Let us assume that on a lovely sunny day you are riding when you are pulled over by a police vehicle. The officer approaches you and introduces him/herself. The officer advises you that you were speeding which may or may not come as a surprise to you.
The first thing to bear in mind, is that if it is a highway patrol vehicle the conversation is being recorded both audio and video. Even if it is not a highway patrol vehicle the officer will make notes as to what responses you may have made. Often people are nervous and say things. It is sometimes safer not to make any admissions especially if you do not have all the facts and preferably not even then because doing so may seriously compromise your potential defence.
Similarly if a police officer comes knocking on your door accusing you of failing to stop, there are clearly issues about the potential identity of the rider etc. Another case where on the Wisemans Ferry road a Ducati 748r went past a police 4 wheel drive and they accused the defendant some days later. In this case the defendant was acquitted, as there was a question as to the accuracy of the police recording of the bike rego number and whether in fact it was the defendant’s bike at the scene. We will cover the question of identity and demand on the registered owner in another post.
Generally there are four methods by which they assess speed (for the moment excluding fixed and mobile speed cameras) listed here in descending order of accuracy:
- The Lidar, which is a gun like object which projects a laser beam and is aimed by the officer at an alleged specific target.
- The in-car radar which is a radar attached to the police car and operates by way of a Doppler beam,
- The check speed which is a police officer following you and assessing your speed by using the digital speedometer in their car, which essentially shows their speed and may not be yours.
- Police officers estimate, which is based on the evidence a police officer, will give stating that in his/her opinion you were travelling at a certain speed. There is no objective measurement of your speed in this instance.
Often the police will use one of the first 3 methods combined with their estimate.
Things to consider when you are pulled over on the side of the road for speeding
If one has the presence of mind one should ask the officer, where specifically you are alleged to have been speeding and how they assessed your speed. It is beneficial for you to take photographs with your phone of where the incident is meant to have taken place and if you have the capacity on your sat nav or phone the exact longitude and latitude. It is often difficult especially on country roads to pin point the location weeks later when you see a lawyer and decide you want to challenge the allegation.
If the police officer was stationary when they alleged that they observed you speeding try and observe from that vantage point what the officers visibility of your approaching vehicle would have been and the maximum sighting distance he would have had when he first observed your vehicle. Again take photographs from that vantage point. Take notice of anything that may have obstructed the officer’s vision in tracking your vehicle.
Also try to assess from when the officer first observed you and started their test the distance you would have travelled during the time they were testing you. The distance he would have had in observing you and conducting his test is relevant dependent upon the speed that is alleged; and accordingly the available distance and time he had to conduct his test. So therefore consider the following:
- What is the maximum sighting distance that the officer had from where he was standing or where his vehicle was parked.
- From the maximum distance how far had you travelled when he finished his test. Often we roughly work that out from when they step out onto the road or when they turn their lights on if facing you or if you get shown the reading on the lidar.
- If they are mobile we use either when they turn their lights on as they are approaching or at the worst the cross over point that is the point at which they go past you and they should no longer be getting a return from your vehicle.
Legal Defences to speeding
Let’s look into some of the main issues to consider in a speeding charge. These are by no means exhaustive and need individual analysis in each case.
Assuming you have been pulled over and not admitted to the speed (even in that instance, there maybe things that can be done in mitigation) these are some of the matters we investigate:
-
Photographs of where the incident occurred are a great help, as it would provide information as to what may have been obstructing the proper tracking of the vehicle.
-
Distances will enable the calculation as to the distance over time and therefore the potential speed.
-
We normally attend the police station to see the in-car video (ICV). That video will normally show in many cases what the officer could see and what you may have said when pulled over. Usually at any hearing the officer will produce as part of his evidence in his statement a transcript of what you said (another reason to be wary of saying anything). Further if it is an in car radar breach it provides us invaluable information, of what speeds were registering, the time between observation of the vehicle and locking the speed, and any other matters that could potentially affect the Doppler beam or the reading on the radar, in addition to the patrol speed of the police vehicle.
In the case of a check speed examining the ICV will show whether the officer had the ability to maintain a consistent distance and speed to give an accurate reading. Keep in mind that a check speed is the speed that the police vehicle is travelling at. In many of these cases we have observed the highway patrol vehicle being baulked by slower vehicles that the smaller, lighter and more nimble motorcycle has been able to get around unaware that they are being followed. When the HWP vehicle gets around the obstruction seconds have gone past and the hwp vehicle has had to accelerate hard to catch up to the bike. In the heat of catching up it has on occasion been that the speed alleged is the speed of the hwp vehicle and not that of the bike. Similarly if the highway patrol vehicle is parked on the side of the road and the officer has to accelerate in pursuit often there is a degree of hard acceleration to catch up to the subject vehicle. The ICV may also show whether the officer was able to view the bike consistently during the test or did they lose sight of the vehicle, which would put the check speed or estimate in question.
Similarly in the case of a police officer’s estimate which is the least reliable assessment of speed. Observing the ICV may give us information as to time and distance that the officer had to make their assessment. A case, this time involving the Putty Road where the two bikes crested the hill, as did the police vehicle travelling in the opposite direction. The officer saw the bikes and locked within a second, therefore not allowing for 3 seconds of observation and testing with the radar plus multiple vehicles in the beam. When that was challenged the officer relied upon his estimate, which again was dubious because of the length of time of the observation, which was instantaneous as the bikes went past. At hearing the officer conceded a lesser speed and the defendant retained his licence. The longer the observation, watching the bike over a period of time, as against some distance the potential for greater accuracy of the estimate such as it is. Therefore an officer coming around the corner as you are tipping into it going in the opposite direction has to be challenged over the length of time to assess the speed. Often it is based on a momentary snapshot and preconceived ideas based on the rider’s posture on the bike, noise etc not hard facts and therefore subject to challenge.
In relation to the potentially more accurate forms of speed assessment, being the lidar and radar it needs more careful analysis and will be cover this next.
Beating a Lidar and/or Radar speed check
The last section covered the issues surrounding check speeds and estimates. In relation to the potentially more accurate forms of speed assessment, being the lidar and radar it needs more careful analysis prior to any court hearing.
The most accurate form of speed assessment is by utilisation of the lidar which is used by aiming the hand held device and a laser beam bounces back and forth measuring changes of distance over time. It is an accurate instrument but like any measuring instrument it can be compromised depending on calibration and manner of use.
Accordingly one of the matters that we consider is whether the device was calibrated and whether the s137 Road Transport Act certificate is produced at the hearing a failure to produce this could call in to question the reading obtained. The second matter at any hearing is whether the daily calibration has been done. This is evidenced for the prosecution by the signing by the officer at the start and the conclusion of their shift certifying the testing of their device over a measured prescribed distance of 25 and 50 metres. Each lidar has a prolaser-filed testing book, which is completed and signed off when the tests are done.
In terms of the actual use of the lidar on a driver/rider we consider the following:
Was there a clear line of sight for the officer during the duration of the test?
Was the required three-second of testing likely, based on available distance for the test and the alleged speed? For example if the maximum sighting distance from the officer is 30 metres and you are meant to be travelling at 30 meteres per second they only have 1 second to conduct the test which is insufficient time.
- Was there excessive movement of the unit?
- Is there the potential for the laser to be reflected back from another surface?
If the radar is a Doppler beam the matters we consider are again calibration issues. We also consider whether being a doppler beam which is much wider than the lidar beam in some instances like the old silver eagle radar which used to be 20 odd metres wide and 20 meters high for every hundred metres of projection resulting in a question of what vehicle was giving the return. We have run cases in the past where the argument was that a small vehicle like a motorcycle traveling in front of a speeding four-wheel drive may not be the vehicle giving the return. The police always argue that if there are multiple vehicles in the beam then an error reading should show on the device but that is subject to question and scientific challenge.
We also consider whether there were multiple vehicles in the beam and whether there were many vehicles of a similar size, which may raise the question of identity of the offending vehicle. Again the use of mobile radars in areas where traffic isn’t sparse raises the issue of target identification, what vehicle is giving the return.
The guidelines in relation to use have previously contained prohibitions in relation to the use of lidar and radar in areas, which could result in public criticism, such as:
- Being used at the bottom of hills or on an unsuitable gradient or hill.
- Within 50 metres of a speed restriction or derestriction sign creating a change in speed zone. But those restrictions on police have now been considerably eased. However on a plea of guilty that information may be relevant.
Also keep in mind that both these devices can be used in approaching or receding mode, which means they can hide in the bushes and activate the device once you have gone past them and shoot you from behind.
When defending these cases especially the lidar some Magistrates wish to have scientific evidence from the defence supporting the basis of the challenge to the instrument.
