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Posted by Mark Matney of Holcomb Law, PC Newport News, VA
www.matneylawpllc.com
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In the past week, I have had two cases where the police officer was unable to show accuracy of his radar. So they were both dismissed, right? Wrong. Sometimes, even when the officer cannot prove accuracy of the equipment, the case is not dismissed.
In the first case, my client was charged with reckless driving by speed, 81/55 (26 mph over the limit). In that case the officer seemed upset when I asked him for his calibration record and then provided a certificate for a calibration that was performed after my client was stopped. To demonstrate accuracy at the time of the stop, the certificate must be dated during the six-month period before the stop. When I told the judge that I challenged the calibration certificate and explained the reason, the judge granted my motion to dismiss.
For the second case, with a different judge, my client’s summons was for reckless driving by speed, 97/65 (32 mph over the limit). This case involved a cordial trooper who shared all of his documents and discussed them with me. We found that he had certificates that were too recent and a certificate that was too old, but he did not have one for the six-month period before the date he stopped my client. The judge agreed with my challenge to the certificate, but said that he would not dismiss the case since the speed was so high. I argued that without the certificate the trooper could only establish speeding and not reckless driving by speed since he could not show that my client was driving more than 20 mph over the limit or over 85 mph (the two grounds for reckless by speed). The judge told me I could appeal and ruled reckless driving. The sentence was more lenient and did not include the jail time he was giving to drivers with similar speeds, but it was not the result I wanted after successfully challenging the radar.
Although I believe that the second judge was incorrect in finding my client guilty of reckless driving, he was right about her right to appeal. She now has a second opportunity to avoid the criminal misdemeanor.
