Blue = My dialog
Red = Officer’s/judge’s response
Black = notes or questions I did not ask
This was for an appeal of a magistrate’s decision that found me responsible. The trial date was 12/27/2007 and the ticket was issued by the MSP on Route 290 for 87 in a 65, LIDAR at 1197.6′, MGL 90/17 and the fine was $220.
I’ve gone through the exercise of preparing a cross-exam before, but I’ve never had to actually go through with it. Either the cop hasn’t shown up or the paperwork has been misplaced. I refreshed my memory and prepared this document by reading the NMA website, reading a book I got via the NMA a while back (it was based on a CA trial so as it turned out, much of the procedural stuff didn’t apply) and by googling “speeding ticket” and “cross exam.”
I had butterflies for two days prior to the trial and I spent several hours preparing this document. I went to court with mixed feelings as to whether I hoped the officer would show because on one hand I’d hate to have all my work wasted, but on the other, the ultimate goal here was to be found not responsible.
At this point I had already filed public records requests for the usual things, calibration logs, officers training certificate, officer’s notes, etc. I did not receive the officer’s notes, I received the “manufacturer’s calibration certificate” and a copy of the officers training certificate. The LIDAR unit was an Ultralyte 20/20 but it did not specifically state which model, there are several. In the info I received from the MSP, it said I would have to file a request with their HQ for specific calibration info. I received this notice about 3 weeks prior to trial. I immediately requested the records as well as the exact model number from the MSP HQ.
I had filed a motion for continuance for the reason of allowing the MSP time to respond to my latest records request but I never heard back from the court (I was given a piece of paper at the magistrate’s hearing saying I could not continue but figured I’d try). The officer also asked for a continuance for the reason of ‘jury duty’ and it was granted. It’s been almost a month and I have not received a response to my second records request to the MSP HQ.
On court day, I show up dressed in khaki’s, a shirt, tie and jacket. I’ve seen this mentioned time and again, but still it always amazes me how people dress for court. Other than the attorneys, I was the only one that made an attempt to look presentable. The cop is present and in uniform, swell. I wait for about 30 minutes while people with representation handle various minutiae. The first person actually called to the stand to do more than plead is a girl who received a speeding ticket from the same cop. She gave the ‘I don’t think it was me’ speech, the judge quickly finds her guilty and fines her $100. I’m quaking with fear at this point, and of course I’m called next. I’m sworn in.
The officer starts reading his notes.
OBJECTION, the witness is reading notes, I’d request that they be put away.
In addition, I when I filed a public records request with the MSP, I asked specifically to be provided with any notes related to this citation that Trooper Smith intended to present in court. These were not provided.
– Ask to see the notes
OBJECTIONS: NARRATIVE, IMMATERIAL
CALLS FOR A CONCLUSION, NOT QUALIFIED, NON RESPONSIVE
I have a right to find out if a question would call for an objectionable answer
Object before he gets everything in
TROOPER can only testify to facts, cannot argue, cannot try to convince judge of anything
Officer continues to read notes, I’m checking off the list below to make sure he mentions I’m the driver, where the offense happened, and how fast I was going. He gets to a point where he is about to mention the occupants of the vehicle (my family):
In addition to the driver, I observed that in the passenger seat was…
The cop looks questioningly at the judge, the judge explains to him that the occupants of the vehicle have no bearing on the charge. I start to feel a little less nervous.
During the cop’s dialog, listen for:
- He names me as the driver
- Names location of offense
(if not, the court is without jurisdiction because it was not established that the offense was within the jurisdiction of the court)
- Cites my speed
- Cites the law I broke (I realized after the fact the cop actually didn’t mention this, but I did mention in my motion that he didn’t meet the requirements of this law… I should have mentioned that no law was cited as well in my motion to dismiss).
CROSS EXAMINATION – if officer doesn’t simply answer, cut him off with “objection your honor, answer is non-responsive after yes/no”
How are you doing this morning?
How long have you worked as a police officer in Massachusetts?
What was the result of your last performance review?
We don’t get performance reviews.
How many complaints have been filed against you since you’ve been a police officer?
By a bunch, do you mean more than 20?
More than 40?
I have no idea, I don’t count them.
Officer, as you sit on the stand today, can you recall the events of the citation?
I issue a lot of tickets, I can’t remember them all specifically.
Without your notes, would you have been able to testify?
Were you relying exclusively on your notes to testify today?
Officer, what color was the vehicle I was driving? (only if he IDs me as driver)
Grey (the vehicle was actually silver, but I didn’t have a picture so I’m not sure where I was going with this, the idea was to show he didn’t have independent recollection, but he had already admitted that, so I probably could have left this out).
GREY!!! (he was pretty annoyed at this point)
Did the vehicle have any unusual characteristics?
It was a Toyota.
Was there anything that might have impeded your vision?
On the day you issued me this citation, how long had you spent operating LIDAR that day?
I have no idea.
How many other citations did you issue that day?
I have no idea.
When was that LIDAR unit issued to you? What time?
They aren’t issued to us.
When you arrive at work in the morning, you don’t check out a LIDAR unit for the day?
So it was issued to you that morning?
When was your LIDAR unit last calibrated?
Who calibrated it? (what person, what were his qualifications)
How many hours of operation did the unit have on it since the last time it was calibrated?
When you want to obtain the speed of a vehicle, do you look through a view finder n the LIDAR unit?
No, it has a scope.
Is it magnified?
No, there is no magnification.
Is there a way to ‘lock on’ to a specific vehicle?
What do you mean ‘lock on’?
Is the LIDAR unit capable of tracking a specific vehicle all on its own once you’ve selected a vehicle you wish to track the speed of?
OBJECTION YOUR HONOR, NON RESPONSIVE AFTER NO.
Overruled. Officer, continue what you were going to say.
The officer goes on about how there’s a Doppler tone as long as he continues to hold the trigger and keeps the LIDAR unit pointed at the same vehicle. He continues to talk about when the LIDAR unit was calibrated (MSP calibrates their LIDAR units once a year in February), and even goes to correctly mention that the beam at 1200′ (the distance I was clocked at) is just over 4′ wide.
When you see a vehicle through the viewfinder, to determine the speed, you aim at the vehicle and pull a trigger?
Between the time you pull the trigger and the time a speed reading is displayed, is there a time lapse?
If he says it’s instantaneous, ask if he’s suggesting it takes absolutely zero time for the laser to reach the vehicle, reflect back off the vehicle and for the LIDAR unit to obtain a reading? I think Einstein would have loved to know the speed of light is infinite. So it takes some amount of time then?
During that time, do you have to hold the gun still and aimed at the same spot on the vehicle?
If you move the gun while it’s taking a reading, can the movement results in an erroneous reading?
No. (I think this is wrong, but I really wasn’t sure how to contest it, a copy of the LIDAR operators manual probably would have helped, but I didn’t even know which Ultralyte model it was)
During the time you’re taking your reading, has the vehicle moved?
So you have to move the gun then to keep it pointed in the exact same spot?
Were you standing in the middle of the road directly in front of the vehicle?
How far were you from my vehicle when you obtained your speed reading?
What part of my car did you aim at? (can you be more specific?)
Is the LIDAR beam visible?
Trooper Smith, at a distance of 1200′, what is the width of the LIDAR beam?
Do you hit what you aim at with 100% accuracy?
With a LIDAR? Yes.
Can you be absolutely 100% certain you hit my vehicle at 1200′?
Could you hit a target 1200′ away with your service revolver?
I don’t have a service revolver, I have a (insert some weapon description here) and it isn’t rated for that kind of range.
To make sure I understand correctly, you would have to look through this unmagnified scope, point it at a vehicle 4 football fields away, aim at the front of a vehicle moving at highway speeds, keep the gun trained on the exact spot on the vehicle and pull the trigger without moving the gun off the target spot a until you have obtained a speed reading?
Is there any way to measure the speed of the vehicle continuously or is it always near instantaneous?
LIDAR provides an instant speed measurement.
So there is no way to measure the continuous speed of a vehicle with the LIDAR unit over a distance of say a 3/4 mile?
So you did not measure the speed of my vehicle continuously for a distance of a quarter mile?
Can you attest that the information written on citation M5218384 is true and accurate?
When you wrote the citation, how did you obtain my address that you put on the citation?
From your license.
You said you were a police officer in MA for 15 years?
Then you are aware that the MA Registry of MV issues change of address stickers that a MA licensed driver is required to place on the back of their license when they move?
Your honor, I’d like to show officer Smith a copy of my license. (My license had expired 3 months after I received the citation and I had been issued a new license, I could not find my old license).
What is on the back of my license?
At the time you wrote me the citation, did you look at the back of my license for a change of address sticker?
I don’t know.
I don’t know.
Trooper, are you familiar with MGL, Chapter 90C, section 2?
ME: “Defense offers an excerpt from aforementioned law. This states that the violator shall be requested to sign the citation, acknowledging receipt.” (This is not a defense on its own, but it doesn’t help the Trooper)
Did you ask me to sign the citation?
No, but it is State Police policy to….
Objection, Your Honor. Non-responsive after No.
Did you ask me to sign the citation?
No futher questions your honor.
Trooper, you may step down. Would you like to present any defense?
NO AFFIRMATIVE DEFENSE YOUR HONOR
Is there anything else before I make a decision?
Motion to dismiss:
Your honor, I would like to motion for finding NOT RESPONSIBLE on the grounds that the people’s case is insufficient as it stands now in that
- The infraction listed on the ticket is MGL chapter 90 section 17. This law requires an officer to measure the speed of a vehicle continuously over a distance of a quarter mile. As the officer has testified, LIDAR only takes an instantaneous reading and is not capable of continuously monitoring vehicle speed over a distance.
- There are both factual and procedural errors with the citation
- There was no foundation (calibration) shown for the speed measurement deviceprobably should have thrown this one in, but I don’t think it would have mattered).
- The request for public information relevant to the defense’s case was not fully acted upon in accordance with the law
- The officer did not have independent recollection of the events and therefore his testimony should not be considered.
I find you responsible. Would you like to say anything?
Your honor, before sentencing I would like to …
This is a speeding ticket, there is no sentencing.
… explain that I have the best insurance rating possible and I haven’t had a speeding ticket in 6 or 7 years. I hope you’ll take these into consideration.
Very good. I fine you $100.
Arggh. Same thing the girl before me got with her ‘I don’t think it was me’ speech.
I leave the court room and the cop is waiting for me. He is looking extremely angry and starts in on how I perjured myself and how I’m lucky the judge didn’t ask him about my driving record. I ask what he’s talking about and he shows me my record that I’m holding and points to a speeding ticket from 2006. Right next to it it says “NR” (not responsible). I point that out and he says “that doesn’t matter, you perjured yourself and things could have been much worse”. I say something like, “I’m sorry, I disagree” and walk out of the building. I’m not sure if he’s correct or not. I certainly didn’t intend to misrepresent myself, I guess my phrasing to the judge could have been better. I was also surprised that tickets I’ve been found not responsible for still show up on my record and that they can be used against me (or at least the cop thinks so).
He follows me out, then I figured I’d see if I could pay the fine while I was at the court. I go to the clerk and she tells me that I have to pay the DMV. I go out to my car and there’s the cop sitting there, I assume waiting for me to find out what car I’m driving. As I drive by him he starts to follow me, blasting me with his RADAR. I shut off my V1 and I’m wondering what’s next, when I take a right out of the court and he boots it and takes a left (a shorter way to the main road). I follow my GPS to take back roads back to the main road and as soon as I hit it, I’m blasted with Ka RADAR but I don’t see anyone. I then take the long way home, just in case.
Overall I saved myself next to nothing, I originally had a $220 fine, it was reduced to $100 but between two 70 miles round trips to court and the $20 appeal fee, I didn’t save much. I was however proud of myself for standing toe to toe with a state trooper and am glad I did it. Hopefully all my preparation can help the next person.