speeding and radar

10/11/11 3:46 PMNJSA 39:4-98, 39:4-99 Speeding and Radar

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NJSA 39:4-98, 39:4-99Speeding and Radar

Kenneth Vercammen's Law office represents personscharged with speeding more than 15 miles over thespeed limit an other serious traffic violationsthroughout New Jersey.

It is well established that the prosecution of adefendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding theburden of proof is upon the state to establish allelements of the offense beyond a reasonable doubt.

In every charge of a speeding violation, thecomplaint or summons must specify (l) the speed atwhich the defendant is alleged to have driven, (2) thespeed which is prima facie unlawful, and (3) thetime and place of the alleged violation.

A sign showing a speed limit is merely notice of thelaw or an ordinance or regulation prohibiting agreater speed. The sign itself does not set the speedlimit. There can be no conviction for violation of theedict of a posted sign, but only for violation of thestatute, ordinance, or regulation having the force oflaw. There are many unauthorized signs in the statewhich may serve as a warning but have no effect increating an offense. Radar

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Speed-measuring radar in various forms has beenaccepted since State v. Dantonio, l8 N.J. 570 (l955),where the N.J. Supreme Court held it is not essentialthat the court determine the precise speed at whichthe vehicle was being operated when the allegedoffense occurred, and that the operator of the vehiclemust be adjudged guilty if the evidence established,beyond a reasonable doubt, that the drive exceededthe statutory speed limit.

It is not necessary for the trial court to make aparticular finding as to the precise speed in excess ofthe speed limit at which the defendant was travelingat the time of the violation. State v. Bookbinder, 82N.J. Super. l79, l83 (App. Div. l964).

However, if the defendant is found guilty, the trialcourt should determine the quantum of excess was somany miles per hour in exercising its discretion as tothe penalty to be imposed within the statutorylimitation. The precise speed a motorist wastraveling thus is material only on the question as tothe penalty to be imposed, not on the question ofguilt or innocence.

State v. Readding, l69 N.J. Super. 238 (Law Div.l978), restated the general rule that in order for theradar speedometer reading to be admissible intoevidence, it should be established that: (l) the deviceis scientifically reliable; (2) the particularspeedometer used in the case being tried is accurate;(3) the operator is qualified; and (4) the device wasoperated properly in the case being tried. How RadarOperates

In State v. Wojtkowiak, l70 N.J. Super. 44 (Law Div.l979), revd on other grounds, l74 N.J. Super. 460,Judge Wells examined in detail the K-55 Radar, andhis conclusions were incorporated by the AppellateDivision. This case should be read and reread for adetailed explanation of Radar by a Court.

The traffic radar method speed detectionmeasurement depends upon the Doppler effect.Simply stated a radio wave which strikes a movingobject is reflected from that object at differentfrequency from that of the incident wave. A radar

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which transmits waves and receives reflected wavescan determine their frequency difference andcalculate the speed of the object which produced thereflective wave.

Courts have accepted as scientifically reliable MPHIndustries K-55 Traffic Radar -- the primary systememployed for the purpose of measuring the speed ofmotor vehicles in New Jersey.

In State v. Wojtkowiak, l74 N.J. Super, 460 (App.Div. l980), the appeals court held in all future casesthe state should adduce evidence at the municipalcourt level as to (l) the specific training and extent ofexperience of the officer operating the radar, (2) thecalibration of the machine was checked by at leasttwo external tuning forks both singly and incombination, and (3) the calibration of thespeedometer of the patrol car in cases where the K-55 is operating in the moving mode.

MPH Industries, manufacturer and distributor of theK-55, sets forth the following eight points an officermust be able to testify to:

* The officer must establish the time, place andlocation of the radar device at the time he made thereading. * The officer must be able to identify thevehicle. * The officer must identify the defendant asthe operator of the vehicle * The officer must testifythat he made a visual observation of the vehicle andthat it was going at an excessive rate of speed. * Atthe time of the radar reading the officer must testifythat the vehicle was out front, by itself, nearest to theradar. * The officer must state his qualifications andtraining in radar use. * The officer must establish thatthe radar was tested for accuracy both prior and afterits use. * If used in the moving mode, that at the timeof the radar reading the patrol speed indicated on theunit compared to the speedometer of the policevehicle.

Qualified Operator?

While it appeared to the court in State v.Wojtkowiak, Supra that the K-55 Radar is anaccurate and reliable tool for the measurement ofspeed, 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 awarning to all police departments that proper coursesof instruction be developed before the K-55 Radardevice is employed in any municipality.

A calibration check is accomplished with the use oftwo tuning forks and their accuracy must be thesubject of the documentary proof. Use of the K-55does 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 theradar unit l2 times within a period of approximately90 minutes. The court noted there is authority to theeffect that a radar unit should be checked foraccuracy each time it is set up at a different location.MPH Industries argues this is not necessary withmoving 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), wherethe court found there are three universally acceptedmethods of testing the accurate operation of a radarspeed measuring device:

1. By use of the internal tuning fork built into themachine itself (which the court found to beimproper). 2. By running the patrol car with acalibrated speedometer through the "zone ofinfluence" of the radar machine. 3. By use ofexternal tuning forks calibrated at set speeds andwhich emit sound waves or frequencies identical tothose which would come from a vehicle travelingthrough the Radar bearer at the same speed for whichthe tuning fork has been cut.

It is also important to recognize that in State v.Readding, l60 N.J. Super. 238, the court stated: theproper operation of the device must be proved,usually by detailed reference by the qualifiedoperator to the procedures called for by themanufacturer of the device. Tuning Forks

Before a radar speed reading is admissible, the statemust establish the machine was operating properly.



MPH Industries test procedure uses two tuning forks:First, the lower-speed fork is struck on wood orplastic and the ringing fork is held in a fixed positiontwo to three inches in front of the antenna with theharrow edge of the fork facing the antenna front.This will cause the Patrol Monitor Window todisplay the forks speed. While continuing to holdthis ringing fork in place, the higher-speed fork isstruck and held next to the lower-speed fork (bothforks must be vibrating while being held an equaldistance from the antenna. The target should thendisplay the "speed" difference between the two forks.For example, if the forks used are 35 mph and 65mph, then the target window will display thedifference, which is 30 mph. Admissibility ofEvidence

The state must establish through documentaryevidence the tuning fork itself was accurate. Thestate must produce and be able to admit intoevidence certificates as proof of the accuracy of thedevices used for testing the proper operation of themachine.

In State v. Cardone, l46 N.J. Super. 23 (App. Div.l976), the court held that while certificates do nothave to satisfy the normal rules of evidence, anEvidence Rule 8 hearing still must be held, at whichthe court can determine preliminary issues ofadmissibility of evidence. In such a hearing, the rulesof evidence -- except for Rule 4 or a valid claim ofprivilege -- do not apply. Id. at 28.

The Cardone court found that the certificates ofcalibration and accuracy of the radar machine -- andfor the tuning forks used to test the machine -- wereproperly admitted in evidence, even though no proofwas offered to qualifying the certificates as recordsmade in the regular course of business. Thecertificates were used solely as evidence of properoperating conditions or as a prerequisite to theadmissibility of the radar reading, and the defendantmade no effort to prove the internal calibratingdevice 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 judgeimproperly admitted certificates issued by the



manufacturer of the tuning forks and the radar unititself. The court also held the certificates were notproperly authenticated, as required by Evidence Rule67, nor was there sufficient testimony to supporttheir admissibility as either business records underEvidence Rule 63(l3) or as reports of finding of apublic official under Evidence Rule 63(l5).

In State v. Readding, supra, the Superior Courtexonerated the defendant, stating:

It is entirely possible for a particular RADAR deviceto function properly and record accurately a 50m.p.h. but inaccurately at higher speeds......

Accuracy of the particular speedometer should beestablished by more than one test. The Pace or ClockMethod

A "pace" or "clock" is performed by an officer in apatrol car with a calibrated speedometer for aduration of distance or time wherein the officeraccelerated to a speed equivalent to the suspects, andthen keeps a steady distance behind the suspectsvehicle following that vehicle. It is essential that thepatrol cars speedometer be calibrated and that thecertificates of calibration both before and after, beadmitted into evidence.

An officer may also sometimes admit he was unableto get a good "clock" but may say that his vehiclewas going 70 mph, for example, and he was stilllosing ground to the offender. The obviousshortcoming to "clocking" as vehicle is that theofficers objective judgment may be brought intoquestion, the interference by other traffic, or othernon-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, selectiveenforcement, custom and usage, non-ownership ofcar driven, ignorance or mistake of law, lack ofprecise speed proved, defective speedometer orcruise control. Obey the law, follow speed limits andyou will have no need to know about Radar.

About the Author



Kenneth A. Vercammen is a trial attorney inMetuchen, Middlesex County, New Jersey. He haslectured on traffic and criminal law for the NewJersey State Bar Association, New Jersey Institutefor Continuing Legal Education and MiddlesexCounty College. He often lectures for the New JerseyState Bar Association on personal injury, criminal /municipal court law and drunk driving. He haspublished 55 articles in national and New Jerseypublications on municipal court and litigation topics.He has served as a Special Acting Prosecutor inseven different cities and towns in New Jersey andalso successfully defended hundreds of individualsfacing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantialportion of his professional time to the preparationand trial of litigated matters. He has appeared inCourts throughout New Jersey several times eachweek on many personal injury matters, MunicipalCourt trials, matrimonial hearings and contestedadministrative law hearings.

Since 1985, his primary concentration has been onlitigation matters. Mr. Vercammen gained other legalexperiences as the Confidential Law Clerk to theCourt of Appeals of Maryland (Supreme Court),withthe Delaware County, PA District Attorney Officehandling Probable Cause Hearings, MiddlesexCounty Probation Dept as a Probation Officer, andan Executive Assistant to Scranton DistrictMagistrate, 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 andR.S.39:4-97 and except in those instances where alower speed is specified in this chapter, it shall beprima facie lawful for the driver of a vehicle to driveit at a speed not exceeding the following:

a.Twenty-five miles per hour, when passing througha school zone during recess, when the presence ofchildren is clearly visible from the roadway, or whilechildren are going to or leaving school, duringopening or closing hours;



b. (1) Twenty-five miles per hour in any business orresidential district;

(2) Thirty-five miles per hour in any suburbanbusiness or residential district;

c.Fifty miles per hour in all other locations, except asotherwise provided in the "Sixty-Five MPH SpeedLimit Implementation Act," pursuant to section 2 ofP.L.1997, c.415 (C.39:4-98.3 et al.).

Whenever it shall be determined upon the basis of anengineering and traffic investigation that any speedhereinbefore set forth is greater or less than isreasonable or safe under the conditions found toexist at any intersection or other place or upon anypart of a highway, the Commissioner ofTransportation, with reference to State highways,may by regulation and municipal or countyauthorities, with reference to highways under theirjurisdiction, may by ordinance, in the case ofmunicipal authorities, or by ordinance or resolution,in the case of county authorities, subject to theapproval of the Commissioner of Transportation,except as otherwise provided in R.S.39:4-8,designate a reasonable and safe speed limit thereatwhich, subject to the provisions of R.S.39:4-96 andR.S.39:4-97, shall be prima facie lawful at all timesor at such times as may be determined, whenappropriate signs giving notice thereof are erected atsuch intersection, or other place or part of thehighway. Appropriate signs giving notice of thespeed limits authorized under the provisions ofparagraph (1) of subsection b. and subsection c. ofthis section may be erected if the commissioner orthe municipal or county authorities, as the case maybe, so determine they are necessary. Appropriatesigns giving notice of the speed limits authorizedunder the provisions of subsection a. and paragraph(2) of subsection b. of this section shall be erectedby the commissioner or the municipal or countyauthorities, as appropriate.

The driver of every vehicle shall, consistent with therequirements of this section, drive at an appropriatereduced speed when approaching and crossing anintersection or railway grade crossing, when



approaching and going around a curve, whenapproaching a hill crest, when traveling upon anynarrow or winding roadway, and when specialhazard exists with respect to pedestrians or othertraffic or by reason of weather or highwayconditions.

The Commissioner of Transportation shall cause theerection and maintenance of signs at such points ofentrance to the State as are deemed advisable, settingforth the lawful rates of speed, the wording of whichshall be within his discretion.

Amended 1939, c.211; 1942, c.325,(1942, c.325repealed 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 speedlimits for trucks of registered gross weight of 10,000pounds and over In accordance with the provisionsof section 39:4-98 of the Revised Statutes, the StateHighway Commissioner may, by regulation andidentification by appropriate signs, designate lowermaximum speed limits for trucks of a registeredgross weight of 10,000 pounds and over, at adifferential of 5 miles per hour, on State highways,or appropriate portions thereof, having 4 or moretraffic lanes, where the legal speed limit is 50 milesper hour or greater.

L.1960, c. 100, p. 588, s. 1.

39:4-98.2. Counties or municipalities; reduction ofregular speed limit for 72 hours for maintenance orrepairs; notice to commissioner Any county ormunicipal governing body may adopt an ordinanceor resolution, as appropriate, designating a county ormunicipal official who may order a reduction of aregular speed limit for periods not to exceed 72hours on segments of highways under its jurisdictionfor the purpose of maintenance or repairs. Anyresolution or ordinance adopted pursuant to this actshall specify the circumstance under which a speedlimit may be reduced.

An order reducing the speed limit pursuant to this actshall not require the approval of the Commissionerof Transportation; provided, however, that it shall be



the duty of the designated county or municipalofficial to notify the commissioner of the affectedsegment of highway no less than 7 days before anyreduced speed limit takes effect; except that in casesof emergency situations the notification period maybe waived by the commissioner. It shall be the dutyof the designated county or municipal official toplace one or more signs indicating the reduced speedlimit along the affected highway.

Any speed limit established pursuant to this act shallbe prima facie lawful and subject to the provisionsof R.S. 39:4-96 and 39:4-97 when appropriate signsgiving 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 becited as the "Sixty-Five MPH Speed LimitImplementation Act."

L.1997,c.415, s.2.

39:4-98.4. Definitions relative to 65mph speed limit3.As used in this act:

"Authorities" means the New Jersey HighwayAuthority, the New Jersey Turnpike Authority andthe South Jersey Transportation Authority.

"Commissioner" means the Commissioner ofTransportation.

"Eligible public highways" means public highwaysas defined in section 3 of P.L. 1984, c. 73 (C.27:1B-3) of which portions have been determined by thecommissioner to be appropriate for a 65 miles perhour speed limit based on such criteria as determinedby the commissioner. Public highways under thejurisdiction of counties and municipalities shall notbe eligible public highways.

L.1997,c.415, s.3.

39:4-98.5. Speed limit of 65mph established, certainhighways 4. a. Within four months following theeffective date of this act, the commissioner, inconsultation with the Attorney General and theauthorities, shall establish by written order speed



limits of 65 miles per hour on approximately 400miles of eligible public highways. The commissioner,pursuant to section 7 of this act, may increase ordecrease the number of miles of eligible publichighways on which a 65 miles per hour speed limithas been established.

b.An order to be issued pursuant to subsection a. ofthis section shall cite the eligible public highways towhich it is to be applicable and contain a descriptionin plain language of the orders contents, the effectivedate of the order and any other information thecommissioner deems necessary.

c.The commissioner shall cause a general publicnotice of the proposed order, including a summary ofthe provisions of the proposed order, to be publishedin a newspaper or newspapers having generalcirculation in the municipality or municipalitiesaffected by the order. The notice shall include atelephone number or address which a member of thepublic may use to receive a copy of the completetext of the proposed order and shall provide for a 30-day period from the date of publication for publiccomment. The order shall be final on the 31st dayafter publication of the notice or on a later date if thecommissioner so determines. Nothing in thissubsection shall be construed as prohibiting thecommissioner from extending the comment period orfrom modifying or withdrawing the proposed orderas a result of the review of public comment.

d.A final order shall be effective and enforceableupon compliance with the requirement for theposting of signs providing notice of the speed limit,as provided under the applicable provisions ofR.S.39:4-98 and R.S.39:4-198.

e.Any official traffic control device establishedpursuant to this section shall conform to the "Manualon Uniform Traffic Control Devices."

f.Any order issued pursuant to this section shall bebinding and enforceable under the provisions of Title39 of the Revised Statutes and all other applicablelaws, in any court of competent jurisdiction, untilsuperseded by order of the commissioner pursuant tothis act.



L.1997,c.415, s.4. 39:4-98.6. Certain fines doubledwhere speed limit is 65mph 5. a. The fine for amotor vehicle offense embodied in the followingsections of statutory law, when committed in an areawhich has been designated as having a speed limit of65 miles per hour, shall be double the amountspecified 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 thatis 10 miles per hour or more over the establishedspeed 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 thespecifications of the Department of Transportationor, if appropriate, the authority having jurisdictionover the appropriate highway, shall be appropriatelyplaced, by order of the commissioner or the affectedauthority, as the case may be, to notify driversapproaching areas designated as having a speed limitof 65 miles per hour that the fines are doubled formotor vehicle offenses in those areas.

(2) In addition, all traffic control signs and deviceserected or displayed by the State Department ofTransportation or an authority within an areadesignated as having a speed limit of 65 miles perhour shall conform to the uniform system specifiedin the most current "Manual on Uniform TrafficControl Devices for Streets and Highways, "prepared by the Federal Highway Administration inthe United States Department of Transportation.

c.It shall not be a defense to the imposition of thefines authorized under the provisions of this act thata sign notifying drivers that fines are doubled wasnot posted, improperly posted, wrongfully removedor stolen, or that signs or devices were not placed incompliance with the most current "Manual onUniform Traffic Control Devices for Streets andHighways."

d.The Director of Motor Vehicles in the Departmentof Transportation shall include informationconcerning the penalties imposed pursuant to thissection in any subsequent revision of the New JerseyDriver 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 vehicleoffense shall be double the amount specified by lawwhen 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 ofP.L.1993, c.332 (C.39:4-203.5) and subsection a. ofsection 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 speedlimit; report; implementation 7. a. During the first 18months following the establishment of 65 miles perhour speed limits on eligible public highwayspursuant to section 4 of this act, the commissioner,in consultation with the Attorney General and theauthorities, shall conduct a study to determine theoverall impact of this act. The study shall considerpublic safety, environmental and cost issues,including, but not limited to speed, accident rates,fatalities, enforcement, air quality and such otherissues as the commissioner deems appropriate toevaluate fully the effect of the 65 miles per hourspeed limit on the State.

b.A report of the studys findings andrecommendations, including a recommendation as towhether the number of miles of eligible publichighways should increase, decrease or remain thesame, shall be submitted to the Governor, Presidentof the Senate and Speaker of the General Assemblyno later than 21 months after the establishment of 65miles per hour speed limits on eligible publichighways pursuant to section 4 of this act.

c.The commissioner shall implement therecommendations contained in the report 60 daysfollowing the reports submission to the Governorand Legislature unless the recommendations, eitherall or in part, are disapproved each by the Senate andthe General Assembly by passage of a concurrentresolution stating, in substance, that the Legislaturedoes not favor the recommendations. If therecommendations are disapproved in part byconcurrent resolution, the commissioner shallimplement those recommendations that are notdisapproved.

L.1997,c.415, s.7.

39:4-99. Exceeding speed limitations; speed



specified in charge It shall be prima facie unlawfulfor a person to exceed any of the foregoing speedlimitations or any speed limitation in effect asestablished by authority of section 39:4-98 of thisTitle.

In every charge of violation of section 39:4-98 ofthis Title, the complaint and the summons or noticeto appear, shall specify the speed at which thedefendant is alleged to have driven and the speedwhich this article declares shall be prima facielawful at the time and place of the alleged violation.

Amended by L.1951, c. 23, p. 88, s. 56.

Minimum Mandatory Fines, Points, Jailand Penalties Relating to Selected Motor

Vehicle Offenses

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Kenneth Vercammen's Law office represents individuals charged withcriminal, drug offenses, and serious traffic violations throughout New Jersey.Our office helps people with traffic/ municipal court tickets including driverscharged with Driving While Intoxicated, Refusal and Driving WhileSuspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney ofthe Year and past president of the Middlesex County Municipal Prosecutor'sAssociation.

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fines in court or receive points on your drivers license. An accumulation of toomany points, or certain moving violations may require you to pay expensivesurcharges to the N.J. DMV [Division of Motor Vehicles] or have your licensesuspended. Don't give up! The Law Office of Kenneth Vercammen canprovide experienced attorney representation for criminal motor vehicleviolations.

When your job or driver's license is in jeopardy or you are facingthousands of dollars in fines, DMV surcharges and car insurance increases,you need excellent legal representation. The least expensive attorney is notalways the answer. Schedule an appointment if you need experienced legalrepresentation in a traffic/municipal court matter.

Our website provides information on traffic offenses we can be retained torepresent people. Our website also provides details on jail terms for trafficviolations and car insurance eligibility points. Car insurance companiesincrease rates or drop customers based on moving violations.

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