BASIC RADAR DEFENSE
When your name is called hand over the following case laws plus appropriate case law from your sate.
If your State has appropriate case law: "Your honor, here is some appropriate case law for your consideration along with relevant case law from sister states." Hand him BOECKER GERDES LANGFORD PERLMAN and TOMANELLI plus your State case Laws.
If your State has no appropriate case law: "Your Honor, here is some appropriate case law from sister States. Unfortunately our State has no pertinent case law and as such the wisdom of High court Judges from Sister States should be considered." Hand him BOECKER GERDES LANGFORD PERLMAN and TOMANELLI
(remember you should have three copies. One for the Judge, another for the prosecutor and one for yourself)
If The Prosecutor or officer enters into evidence a document pertaining to be the certification of the tuning forks and their last calibration you must use the verification defense. You should read it before you proceed here and understand it. Take it with you to court. VERIFICATION DEFENSE
If no certification was entered during direct examination of the witness - Continue:
The items that the prosecution must prove:
The speed limit where the offence took place
That the Officer was trained in the use of the device
The device was used as per manufactures requirements
That the officer tested the unit before the arrest and after the arrest
That there was no outside interference that could have caused a error at the location of use
That your car was the one that the radar indicated was causing the speed reading
All manuals state that the officer is to first determine visually that a car is going to fast and only then target the car with his radar and take a reading. This is what they are supposed to do and the officer will testify to this even if he did not do it. If he did not testify to this it makes no sense challenging it. This dog won't hunt.
The officer is required to test the unit before use. To do this he pushes an internal button to check the circuitry and the uses two or three tuning forks to test the speed measuring accuracy of the unit. Even though he may not have done this he will testify that he did.
Allow the officer to give his testimony and take notes as to anything he omitted from the items he must prove. The following is the another shot across the bow. You are asking for a directed verdict. A directed verdict can only be asked for after the prosecution has finished it's case in chief. The verdict can only be not guilty. The Judges other option is to deny the motion and the trial will continue. You have a small chance that the Judge will grant the motion and the trial ends. Always ask for the directed verdict at this time if any of the above was not properly addressed. Remember you can ask, and keep asking for a directed verdict for every item listed below. You may ask several times provided each request is based on a different set of facts omitted in testimony. A Directed Verdict is seldom granted when there is no Jury. It is designed more for a Jury trial then a trial by a Judge. Don't be alarmed if the Judge tells you this. With each motion you are shaking the foundation of the prosecutions case and drawing attention to the weakness of the foundation of the prosecutions proof.
testify as to the speed limit: Motion for dismissal: "Your honor, the prosecution has rested. The officer did not testify as to the speed limit in the location where the alleged infraction took place. I move for a directed verdict as the prosecution has failed to prove what the speed limit was. (a directed verdict is asked for after the prosecution rests. In a speeding trial the prosecution would rest after the officers testimony [in reality the prosecution would rest after all cross examination of the officer]. Once it has rested it may no longer introduce new evidence except to contradict items that may be brought up in cross examination. If the officer failed to mention the speed limit in the location where the infraction took place and the prosecution has rested, the Judge has no choice but to dismiss the case - But only if you ask for it.
If the Officer did not testify to having had training: "Your honor, the prosecution has rested. The officer did not testify that he had training on the device used. I move for a directed verdict as the officer can not testify as to the accuracy of a unit to which he has had no training."
The officer made no mention that the device was used in accordance with the manufacturers approved manual: "Your honor, the prosecution has rested. The officer did not testify the he used the device in accordance with the approved manufacturers manual. I move for a directed verdict as there was no testimony to the the device being used in accordance with the manufacturers approved manual. As such the officer can not testify as to the accuracy of the readings"
The officer did not test the unit before use: "Your honor, the prosecution has rested. The officer did not testify that he tested the unit. I move for a directed verdict as there was no testimony to the the device being accurate since there is no testimony to it having been tested for accuracy."
The Officer did not test the unit after use: "Your honor, the prosecution has rested. The officer did not testify that he tested the unit after use. A clear theory in law is that if the device tested as being accurate before the readings were taken and tested accurate after the readings were take that the device with a legal degree of certainty was accurate during the readings. With not test of the device after the readings we have no legal certainty that the readings from the device were accurate to a legal degree of certainty. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that the device used was accurate when the readings were taken."
The Officer did not testify that he checked for outside interference at the location of use: "Your honor, the prosecution has rested. The officer did not testify that he checked for possible external interference at the location of use. As such we have no knowledge that the device, although previously tested as to its functioning was tested at the location of use for interference. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that the device used was without external interference at the location used.
The officer did not testify that it was your car and your car only that caused the reading on his device: "Your honor, the prosecution has rested. The officer did not testify that that the readings on his device could only have come from my car. This leaves open the possibility that the readings could have been from another vehicle or outside interference. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that my car and my car only could have caused the readings on the device used."
The Prosecution or Judge in a trial where there is no prosecutor my make objection or try to ask the question that was missed. If the prosecutor or Judge starts to ask the missed question immediately object:
Prosecutor objects or asks a question: " Your Honor, I object, the prosecutor may not open the prosecutions case in chef again even if a mistake was made and required testimony was not solicited. The prosecution has rested and must sit with the evidence it presented."
Judge starts to ask questions: "Your Honor, I object. First the people went ahead without a prosecutor. Second I object to you acting as prosecutor."
If the prosecutor makes an objection: "Your Honor, the people have rested. The prosecutor has no standing in making an objection to a motion requesting a directed judgment."
The Judge makes an objection: He won't but if he does. "Your honor are you now taking the roll of prosecutor and objecting for the people on a motion you have been asked to rule upon? If so, I object and motion that you recuse yourself because you have taken a biased position acting on behalf of the prosecution."
If the Judge does not rule in your favor:
Now it is your turn to cross examine the witness. You should have read CROSS EXAMINATION
1. Ask him any questions you have regarding any of his testimony that you might want clarification to: Since the list here could be endless and totally dependent on your specific trial I make no attempt to give suggestions.
2. If you are combining your defense with the Tipmra advanced CFR strategy then ask: (note: if you did not Subpoena the material ask it anyway but leave out the part about the subpoena)
"Officer, please present to the court the traffic engineering speed survey as subpoenaed and required by 23 CFR 630 and MUTCD Title 23 V.S.A.. showing that the speed survey is less then five years old and that the speed posted was in compliance. (Colorado hand in COLORADO For California hand in appropriate case laws and Statutes from California Case Law section) Bring CFR_CASE1 CFR_CASE2 CFR_THE_RULES
COPY AND PRESENT ALSO Definition -CLICK HERE
Now hand a copy of CFR_case1 and CFR_case2 to both the Judge and Prosecutor. "Your Honor, without this Engineering Survey any speed posted is arbitrary and unenforceable. The officer issued the citation Under the color of federal law by Statute irregardless if the ordinance is Local, or State. Federal Law takes precedence and no community which takes or has taken Federal Highway funds may enforce a speeding violation unless it is in compliance with Federal Law, in specific 23 CFR 630 and MUTCD Title 23. These two case laws from Michigan and Nebraska clarify this with adequate reference to the Federal law as it applies and other States that have examined and made determinations as to the law." (note: in California this is mandatory by State Statute as well - See appropriate California Case laws, and hand these to the Judge and prosecutor as well)
If he does not have the Traffic Engineering Survey: "Your honor, Federal Law which preempts State Local and Municipal Law on the nations highways and roads specifically forbids enforcement Under the color of federal law any speed that is arbitrary. Any posted speed not accompanied by a Traffic Engineering Survey that is less then five years old is by definition and Federal Law an arbitrary speed. Defendant motions for dismissal."
If the Judge or Prosecutor says something to the effect that this is not a Federal Road or that the officer is enforcing local laws and not federal laws or anything to that effect then say: "Your Honor, when this State took one cent of Federal Highway funds it agreed in writing to give sovereignty of the roads to the Federal Government. Every municipality that has taken one cent of State money by agreement in return for this money has subrogated itself to the Federal Government. The only legal authority for speed enforcement is under the color of Federal Law even in the enforcement of local speed ordinances. The prosecution has two choices under 23 CFR and MUTCD Title 23; Produce the engineering survey or produce documentation that this State, Township or Municipality has never received one cent of State or Federal Highway or road funds."
You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. Handling OBJECTIONS TO CFR
The purpose of the placement of this defense here is to throw the prosecution a curveball, possibly end the case right here and at worst you have seriously disrupted the prosecutions plan for an easy victory.
3. If the certification for the tuning forks was not entered into evidence earlier ask: "Officer, You testified that you used tuning forks to test the accuracy of the device. Please present for the purpose of foundation as to the evidence entered the required document certifying that the tuning forks themselves are accurate and have been tested and certified within the last six months."
He won't have it because it would have been entered into evidence earlier: " Your Honor, this document goes to foundation as to the accuracy of the device used. It is a long standing principal in law that if a device is used that requires testing that the test device itself be shown to be accurate. Without this document there is no assurance that the tuning forks themselves were accurate and subsequently the radar gun as being accurate to a legal degree of certainty. There is ample case law showing that this is a requirement. Every radar manual for every radar gun used makes clear that these tuning forks can become inaccurate and recommends that they be tested and certified every six months. Defendant motions that the evidence obtained from this device be excluded because proper required foundation as to the devices accuracy is absent. Since the prosecutions case against myself rests solely upon the readings of this device and there is no assurance that this device is accurate to a legal degree of certainty; Defendant motions for dismissal."
You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. OBJECTIONS
If by a fluke of chance he has the material use the VERIFICATION DEFENSE
ADDITIONAL RADAR QUESTIONS YOU CAN ASK - Short List
If at this point you have failed to have the case dismissed it is time to rest your case and go on to closing arguments. " Your honor, the defense rests and is prepared for closing arguments" See CLOSING ARGUMENTS