Heavy Traffic and User Error
This is an issue that pertains to the relevancy of the result of the radar or laser unit. Vehicles often group together as they travel on a highway. On a fairly regular basis, particularly with laser units, officers position themselves at a great distance from the vehicles being targeted so as to ensure that they are not seen. As a prosecutor, I found that it was not uncommon for officers to be over 1,000 feet away when they operated their laser (LIDAR) units. This is relevant because just a slight movement in the LIDAR unit by the officer can result in a 10 to 20 foot difference in a target location that is 1,000 feet way. This could mean that a result from the wrong car was obtained.
Improperly Posted Signs
In order to be convicted of reckless driving under Virginia Code Section 46.2-862 (violating the speed limit) you must have had notice of the speed limit you are charged with violating. This does not mean actual notice (i.e., that you actually knew what it was), but objective or constructive notice. That is, a reasonable person driving on that roadway, in light of the signs that were posted, would have known the speed limit. The prosecutor shows this by asking the officer whether the speed limit was posted and having him describe the signage. To the extent that there are issues with the visibility of the signage, it is very important to take photographs and document this immediately as signs are often changed, trees and bushes cut back, lights repaired and so forth. There are also additional requirements if the area where you were charged in was a reduced speed zone area.
In mid 2009 in a 5-4 ruling in Melendez-Diaz v. Massachusetts, the United States Supreme Court determined that prosecutors are responsible for having crime lab experts on hand for trials so that the defense can challenge their findings. While the case itself did not deal with reckless driving or traffic matters, the legal principle at issue was whether the state could use affidavits as part of the evidence at trial without having the author of the affidavit appear as a live witness. Attorneys have sought to extend this ruling to calibration certificates, as they are often completed and attested to by a person other than the officer who appears at trial. To date, some judges have ruled that the decision does not apply to calibration certificates and others have held that it does. Where it has been held to apply, the certificate is excluded from evidence. Opinions on the applicability and circumstances under which this ruling applies will undoubtedly continue to evolve. Accordingly, it is important that your attorney be familiar with the rulings in the jurisdiction where your case is pending.
There are some technical defenses that deal with officer user error and special circumstances.
Call to schedule a free, no-obligation consultation.
To request your FREE copy of Virginia Reckless-What You Need to Know fill out an online form.
Critical Issues That Can Be Used to Defend Reckless Driving Cases Part C
Heavy Traffic and User Error