State v. Ellis

• Decision Date: 29 March 1968
• Docket Number: No. MV,MV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Warren L. ELLIS. 7-38216.

Page 71

248 A.2d 71

5 Conn.Cir.Ct. 190

STATE of Connecticut v. Warren L. ELLIS.

No. MV 7-38216.

Circuit Court of Connecticut, Appellate Division.

Argued Jan. 22, 1968.

Decided March 29, 1968.

Thomas C. Gerety, Bridgeport, for appellant (defendant).

Dennis F. Gaffney, Asst. Pros. Atty., for appellee (state).

KINMONTH, Judge.

The defendant was charged with a violation of § 14-219 of the General Statutes. Upon trial to the jury he was found guilty and has appealed, assigning error in the admission of the evidence of a state trooper as to the speed of the defendant's vehicle during the period of a 'clock' when no foundation had been laid to establish the accuracy of the speedometer, and in the denial of the defendant's motion to set aside the verdict.

The facts essential to this appeal may be stated as follows: On February 14, 1967, at approximately 10:30 a.m., on route I-91, the defendant was clocked by a state trooper for one mile at speeds of seventy-two to seventy-four miles per hour in North Haven. The posted speed limit in this area is sixty miles per hour. The defendant objected to the trooper's testimony as to his speedometer reading during the clock on the ground that the accuracy of the speedometer had not been established. The state then attempted to prove that the trooper on February 14, 1967, just prior to the present arrest, had driven his cruiser through radar at speeds of sixty, seventy, and eighty miles per hour. This testimony was stricken when it was determined that the trooper had no personal knowledge of the radar readings nor whether the radar was properly set up. The trooper did testify, without objection, that his speedometer had been tested on July 14, 1966.

The vast majority of cases in this country hold that in the absence of statutory provision there is no presumption that the timing device (speedometer) is accurate and the prosecution must submit evidence from which the jury can find that the device was operating properly and that it had been properly tested within a reasonable time before the date of its use in question. City of Spokane v. Knight, 96 Wash. 403, 405, 165 P. 105; 2 Wharton, Criminal Evidence (12th Ed.) § 669. In the instant case, the only evidence of the testing of the speedometer for accuracy was that it was tested some seven months before the date in question, and this seems an unreasonable time if we consider that it is the state's duty to prove the defendant guilty beyond a reasonable doubt. Of course a defendant may waive his rights if the evidence comes in without objection, as was stated in State v. Tomanelli, 153 Conn. 365, 372, 216 A.2d 625, in regard to tuning forks. See State v. Brezina, 45 N.J.Super. 596, 133 A.2d 366; State v. Dantonio, 18 N.J. 570, 578, 115 A.2d 35, 49 A.L.R.2d 460.

There are cases holding that the reading of an untested speedometer is admissible but is not in itself sufficient to support a conviction for speeding. People v. Dusing, 5...