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is well established that the prosecution of a defendant for a motor
vehicle violation is a quasi-criminal proceeding. In such a proceeding
the burden of proof is upon the state to establish all elements of
the offense beyond a reasonable doubt.
In every charge of a speeding violation, the complaint or summons
must specify (l) the speed at which the defendant is alleged to
have driven, (2) the speed which is prima facie unlawful, and (3)
the time and place of the alleged violation.
A sign showing a speed limit is merely notice of the law or an
ordinance or regulation prohibiting a greater speed. The sign itself
does not set the speed limit. There can be no conviction for violation
of the edict of a posted sign, but only for violation of the statute,
ordinance, or regulation having the force of law. There are many
unauthorized signs in the state which may serve as a warning but
have no effect in creating an offense. Radar
Speed-measuring radar in various forms has been accepted since
State v. Dantonio, l8 N.J. 570 (l955), where the N.J. Supreme Court
held it is not essential that the court determine the precise speed
at which the vehicle was being operated when the alleged offense
occurred, and that the operator of the vehicle must be adjudged
guilty if the evidence established, beyond a reasonable doubt, that
the drive exceeded the statutory speed limit.
It is not necessary for the trial court to make a particular finding
as to the precise speed in excess of the speed limit at which the
defendant was traveling at the time of the violation. State v. Bookbinder,
82 N.J. Super. l79, l83 (App. Div. l964).
However, if the defendant is found guilty, the trial court should
determine the quantum of excess was so many miles per hour in exercising
its discretion as to the penalty to be imposed within the statutory
limitation. The precise speed a motorist was traveling thus is material
only on the question as to the penalty to be imposed, not on the
question of guilt or innocence.
State v. Readding, l69 N.J. Super. 238 (Law Div. l978), restated
the general rule that in order for the radar speedometer reading
to be admissible into evidence, it should be established that: (l)
the device is scientifically reliable; (2) the particular speedometer
used in the case being tried is accurate; (3) the operator is qualified;
and (4) the device was operated properly in the case being tried.
How Radar Operates
In State v. Wojtkowiak, l70 N.J. Super. 44 (Law Div. l979), rev'd
on other grounds, l74 N.J. Super. 460, Judge Wells examined in detail
the K-55 Radar, and his conclusions were incorporated by the Appellate
Division. This case should be read and reread for a detailed explanation
of Radar by a Court.
The traffic radar method speed detection measurement depends upon
the Doppler effect. Simply stated a radio wave which strikes a moving
object is reflected from that object at different frequency from
that of the incident wave. A radar which transmits waves and receives
reflected waves can determine their frequency difference and calculate
the speed of the object which produced the reflective wave.
Courts have accepted as scientifically reliable MPH Industries'
K-55 Traffic Radar -- the primary system employed for the purpose
of measuring the speed of motor vehicles in New Jersey.
In State v. Wojtkowiak, l74 N.J. Super, 460 (App. Div. l980), the
appeals court held in all future cases the state should adduce evidence
at the municipal court level as to (l) the specific training and
extent of experience of the officer operating the radar, (2) the
calibration of the machine was checked by at least two external
tuning forks both singly and in combination, and (3) the calibration
of the speedometer of the patrol car in cases where the K-55 is
operating in the moving mode.
MPH Industries, manufacturer and distributor of the K-55, sets
forth the following eight points an officer must be able to testify
to:
* The officer must establish the time, place and location of the
radar device at the time he made the reading. * The officer must
be able to identify the vehicle. * The officer must identify the
defendant as the operator of the vehicle * The officer must testify
that he made a visual observation of the vehicle and that it was
going at an excessive rate of speed. * At the time of the radar
reading the officer must testify that the vehicle was out front,
by itself, nearest to the radar. * The officer must state his qualifications
and training in radar use. * The officer must establish that the
radar was tested for accuracy both prior and after its use. * If
used in the moving mode, that at the time of the radar reading the
patrol speed indicated on the unit compared to the speedometer of
the police vehicle.
Qualified Operator?
While it appeared to the court in State v. Wojtkowiak, Supra that
the K-55 Radar is an accurate and reliable tool for the measurement
of speed, its accuracy and reliability in any case are no better
than the skill of the person operating the radar. Id. at l74. The
court made this emphasis as a warning to all police departments
that proper courses of instruction be developed before the K-55
Radar device is employed in any municipality.
A calibration check is accomplished with the use of two tuning
forks and their accuracy must be the subject of the documentary
proof. Use of the K-55 does not eliminate the need for such proof.
State v. Wojtkowiak, l70 N.J. Super. at 50, n.l
In State v. Overton, l35 N.J. Super 443 (Cty. Ct. l975), four external
tuning forks were used to test the radar unit l2 times within a
period of approximately 90 minutes. The court noted there is authority
to the effect that a radar unit should be checked for accuracy each
time it is set up at a different location. MPH Industries argues
this is not necessary with moving radar.
In State v. Readding, l60 N.J. Super. 238 (Law Div. l978), the
court reiterated the decision in State v. Overton, l35 N.J. Super.
443 (Cty. Ct. l975), where the court found there are three universally
accepted methods of testing the accurate operation of a radar speed
measuring device:
1. By use of the internal tuning fork built into the machine itself
(which the court found to be improper). 2. By running the patrol
car with a calibrated speedometer through the "zone of influence"
of the radar machine. 3. By use of external tuning forks calibrated
at set speeds and which emit sound waves or frequencies identical
to those which would come from a vehicle traveling through the Radar
bearer at the same speed for which the tuning fork has been cut.
It is also important to recognize that in State v. Readding, l60
N.J. Super. 238, the court stated: the proper operation of the device
must be proved, usually by detailed reference by the qualified operator
to the procedures called for by the manufacturer of the device.
Tuning Forks
Before a radar speed reading is admissible, the state must establish
the machine was operating properly. MPH Industries' test procedure
uses two tuning forks: First, the lower-speed fork is struck on
wood or plastic and the ringing fork is held in a fixed position
two to three inches in front of the antenna with the harrow edge
of the fork facing the antenna front. This will cause the Patrol
Monitor Window to display the fork's speed. While continuing to
hold this ringing fork in place, the higher-speed fork is struck
and held next to the lower-speed fork (both forks must be vibrating
while being held an equal distance from the antenna. The target
should then display the "speed" difference between the
two forks. For example, if the forks used are 35 mph and 65 mph,
then the target window will display the difference, which is 30
mph. Admissibility of Evidence
The state must establish through documentary evidence the tuning
fork itself was accurate. The state must produce and be able to
admit into evidence certificates as proof of the accuracy of the
devices used for testing the proper operation of the machine.
In State v. Cardone, l46 N.J. Super. 23 (App. Div. l976), the court
held that while certificates do not have to satisfy the normal rules
of evidence, an Evidence Rule 8 hearing still must be held, at which
the court can determine preliminary issues of admissibility of evidence.
In such a hearing, the rules of evidence -- except for Rule 4 or
a valid claim of privilege -- do not apply. Id. at 28.
The Cardone court found that the certificates of calibration and
accuracy of the radar machine -- and for the tuning forks used to
test the machine -- were properly admitted in evidence, even though
no proof was offered to qualifying the certificates as records made
in the regular course of business. The certificates were used solely
as evidence of proper operating conditions or as a prerequisite
to the admissibility of the radar reading, and the defendant made
no effort to prove the internal calibrating device or the tuning
forks were inaccurate.
Previously, in State v. Overton, l35 N.J. Super. 443 (Cty. Ct.
l975), it was held the municipal court judge improperly admitted
certificates issued by the manufacturer of the tuning forks and
the radar unit itself. The court also held the certificates were
not properly authenticated, as required by Evidence Rule 67, nor
was there sufficient testimony to support their admissibility as
either business records under Evidence Rule 63(l3) or as reports
of finding of a public official under Evidence Rule 63(l5).
In State v. Readding, supra, the Superior Court exonerated the
defendant, stating:
It is entirely possible for a particular RADAR device to function
properly and record accurately a 50 m.p.h. but inaccurately at higher
speeds......
Accuracy of the particular speedometer should be established by
more than one test. The 'Pace' or 'Clock' Method
A "pace" or "clock" is performed by an officer
in a patrol car with a calibrated speedometer for a duration of
distance or time wherein the officer accelerated to a speed equivalent
to the suspect's, and then keeps a steady distance behind the suspect's
vehicle following that vehicle. It is essential that the patrol
car's speedometer be calibrated and that the certificates of calibration
both before and after, be admitted into evidence.
An officer may also sometimes admit he was unable to get a good
"clock" but may say that his vehicle was going 70 mph,
for example, and he was still losing ground to the offender. The
obvious shortcoming to "clocking" as vehicle is that the
officer's objective judgment may be brought into question, the interference
by other traffic, or other non-reasonable factors. It is for these
reasons that the "clock" method is used less frequently
than radar. Conclusion
It is no defense to argue unlawful arrest, selective enforcement,
custom and usage, non-ownership of car driven, ignorance or mistake
of law, lack of precise speed proved, defective speedometer or cruise
control. Obey the law, follow speed limits and you will have no
need to know about Radar.
About the Author
Kenneth A. Vercammen is a trial attorney in Metuchen, Middlesex
County, New Jersey. He has lectured on traffic and criminal law
for the New Jersey State Bar Association, New Jersey Institute for
Continuing Legal Education and Middlesex County College. He often
lectures for the New Jersey State Bar Association on personal injury,
criminal / municipal court law and drunk driving. He has published
55 articles in national and New Jersey publications on municipal
court and litigation topics. He has served as a Special Acting Prosecutor
in seven different cities and towns in New Jersey and also successfully
defended hundreds of individuals facing Municipal Court and Criminal
Court charges.
In his private practice, he has devoted a substantial portion of
his professional time to the preparation and trial of litigated
matters. He has appeared in Courts throughout New Jersey several
times each week on many personal injury matters, Municipal Court
trials, matrimonial hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters.
Mr. Vercammen gained other legal experiences as the Confidential
Law Clerk to the Court of Appeals of Maryland (Supreme Court),with
the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County Probation Dept as a Probation Officer,
and an Executive Assistant to Scranton District Magistrate, Thomas
Hart, in Scranton, PA.
Speeding penalties as of 2003
39:4-98. Rates of speed 39:4-98. Rates of speed. Subject to the
provisions of R.S.39:4-96 and R.S.39:4-97 and except in those instances
where a lower speed is specified in this chapter, it shall be prima
facie lawful for the driver of a vehicle to drive it at a speed
not exceeding the following:
a.Twenty-five miles per hour, when passing through a school zone
during recess, when the presence of children is clearly visible
from the roadway, or while children are going to or leaving school,
during opening or closing hours;
b. (1) Twenty-five miles per hour in any business or residential
district;
(2) Thirty-five miles per hour in any suburban business or residential
district;
c.Fifty miles per hour in all other locations, except as otherwise
provided in the "Sixty-Five MPH Speed Limit Implementation
Act," pursuant to section 2 of P.L.1997, c.415 (C.39:4-98.3
et al.).
Whenever it shall be determined upon the basis of an engineering
and traffic investigation that any speed hereinbefore set forth
is greater or less than is reasonable or safe under the conditions
found to exist at any intersection or other place or upon any part
of a highway, the Commissioner of Transportation, with reference
to State highways, may by regulation and municipal or county authorities,
with reference to highways under their jurisdiction, may by ordinance,
in the case of municipal authorities, or by ordinance or resolution,
in the case of county authorities, subject to the approval of the
Commissioner of Transportation, except as otherwise provided in
R.S.39:4-8, designate a reasonable and safe speed limit thereat
which, subject to the provisions of R.S.39:4-96 and R.S.39:4-97,
shall be prima facie lawful at all times or at such times as may
be determined, when appropriate signs giving notice thereof are
erected at such intersection, or other place or part of the highway.
Appropriate signs giving notice of the speed limits authorized under
the provisions of paragraph (1) of subsection b. and subsection
c. of this section may be erected if the commissioner or the municipal
or county authorities, as the case may be, so determine they are
necessary. Appropriate signs giving notice of the speed limits authorized
under the provisions of subsection a. and paragraph (2) of subsection
b. of this section shall be erected by the commissioner or the municipal
or county authorities, as appropriate.
The driver of every vehicle shall, consistent with the requirements
of this section, drive at an appropriate reduced speed when approaching
and crossing an intersection or railway grade crossing, when approaching
and going around a curve, when approaching a hill crest, when traveling
upon any narrow or winding roadway, and when special hazard exists
with respect to pedestrians or other traffic or by reason of weather
or highway conditions.
The Commissioner of Transportation shall cause the erection and
maintenance of signs at such points of entrance to the State as
are deemed advisable, setting forth the lawful rates of speed, the
wording of which shall be within his discretion.
Amended 1939, c.211; 1942, c.325,(1942, c.325 repealed 1946, c.8);
1951, c.23, s.55; 1983, c.227, s.2; 1993, c.315, s.2; 1997, c.415,
s.1.
39:4-98.1. Designation of lower maximum speed limits for trucks
of registered gross weight of 10,000 pounds and over In accordance
with the provisions of section 39:4-98 of the Revised Statutes,
the State Highway Commissioner may, by regulation and identification
by appropriate signs, designate lower maximum speed limits for trucks
of a registered gross weight of 10,000 pounds and over, at a differential
of 5 miles per hour, on State highways, or appropriate portions
thereof, having 4 or more traffic lanes, where the legal speed limit
is 50 miles per hour or greater.
L.1960, c. 100, p. 588, s. 1.
39:4-98.2. Counties or municipalities; reduction of regular speed
limit for 72 hours for maintenance or repairs; notice to commissioner
Any county or municipal governing body may adopt an ordinance or
resolution, as appropriate, designating a county or municipal official
who may order a reduction of a regular speed limit for periods not
to exceed 72 hours on segments of highways under its jurisdiction
for the purpose of maintenance or repairs. Any resolution or ordinance
adopted pursuant to this act shall specify the circumstance under
which a speed limit may be reduced.
An order reducing the speed limit pursuant to this act shall not
require the approval of the Commissioner of Transportation; provided,
however, that it shall be the duty of the designated county or municipal
official to notify the commissioner of the affected segment of highway
no less than 7 days before any reduced speed limit takes effect;
except that in cases of emergency situations the notification period
may be waived by the commissioner. It shall be the duty of the designated
county or municipal official to place one or more signs indicating
the reduced speed limit along the affected highway.
Any speed limit established pursuant to this act shall be prima
facie lawful and subject to the provisions of R.S. 39:4-96 and 39:4-97
when appropriate signs giving notice thereof are erected.
L.1981, c. 237, s. 1, eff. July 27, 1981. 39:4-98.3. Short title
2.This act may be known and shall be cited as the "Sixty-Five
MPH Speed Limit Implementation Act."
L.1997,c.415, s.2.
39:4-98.4. Definitions relative to 65mph speed limit 3.As used
in this act:
"Authorities" means the New Jersey Highway Authority,
the New Jersey Turnpike Authority and the South Jersey Transportation
Authority.
"Commissioner" means the Commissioner of Transportation.
"Eligible public highways" means public highways as defined
in section 3 of P.L. 1984, c. 73 (C.27:1B-3) of which portions have
been determined by the commissioner to be appropriate for a 65 miles
per hour speed limit based on such criteria as determined by the
commissioner. Public highways under the jurisdiction of counties
and municipalities shall not be eligible public highways.
L.1997,c.415, s.3.
39:4-98.5. Speed limit of 65mph established, certain highways 4.
a. Within four months following the effective date of this act,
the commissioner, in consultation with the Attorney General and
the authorities, shall establish by written order speed limits of
65 miles per hour on approximately 400 miles of eligible public
highways. The commissioner, pursuant to section 7 of this act, may
increase or decrease the number of miles of eligible public highways
on which a 65 miles per hour speed limit has been established.
b.An order to be issued pursuant to subsection a. of this section
shall cite the eligible public highways to which it is to be applicable
and contain a description in plain language of the order's contents,
the effective date of the order and any other information the commissioner
deems necessary.
c.The commissioner shall cause a general public notice of the proposed
order, including a summary of the provisions of the proposed order,
to be published in a newspaper or newspapers having general circulation
in the municipality or municipalities affected by the order. The
notice shall include a telephone number or address which a member
of the public may use to receive a copy of the complete text of
the proposed order and shall provide for a 30-day period from the
date of publication for public comment. The order shall be final
on the 31st day after publication of the notice or on a later date
if the commissioner so determines. Nothing in this subsection shall
be construed as prohibiting the commissioner from extending the
comment period or from modifying or withdrawing the proposed order
as a result of the review of public comment.
d.A final order shall be effective and enforceable upon compliance
with the requirement for the posting of signs providing notice of
the speed limit, as provided under the applicable provisions of
R.S.39:4-98 and R.S.39:4-198.
e.Any official traffic control device established pursuant to this
section shall conform to the "Manual on Uniform Traffic Control
Devices."
f.Any order issued pursuant to this section shall be binding and
enforceable under the provisions of Title 39 of the Revised Statutes
and all other applicable laws, in any court of competent jurisdiction,
until superseded by order of the commissioner pursuant to this act.
L.1997,c.415, s.4. 39:4-98.6. Certain fines doubled where speed
limit is 65mph 5. a. The fine for a motor vehicle offense embodied
in the following sections of statutory law, when committed in an
area which has been designated as having a speed limit of 65 miles
per hour, shall be double the amount specified by law:
R.S.39:4-52;
R.S.39:4-57;
R.S. 39:4-80;
R.S. 39:4-81;
R.S. 39:4-84;
R.S. 39:4-85;
R.S. 39:4-86;
R.S. 39:4-88;
R.S. 39:4-89;
R.S. 39:4-90;
R.S. 39:4-96;
R.S. 39:4-97;
R.S. 39:4-98, when guilty of driving at a speed that is 10 miles
per hour or more over the established speed limit;
R.S. 39:4-126;
R.S. 39:4-127;
R.S. 39:4-129;
R.S. 39:4-144;
P.L. 1955, c.217 (C.39:5C-1);
Section 41 of P.L. 1951, c.23 (C.39:4-82.1);
Section 51 of P.L. 1951, c.23 (C.39:4-90.1);
Section 5 of P.L. 1951, c.264 (C.27:23-29);
Section 18 of P.L. 1952, c.16 (C.27:12B-18); and
Section 21 of P.L. 1991, c.252 (C.27:25A-21).
b. (1) Signs designed in compliance with the specifications of
the Department of Transportation or, if appropriate, the authority
having jurisdiction over the appropriate highway, shall be appropriately
placed, by order of the commissioner or the affected authority,
as the case may be, to notify drivers approaching areas designated
as having a speed limit of 65 miles per hour that the fines are
doubled for motor vehicle offenses in those areas.
(2) In addition, all traffic control signs and devices erected
or displayed by the State Department of Transportation or an authority
within an area designated as having a speed limit of 65 miles per
hour shall conform to the uniform system specified in the most current
"Manual on Uniform Traffic Control Devices for Streets and
Highways, " prepared by the Federal Highway Administration
in the United States Department of Transportation.
c.It shall not be a defense to the imposition of the fines authorized
under the provisions of this act that a sign notifying drivers that
fines are doubled was not posted, improperly posted, wrongfully
removed or stolen, or that signs or devices were not placed in compliance
with the most current "Manual on Uniform Traffic Control Devices
for Streets and Highways."
d.The Director of Motor Vehicles in the Department of Transportation
shall include information concerning the penalties imposed pursuant
to this section in any subsequent revision of the New Jersey Driver
Manual and the New Jersey Motorist Guide.
L.1997,c.415, s.5.
39:4-98.7. Speeding 20mph or more over limit; fines, certain; doubled
6.The fine for a motor vehicle offense shall be double the amount
specified by law when traveling 20 miles per hour or more over the
designated speed limit as set forth in R.S.39:4-98, except as provided
in subsection b. of section 1 of P.L.1993, c.332 (C.39:4-203.5)
and subsection a. of section 5 of P.L.1997, c.415 (C.39:4-98.6).
L.1997,c.415, s.6.
39:4-98.8. Study to determine effect of 65mph speed limit; report;
implementation 7. a. During the first 18 months following the establishment
of 65 miles per hour speed limits on eligible public highways pursuant
to section 4 of this act, the commissioner, in consultation with
the Attorney General and the authorities, shall conduct a study
to determine the overall impact of this act. The study shall consider
public safety, environmental and cost issues, including, but not
limited to speed, accident rates, fatalities, enforcement, air quality
and such other issues as the commissioner deems appropriate to evaluate
fully the effect of the 65 miles per hour speed limit on the State.
b.A report of the study's findings and recommendations, including
a recommendation as to whether the number of miles of eligible public
highways should increase, decrease or remain the same, shall be
submitted to the Governor, President of the Senate and Speaker of
the General Assembly no later than 21 months after the establishment
of 65 miles per hour speed limits on eligible public highways pursuant
to section 4 of this act.
c.The commissioner shall implement the recommendations contained
in the report 60 days following the report's submission to the Governor
and Legislature unless the recommendations, either all or in part,
are disapproved each by the Senate and the General Assembly by passage
of a concurrent resolution stating, in substance, that the Legislature
does not favor the recommendations. If the recommendations are disapproved
in part by concurrent resolution, the commissioner shall implement
those recommendations that are not disapproved.
L.1997,c.415, s.7.
39:4-99. Exceeding speed limitations; speed specified in charge
It shall be prima facie unlawful for a person to exceed any of the
foregoing speed limitations or any speed limitation in effect as
established by authority of section 39:4-98 of this Title.
In every charge of violation of section 39:4-98 of this Title,
the complaint and the summons or notice to appear, shall specify
the speed at which the defendant is alleged to have driven and the
speed which this article declares shall be prima facie lawful at
the time and place of the alleged violation.
Amended by L.1951, c. 23, p. 88, s. 56.
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