Tag: kettering speeding ticket

Ohio Speed Limit Update

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Speed Limit
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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)

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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. Kincaid, 124 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

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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.supremecourt.ohio.gov/rod/docs/. 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.”

Contacts John D. Studenmund, 419.522.2889, for the Village of Bellville.

Gary Kieffaber, pro se: 419.685.3319.


Drive on the Right, Pass on the Left

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I received the following question on the phone recently. “Mr. Rowland, I was driving with my girlfriend this weekend.  We passed a police officer while I was in the left lane of I-675 (no other cars around) and she freaked.  She swore that driving in the left lane is illegal unless your passing. Who’s right?”

Ohio follows the Uniform Vehicle Code and requires drivers to be in the right lane if they are going slower than the normal speed of traffic regardless of the posted speed limit.  Your girlfriend is probably from some of the more enlightened states which have adopted laws forbidding travel in the left lane unless passing or turning left. A chart of state laws on this topic can be found here: http://www.driverightpassleft.com/laws/index.asp.

You are technically correct, but your girlfriend is philosophically, spiritually and ethically correct.  Ohio Revised Code section 4511.25 permits you to drive in the left lane.  But common sense and decency requires you to use the right lane in case someone who is driving faster comes up behind you.  With no other cars on the road get over!

For a wonderful discussion of this issue, please visit www.driverightpassleft.com, a sight dedicated to getting slower cars to pull to the right.

Speed Kills (your wallet); from Yahoo News

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The Sneaky War on American Motorists

NEW YORK–It was a beautiful afternoon in early autumn, and for an instant I mistook the brightly colored lights flashing in my rearview mirror for streaks of sunlight filtering through gently turning leaves. But only for an instant. Just past a curve on a steady downgrade a sign announced the end of the 55 mile-per-hour state speed limit and the beginning of the town 40. I hit the brakes but it was too late. That’s the purpose of a speed trap. Sixty-two in a 40, the policeman said.

Speeding tickets have always been a pain in the butt. You pay about $150, and if your insurance company chooses to be mean it uses the three fresh points on your license to justify a rate hike. In a recent legal transformation that has quietly gathered steam across the United States, however, getting caught speeding has become far more traumatic.

A year before the incident related above, a state trooper had plucked me out of a cluster of vehicles on the Long Island Expressway, dinging me for 72 in a 55(heavy volume had slowed traffic from its typical average of 80) That earned me a $185 fine plus six points–a point hike up from the long-standing three. A few months later the Department of Motor Vehicles sent me a letter notifying me that I owed an additional $300–bringing the total fine to $485–for a “driver responsibility assessment.” The 2004 law establishing the additional fees was passed in greater secrecy than the USA Patriot Act; even this devourer of three newspapers a day hadn’t heard of it.

My second ticket brought another letter billing me a second $300 driver responsibility assessment. But if I had plead guilty, New York would suspend my license for hitting the 12-point limit. I hired an attorney.

I spent eight months and more than $2000 fighting the ticket in municipal court. My lawyers–I needed two–kept filing motions to delay my trial date until my cop would be away on vacation. Finally, the judge asked my attorneys what it would take to get my case off her docket. A deal was cut. I paid $850 in fines, plus the state assessment, and performed 25 hours of community service. I was allowed to pick between sorting trash at the recycling center and filing at the zoning board. You can guess which one I chose.

Final tally for two speeding tickets: $3,935. No wonder so many people drive around with suspended licenses! They can’t afford the fines.

It helps to be a drug addict. When the 24-year-old son of President Gore got pulled over doing over 100 mph south of Los Angeles on July 4, cops found pot and controlled pharmaceuticals–Vicodin, Xanax, Valium, Adderall and Soma–aboard his Prius. “He didn’t have a prescription for any of those drugs,” said Orange County Sheriff’s spokesman Jim Amormino. Sentence: 90 days at a Malibu rehab clinic. If Al Gore III finishes the program, his arrest record will vanish–even though he has previous arrests for drugs and a DUI. “He had recently smoked marijuana, but it did not impair him enough that he was driving under the influence,” said Amormino. Gore’s fine: zero.

Michigan charges $1,000 over the fine amount for driving 20 mph over the legal limit. New Jersey raises $130 million a year through supplemental state fines. Texas cashes in to the tune of $300 million. Other states, including Florida, are considering similar laws. The War on Speederists has reached its fastest boil in Virginia, where the extra fines can run over $2,500. Exceeding the posted speed limit by 20 mph, for example, earns motorists a $200 fine plus a $1,050 “civil remedial fee.” In addition, reports the Washington Post, “drivers with points on their licenses–a speeding ticket usually earns four points–will be hit for $75 for every point above eight and $100 for having that many points in the first place.”

State legislators who sponsored Virginia’s stiff new penalties say they’re out to make the roads safer, but admit that their main objective is funding highway repairs. “My job as a delegate is to make people slow down and build some roads,” said David Albo, a Republican state representative.

It isn’t just budget-mad Americans. Even the land of Mad Max and the Tasmanian Devil is getting tough on speeders.

“Many people seem to believe that driving five, 10 or even 15 kilometers per hour [three, six or nine mph] over the limit is acceptable,” says Jim Cox, Infrastructure Minister for the Australian province of Tasmania. “For a pedestrian hit by a car, an additional [three mph] can literally mean the difference between life and death.” Fines for speeding will be raised by 300 percent.

OK, so speed kills. But when zealots like Cox say things like this–“research shows that even a one km/hr [six-tenths of one mile per hour] reduction in speed can result in a three per cent reduction in crashes”–you’ve got to wonder whether he’s been smoking too much eucalyptus.

Virginia courts are bracing for an onslaught of angry drivers forced to fight their tickets. “For someone who’s living near the poverty line, or even making $30,000,” said Fairfax attorney Todd G. Petit, draconian fees of over $1,000 have “a significant impact” that could lead to them losing their license and job. “It’s basically the Lawyer Full Employment Act,” chortled another happy member of the bar.

My friends have learned from my experience. Since every violation brings you a single ticket away from license revocation, challenging them in court is the smart way to go.

Though the correlation between speeding and highway fatality rates is well established, fining speeders more than drugged drivers is disproportionate to the social impact of the offense. On the other hand, there’s no denying the deterrent effect. I pay a lot more attention to speed limit signs.

(Ted Rall is the author of the new book “Silk Road to Ruin: Is Central Asia the New Middle East?,” an in-depth prose and graphic novel analysis of America’s next big foreign policy challenge.)