By on June 3, 2010

In a 5-1 decision yesterday, Ohio’s Supreme Court upheld a speeding ticket based solely on how fast a driver appeared to be moving. The court considered the case of motorist Mark Jenney who drove through a State Route 21 radar speed trap operated by Copley police officer Christopher R Santimarino on July 3, 2008. Santimarino guessed based on the appearance of Jenney’s black SUV that it was traveling at 79 MPH in a 60 zone.

Santimarino claimed that his thirteen years as a traffic cop and his certification in speed estimation by the Ohio Peace Officer Training Academy qualified him to make expert visual determinations of how fast vehicles are moving within 4 MPH. In court, Santimarino testified that his radar showed Jenney was traveling at 82 MPH on direct examination and 83 MPH on cross-examination.

Based on this, a district court convicted Jenney. On appeal, Jenney succeeded in having the radar evidence thrown out because the officer failed to produce the required certification documents at trial. The appeals court then ruled that the visual guess as to Jenney’s speed was sufficient evidence for a conviction. Jenney appealed to the supreme court, which agreed with the lower court rulings that an officer’s educated guess is sufficient to overcome that state’s burden of proof beyond a reasonable doubt.

“A majority of the appellate districts that have considered the issue have held that an officer’s testimony that in his opinion, a defendant was traveling in excess of the speed limit is sufficient to sustain a conviction for speeding,” Justice Maureen O’Connor wrote for the majority. “Given Santimarino’s training, OPOTA certification, and experience in visually estimating vehicle speed, his estimation that Jenney was traveling 70 miles per hour was sufficient to support Jenney’s conviction… We hold that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law enforcement professionals and the communities they serve, and is experienced in visually estimating vehicle speed.”

Justice Terrence O’Donnell filed a dissent that argued the majority essentially created a standard that the police officer is always right.

“Like any other witness, a police officer’s credibility is to be determined by the jury or other fact-finder,” O’Donnell wrote. “In fact, jury instructions given regularly by trial judges advise that a jury is privileged to believe all, part, or none of the testimony of any witness. Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not to be credible, could, in some instances, be insufficient to support a conviction.”

A copy of the decision is available in a 50k PDF file at the source link below.

Source: PDF File Barberton v. Jenney (Supreme Court, State of Ohio, 6/3/2010)

[Courtesy:Thenewspaper.com]

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27 Comments on “Ohio Supreme Court Upholds Speeding Ticket By Visual Guess...”


  • avatar
    zerofoo

    Next DUI convictions will come by a “visual estimation” of the inebriation of the driver….no blood alcohol tests required.

    We really need to DEMAND evidence when charges are brought. You don’t need to be a civil rights activist to see how “visual estimation” could be abused.

    I know plenty of police officers who would use this against teen drivers…..specifically males who like big spoilers, loud stereos, and coffee can mufflers.

    This is still the land of the free right?

    -ted

    • 0 avatar
      Benya

      I’m pretty sure visual estimation is already good enough for a conviction for DUI. Drifting back and forth on the road is probably enough to give an officer reasonable suspicion that the driver is intoxicated. If the officer observes the unholy trinity of glassy eyes, slurred speech, smell of alcohol, then there would be probably cause to make an arrest. I know breathalyzers cannot be used as evidence in Pennsylvania, but I somehow doubt that a blood test is required in every case to prove DUI.

  • avatar
    Dukeboy01

    Well, I guess I’ll get in before the flames start. There is something to visual speed estimation. As part of my radar certification in KY over a dozen years ago, we had to learn to accurately visually estimate speed without the use of the radar gun within a certain range as part of our certification process. (+/- 4 mph seems about right.) I don’t work the road anymore and, in fact, am no longer certified to operate radar, so I would no longer consider myself qualified to judge speed in that manner, but you can learn to do it and with practice be pretty accurate. An active road trooper would probably be as adept at it as you could get. I seriously doubt that any jurisdiction will be tossing out all their radar guns and lasers.

    In reality, this speed was verified by radar. The radar got tossed due to a procedural manuever, but it was real.

    Alright, flame away.

    • 0 avatar
      Contrarian

      Procedural erros can get a murderer or terrorist exonerated, but apprently not a speeder. I’m doubtful we have our priorities right.

    • 0 avatar
      AJ

      No flame, just to say that if “pretty accurate” is good enough, then speeding tickets should be a flat rate for all since plus or minus 4 mph can determine the cost of the ticket. I’d go for that improvement! LOL

  • avatar
    troyohchatter

    I am sorry, but the issuance of speeding tickets is already abused to the nth degree. I have an SUV and a motorcycle. I ride a “naked” sportbike with a yellow jacket and helmet. I get pulled over at least four times a year and am usually within 10-15% of the speed limit as determined by surrounding traffic. When I pull my helmet off, the police officer sees I am not the 18 year old punk, but rather a 42 year old man. The conversations are short and to the point, IE “umm, you were going 2 over but I’ll let you go.” I can guarantee that these small, podunk towns, they would give me a ticket for 10-30 over if I was a kid. That’s why it is essential to assume the driver is innocent until proven guilty, and that proof has to be a helluva lot more than “Clem” saying he saw the speeder going fast. And enough with the driver having to know all the rules. The judge should be required by law to request a certification of the radar or laser gun, the operator, and all other relevant proof. The ticket should say in big bold letters that without these items in court, the defendant will be found innocent Pipe dream, that’s for damn sure.

    But this takes me back to my main gripe. The municipality, county, or state that ultimately convicts a speeder has a financial interest, and that goes triple for the small towns where the cops, judge and/or mayor are very close. Speeding tickets are not about safety, they are not about anything other than legalized fleecing of the populus.

    In this light, I always said two things. #1, any ticket that is 20% over or less should be considered an official warning only, no money or points involved. Second, the money from these tickets should go to charity or some other “unrelated” govt fund. To see these small, 50 person towns with two brand new fully outfitted cop cars just so they can build revenue is ridiculous, and yes, it happens. Most of the secluded cars on the interstate are town cops, not highway patrol.

    • 0 avatar
      ott

      +1,000,000.

      I’m in the same boat as you… I drive a yellow Cobalt SS S/C, with the big spoiler and supercharger upgrades, exhaust upgrades, etc. Not your everyday Cobalt. The car also get the evil eye from our local fuzz, and then they see me in the driver’s seat, a 37-year old professional home-owner, not a young punk with rich parents. Never got a ticket yet, but I know if I was wearing a baseball cap (especially backwards) while driving this car that would probably change. That’s not to say that I don’t take every chance to enjoy my car on the backroads though…

    • 0 avatar
      AJ

      I was pulled over last year for what she said was 83 mph in a 65. I’m 100% positive I was doing 73 mph as my Civic Coupe has that LARGE digital display and I never drive that fast. So I can only assume the same case, when she saw that I was an older guy with no record and not a punk kid, she just gave me a warning and told me “slow down.”

      It actually infuriates me to think police do this kind of thing, when personally I’m a law and order kind of guy and generally was so as a punk kid.

      But whatever do you do? If I had told her she was full of it at the time, she probably would have written me the ticket?

  • avatar
    phantomwolf

    Will not flame, but it does send a dangerous precedent in our current state of affairs with municipalities trying to extract every last ounce from the tax payers. The state must be held to a higher standard and needs to prove accusations beyond a reasonable doubt in order for us to try and maintain some semblence of a free society. That being said, to use visual estimation as a reason for probable cause, I have no problems as it is just same as, “I could not help but notice you were hopelessly incapable of staying the lane, swerving all over the place, and BTW is that beer I smell on your breath.”

  • avatar
    twotone

    I regularly post my feelings against photo radar and red light ATM’s. In this case, however, Mr. Jenney does not have a case. He was clocked at 82 MPH on a radar gun. His point about certification is valid, but the radar gun was probably within 1 or 2 MPH. If the officer just made a visual guess without the radar reading, he would stand a better chance of beating the ticket. He needs to take responsibility for speeding (and more importantly) getting caught.

    Buy a radar detector.

    Twotone

    PS: The title of this post is a bit misleading and leaves out the important part of the radar gun reading.

    • 0 avatar
      the duke

      I don’t think that the title of this post was misleading. The appeals court ruled that the ticket stood without Radar evidence based on the Officer’s estimation of speed. The appeal to the supreme court, and the decision to be considered by the Supreme court was, “do speeding violations stand based solely on the speed estimation of an officer?”.

      Was the radar gun correct, but the officer just lacked documentation? Sure. It was thrown out on a technicality, but Jurisprudence seems to be nothing but technicalities (I’m not a lawyer, so if I’m off base I trust the lawyers here can correct me). Evidence obtained without a search warrant that gets thrown out is not allowed to be considered by a jury. This is to protect the public from unlawful searches. The officer didn’t have the documentation he should have, so it was thrown out – as it should be, otherwise officers could use 20 year old uncalibrated (or worse, tampered with) detectors to ticket you. It was fair it was thrown out.

      So the ruling makes precedent that someone can be convicted of speeding based solely on the speed estimation of an officer – the fact that a radar gun was in use will not play into future rulings. So you can now be pulled over and ticketed in Ohio if it looks to the officer like you are speeding, radar gun or not.

      I don’t know the effectiveness of officer training on speed estimation, so I won’t go on record saying this is complete garbage, but it does make me uncomfortable.

  • avatar
    lilpoindexter

    When I lived in Michigan I would prefer to go out of my way, through Indiana, rather than drive through the Country’s biggest speed trap, Ohio.
    Ohio has some very cool roads in the southern part, but the risk of a ticket is too great. F ohio.

  • avatar
    stuart

    I guess there will be no more court cases about speeding in OH. If the officer says you were speeding, you’re already convicted. No trial necessary.

    Have a nice day.

    stuart

  • avatar
    troyohchatter

    The one thing I will say about Ohio’s highway patrol is they park that white cruiser in the median or on the side of the road in plan sight. If one gets a ticket from the OHP, it’s their own damn fault. Now the localities, they are not so forthright in showing that they are patrolling, but most of the people run 10 over anyway, which give you 75MPH. That’s fast enough. It’s the local enforcement on the 2 lanes I get teed off about.

    • 0 avatar
      omalley576

      I don’t care if cops are in plain sight or not.  That’s not the point.  Heck, they should be allowed to hide.  If you get caught it’s your own fault.  Period.  But they should have to PROVE it.  I’m sick of cops being judge, jury AND executioner.  If a cop says his radar read XX MPH, you are done.  Period.  With calibration documents I understand this.  But what about things that don’t have proof such as running a light or stop sign or even “guessing” speed.  Ludicrous.
       
      Oh, and I got caught this morning by OH staties… in a plane.  So no, they don’t hide in the median in plain sight.  Watch overhead and watch for painted lines.
       
      I hate this godforsaken state the longer I am here.  Seriously, do these pigs have nothing better to do than ticket people?  All.  Day.  LONG!

  • avatar
    obbop

    Eyewitness testimony has sent innocent folks to prison, at times for decades, with DNA evidence used when that technology came around to determine the “guilty one” was actually innocent.

    Oh well. The falsely convicted MUST have been guilty of something so NO PROBLEM!!!!!

    In California law enforcement can pull you over and ticket you for not wearing a seat belt… a “primary offense”

    I ALWAYS wore my set belt, from day one.

    The thought of my delicate fragile body flying through the window or impacting the vehicle’s interior during a crash or flying around during a roll over…. of being knocked out with the car catching fire after a wreck… a multitude of scenarios.

    I also believe in statistics and probabilities.

    The data is proof to me that only a fool drives unbelted.

    Yet, several times, police pulled me over declaring I was not wearing my seat belt when I WAS wearing it!!!!

    I belt up before moving the vehicle.

    Never did receive a ticket by convincing the cop it was on.

    One time a bulky fluffy coat covered the belt.

    Clothing color can blend in with the belt color.

    In some instances the “lack of a belt” may have been used as an excuse to pull me over for whatever reason.

    SO much for “eyeball testimony” and, of course, there are NEVER any quotas that need to me met in regards to tickets issued and never ANY bias on a cop’s part, etc.

    I recall as a youth having the cops look me over regularly though I was seldom stopped. Looked at just for being in the “target market.”

    As I aged the “looked at” events decreased and today, over 50, heck, the cops NEVER look at me!!!!

    Anybody here recall the tests in the past where TV stations and others tested radar/lidar/etc and got readings obviously incorrect?

    How about that grove of trees clocked at 45 mph?

    Thank goodness for jury nullification for those who do or can follow that route.

    Not all jurisdictions allow trials for minor matters.

    In California in the early 1980s I requested a “trial” but was limited to a judge to hear me, listen to the cop, then make a decision.

    Open container of beer, supposedly.

    I won. Proved the cop a liar. The cop was lying and was so inept could not even concoct a believable lie.

    After found “not guilty” the crowded court room erupted in applause.

    A wondrous feeling as I flashed the “power sign” in return, the raised clenched fist.

    The cop probably wished he could have arrested me for that, charge? Making a threatening gesture!!!!

    But, even that doofus likely realized that was neither the time nor place to practice “Gestapo Tactics.”

    May I be so humble as to recommend that this link to an article about NEVER EVER talking to police in ANY circumstance be read by the assembled multitude:

    obbop.wordpress.com/2010/05/28/herd-heed/

  • avatar
    Fugue

    “Innocence until guessed guilty”

  • avatar
    res

    “Buy a radar detector.”

    Or show some self control and drive the speed limit (it *is* the law, after all).

    I made that decision 25 years ago after a kind officer wrote me up for only a 75/35 instead of the ~100 I was actually doing (6 points, which maxed me out).

    Haven’t had a speeding ticket (or “warning”) since.

    • 0 avatar
      AJ

      The majority of people that get speeding tickets are not for driving 100 mph in a 35. I’d say it’s more in the 10 to 15 mph range.

      On my way to work, the interstate is kept at 55 mph when 97.9% of drivers (including the cops) drive 65 to 70 mph and it’s certainly not dangerous at these speeds. Part of this interstate includes about a quarter of a mile stretch that cuts through a county where that county uses it for nothing but revenue generation (thanks to a nice turn and a high center wall to hide behind).

  • avatar
    werewolf34

    This is about revenue generation. Cops are out to ticket; judges are under pressure from state govt to allow max ticket collection

  • avatar
    BMWfan

    I suppose this cop could guess my weight too. Even in 1978 when I drove out to California, Ohio was one big speed trap. My Fuzzbuster saved me many times. I’m sure most people know this but when pulled over and asked “do you know how fast you were going?” NEVER reply with a number, just say that you thought you were going with the flow of traffic. If you keep both hands on the top of the wheel when the officer approaches, and are respectful, odds are you will be given a warning.

  • avatar
    Robert Schwartz

    I keep telling you that Ohio is a cop ridden hell hole. Now will you believe me.

    P.S. the case was in Municipal Court, not District Court, which Ohio does not have. The next step up from Municipal Court in Ohio is Common Pleas court.

  • avatar
    frizzlefry

    In Calgary there was a recent article about how the Police were not meeting their expected budgets due to extra overtime pay and that revenue from speeding tickets did not reach their estimated budget.

    Sorry, you can say it’s not a cash cow all you want but if you make ticket revenue part of your budget, you just made it a cash cow by circumstance as people try and meet their budgets, especially in government.

    As far as the officer’s visual estimation being enough…I don’t doubt that, in certain circumstances, it can be quite accurate. Other traffic on road going below the limit may you look like you are speeding or if the estimation is made from in front a car in the distance (on a highway for example) it could be harder to maintain accuracy. No officer is beyond tricks being played on the eye. But, let’s assume that it is dead-on 100% accurate. There is still no defence against it. It’s your word vs the officer. There is no way to contest it or quantify it with evidence. That’s the issue I have with it. And given that speeding tickets are part of budgets and some officers are less than honourable in their application of the law I would be worried. Heck, I got a ticket for pulling a U-Turn at an intersection because the turning lane I was turning from lead to a road that was closed. But no one thought to close the turning lane and you could only see the “road closed” sign once you were in the intersection. So once the turning lane to nowhere got me stuck in the intersection I had two choices. Illegal U-Turn or unsafe lane change in the intersection (I was, at that point, facing oncoming traffic). U-Turn was safest and I got pulled over. I told the cop I thought I could turn there but the road ended up being closed. He said “That’s not my problem”. Would not want that cop to go into court and tell the judge he “eyeballed” me at 20 over.

  • avatar
    shiney2

    This is a terrible terrible ruling. It really doesn’t matter whether some police can “estimate” accurately or not, this ruling is an invitation to abuse authority – and even if most cops have good intentions, it will happen. Beyond the obvious locals vs. out of towners scenario, any policeman angry at some group, like an ex wife or her family, can now harass them with legal impunity.

    I also don’t buy for one second that estimates are going to be consistent and accurate even with training. Cars that look fast will be judged more often and given less leeway, its just human nature. And eyewitnesses, even trained ones, are consistently inaccurate – people that are tired make mistakes, shadows can be deceiving, unconscious bias do exist.

    I used to have an RX-7 that would get pulled over and paced constantly, at the same time I also had a green 70s MB 280S that seemed totally invisable to the police – you could roll by at 20mph over the speed limit and they would never even look up.

  • avatar
    gimmeamanual

    This is nothing new, cops have been estimating speed for years.

    On the other hand, the radar had him at 82, and +20 over could get you a reckless driving ticket in some states.

  • avatar
    boyphenom666

    Aren’t conservatives the ones railing against activist judges who legislate from the bench instead of interpret existing law?

    I haven’t read the opinion, but it seems to me that the Supreme Court was asked to opine whether visual speed estimation is legal under Ohio law. Their answer was yes.

    No cause for alarm here, a question was asked and the Ohio Supreme Court answered it. It is perfectly acceptable for the legislature to change the law, now that the Supreme Court made its determination. That’s the way the system is supposed to work, isn’t it?


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