City of Ballwin v. Collins, 36692

• Decision Date: 24 February 1976
• Docket Number: No. 36692,36692
• Citation: 534 S.W.2d 280
• Parties: CITY OF BALLWIN, Respondent, v. James S. COLLINS, II, Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 280

534 S.W.2d 280

CITY OF BALLWIN, Respondent, v. James S. COLLINS, II, Appellant.

No. 36692.

Missouri Court of Appeals, St. Louis District, Division Two.

Feb. 24, 1976.

James S. Collins, II, pro se.

G. Richard Fox, Ballwin, for respondent.

CLEMENS, Presiding Judge.

The City of Ballwin charged defendant with speeding, driving 50 miles per hour in a 40 miles per hour zone. On defendant's appeal to the Circuit Court, he was found guilty and fined $10 and costs. On this appeal, defendant challenges the evidence concerning a radar gun used to determine his speed, contending it was inadmissible since the radar gun's accuracy was not shown by first establishing the accuracy of any of the devices used to test the radar gun.

Officer Townsend testified he used the radar gun after letting it warm up for three or four seconds before testing it. He stated he tested the machine by means of its 'internal calibration equipment,' not described in the record. The officer then tested the radar with a tuning fork. Following that he had Officer Kirk drive a car through the radar gun's range. In the officers' opinion, all three tests indicated the radar gun was operating accurately, but there was no showing of accuracy of any of the three 'measuring devices' used to check the radar gun.

We endorse the statement in State v. Graham, 322 S.W.2d 188(18) (Mo.App.1959), that the value of any test of radar speedmeter depends upon the accuracy of the measuring device against which it is checked. We also share the opinion in City of St. Louis v. Boecker, 370 S.W.2d 731(3) (Mo.App.1963) that the particular measuring device must itself be shown accurate before the radar evidence is admissible. Here, Officer Townsend made what plaintiff contends were three different tests of the radar's accuracy. However, not one of the three tests--the internal calibration equipment, the tuning fork or Officer Kirk's patrol car speedometer--was itself tested for accuracy.

The conclusions to be drawn from the three radar speeding cases in Missouri, State v. Graham, supra, City of St. Louis v. Boecker, supra, and Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.1969), are that the accuracy of a measuring device must be sufficiently shown before the radar reading is considered accurate. Kansas City v. Hill, supra, requires the existence of a dual test before a court can accept radar speedmeter evidence.

Here there is only one test of the radar device's accuracy in evidence. The tuning fork, when struck in front of the radar gun, caused the device to register 65 miles per hour but the accuracy of the tuning fork was not shown. There would have to be a second test before the trial court could accept the accuracy of the radar gun. We do not find a second test in the record.

Although it is stipulated the internal calibration equipment...