a moving object to determine its speed. With police radar, that moving object is your car. Radar units generate the waves with a transmitter. When they bounce back off your car, they are picked up and amplified by a receiver so they can be analyzed. The analysis is then reflected in a speed-readout device.

Radar systems use radio waves similar to those involved in AM and FM radio transmissions, but with a higher frequency—up to 24 billion waves per second as compared to one million per second for AM radio. Why so high? Because the higher the frequency, the straighter the beam, the truer the reflection, and the more accurate the speed reading. It's important to know this because, as we discuss below, the primary defense to a radar speeding ticket is to attack its accuracy.

To better understand how radar works, remember what it was like to blow peas out of a straw as a kid. If you blew the peas at the trunk of a stationary car, they would (at least theoretically) take the same amount of time to bounce back and hit you in the forehead. If the car had been moving away from you, the peas would each take a longer time to hit and bounce back. The radar beam sends out billions of electronic pulses (like peas) per second and sends back reflected waves whose pulses are slightly farther apart.

The greater the difference between the transmitted and reflected waves, the greater the relative speed or difference of speed between the target vehicle and the police car.

Although radar signals can be bounced off stationary or moving objects, they cannot be bent over hills or around curves. To clock your speed with radar, this means you must be in an officer's line of sight. However, don't expect to see the radar unit. Officers can hide it behind roadside shrubbery or stick it out unobtrusively from behind a parked car.

This gives you the opportunity to use cross-examination questions to try to pin the officer down (see Chapter 11) on just how few hours were actually spent on good instruction. Assuming you succeed in doing this, you'll then want to make the point, during your closing argument, that the officer could well have misused the unit. For example, the officer may not have realized that at a distance of a few hundred feet, a radar beam is wide enough to cover four lanes of traffic, and thus might have clocked a nearby vehicle instead of yours. And as we discuss in the rest of this chapter, there are a number of other ways officers commonly produce false radar readings.

### How Radar Is Used/Types of Equipment

Although many brands of radar units are in use, they all fall into two types: car-mounted units that can be operated while the officer's vehicle is stationary or moving, and hand-held radar "guns" often used by motorcycle officers in a stationary position. Let's briefly look at the distinguishing charac teristics of each with the idea of using our knowledge to mount an effective defense.

#### Car-Mounted Units

Most radar antennas used in patrol vehicles are shaped something like a side-mounted spotlight without the glass on the front. They are usually mounted on the rear left window of the police car facing toward the rear. If you're sharp-eyed and know what to look for, you can sometimes see one sticking out from a line of parked cars.

But no matter where the antenna is mounted, the officer reads your speed on a small console mounted on or under the dash. The unit has a digital readout that displays the highest speed read during the second or two your vehicle passes through the beam. This means that once you go through the radar beam, slowing down does no good. These units also have a "speed set" switch that can be set to the speed at which the officer has decided a ticket is appropriate. This allows the officer to direct his or her attention elsewhere while your car travels through the beam. If the speed reading exceeds the "speed set" value, a sound alarm goes off. The officer looks at the readout, then at your car, and takes off after you.

Most modern police radar units can also operate in a "moving mode," allowing the officer to determine a vehicle's speed even though the officer's own patrol vehicle is moving. In moving mode, the radar receiver measures the frequency of two reflected signals: the one reflected from the target vehicle—as in the stationary mode—and another signal bounced or reflected off the road as the patrol vehicle moves forward. The frequencies of these two signals indicate the relative speed between the officer's vehicle and the target, and the officer's speed relative to the road. The target vehicle's speed is then calculated by adding or subtracting these two speeds, depending on whether the two vehicles are moving in the same, or opposite, directions. This calculation is done automatically, by the electronics in the radar unit.

EXAMPLE 1:Moving radar from opposite direction: A police car is going north on a two-lane road at 50 mph. Your vehicle is heading south at 45 mph. This means the vehicles are closing in on each other at a combined or relative speed of 95 mph. The radar unit in the 50-mph patrol car with its beam pointed at your car will receive a reflected radar signal indicating a 95-mph combined speed, as well as a signal indicating the officer's 50-mph speed relative to the road. After the police vehicle's 50-mph speed is subtracted from the 95-mph relative speed, your actual speed of 45 mph is obtained.

EXAMPLE 2:

Moving radar from same direction: A radar-equipped patrol car is traveling 50 mph. A truck is traveling 70 mph in the same direction as the officer. The officer would like to know how fast that truck is going. Since both vehicles are going in the same direction, with the truck pulling away from the patrol car, the relative speed between the two vehicles is 20 mph. The radar beam reflecting back from the road shows the officer's 50-mph speed. The unit adds the 20-mph difference between the truck and the officer to this 50-mph speed. The result is a reading showing that the truck is going 70 mph.

Hand-held radar guns are most often used by motorcycle officers. A radar gun is simply a gun-shaped plastic mold containing the transmitter, receiver, and antenna. The antenna is normally mounted at the front of the gun, and a digital speed readout is mounted on the back. A trigger is included, allowing the officer to activate the radar beam only when seeing a car that appears to be traveling fast enough to spark his or her interest.

Radar guns are hard for motorists to detect. Radar detectors have a difficult time detecting hand-held radar devices. While car-mounted police radar units often transmit a steady signal that can be detected hundreds of feet or even yards down the road, radar guns usually do not transmit steady signals. (The convenient trigger on the hand-held unit allows the officer to activate it only when the targeted vehicle is close enough for the officer to clearly see and aim the gun.) So, when the officer finally pulls the trigger and your radar detector beeps a warning, it's usually too late to slow down.

Contrary to police department propaganda, new technology has not completely ironed out problems known to cause radar malfunctions. Most screwups result from the radar's operation in real-world conditions, which are often far less than ideal. And, of course, human error can also cause radar devices to fail.

One good way to point out all the pitfalls of radar readings is to subpoena the radar unit's instruction manual. (See Chapter 9 for how to do this.) The manufacturer will usually include a page or two on inaccurate readings and how to avoid them. If you study the manual, you may find a way to attack its reliability in court using the manufacturer's own words.

Make sure the manual is complete. Police departments have been known to tear out pages that discuss common radar screwups from the radar manual before responding to a subpoena. So be sure to look to see if any pages are missing and, of course, point out any gaps you discover.

The following are descriptions of common malfunctions and sources of inaccurate readings.

#### More Than One Target

The mistaken reading of another vehicle's speed is especially likely to occur if the other vehicle is larger than yours. In fact, the vehicle contributing to the officer's high radar reading needn't even be in another lane; if a larger vehicle, such as a truck, is rapidly coming up behind you in your lane, the officer may see your car while the radar is reading the truck's speed. Inability of the equipment to distinguish between two separate objects is called lack of "resolution."

At trial, ask the officer if the radar unit was on automatic. The chances of registering the speed of the wrong car go way up when an officer, who is stationary, points a unit at a highway and puts it on the automatic setting. This is true because the officer isn't pointing at a specific vehicle, and the beam angle width means the unit could be picking up one of several cars going the same, or even the opposite, direction. In this case, ask the officer whether there was other traffic in either direction. If the answer is "yes," ask the officer which direction. If there was traffic in the direction opposite you, follow up and ask him or her whether the unit responds to traffic in both directions. (See Chapter 11 for sample cross-examination questions of this type.) Either way, if there was other traffic, be sure to raise the possibility in your closing argument that the radar unit clocked the wrong vehicle. (See Chapters 12 and 13.)

#### Wind, Rain, and Storms

Although metal reflects radar beams better than most surfaces, pretty much any material will reflect radar waves to some extent. In fact, on windy days, windblown dust or even tree leaves are often read by radar devices. And sometimes these spurious readings can be attributed to your vehicle. You may have read newspaper stories about radar trials in which a hand-held radar gun was pointed at a windblown tree resulting in the tree being "clocked" at 70 mph!

Windblown rain can also reflect enough energy to give false signals, particularly if the wind is strong enough to blow the rain close to horizontal. The more rain or wind, the more likely an erroneous radar reading will result. Pre-thunderstorm atmospheric electrical charges can also interfere with a radar unit. That's because electrically charged storm clouds can reflect a bogus signal back to the radar unit even though they are high in the sky. If such a storm cloud is being blown by the wind at sufficient speed, a false radar reading may result.

Typically, you would attack the radar use by referring to the manual during cross-examination and getting the officer to admit that the manual says errors can occur due to adverse weather conditions. Then in your final argument, you might say something like this: "Your Honor, the officer testified that the radar unit's accuracy can be affected by windblown rain and storm clouds, and also admitted that at the time, there were clouds and rain."

#### Calibration Problems

Every scientific instrument used for measuring needs to be regularly calibrated to check its accuracy. Radar equipment is no exception. It must be checked for accuracy against an object traveling at a known (not radar-determined) speed. If the speed on the radar equipment matches the known speed, the unit is properly calibrated. In practice, the best way to do this is to use a tuning fork as the moving object. While this may seem a far cry from a moving car, the use of a tuning fork is scientifically sound; tuning forks, when struck against a hard object, vibrate at a certain frequency, which we hear as an audible tone.

It is time-consuming to use a tuning fork as a calibration device. So a second, but far less accurate, method has been developed to check the accuracy of radar units. This consist of flicking on the "calibrate" or "test" switch built into the radar unit itself and seeing if it calibrates properly. The unit reads a signal generated by an internal frequency-generating device called a "crystal." The resulting number is supposed to correlate with a certain predetermined speed. Unfortunately, there is a big problem with this sort of calibration testing. There are two types of circuits in the unit, frequency circuits and counting circuits. Flicking the calibration switch tests only the counting circuits. In short, if the frequency circuit is not calibrated, the radar unit may well be inaccurate. The Connecticut case of State v. Tomanelli, 216 A.2d 625 (1965), indicates that the use of a certified tuning fork is the only scientifically acceptable method of calibrating a radar unit.

The fact that an internal "calibrate" test isn't a substitute for a tuning fork explains why it's so important in any traffic trial involving the use of radar to cross-examine the officer and see whether he or she really did use a tuning fork before you were ticketed. Typically, they are required to use the tuning fork at the beginning and end of their shifts. If the officer says "yes," move on to another question. But if the officer says "no," then it's time to ask more specific questions. (See Chapter 11 for suggestions on cross-examination questions on this point.) Of course, if you discover that a tuning fork wasn't used, you'll want to emphasize this as part of your final argument.

A radar unit used while a patrol car is moving must take into account:

• the speed of an oncoming vehicle relative to the patrol car, and
• the speed of the patrol car relative to the ground.

Above, we discussed common ways that a moving radar unit can incorrectly attribute high speed to your vehicle. Here we deal with the notion that radar units can also misjudge the patrol car's speed. This can most easily occur if the radar unit mistakes a signal reflected back from a nearby car or truck for the signal reflected back from the ground.

EXAMPLE: A patrol car is doing 70 mph southbound and passing a truck going at 50 mph. You are going 65 mph northbound, in the opposite direction. Your car approaches the officer's car at a combined speed of 70 + 65, or 135 mph. The officer's unit detects this 135-mph speed and should subtract the patrol car's 70-mph ground speed to get your true speed of 65 mph. Instead, the officer's ground-speed beam fixes on the truck ahead and measures a false 50-mph ground speed. It subtracts only 50 mph from the 135-mph, to get 85 mph for your speed, even though you're doing only 65 mph.

#### Pulling You Over as Part of a Group of Cars

In situations where several cars proceed over the speed limit, some especially zealous officers will take a radar reading on the "lead" vehicle and then pull it over, along with one or two followers. In court, the officer will try to use the reading for the first vehicle as the speed for everyone else. The officer may even be up front about this, saying that he or she saw the vehicles behind following at the same speed. ("There was no change in bumper-to-bumper distances".) Or the officer may even claim to have also used the radar unit to measure the speed of second and/or third cars. ("When they passed through the beam, there was no change in the reading.")

Either way, this is shaky evidence. To be really accurate, the officer would have had to simultaneously note the lead car's reading while also keeping a close eye on the other cars. (This is something that is especially hard to do if the officer's car was also in motion.) If the driver of the second car can truthfully testify as to how the lead car was going faster and increasing the distance, it should be a big help to establish reasonable doubt in court. And the use of radar to measure the cars is also problematic, since by doing so the officer admits several cars were close together and that he or she was trying to measure all their speeds almost simultaneously. Here are some possible defenses:

• If you were the driver of the lead car, you may be able to claim that the officer inadvertently locked onto a higher reading of the second or third vehicles that were gaining on you. If the second or third vehicles were larger than yours, the chances of a false reading on your car go up, because the larger vehicle will reflect a stronger signal. In this situation it may help the driver of the lead car if he or she can truthfully testify to seeing (in the rear or side mirror) the second vehicle quickly gaining from behind and suggest that the radar reading was really for that vehicle.
• If you were the driver of one of the vehicles behind the lead car, the vehicles in front of you may have been traveling faster (as lead vehicles often do). If that vehicle was larger than yours, or closer to the officer's vehicle, this would result in that vehicle's reflected radar signal being stronger. You could argue here that the radar unit read the speed of the car ahead of you, not your slower speed.

Radar detectors are illegal in Virginia and the District of Columbia but legal in all other states for most drivers. However, federal regulations, which apply in all states, prohibit commercial big-rig drivers from using them. Where radar detectors are illegal, you can usually be ticketed for having one and have it confiscated. Often this occurs when officers use what, for lack of a better term, are called radar-detector detectors. These are, in essence, radio receivers that pick up the low power signal emitted by most radar detectors.

Even when radar detectors are perfectly legal, some people believe that officers are more likely to issue a ticket—as opposed to a warning—when they see a radar detector in your car.

## Laser

Laser detectors are the most recent addition to the traffic officer's arsenal of speed- measuring devices. Built to look and act like a hand-held radar gun, a laser detector uses a low-powered beam of laser light that bounces off the targeted vehicle and returns to a receiver in the unit. The unit then electronically calculates the speed of the targeted vehicle. Laser detectors are supposedly more accurate than radar units.

One advantage for police officers of the laser gun is that the light beam is narrower than a radar beam, meaning that it can be more precisely aimed. This is true even though laser detectors use three separate beams, because the combined width of the three beams is still much narrower than a single radar beam at the same distance. This technology reduces, but does not eliminate, the chance that the speed of a nearby car will be measured instead of the speed of the car at which the operator aims the gun. Still, there is room for error. Here's why:

Laser detectors measure distance (between the gun and the target car) using the speed of light and the time it takes the light, reflected off the target vehicle, to return to the laser gun. The detector makes about 40 of these distance measurements over a third of a second, then divides the light's round-trip distance by the time, to get the speed. This means to be accurate the officer must hold the combined beams on the same part of the car during the test. While this is easier to do with radar because of its wide beam, it is tricky to do this with a narrow laser beam. Moreover, it's impossible to be sure that it's been accomplished, because the officer can't see the beam. As a result, the laser detector's measurement is highly subject to error.

EXAMPLE: Officer Krupke fixes her laser gun on Jane's car, which is traveling 60 mph, about 90 feet per second. It travels about 30 feet in the one-third of a second measurement the laser device uses. If the laser beam starts at the windshield and travels to the bumper, it adds about four feet to the 30-foot distance that the machine otherwise would have measured if it had stayed pointed at the windshield. It would incorrectly calculate that Jane went 34 feet, or 102 feet per second, or 68 mph in the one-third of a second it took to measure the speed of her car. The result is that the laser unit registers Jane's speed 8 mph faster than it was actually going. (See Chapter 11 for specific questions to ask when cross-examining the officer.)

It's also possible (especially in heavy traffic) for one beam to hit the target car and another beam to hit a nearby car. The chances of this happening increase with traffic density, and the distance between the laser unit and the measured vehicle. If the two cars are traveling at different speeds, the laser detector will read incorrectly.