Visual Speed Estimates

I have been struggling to finish this post for days now. The truth is, I think it is very boring. But since I wrote it I should post it.

Whether you are trying a speeding ticket case or challenging a traffic stop at a suppression hearing, you will have to deal with visual speed estimate testimony. In New York and in many other states, an officer's testimony that he visually estimated a speed is enough to sustain a conviction at trial, or meet the state's burden of proof to prove a lawful traffic stop at a hearing. I often have to explain this fact to prospective clients who are understandably incredulous about this fact. I don't blame them. It's not that I don't believe an officer can accurately visually estimate a vehicle's speed. They can. And they are trained to do so, and must pass a test demonstrating their proficiency. My problem stems from an officer's recent refusal to answer my questions about this particular skill on the stand. I did not believe he was being truthful and the judge let him off the hook by shutting down my cross-examination.

At the recent DWI pre-trial hearing I cross examined a Trooper extensively about his "skill" at estimating speeds. Initially, I objected to the visual estimate coming in as evidence in the state's case for lack of foundation. For non-lawyers, a foundation is evidence that makes other evidence admissible. For example, if a doctor is going to testify about his opinion, he first must establish he is qualified to render one. Or in a DWI case, before evidence of a breath test is admitted, the state must produce documents establishing that a breath test device was working properly. The foundation required for visual estimates to be admitted in evidence is clay and stone at best. All that is required is testimony that the officer was trained and is experienced. They don't have to explain how it is done. Apparently there is no method to it. You just guess until you are good at it. That's it. An educated guess or dead reckoning, as some call it.

At my recent hearing I didn't believe the Trooper when he said he did a visual estimate the night he pulled my client over. It doesn't really matter too much whether he did or did not for my case, but I was really frustrated by his answers to my questions. He didn't indicate anywhere in his paperwork that he did a visual estimate. He refused to admit there is a method of any kind. I always thought it was a matter of dividing a car's travel distance by time. Using an internal clock or timer, you can pick two points a certain distance apart and time how long it takes for the car to traverse the points. It's math after that. I believe that a police officer, in a stationary vehicle on a familiar road, who has a perpendicular view of the road, probably visually estimates speed without thinking to much about it. But what about at night, and from a moving patrol car traveling in the opposite direction of the suspect (as in my case)? Are the police trained to perform visual estimates in these conditions?

To wrap up, I'm really glad I got this silliness out of my system. There are bigger fish to try (i meant fry). This case is heading for trial though and I need to impeach somehow. In hindsight and for future reference, when I deal with a visual estimate issue involving cars at night from a moving patrol car, I will at least argue the police are not trained to do visual estimates under those circumstances.