State v. Albers
| Decision Date | 02 October 1973 |
| Docket Number | No. 453,453 |
| Citation | 211 N.W.2d 524 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Henry ALBERS, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. In the absence of legislation to the contrary, the accuracy of a speed detection device must be proved to the satisfaction of the trier of the facts, but if the evidence of speed as recorded by a speed detection device is admitted without objection as to the accuracy and testing of that device, then such evidence stands admitted and unimpeached and may be used to convict for speeding.
2. The proper time to object to the introduction of evidence is when the evidence is offered, or when a question is asked which is in itself improper or calls for an improper answer.
3. As a general rule, an assignment of error in the admission of evidence will not be reviewed by this court unless proper and timely objection is made to the admissibility thereof, and the admissibility of such evidence cannot be challenged for the first time upon appeal.
Thompson, Lundberg & Nodland, Bismarck, for defendant and appellant.
Allen I. Olson, Atty. Gen., and Thomas F. Kelsch, State's Atty., Bismarck, for plaintiff and appellee.
On October 21, 1972, the defendant, Henry Albers (hereinafter Albers) was traveling east on Interstate Highway 94 between Bismarck and Sterling. Albers was observed by State Highway Patrolman Erwin Kobs, who was flying an airplane 700 feet above the road upon which Albers was driving. Patrolman Kobs timed Albers' car as it passed between markings on the highway, which markings are one mile apart. Patrolman Kobs used a stopwatch to time Albers' car and took two readings, one of 38.3 seconds and one of 38.7 seconds. As is the custom of the Highway Patrol in this kind of speed timing, Patrolman Kobs used the higher figure to compute Albers' speed. Albers' speed was computed to be 93 miles per hour, and the posted daytime speed on I--94 is 75 miles per hour.
Patrolman Kobs radioed his clocking of Albers' speed to State Highway Patrolman Matt Erhardt, who was in a patrol car on I--94 in that vicinity. When Patrolman Erhardt approached Albers' car on the highway, Patrolman Kobs told Erhardt by radio that Erhardt was pursuing the right car. Patrolman Erhardt signaled Albers to stop his car and then issued a citation to Albers for speeding.
On March 19, 1973, Albers appeared in the Burleigh County Court of Increased Jurisdiction for trial. On April 27, 1973, that court issued its judgment of conviction for speeding and fined Albers $15.
Albers is appealing his conviction and claims that despite the fact that he did not object to the admission of the stopwatch readings at trial, the readings should not have been admitted nor considered sufficient to convict him unless the State first had proved the accuracy of the stopwatch.
The State, on the other hand, maintains that unless the admission of the stopwatch readings are objected to during the trial on the basis of improper foundation for not showing the accuracy of the stopwatch, the stopwatch readings are before the court as unimpeached evidence usable to convict.
Albers' contention is based on a line of New York cases which hold that radar and speedometer evidence is admissible without proof of accuracy,...
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