Virginia Lawyers Weekly VA Lawyers Weekly
A defendant cannot overturn his reckless driving conviction for speeding on Fort Lee property by complaining that the magistrate judge should not have admitted certificates of testing of the tuning forks on the officer’s radar device because the government failed to provide proper notice; the Richmond U.S. District Court upholds defendant’s traffic conviction because he declined a continuance for review of the certificates.
Defendant contends his conviction should be reversed because 1) the tuning fork certificates should have been excluded due to the government’s failure to give proper notice pursuant to Fed. R. Evid. 902(11); 2) radar evidence was inadmissible because the government failed to prove the accuracy of the device both before and after it was used on this defendant; 3) the officer’s visual estimate of defendant’s speed should not have been admitted; and 4) the magistrate judge erred in failing to reduce the reckless driving charge to improper driving.
The court holds the magistrate judge did not abuse his discretion in admitting the certificates into evidence since defendant willingly gave up an opportunity to delay further proceedings. Defense counsel persistently refused to say how much time was necessary to allow review of the certificates for a possible challenge, before ultimately saying defendant would move forward with the case. Defendant opted to forge ahead. Now he argues only that he should have been given prior notice. Because defendant declined a continuance, he cannot now complaint the government’s evidence was inadmissible.
Nor did the magistrate judge abuse his discretion by admitting evidence of the testing of the radar device. Defendant relies on two Virginia Supreme Court cases stating the government must introduce evidence of radar testing both before and after a traffic stop. But this court has not found a single case before or since iiiCrosby v. Commonwealth,iii 130 S.E. 2d 467 (Va. 1983), in which a radar reading was deemed defective for failure to provide proof of testing both before and after a traffic stop. More importantly, Virginia’s since-revised statute on reckless driving is clear about what it takes to admit radar evidence when a driver’s speed is at issue. Though no calibration or testing of such device shall be valid for longer than six months, under Va. Code § 46.2-882, in this case, the certificates were less than six months’ old at the time of the traffic stop and citation. Neither this court nor the magistrate judge has been presented with any reason to question the authenticity of the certificates or the accuracy of the radar device.
Further, even if the officer’s testimony on his visual estimate of defendant’s speed was admitted without an adequate foundation, any error was harmless because the radar evidence established the prima facie case that was never rebutted.
Finally, the magistrate judge was well within his discretion to decline to reduce defendant’s offense to improper driving.
Judgment affirmed.
U.S. v. Walker (Gibney) No. 3:12cr00106, Aug. 7, 2012; USDC at Richmond, Va. VLW 012-3-374, 11 pp.
