The current issue of Virginia Lawyers Weekly tells how lawyers in the Northern Virginia area - in particular, my stomping grounds of Fairfax - are successfully chalennging speeding tickets issued using laser speed measurements, also known as LIDAR. [Article for subscribers only]
Virginia law requires that the prosecution prove that a speed measuring device like radar or LIDAR is properly functioning at the time it was used and that it had been properly set up. In practice, courts have required that officers testify that they performed the internal circuit test and the tuning-fork test at the beginning and end of each shift. In addition, the prosecution must introduce an original or "true copy" of a certificate that the tuning forks accurately reproduce the wavelength required to conduct the test. If they fail to do so, the case will be dismissed for lack of evidence.
To defend clients nabbed by LIDAR, lawyers are focusing on legal flaws in the calibration of the devices.
The two-tiered argument goes like this: First, they argue that the Virginia Code doesn't provide for a hearsay exception allowing for the introduction of calibration documents for the laser devices.
And if the documents survive that first assault, then they point to the fact that the manufacturers of the LIDAR device won't warrant the calibration of their own products.
The statute in question, Va. Code Sect. 46.2-822, allows for the admissibility of certain certificates which would otherwise be inadmissible hearsay:
In any court or legal proceeding in which any question arises about the calibration or accuracy of any laser speed determination device, radar, or microcomputer device as described in this section used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of the speedometer of any vehicle or of any tuning fork employed in calibrating or testing the device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.
Apparently, the LIDAR certificates are neither speedomoter certificates nor are they tuning fork certificates. Therefore, they do not fall within the class of evidence admitted under the statute. Also, since the manufacturers apparently refuse to warrant the accuracy of their own calibrations, the evidentiary value of these certificates, even if they were admissible, is pretty slim.
Look for the Virginia legislature to change the statute and allow LIDAR calibration certificates in; but don't expect that LIDAR evidence will be worth much even if admitted.
Posted by wasylik at June 5, 2002 04:22 PM