Request By:
Mr. Ira S. Fink
121 Todds Road
Lexington, Kentucky 40509
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the legality of the use of radar for detecting speeders and whether a state trooper is required to show the radar instrument to the defendant when he is cited for speeding.
First, we would point out that when a motorist is given a citation for speeding and takes the case to court, his guilt or innocence as far as the judge is concerned is a matter of proof. This is true whether the police officer has clocked the motorist by following him, has used radar or has timed him between marks on the highway while observing from an aircraft.
When the trial begins the officer must be present in court and give his evidence. The defendant motorist is not required to give any evidence at all, but if the police officer gives admissible evidence of guilt, it is incumbent upon the defendant to refute it. Thus, if the only evidence of guilt is radar and the defendant can convince the court that radar evidence is scientifically unreliable and, therefore, inadmissible, he wins his case without giving any contradictory evidence.
Radar has long been recognized by the general public and by the police as being the most accurate means of measuring speed of a vehicle on the highways. In most speeding cases the defendant can settle the case administratively by paying the fine. But if the defendant appears in court, and the officer appears as a witness against him, as we have said above, it is a matter of proof.
The highest court of Kentucky in the case of
Honeycutt v. Commonwealth, Ky., 408 S.W.2d 421 (1966) ruled on radar as evidence in a speeding case. The Court decided that courts will not take judicial notice of the accuracy of radar in measuring speeds of a motor vehicle, but the courts will treat as sufficient evidence of the accuracy of a radar device for measuring speed of a vehicle when there is testimony that the instrument was tested within a few hours of its specific use and found to be accurate by use of a calibrated tuning fork and by comparison with the speedometer of another vehicle driven through the radar field. Thus, radar has the sanction of the Supreme Court of Kentucky, but a defendant may cross-examine a police officer as to whether the radar instrument has been recently tested and calibrated.
In your letter you point out that a court in Florida ruled that radar evidence was not admissible because there was given expert testimony that it was not scientifically reliable. The Florida court making the ruling was of original jurisdiction and not an appellate court. The ruling has not stopped the use of radar for detecting speeders even in Florida, much less in other states.
As to whether a defendant is entitled to see the radar instrument used by the policeman, there is no such legal right. We are not sure whether the radar device can even lock in and retain a particular reading, and if it did, the accuracy of the reading would still depend on the veracity of the police officer as to when the reading was recorded and of which vehicle.
Finally, we would point out that under Kentucky's Uniform Traffic Citation statute, KRS 431.550, all citation forms are numbered consecutively and must be accounted for. Once an officer starts filling out a citation he has committed himself to prosecuting the charge. If an officer is to be persuaded not to give a citation, it must be done before he starts writing. A motorist who believes that he was not speeding should, therefore, clearly state such fact to the officer at the outset. This is not a legal obligation but simply a practical suggestion because once the citation is written the only defense which can be made must be made in court.