BASIC VASCAR DEFENSE
(Visual Average Speed Computer and Recorder)
Vascar is where your car is timed between two points. Generally there are two lines. The timing starts when your car crosses on line and stops when you cross another. Laser is also use in that instead of a line, your car crosses one laser beam and then another. The time in between is calculated by a simple time distance formula. In general this is done by a computer attached to the timing device. Other times it is done from a chart.
Most often there are two cops involved. One that takes the time measurements and determines the speed and the other that does the arrest and issues the ticket. This is always the situation where an aircraft is used and often where a speed trap is at play. For a conviction both cops must testify.
California Special - Additional material makes a conviction for vascar Impossible in CA - CALIFORNIA SPECIAL
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 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
(remember you should have three copies. One for the Judge, another for the prosecutor and one for yourself)
Most often only one cop appears in court and gives the testimony for both cops. Unless you object the court will accept it. Remember; if you don't object to something the court can and does assume that by not objecting you accept it.
Allow the officer to testify: If he says anything where the reading was done by someone else immediately object: "Your Honor, I object , hearsay evidence. Only the officer that made the speed measurement ;or made the arrest can testify to that fact."
If the officer whose testimony is not there ask for a dismissal: "Your honor, the officer whose testimony is required is not here, the trial is today and Defendant objects to hearsay evidence as being entered. Defendant motions for dismissal."
Should the prosecutor ask or the Judge declare that the trial will be postponed to another date to allow that officer to testify: "Your honor, the trial is today and if the prosecution came unprepared the defense should not be made to suffer. The defense objects to an extension and motions for dismissal."
If this fails or if the cop that took the readings is the same one that arrested you then let the testimony finish and wait for cross examination.
Allow the Officer to testify. Pay special attention to the method by which he tested the laser gun and if he again tested it at the end of his shift.
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
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 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.
"Officer what is the measured distance between the markers used?" Whatever he says is OK.
"Officer did you use a tape approved by the State DOT to measure the distance?" He will either say that he did not measure the distance of that the tape. If he measured it, was issued by the DOT approves?.
If he says that he did not measure the distance: "Officer if you did not measure the distance then how do you know what the distance is.?" He will say something about someone else having measured it or that it is in some kind of report. If he says someone else measured the distance then object the same as where the second officer does not show when two are required. If he says there is some kind of writing that tells what the distance is, ask for it and if he does not have it, ask for dismissal. The only certificate that is acceptable is from a licensed surveyor, argue that anything else is inadmissible. Make a motion for dismissal based on the fact that the officer either did not measure the distance himself and no credible written survey report has been presented to certify the distance.
Other Questions: Ask follow up questions as you see fit:
Trooper's location and opportunity to observe
Interference or distraction by other traffic or obstructions
Preferable to view scene
Location of defendant's vehicle as it entered measured zone
Vascar activation at front bumper
Vascar activation at rear bumper
Vascar activation by use of vehicle shadows
Shadow produces more accurate measure than use of vehicle body part
Location of defendant's vehicle as it exited measured zone
Vascar activation at front bumper
Vascar activation at rear bumper
Vascar activation by use of vehicle shadows
Actual time available to activate depending upon alleged speed
Velocity computation to obtain fraction of a second
Using velocity computation, elicit admissions as to his knowledge and familiarity with computations: There are far to many possible questions. However if you want some fun and make the officer look like the idiot he is. You can make up you form this information : TIME DISTANCE CALCULATIONS
Calibration of the time measuring device
"Officer please present to the court documentation from a facility approved to do so, documentation when this timing device was last tested and certified as being accurate?" If he can not produce the document then: "Your honor, At the beginning of this trial I presented ample case law showing that when a measuring device is used that the device be shown to be accurate. In this situation we have no assurance that the timing device was accurate to a legal degree of certainty. The speed alleged is based upon the results of this timing device and as such is incompetent as evidence without such certification. 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
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