s14unimog
11-20-2007, 04:05 PM
I did not write this and do not intend to claim any fame from this but I would like every single person on here to know there rights as a guilty speeder
And share what my attorney shared with me.....
(I'm from Georgia so some of this information may not apply in your state)
For the average citizen, challenging a speeding ticket can frequently pose a task which is far beyond his or her comprehension and seemingly suited only for those well trained to combat police officers armed with radar technology and a good deal of attitude. As a consequence, many accused drivers are content or simply resigned to enter a guilty plea and pay the fine to the local court. In actuality, although the technology in radar detection can be confusing, there are still legal challenges one may be able to successfully mount. Before a Defendant goes to court, it may be best to remember that judges don’t usually respond positively to “guilty with an explanation”, “I’ve never been stopped before for speeding”, “the officer is mistaken”, “he never saw me” or any other such timeworn and usually unsuccessful explanations. Counties and municipalities are very accustomed to the revenue generated by guilty adjudications for traffic violations and are quite unlikely to suddenly become “Defendant Friendly”. They like the cash flow. Additionally, police officers are under oath to the State of Georgia to perform their duties properly and lawfully. Of course a major part of performing a law enforcement duty in a lawful manner is testifying truthfully. Consequently, there is created in the law a rebuttable presumption that the officer’s testimony is truthful and it must be rebutted with equally or more probative evidence. You probably are wondering then how an accused can overcome some of these difficulties and perhaps achieve an acquittal. There is a solution, but it rarely lies in attempting to show that the officer is simply wrong, untruthful, mistaken or just plain mean.
Historically, several areas of Georgia were well known to motorists from other states as “speed traps”. It was not unusual for a motorist to notice as he rounded a curve that not only had the speed limit changed, but a member of the local police force was parked precisely where the lower speed limit was posted. The motorist would be stopped for a speeding violation and given a citation. In order to avoid being jailed, the motorist would additionally be required to post a cash “bond” and was notified that trial would be in six to eight weeks. Of course, if he could not be available for trial in the tiny burg where he was cited, he would forfeit his bond and be automatically adjudicated as guilty. What could this local profiteering be called other than a “speed trap”? The late Governor Lester Maddox even made negative comments and warned motorists to avoid certain towns (Ludowici, for example) so that they could possibly avoid a speeding citation. Obviously designed to generate revenue for the locals, this behavior continued for several years until the Georgia Supreme Court decided in 1982 the case of Wiggins v. State (249 Ga. 302). In this case, the Court ruled that certain conditions must be met before evidence of speed detection gained from a radar device could be deemed admissible. It is noteworthy that members of the Georgia State Patrol did not have to meet all these criteria as they were considered to be more well trained and disciplined and less likely to be involved in local speed traps. Local police agents however are required to conform to these standards if they desire the cash to continue flowing. The Georgia General Assembly was required to incorporate the changes prescribed in Wiggins and these standards were indeed adopted as Georgia law and are encompassed in the Georgia code.
Pursuant to O.C.G.A.35-8-12, a police officer must be certified by the Georgia Peace Officers Standards and Training Council as a qualified speed detector device operator. The officer must be able to prove that he is certified by either testimony under oath or by a certificate. If one is to challenge a speeding ticket, perhaps a good start would be to challenge the officer’s credentials to testify. Without his testimony there is no case. Additionally, pursuant to O.C.G.A. 40-14-1(4), the officer must be able to testify that he knows the device he used for speed detection is in fact a device used for the detection of speed or velocity and he knows so because he has used it for that purpose. He may not say he was told that by someone else (hearsay). He may also use a written certificate showing the device is used for velocity detection. O.C.G.A. 40-14-1(4) furthermore requires that the device meets or exceeds the minimum performance specifications of the Department of Public Safety. A written certificate is sufficient to show this requirement and the accused should request to see this document.
An interesting requirement in addition to the afore-mentioned requirements is that the law enforcement agency for which the officer is employed must be able to show that it possesses a license to operate the speed detection equipment in compliance with the Federal Communications Commission rules. This may be proven with a copy of the license (see O.C.G.A. 40-14-4). Additionally, each device must be certified by a technician to be in compliance with FCC rules and that the officer operating the device has followed the manufacturer’s recommended procedure in testing for accuracy, made that test at the beginning and end of each duty tour and kept a record of all such tests (O.C.G.A. 40-14-5). Any motorist desirous of winning his case would be well advised to hold the officer and the prosecution to this standard. Without laying a foundation that the officer and the agency have met at least minimum standards, the evidence of speed is simply not admissible.
O.C.G.A. 40-14-2 additionally requires that the testifying officer must show that the governing authorities of the municipality for which he is employed have approved the use of the device and have applied to the DPS for a permit authorizing the use of a radar speed detection device. This may be shown by a copy of the application or seal of the DPS. Further reading of 40-14-1 et seq. will reveal that no arresting officer or official of the court having jurisdiction over traffic offenses is paid on a fee system (testimony), the city must name the road on which the device is to be used in its application to the DPS and what the speed limits are. Once again, questions to the officer regarding these requirements frequently result in lack of documents or knowledge of these requirements. Further requirements are that the officer advise the alleged speeder that he has a right to view a test of the device, that the municipality erect signs regarding speeding devices on every highway comprising a part of the state highway system, that the officer’s vehicle is visible for a distance of at least 500 feet, that the radar device was not employed on a grade in excess of 7 percent and that there was no reduction in the speed limit where the citation was given for the last 30 days.
Any individual who desires to challenge a speeding citation should keep in mind that there is a presumption of innocence in a court of law and that the prosecution must prove guilt beyond a reasonable doubt. There is no necessity for the Defendant to prove anything. The entire burden of proof is upon the State of Georgia and this burden never shifts to the Defendant. By holding the testifying officer to the standard requirements of Georgia law, perhaps the trier of fact will find that the State did not prove guilt beyond a reasonable doubt and the Defendant will be acquitted. There is no reason not to try a speeding case since the potential downside is negligible. Although speeding is considered a misdemeanor in Georgia, punishable by up to one year in jail, I have personally never heard of someone being incarcerated for this type of violation. It seems the worst that can happen is that the convicted speeder will have to pay a fine. One possible benefit of holding the State’s feet to the fire is that perhaps the prosecutor will not want to go through a trial and will offer a satisfactory alternative such as a reduction in the recorded speed or a lower fine. At no time should an alleged speeder assume that the police and the agency by whom the police officer is employed is always prepared to submit the documents that are required to prosecute a speeding case. In fact, many smaller jurisdictions are so certain that the officer’s testimony against the uninformed defendant is so strong there is no need to go through the trouble of bringing “extraneous documents”. If in fact this is the situation for your case, why not take advantage of their lack of preparation and make them prove your guilt properly and within the scope of Georgia code? Good Luck.
And share what my attorney shared with me.....
(I'm from Georgia so some of this information may not apply in your state)
For the average citizen, challenging a speeding ticket can frequently pose a task which is far beyond his or her comprehension and seemingly suited only for those well trained to combat police officers armed with radar technology and a good deal of attitude. As a consequence, many accused drivers are content or simply resigned to enter a guilty plea and pay the fine to the local court. In actuality, although the technology in radar detection can be confusing, there are still legal challenges one may be able to successfully mount. Before a Defendant goes to court, it may be best to remember that judges don’t usually respond positively to “guilty with an explanation”, “I’ve never been stopped before for speeding”, “the officer is mistaken”, “he never saw me” or any other such timeworn and usually unsuccessful explanations. Counties and municipalities are very accustomed to the revenue generated by guilty adjudications for traffic violations and are quite unlikely to suddenly become “Defendant Friendly”. They like the cash flow. Additionally, police officers are under oath to the State of Georgia to perform their duties properly and lawfully. Of course a major part of performing a law enforcement duty in a lawful manner is testifying truthfully. Consequently, there is created in the law a rebuttable presumption that the officer’s testimony is truthful and it must be rebutted with equally or more probative evidence. You probably are wondering then how an accused can overcome some of these difficulties and perhaps achieve an acquittal. There is a solution, but it rarely lies in attempting to show that the officer is simply wrong, untruthful, mistaken or just plain mean.
Historically, several areas of Georgia were well known to motorists from other states as “speed traps”. It was not unusual for a motorist to notice as he rounded a curve that not only had the speed limit changed, but a member of the local police force was parked precisely where the lower speed limit was posted. The motorist would be stopped for a speeding violation and given a citation. In order to avoid being jailed, the motorist would additionally be required to post a cash “bond” and was notified that trial would be in six to eight weeks. Of course, if he could not be available for trial in the tiny burg where he was cited, he would forfeit his bond and be automatically adjudicated as guilty. What could this local profiteering be called other than a “speed trap”? The late Governor Lester Maddox even made negative comments and warned motorists to avoid certain towns (Ludowici, for example) so that they could possibly avoid a speeding citation. Obviously designed to generate revenue for the locals, this behavior continued for several years until the Georgia Supreme Court decided in 1982 the case of Wiggins v. State (249 Ga. 302). In this case, the Court ruled that certain conditions must be met before evidence of speed detection gained from a radar device could be deemed admissible. It is noteworthy that members of the Georgia State Patrol did not have to meet all these criteria as they were considered to be more well trained and disciplined and less likely to be involved in local speed traps. Local police agents however are required to conform to these standards if they desire the cash to continue flowing. The Georgia General Assembly was required to incorporate the changes prescribed in Wiggins and these standards were indeed adopted as Georgia law and are encompassed in the Georgia code.
Pursuant to O.C.G.A.35-8-12, a police officer must be certified by the Georgia Peace Officers Standards and Training Council as a qualified speed detector device operator. The officer must be able to prove that he is certified by either testimony under oath or by a certificate. If one is to challenge a speeding ticket, perhaps a good start would be to challenge the officer’s credentials to testify. Without his testimony there is no case. Additionally, pursuant to O.C.G.A. 40-14-1(4), the officer must be able to testify that he knows the device he used for speed detection is in fact a device used for the detection of speed or velocity and he knows so because he has used it for that purpose. He may not say he was told that by someone else (hearsay). He may also use a written certificate showing the device is used for velocity detection. O.C.G.A. 40-14-1(4) furthermore requires that the device meets or exceeds the minimum performance specifications of the Department of Public Safety. A written certificate is sufficient to show this requirement and the accused should request to see this document.
An interesting requirement in addition to the afore-mentioned requirements is that the law enforcement agency for which the officer is employed must be able to show that it possesses a license to operate the speed detection equipment in compliance with the Federal Communications Commission rules. This may be proven with a copy of the license (see O.C.G.A. 40-14-4). Additionally, each device must be certified by a technician to be in compliance with FCC rules and that the officer operating the device has followed the manufacturer’s recommended procedure in testing for accuracy, made that test at the beginning and end of each duty tour and kept a record of all such tests (O.C.G.A. 40-14-5). Any motorist desirous of winning his case would be well advised to hold the officer and the prosecution to this standard. Without laying a foundation that the officer and the agency have met at least minimum standards, the evidence of speed is simply not admissible.
O.C.G.A. 40-14-2 additionally requires that the testifying officer must show that the governing authorities of the municipality for which he is employed have approved the use of the device and have applied to the DPS for a permit authorizing the use of a radar speed detection device. This may be shown by a copy of the application or seal of the DPS. Further reading of 40-14-1 et seq. will reveal that no arresting officer or official of the court having jurisdiction over traffic offenses is paid on a fee system (testimony), the city must name the road on which the device is to be used in its application to the DPS and what the speed limits are. Once again, questions to the officer regarding these requirements frequently result in lack of documents or knowledge of these requirements. Further requirements are that the officer advise the alleged speeder that he has a right to view a test of the device, that the municipality erect signs regarding speeding devices on every highway comprising a part of the state highway system, that the officer’s vehicle is visible for a distance of at least 500 feet, that the radar device was not employed on a grade in excess of 7 percent and that there was no reduction in the speed limit where the citation was given for the last 30 days.
Any individual who desires to challenge a speeding citation should keep in mind that there is a presumption of innocence in a court of law and that the prosecution must prove guilt beyond a reasonable doubt. There is no necessity for the Defendant to prove anything. The entire burden of proof is upon the State of Georgia and this burden never shifts to the Defendant. By holding the testifying officer to the standard requirements of Georgia law, perhaps the trier of fact will find that the State did not prove guilt beyond a reasonable doubt and the Defendant will be acquitted. There is no reason not to try a speeding case since the potential downside is negligible. Although speeding is considered a misdemeanor in Georgia, punishable by up to one year in jail, I have personally never heard of someone being incarcerated for this type of violation. It seems the worst that can happen is that the convicted speeder will have to pay a fine. One possible benefit of holding the State’s feet to the fire is that perhaps the prosecutor will not want to go through a trial and will offer a satisfactory alternative such as a reduction in the recorded speed or a lower fine. At no time should an alleged speeder assume that the police and the agency by whom the police officer is employed is always prepared to submit the documents that are required to prosecute a speeding case. In fact, many smaller jurisdictions are so certain that the officer’s testimony against the uninformed defendant is so strong there is no need to go through the trouble of bringing “extraneous documents”. If in fact this is the situation for your case, why not take advantage of their lack of preparation and make them prove your guilt properly and within the scope of Georgia code? Good Luck.