How to Fight Your Ohio Speeding Case

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There are various types of challenges that can be levied against a laser and/or radar speed detection devise.  A great discussion of what it takes to challenge laser and/or radar in the State of Ohio can be found at State v. Kincaid124 Ohio Misc.2d 92, 2003-Ohio-4632.  Relevant portions of this decision are included below.

The next issue raised by defendant’s motion is whether this court’s judicial notice as to the construction, accuracy, reliability, and method of operation of one model of laser speed-measuring device may be extended to all types and models of laser speed-measuring devices and their upgrades. To resolve this issue, the court must examine the elements of an expert’s testimony that are necessary to determine the construction, accuracy, reliability, and method of operation of a laser speed-measuring device.

First, the trial court must receive expert testimony that laser technology is generally accepted as a reliable and accurate way to measure speed and to confirm that the device in question is based on that technology. Second, the expert must verify the construction, accuracy, reliability, and method of operation of the electronic speed-measuring device (radar or laser). Once the expert’s testimony is received and accepted on each branch, the court may then take judicial notice of these factors in all future cases involving such device pursuant to Ohio Evid.R. 201(B)(2) and (C):

“Expert scientific testimony is required * * * to establish that the detection device was designed to operate according to principles commonly accepted as reliable in the scientific community, and that it does operate according to those principles, and produces a reliable result.” State v. Reck (Dec. 21, 1994), 2d Dist. No. 1352 CA, 1994 WL 718230, at * 3.

The expert’s testimony must satisfy three foundational requirements: (1) The person testifying must be qualified and accepted as an expert in the field of laser (or radar) technology. (2) That laser (or radar) technology, when used to measure speed, is based on principles commonly accepted as reliable in the scientific community. (3) That the particular device is constructed according to those scientific principles and produces an accurate and reliable result.

Ohio Evid.R. 104(A) provides that “[p]reliminary questions concerning the qualification of a person to be a witness * * * shall be determined by the court.” In making that determination, the trial court is guided by the three criteria of Evid.R. 702: (1) The expert must be prepared to testify to matters beyond the knowledge of lay persons; (2) The witness must be qualified to speak to matters by virtue of his specialized skill, education, training, or experience; and (3) Sound scientific, technical, or other specialized information must underlie the witness’s testimony.

In Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611, 687 N.E.2d 735, the Ohio Supreme Court followed Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, in establishing the criteria for the admissibility of expert scientific testimony. In Daubert, the court explained that the trial court’s function is to act as a “gatekeeper” to ensure both the relevance and the reliability of expert testimony before it is admitted at trial. Id. at 593-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. As the gatekeeper, the court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid” Id. at 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469. A list of factors was provided that a trial court may consider in determining whether expert testimony is relevant and reliable: (1) Whether the theory or technique has been tested; (2) Whether it has been subjected to peer review; (3) Whether there is a known or potential rate of error; and (4) Whether the methodology has gained general acceptance.

The underlying principles of laser technology appear to be the same from one device to another. However, it appears from the Ohio cases that the expert testimony must be “device specific.” E. Cleveland v. Ferell (1958),168 Ohio St. 298, 7 O.O.2d 6, 154 N.E.2d 630 (stationary radar); State v. Wilcox (1974), 40 Ohio App.2d 380, 69 O.O.2d 333, 319 N.E.2d 615 (moving radar); State v. Schroeder (Sept. 8, 1995), 11th Dist. No. 95-G-1907, 1995 WL 787423 (LTI 20/20 laser); State v. Kirkland (Mar. 2, 1998), 3d Dist. No. 8-97-22, 1998 WL 126849 (K-55 radar-moving mode); Moreland Hills v. Gazdak (1988), 49 Ohio App.3d 22, 23, 550 N.E.2d 203 (Model S-80 moving radar); State v. Saphire (Dec. 8, 2002), 2d Dist. No. 2000 CA 39, 2000 WL 1803852 (Ultralite 20/20 Model 200 laser?); State v. Colby (1984), 14 Ohio App.3d 291, 291-292, 14 OBR 348, 470 N.E.2d 924 (K-55 radar);State v. Freeman (1985), 24 Ohio Misc.2d 7, 9-10, 24 OBR 131, 493 N.E.2d 571 (K-55 radar). Therefore, in addition to expert testimony about the underlying principles of laser technology, the expert must testify that the specific device is based upon these principles and when operated by properly qualified personnel according to operating instructions the device is an accurate speed-measuring device.

The two leading cases involving the requisite expert testimony for speed-measuring devices are East Cleveland v. Ferell, supra (stationary radar), and State v. Wilcox, supra (moving radar). Both cite with approval Wigmore, The Science of Judicial Proof, at 450, holding that three criteria must be satisfied before a speed-detection device may be deemed reliable: “(1) The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidence by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence. (2) The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidence by a qualified expert; and (3) The witness (i.e. the arresting officer) using the apparatus as the source of his testimony must be one qualified for its use by training and experience.” (Emphasis added.)

In State v. Saphire supra, 2000 WL 1803852, as in this case, there was confusion about the name of the laser device used by the officer. The Second District Court of Appeals stated, “Although the accurate name of the laser device used by [the arresting officer] is unclear, it appears that neither our court nor the Supreme Court has taken judicial notice of any laser device with one of the names listed supra. Further, there was no indication in the record or in the trial court’s entry that it had previously heard expert testimony regarding this particular laser device.” (Emphasis added.) Id. at * 4.

This court interprets these cases to require two inquiries of the qualified expert: First, is the underlying technology based upon scientific principles accepted as dependable for the proposed purpose? Second, was the particular device constructed using that technology and those scientific principles and was the device then tested by the expert and found to be dependable and accurate?

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