Devaluing Probable Cause


This weekly post features recent news stories that highlight and update themes previously covered throughout NMA E-Newsletters and Alerts.

Editor’s Note: In June 2010, the Ohio Supreme Court ruled that an officer standing roadside could visually estimate the speed of a moving vehicle with enough accuracy that said observation could be used as evidence to convict the driver of speeding. The reaction by the NMA—articulated by our national email alert (shown in its entirety below)—and other civil rights groups was swift and pointed. Within weeks, Ohio legislators drafted a bill to prohibit the unproven ability to visually estimate vehicle speed as the basis for a traffic ticket. The legislation nullifying the state supreme court ruling was subsequently enacted and added to Section 4511.091 of Ohio’s Revised Code.  

Four years later, we now have another example of a deeply flawed enforcement “tool” that can be used to scan passing vehicles for evidence of alcohol content in the cabin air. This smells of probable cause manufactured literally out of thin air.  An earlier NMA Driving News story notes that the development of laser technology to do just that is in its early stages. False readings can be introduced by open or tinted windows, air conditioning running in the car, or even the breathing of a passenger. If state courts move toward giving judicial notice—instant validity—to laser detection of airborne alcohol content in vehicles, expect a similar response to that mounted in Ohio in 2010. 

 

NMA National Alert: Visual Estimation of Speed Ruling by Ohio Supreme Court
Posted on June 4th, 2010

Based on incoming email to the NMA, not too many members have missed the ruling earlier this week by the Ohio Supreme Court and the chilling effect it can have on the prosecution of speeding tickets in the state. That High Court determined that testimony by a police officer who performed a visual estimation of vehicle speed is adequate evidence to convict a driver of speeding.

In other words, you can be charged in Ohio for speeding because an officer says he thinks you were speeding. He won’t need to point to radar or laser evidence, or even that he judged your speed by pacing you and then noting the reading of his car’s speedometer. In those situations, the accuracy of the equipment used — radar/laser gun, speedometer — can at least be verified. With visual estimation, there is nothing to challenge other than the officer’s word. The cop just needs to show that he went through some degree of “training” in the art of visual speed estimation. In a “his word vs. your word” in the courtroom, how many times do you think the judge will side with the defendant rather than the ticketing officer?

The Cleveland Plain Dealer wrote this story after talking to the NMA. The reporter’s single question to us was whether we knew of an academic or scientific study that proved that human beings can, with consistency, accurately determine vehicle speed by observation. The answer, of course, was “no.” In fact, Member David Estes wrote about investigating this in the Jan/Feb 2010 issue of Driving Freedoms, an account of how he successfully beat a speeding ticket that ultimately hinged on a visual speed estimate. Estes’ appellate victory even withstood a challenge by the Idaho Attorney General to that state’s Supreme Court.

The Plain Dealer reporter had it right in his opening sentence, “It’s all guessing.”

To fight rulings like this one in Ohio, a rigorous study is needed that will test the accuracy and repeatability with which vehicle speed can be estimated — a study that will make the judicial system sit up and take notice. The NMA will explore the resources necessary to design and conduct such a study, including finding an academic institution capable/willing to do the rigorous testing in a way that will stand up to questions. The funding will also be an issue. We investigated such a study a few years ago and found that a properly designed project could approach a dollar figure in the low six-figures. There is a more urgent need now to have the results of this kind of study, and we will keep you informed on our progress in developing and identifying the necessary resources.

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