796 N.E.2d 89 (Ohio Comm. 2003), 02-TRD-13505, State v. Kincaid

Docket Nº:02-TRD-13505.
Citation:796 N.E.2d 89, 124 Ohio Misc.2d 92, 2003-Ohio-4632
Opinion Judge:LEE W. MCCLELLAND, Judge.
Party Name:The STATE of Ohio v. KINCAID.
Attorney:Jamie D. Campbell, Morrow County Assistant Prosecuting Attorney, for plaintiff. Timothy J. Kincaid, pro se.
Case Date:August 05, 2003
Court:County Court of Ohio
 
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796 N.E.2d 89 (Ohio Comm. 2003)

124 Ohio Misc.2d 92, 2003-Ohio-4632

The STATE of Ohio

v.

KINCAID.

No. 02-TRD-13505.

County Court of Morrow County, Ohio.

August 5, 2003.

Page 90

[Copyrighted Material Omitted]

Page 91

[124 Ohio Misc.2d 94] Jamie D. Campbell, Morrow County Assistant Prosecuting Attorney, for plaintiff.

Timothy J. Kincaid, pro se.

LEE W. McCLELLAND, Judge.

{¶ 1} This matter came before the court for bench trial on February 27, 2003. Present on behalf of the state was assistant prosecuting attorney, Jamie D. Campbell. The defendant, Timothy J. Kincaid, an attorney, was present but not otherwise represented by counsel.

{¶ 2} At approximately 7:48 p.m. on December 24, 2002, Trooper Thompson of the Ohio State Highway Patrol observed the defendant's vehicle southbound on I-71 in Morrow County, Ohio, and made a visual estimation that the defendant [124 Ohio Misc.2d 95] was traveling in excess of the posted prima facie speed limit of 65 m.p.h. This initial estimate was then verified through the use of Trooper Thompson's Marksman 20/20 laser speed-measuring device. Trooper Thompson did four speed checks on defendant's vehicle with his Marksman 20/20 and recorded defendant's speed at 90 m.p.h., 86 m.p.h., 80 m.p.h., and 77 m.p.h. Trooper Thompson then stopped the defendant and issued a citation for speed in violation of R.C. 4511.21(D)(2).

{¶ 3} Trooper Thompson testified that he has eleven months of traffic enforcement experience and is trained and certified in the use of the Marksman 20/20 laser speed-measuring device and that his certificate was current on the date of defendant's citation. This training occurred in a one-week class at the Ohio State Highway Patrol Academy and three months' coach-pupil training. While at the academy, Trooper Thompson also received training on how to estimate visually a vehicle's speed.

{¶ 4} Trooper Thompson further testified that he performed four calibration checks both before and after defendant's arrest, at the beginning and the ending of his shift. These calibration checks included the "self test," "display test," "scope alignment test," and "calibrational tests." At no other time during his shift was the laser checked. During the calibration checks and at all times during his shift, Trooper Thompson found the laser device to be functioning properly. The Trooper further testified that when the laser measured the defendant's speed, there were no nearby sources of interference that could affect its readout. Trooper Thompson went on to testify that he has issued between 300 to 400 citations based on the use of a laser speed-measuring device.

{¶ 5} The court indicated on the record that expert testimony concerning the construction, accuracy, reliability, and method of operation of the LTI 20/20 laser speed-measuring device was received and approved in a prior case for the purpose of Evid.R. 201. While there was no testimony indicating whether the Marksman 20/20 device is the same as the LTI 20/20, there was some indication that the Marksman 20/20 is a newer model or updated version of the LTI 20/20.

{¶ 6} There are two issues raised by defendant's Crim.R. 29 motions to dismiss and two additional issues raised by the facts of this case: (1) Whether the use of a laser speed-measuring device is prohibited by R.C. 4511.091? (2) Whether expert testimony is necessary in each case involving a laser speed-measuring device where a different brand, model, or updated version of an existing brand or model is used to measure speed? (3) Whether the opinion of the court, accepting the expert's testimony concerning the construction, accuracy, reliability, and method of operation of the speed-measuring device, must be "reported" in order for that opinion to be

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"generally known within the territorial jurisdiction of the trial court" and thereafter be the subject of judicial notice within that [124 Ohio Misc.2d 96] jurisdiction? Evid. Rule 201(B)(1). (4) Whether a trained and experienced officer's visual estimation of speed is sufficient to support a finding of guilty for a charge of speed in excess of the prima facie limit?

{¶ 7} The first issue before the court is whether a laser speed-measuring device is an "electrical or mechanical timing device [used] to determine the speed of the motor vehicle over a measured distance" as envisioned in R.C. 4511.091.

{¶ 8} Based upon the prior expert testimony received by this court on the accuracy and reliability of laser technology as a method of measuring speed, the court finds that measuring speed by use of a laser is based upon the principle that speed equals the distance traveled by a vehicle divided...

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