Monday, June 22, 2009

Why Speeding Tickets are bullsh*t.

I have a confession to make: when I am driving, I often do not pay attention to my speedometer. I usually just drive along with traffic. Part of that, I am sure is my ADD. Part of it the fact that I feel my safety and the safety of others is better served with me directing my attention to the actual roadway, instead of at my dash.

I have another confession: I think speeding tickets are the biggest BS, arbitrary "crime" we have in this country. First, I have a problem with how speed limits are arrived at. Many of them do not fit their geographic location and have no basis in reality. How many times have you driven somewhere, where if you actually went the speed limit, you would be creating a hazard because the limit was so far below the real speed traffic went?

Second, most of the law enforcement officers operating speed-measurement devices (SMDs) operate them in direct violation of their certified training, IF they ever received such training to begin with.

I recently read a Beaufort Gazette story on traffic radar certification and it reminded me of just how little most folks know about the situation.

Keep in mind, the material below is NOT LEGAL ADVICE. You want legal advice, call an attorney and make an appointment.

My very first jury trial was a speeding case, where the officer was less than honest about the requirements of his certified training. It ticked me off, so I started looking into the training and requesting information from the South Carolina Criminal Justice Academy (CJA). The CJA training was adopted from collective efforts of the National Highway Traffic Safety Administration (NHTSA), the International Association of Directors of Law Enforcement Standards and Training and the International Association of Chiefs of Police. In other words, the CJA training IS the industry-standard training. In the roughly four years since that case, I have handled roughly 40 speeding tkts and found one universal truth: Cops do not follow the industry-standard training.

So what's the problem? Well...cops go through a three-day program at the CJA to become certified ( or they are taught locally by in-house instructors, who were certified as instructors through that same CJA training). The whole point of having a certified training program, is so that the cops will follow proper techniques and procedures in maintaining and operating the SMD equipment, so the measurements arrived at by those machines will stand up in court. Since it is rare for someone to challenge a speeding ticket, the cops cut corners and don't follow some very important procedures.

This isn't just on the individual cops. I have been told by some cops that they are specifically told by their agencies that they do not have to do some of the things the training specifically requires them to do. This despite the fact that the State's own training manual specifically warns that "Evidence of adherence to all certification requirements and protocols will be required in Court." Unfortunately, there are no repercussions for the cops not following their training. As long as they "recertify" they never lose their "certification" for failing to follow their training. So in essence, the training is certificate is worthless.

A speeding case is very similar to a DUI case. In both instances, the be-all-end-all of the State's case is likely a reading from a machine that utilizes scientific principles. That means in both types of cases, the most important witness against the Defendant is usually going to be a machine. In this country, every Defendant has constitutionally-protected Due Process rights which guarantee them the right to confront the witnesses against them. How does one confront a machine? Easy...proper records must be kept of the maintenance and operation of that machine, so that a Defendant can challenge whether or not the machine was properly working at the time it provided the reading against the Defendant.

Now in SC, we have statutory laws that handle that for DUIs. The South Carolina Code sets out specific instructions on what information the State has to preserve and provide to Defendants charged with such violations. Case law provides further illumination on what must be provided, as well as establishing precedent for remedies in cases where the rules aren't followed.

Unfortunately, speeding law lacks these helpful tools. And when cops don't follow the steps in their training that would preserve this information, it is lost forever, thus depriving Defendants of the right to use that information in their defense.

However, in SC we do have Rules of Evidence and case law that lay out what thresholds must be met for such scientific evidence to be allowed in as evidence. Those can help us understand some bare minimums that must be met for the evidence to come in. Herein lies an additional problem. By failing to follow the CJA program, cops are failing the very quality control measures that are recognized by their peers as being essential to determining the reliability of the underlying science. That is a problem. Because while Courts have acknowledged the general acceptance of the underlying science behind radar in speeding cases, the State still has to prove the machines were properly working at the time of the prosecuted violation. And that means meeting the Rules of Evidence standard.

Of course, for most people, whether or not to pay a ticket is usually an economic decision, not a guilty-or-not-guilty one. The cost of hiring an attorney is usually going to be greater than any fine for the actual violation. However, if you want to fight one...give your local criminal defense attorney a call.

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