Posts Tagged ‘kettering speeding ticket’

R.C. 4511.22 Slow Speed

July 22nd, 2009
Example variable speed limit sign in the Unite...
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(A) No person shall stop or operate a vehicle, trackless trolley, or street car at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

(B) Whenever the director of transportation or local authorities determine on the basis of an engineering and traffic investigation that slow speeds on any part of a controlled-access highway, expressway, or freeway consistently impede the normal and reasonable movement of traffic, the director or such local authority may declare a minimum speed limit below which no person shall operate a motor vehicle, trackless trolley, or street car except when necessary for safe operation or in compliance with law. No minimum speed limit established hereunder shall be less than thirty miles per hour, greater than fifty miles per hour, nor effective until the provisions of section 4511.21 of the Revised Code, relating to appropriate signs, have been fulfilled and local authorities have obtained the approval of the director.

(C) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

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How to Fight Your Ohio Speeding Case

July 8th, 2009
speed limit 55
Image by TheTruthAbout… via Flickr

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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Ohio Speed Limit Update

June 2nd, 2009
Speed Limit
Image by bredgur via Flickr

Subject: Ohio H.B. 162-Speed limit to 70 mph

On Wednesday, June 3, 2009, The Ohio House Transportation and Infrastructure Committee will hold a second hearing for H.B. 162 that would raise the speed limit to 70 m.p.h. on Ohio’s Interstates. The hearing will take place at 10:30 AM in Room 017 (in the basement of the Statehouse). The agenda states that the hearing is open to Proponents, Opponents, and Interested Parties.

You can be sure that the government and insurance representatives will be there to claim the entire population of Ohio will be decimated by raising the speed limit five MPH. It would be great if there are some NMA members there supporting the bill—in fact asking that the limit be raised to 75 MPH so it comes a little closer to representing reality on Ohio’s Interstates.

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How to Challenge the Laser (State v. Kincaid)

August 16th, 2007

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?

Prima Facie Speeding Violation

August 10th, 2007

Ticket for ‘Prima facie’ Speeding Violation Does Not Require Finding that Speed Too Fast for Conditions

2006-0824. Bellville v. Kieffaber, 2007-Ohio-3763.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-3763.pdf

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click “Submit.”

(Aug. 8, 2007) In a 7-0 decision announced today, the Supreme Court of Ohio held that when a traffic citation for speeding includes notice of both a prima facie offense and the basic facts supporting the charge, the citation includes all necessary elements of the offense even though it does not allege that the defendant was traveling at a speed unreasonable for existing conditions. The Court also reaffirmed its holding in a 1952 case that a defendant charged with a prima facie speeding violation may rebut or negate the prima facie case by presenting evidence that his/her speed was neither excessive nor unreasonable.

The Court’s opinion was authored by Justice Robert R. Cupp.

Gary Kieffaber of Spencer, Ohio, was stopped by a police officer in the nearby village of Bellville and cited for violating a village ordinance that listed speed limits for various types of roadways and specified that driving above those limits was prima facie (presumptive “on its face”) evidence of a speeding violation. The citation issued to Kieffaber indicated that he was driving 41 mph in a marked 25 mph speed zone. Kieffaber entered a plea of not guilty, and his case was transferred from Bellville mayor’s court to the Mansfield Municipal Court.

At trial, Kieffaber entered a motion seeking dismissal of the speeding charge on the grounds that the citation issued to him did not include all elements of a chargeable offense because the officer who cited him for exceeding the posted speed limit failed to also check a separate box on the ticket form indicating that the speed at which he was traveling was “unsafe for conditions.” The trial court denied the motion to dismiss and found Kieffaber guilty of speeding. Kieffaber appealed the denial of his motion to dismiss.

The 5th District Court of Appeals voted 2-1 to affirm the holding of the municipal judge, but certified that its ruling on the alleged defect in the speeding citation issued to Kieffaber was in conflict with a ruling of the 6th District on the same legal issue. The Supreme Court agreed to hear arguments in the case to resolve the conflict between appellate districts.

In today’s decision, a unanimous Supreme Court affirmed the rulings of the trial court and the 5th District that the citation issued to Kieffaber alleged all necessary elements of the charged prima facie speeding offense.

Writing for the Court, Justice Cupp held that, “Contrary to Kieffaber’s assertion, the citation presented to him stated all the elements for an offense under Bellville ordinance 73.10. It designated Kieffaber’s speed, specified the location and time that Kieffaber drove at that speed, and indicated that Kieffaber’s speed was in excess of the posted speed limit. The citation also contained the appropriate village ordinance section Kieffaber was charged with violating…. The citation thus comported with the requirements of Ohio Traffic Rules and contained sufficient information to properly allege that Kieffaber drove in excess of the speed permitted by Bellville Ordinance 73.10(B)(2).”

Citing the Supreme Court’s 1952 holding in Cleveland v. Keah, Justice Cupp noted that a defendant such as Kieffaber charged with a prima facie offense of exceeding a posted speed limit “was entitled to present evidence to overcome the rebuttable presumption that arose from the proof that he drove over the 25 m.p.h. speed limit. He could have shown that under all the conditions present his ‘speed was neither excessive nor unreasonable.’ However, there is no evidence within the record before us to support such a conclusion. Kieffaber did not testify or present any witnesses or evidence…. In sum, Kieffaber failed to produce sufficient evidence to rebut and overcome the village’s prima facie case.”

ContactsJohn D. Studenmund, 419.522.2889, for the Village of Bellville.

Gary Kieffaber, pro se: 419.685.3319.