For all you road warriors out there, getting caught for speeding by the Highway Patrol has to be one of the biggest Debbie Downers. You have to pull over, the Trooper talks to you as if he is your father and you disappointed him, then the Trooper tells you how speeding is dangerous, and finally hands you a speeding ticket. Typically at some point in this conversation, the Trooper will brag about how he clocked you going 87 mph with his laser gun or with his radar unit. And God forbid if you are one of those unlucky souls that get ticketed for speeding by airplane traffic enforcement. But what about receiving a speeding ticket by a Trooper or Police Officer via pacing your vehicle?
Pacing a vehicle to determine speed is nothing new in Ohio. Appellate Courts across Ohio have been issuing opinions over pacing for some time now. However, what is relevant to this analysis is whether or not an officer’s speedometer is considered an electrical, mechanical, or digital device that aides in an officer’s visual estimation of a vehicle’s speed under Ohio Revised Code 4511.091. Before getting into statutorily analysis of R.C. 4511.091, I believe it would be useful to understand the theory of pacing a vehicle.
Pacing involves the officer maintaining an equal distance between the patrol car and your vehicle for the entire time you are being paced. The officer then uses his speedometer to clock your speed. To accomplish this task, the police officer will utilize what is sometimes referred as “bumper pace.” The police officer will keep equal distance between his front bumper and your rear bumper. Given that this is more difficult for the police officer when his vehicle is farther from your vehicle, the police officer will most likely try to cut down the distance between the vehicles. The shorter distance the officer maintains, the easier it is for the police officer to clock your speed using his speedometer. Putting this all together: (1) the police officer has to keep a constant distance from the vehicle in front of him; (2) the police officer must maintain that exact distance for some period of time; and (3) the police officer must watch his speedometer to accurately gauge the suspected vehicles speed.
As you can tell, there is a greater potential for user error on the part of the police officer when pacing a vehicle versus the police officer utilizing laser or radar. In addition, there are plenty of arguments that can be made against pacing. For example, a person can state that the officer was catching up to his vehicle when the officer was allegedly pacing the vehicle; or the road conditions would not allow pacing because of hills, dips, and various other obstacles; or it was night time out and there is no way the police officer could pace just on the vehicle’s tail lights alone. Based on these examples, it is easy to see that pacing can be shown as an inaccurate means to help aide an officer’s visual estimation of a vehicle’s speed.
Now that we have a very basic understanding of pacing, let’s look to how the Ohio Supreme Court and the Ohio Legislature handled unaided visual estimation of a vehicle’s speed versus an aided visual estimation.
In Barberton v. Jenney, 2010-Ohio-2420, the Ohio Supreme Court tackled the issue of whether a person can be convicted for a speed violation based solely on a police officer’s unaided visual estimation of a motor vehicle’s speed. To summarize the facts very briefly, Mr. Jenney was traveling down State Route 21 when Officer Santimarino observed Mr. Jenney traveling in excess of the posted speed limit of 60 mph. Mr. Jenney’s speed was based on Officer Santimarino’s visual estimation of Mr. Jenney’s vehicle and based on a radar reading of 82 mph. At the time, Officer Santimarino was observing vehicles for potential speed violations in a stationary position. Mr. Jenney argued at trial that the radar results should not be admissible because the city failed to establish a proper foundation for admission. Based on this logic, Mr. Jenney maintained that without the radar results, the city failed to present sufficient evidence of his speed and his conviction could not stand.
The Ohio Ninth District Court of Appeals agreed with Mr. Jenney that since the city could not produce Officer Santimarino’s radar operator’s certificate at trial, the trial court erred in permitting Officer Santimarino to testify about his radar results. However, the Ninth District found the admission of Officer Santimarino’s testimony regarding the radar results was harmless error because Officer Santimarino’s visual estimation of the vehicle’s speed was sufficient to support Mr. Jenney’s conviction.
Not wanting to give up his fight, Mr. Jenney took his issue to the Ohio Supreme Court. Unfortunately, the Ohio Supreme Court was not in Mr. Jenney’s corner for this fight. The Court held that “a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction of speeding in violation of R.C. 4511.20(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Training Academy or a similar organization that develops and implements training programs to meet the needs of law-enforcement professions and the communities they serve, and is experienced in visually estimating vehicle speed.”
As you can imagine, not too many people were happy about the Court’s decision regarding unaided visual estimation. In short, what is the point of having radar or laser anymore if a police officer can just use a visual estimation? Assuming that the police officer meets the training requirements set forth in the Court’s decision, all a police officer would need to do in order to obtain a speed conviction is state, “yeah the vehicle in question was going about 41 mph to 46 mph in a 35 mph zone based upon my visual estimation.” Well this did not sit well with the Ohio Legislature. In House Bill 86, the Ohio Legislature amended R.C. 4511.091 to do away with unaided visual estimations of a vehicle’s speed.
R.C. 4511.091(C) states:
(1) No person shall be arrested, charged or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or substantially similar municipal ordinance based on a peace officer’s unaided visual estimation of the speed of a motor vehicle. This division does not do any of the following:
(a)Preclude the use by a peace officer of a stopwatch, radar, laser, or other electrical, mechanical, or digital device to determine the speed of a motor vehicle.
Although the amendment to R.C. 4511.091 was a little too late for Mr. Jenney, overall it did away with allowing a police officer to utilize unaided visual estimations of a vehicle’s speed to obtain a speed conviction. However, if you look at R.C. 4511.091 (C)(1)(a), police officers are not precluded from speed arrests if the officer used a stopwatch, radar, laser, or other electrical, mechanical, or digital device. Radar is generally attached, in some form or another, to the patrol car. Laser is typically a laser gun that the police officer uses from a stationary position on the side of the road. Lastly, speed enforcement airplanes use stopwatches to calculate a person’s speed on the roadway. So that leaves us with other electrical, mechanical, or digital devices. Well, what falls into the category of other electrical, mechanical, or digital devices?
The Second District Court of Appeals addressed the issue of what falls into the category of other electrical, mechanical, or digital devices under R.C. 4511.091 in State v. West, 2015-Ohio-442. In West, Trooper Pohlable visually estimated Ms. West’s vehicle to be travelling at 40 mph in a 30 mph zone on McCall Avenue. Trooper Pohlable then set his cruiser speedometer at 40 mph and followed Ms. West for a quarter a of mile, while watching to determine whether Ms. West maintained her speed. Trooper Pohlable found Ms. West to be traveling between 40 mph to 41 mph. Based on this, Trooper Pohlable stopped Ms. West for speeding and subsequently arrested her for illegal drug possession. Ms. West moved to suppress the evidence of illegal drugs, arguing that because Trooper Pohlable’s traffic stop for speeding was based on unaided visual estimation of speed, he therefore had no reasonable suspicion to stop Ms. West.
The trial court sustained Ms. West’s motion to suppress, finding that Trooper Pohlable used an unaided visual estimation of speed in deciding to initiate the traffic stop. The trial court went on to state that there was insufficient evidence and authority to support the reliability of pacing. The Second District Court of Appeals, however, saw things differently.
Looking to R.C. 4511.091 (C)(1)(a), the Court stated, “we conclude that a cruiser speedometer qualifies as an electric, mechanical, or digital device to determine the speed of a motor vehicle.” The Court further held that “while Trooper Pohlable did make an initial unaided visual estimate that the car was speeding, he then used his speedometer to pace the vehicle in order to determine its speed.”
Well there you have it folks. In a quick two sentence paragraph, speedometer was thrown into the category of electric, mechanical, or digital device to determine the speed of a motor vehicle. If you break it down, this makes sense on a very basic level. For instance: (1) vehicles have both mechanical and electrical parts; (2) the vehicle must have a speedometer; (3) the speedometer is either an analog (mechanical) speedometer or an electrical speedometer; (4) thus, perfect match for the electric, mechanical, or digital device category. This basic level is where I take issue with police officers pacing vehicles and using their speedometer to issue speeding tickets.
To me it is very clear that after the Ohio Supreme Court’s holding in Barberton v. Jenney, the Ohio Legislature wanted to protect motorist from speeding citations based on a police officer’s own personal judgment of how fast an individual is traveling, i.e. unaided visual estimation. And they did so by amending R.C. 4511.091 to specifically state that a police officer’s unaided visual estimation of a vehicle’s speed is not good enough for an arrest or conviction. Based on this, I don’t believe the Ohio Legislature intended to have a cruiser’s speedometer be considered a mechanism to aid a police officer with speed violations. For the simple fact that pacing a vehicle and using a speedometer is still a police officer’s personal judgment call! Just like a police officer’s unaided visual estimation of a vehicle’s speed!
Remember what was discussed earlier with regards to pacing. The police officer must keep the same distance between his vehicle and the suspected vehicle over a certain time while maintaining his speed. There is just too much human error in this pacing equation! The police officer could be speeding to catch up to the suspected vehicle, there could be obstacles in the police officer’s way to preclude him from pacing the suspected vehicle, the distance between the cruiser and the suspected vehicle will continually fluctuate; and most importantly, the police officer will have control over all of this! Meaning that if the police officer does not like how the pacing is going, he can switch it up to pace the vehicle in a manner that shows the suspected vehicle is speeding! Maybe accelerate the cruiser for a shorter period of time to show that the suspected vehicle was speeding in excess of the posted speed limit. Thus, the police officer is exaggerating the true speed of the suspected vehicle. In other words, making a determination of a vehicle’s speed based on the police officer’s own judgment. Very similar to that whole unaided visual estimation of a vehicle’s speed!
Bottom line is that the police officer is in full control to show the suspected vehicle is speeding when it comes to pacing versus radar and laser. There are defenses to radar units and laser guns, but for the most part radar units and laser guns are a point and click mechanism. In addition, radar unit and laser guns are required to be calibrated and go through a series of internal and external checks before being used for traffic enforcement. I doubt speedometers go through this type of calibration and checks on a monthly, quarterly, or yearly basis.
Lastly, I think that there is a statutory argument to be made that a speedometer does not belong in the category of other electrical, mechanical, or digital devices. The Ohio Legislature specifically mentioned that a police officer may use a stopwatch, radar, or laser to determine speed. As stated above, a stopwatch is used by airplane traffic enforcement officers, and radar units and laser guns are used by road patrol officers. These three devices are the typical tools of the trade for traffic enforcement. So if the Ohio Legislature wanted a cruiser’s speedometer to be part of that tool of the trade they could have easily listed it. After all, a police officer pacing a vehicle is nothing new in Ohio. But the Ohio Legislature purposefully left the use of speedometer out of the statute!
I truly doubt that the Ohio Legislature wanted the category of other electrical, mechanical, or digital devices to determine a vehicle’s speed to be a catchall category so courts can just toss any device that is electrical, mechanical, or digital in nature. I believe the Ohio Legislature wanted devices that are electrical, mechanical, or digital to be similar in nature to a stopwatch, laser gun, or radar unit. Because if that is not the case, below is a crazy example to show how a mechanical bull could be used by a police officer to enforce speed limits.
Officer Barney Fife was ordered to enforce the speed limit on State Route 48. State Route 48’s speed limit is 40 mph. With both his radar unit and laser gun being out of commission for calibration tests, Officer Fife needs to find something electrical, mechanical, or digital in nature to determine a person’s speed to aide him in his visual estimations. The only thing Officer Fife could find was a mechanical bunking bull. So, Officer Fife sets up his mechanical bunking bull on the side of the road. Officer Fife determines, based on his own personal judgment, that if the mechanical bunking bull bucks about 20 to 22 times by the time a vehicle passes him, that vehicle is going between 47 mph to 49 mph. Officer Fife sees his first car, does a visual estimation of 47 mph, turns on his mechanical bunking bull, and the bull bucks 22 times! Officer Fife has his first speeding victim! The alleged speeder cannot believe that a mechanical bunking bull determined his speed. Trial ensues and Officer Fife testifies to his findings. Officer Fife states on the record that he visually estimated the alleged speeder going 47 mph and he was aided with this visual estimation by his mechanical bunking bull because the bull bucked 22 times by the time the alleged speeder passed his patrol car. Based on this testimony, the trial court convicts the alleged speeder because Officer Fife was aided in his visual estimation with a mechanical device that is able to determine speed.
Obviously, this story is merely to make a point and to poke fun of the legal system a bit. But as you can see, I just tossed something mechanical in nature that could potentially determine a vehicle’s speed and aide an officer’s visual estimation of speed. However, if you do see a mechanical bunking bull on the side of the road, you might want to slow down.