THE TUNING-FORK DEFENSE, DECIPHERED
[Posted February 2, 2016] Last week, the Court of Appeals of Virginia handed down a short published opinion that ought to be on the required-reading list of anyone who plies his or her trade in traffic court. The appeal is Wells v. Commonwealth, and it relates to a key preservation trap for defense lawyers.
Our play unfolds on familiar turf for me. There’s a ten-mile stretch of I-64 on the Peninsula between the Hampton Coliseum and what I call the Newport News Squeeze Play – the point just west of Jefferson Avenue where six westbound lanes converge into two. (VDOT is already doing something about it; its crews are onsite even as I type this, widening the next westward stretch of highway to three lanes.) That’s familiar to me because my home and office are in Virginia Beach. I go to Richmond a lot because that’s where they keep the justices. I-64 connects the two. I’ve been driving that route since I went to college in 1976; you’d be surprised how much I’ve memorized.
The speed limit in that stretch is 60 mph, but that evidently didn’t apply to Wells, who blew through a state trooper’s radar at 94 mph. At trial on the inevitable charge of reckless driving by speed, the trooper testified that his radar “was working properly.” Wells’s lawyer probably made a mental note of the fact that the trooper didn’t testify about the elaborate dance that’s required to make radar readings admissible:
In any court or legal proceeding in which any question arises about the calibration or accuracy of any … radar … used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar … or (iii) any other method employed in calibrating or testing any laser speed determination device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.
Since the trooper left out all those details, the lawyer decided not to cross-examine him – after all, why do anything that might trigger his memory? Instead, when the evidence was all in, she moved to strike, based on the omission. The judge swatted that motion aside, then clobbered Wells (a hefty fine, a license suspension, and two months of free room and board with the compliments of the Newport News Sheriff). His lawyer appealed, and a judge of the CAV decided the case was writworthy.
I’ll tell you now that this doesn’t end well for Wells. The CAV panel – Judge Petty, writing for the chief judge and Judge Alston – applies preservation jurisprudence that’s quite familiar to readers of this website from the civil side of the swimming pool. The court concludes that the Commonwealth doesn’t have to adduce all that tuning-fork stuff in its case in chief unless, as the statute says, “any question arises” about its accuracy. That means that the lawyer had to object when the trooper testified that his equipment was working properly. She didn’t do that, so the issue wasn’t preserved for appeal by a contemporaneous objection.
This is an issue of whether the evidence comes in or not, so the proper time for an objection is when the evidence is offered. You can’t lie in wait until the close of the evidence and then spring a motion to dismiss, because the issues in sufficiency analysis are quite different from those in admissibility analysis.
If you’re a defense lawyer, you’re probably reflecting now on the futility of such an objection if you can’t save it up for the gotcha moment. If you object while the trooper is still testifying, he’ll probably just whip out his certificate and show it to the judge, and you’ve lost your advantage. What good does that do?
If that’s your sentiment, join the club; there are a lot of civil practitioners already ahead of you. I’ve always regarded Bitar v. Rahman from 2006 as the signature decision in this line of cases. And in fact, Dr. Bitar’s lawyer even argued to the justices back then that if he had to state the objection while the opposing expert was on the stand, he’d be forfeiting a strategic advantage – the possibility of a cheap win. The justices gave him the back of their collective hand in rejecting that argument.
If you defend traffic cases, keep in mind that you have to raise an admissibility objection when the trooper asserts that his equipment is working properly. If he can’t come up with the goods – for example, he has a seven-month-old certificate – then you’ve got your easy win.