State v. Finkle

• Decision Date: 06 May 1974
• Citation: 128 N.J.Super. 199,319 A.2d 733
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Harold FINKLE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 199

128 N.J.Super. 199

319 A.2d 733

STATE of New Jersey, Plaintiff-Respondent, v. Harold FINKLE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 4, 1974.

Decided May 6, 1974.

Morgan E. Thomas, Atlantic City, for defendant-appellant.

Robert A. Rubenfeld, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney, George F. Kugler, Jr., former Atty. Gen.).

Before Judges CONFORD, HANDLER and MEANOR.

The opinion of the court was delivered by

CONFORD, P.J.A.D.

Defendant challenges his conviction of driving 75.3 miles an hour in a 55 m.p.h. zone on U.S. Rt. 322 on May 5, 1973, primarily on the ground that the evidence of his guilt rests solely on a reading of his speed by a VASCAR device operated by a state trooper. The contention is that expert testimony as to the reliability of the device, which was not here presented before the trial tribunals, is an essential prerequisite for the admissibility of such evidence. The State takes the position that the scientific reliability of the device is a proper subject of judicial notice and that both the accuracy of the instrument used and the qualifications of the trooper who employed it were fully established by evidence adduced at the trial before the Municipal Court of Folsom Borough. The conviction in that court was affirmed in a trial De novo on the municipal court transcript before the Atlantic County Court.

The general reliability of the VASCAR device was held to have been established by expert proof by the Somerset County Court in State v. Schmiede, 118 N.J.Super. 576, 289 A.2d 281 (Cty.Ct.1972), where a conviction for a speeding offense proved by a VASCAR reading was affirmed. We arrived at the same conclusion, also by reason of the adduction of expert proof on the subject before the trial court, in State v. Salup, which is being decided simultaneously herewith. 128 N.J.Super. 209, 319 A.2d 739. There is no reported New Jersey case in which a conviction based on VASCAR-derived evidence has been reversed, or where VASCAR readings have been rejected as evidence, on account of the unreliability of the device. ¹ The substantial question before us on this appeal is whether sufficient indication of the general reliability of VASCAR is not now available to warrant the court's taking judicial notice thereof so as to dispense with the necessity in each of the scores (if not hundreds) of prosecutions annually based on use of the instrument of submitting expert proof to establish such reliability.

An understanding of the evidence in the present case and of our conclusions as to judicial notice require a description of the VASCAR device and of how it functions. The account which follows is derived from the record in State v. Salup, Supra, the opinion in State v. Schmiede, Supra, the testimony herein and documents hereinafter mentioned supplied the court by the State. The principles underlying VASCAR are simple. The apparatus is mounted in and powered by the battery of a motor vehicle. As the operator opens and closes a distance switch it measures the distance traversed by the vehicle during the interim and simultaneously feeds that information into a computer module. The distance is measured by an odometer module which is linked with the speedometer cable of the control car, but the measurement is not affected by the accuracy of the speedometer. The VASCAR unit also measures the period of time elapsing between the opening and closing by the operator of a time switch, and simultaneously feeds that information into the computer module. The switches can be opened and closed, as between distance and time, in any order. When both pieces of information (distance and time) have been stored in the computer there is within a second a computation by the computer module of the speed of a target vehicle, in terms of miles per hour to the nearest one-tenth of a mile, represented by the ratio of the inputs of distance to time as fed into the computer. This figure is flashed to a screen on the apparatus visible to the operator.

The method of use of VASCAR by a police officer in detecting the speed of a target vehicle depends upon whether the clocking car is following the target car, is being followed by it, the cars are approachaing each other from opposite directions, or the clocking car is parked alongside the highway while the target car passes by. VASCAR can be used in any of these situations. When both clocking and target vehicles are in motion during the maneuver the technique is as follows. The operator notes the moment when the target car passes a particular reference point, E.g., a bridge, signpost, tree, etc. To avoid problems of depth perception the shadow cast by the object is ordinarily used. At that moment the operator turns on the VASCAR time switch. When the target car passes a second reference point the time switch is turned off. The operator activates the distance measurement by turning the distance switch on and off as the clocking car passes the same two reference points.

When the clocking car is stationary, as in the instant case, it is necessary that the reference points be predetermined and that the clocking vehicle travel the course in advance, thus locking the distance traversed into the computer module before the time measurement is made. That measurement is made as the target vehicle passes from one of the reference points to the other within the observation of the operator.

Either the time or distance factor may be separately erased from the computer by depressing the appropriate button. Thus a parked police vehicle can check the speed of a succession of passing target cars with only a single distance input.

A more detailed description of the technical features of the VASCAR operation, derived from the expert testimony adduced in that case, is to be found in Judge Meredith's opinion in State v. Schmiede, Supra (118 N.J.Super. at 578--579, 289 A.2d 281).

The State's witness in the present case was Trooper Leach. His observation of the defendant's car was from a parked position in a diner driveway adjoining the eastbound lanes of U.S. Rt. 322. The observation took place at 8:30 p.m. on May 5, 1973. At 10:05 a.m. that day the trooper had calibrated the VASCAR unit in the following manner. Using a stop-watch, itself checked for accuracy by radio time, he fed 30 seconds of time into the unit and also a premeasured half-mile of distance, deriving a reading of 59.8 m.p.h. as against an accurate 60. On feeding 20 seconds of time into the unit (with the same distance input), he derived a reading of 89.8 m.p.h. as against an accurate 90. He adjusted the mechanism by turning a screw, thereby yielding perfect readings of 60 and 90 m.p.h. At 11:20 p.m. the same day another calibration check of the unit in the same manner again produced perfect readings without the need for adjustment.

Prior to taking his VASCAR reading on defendant's vehicle Trooper Leach had fed into the unit the distance on the highway between the driveway where he parked his car for the check and the shadow of the overpass by which State Highway 54 crosses U.S. Rt. 322, some distance westerly of the driveway. He parked at a point where he had a clear view of both the overpass and the highway in front of the driveway. As defendant's vehicle, traveling in the westbound lane, passed the trooper's position, he turned on the time switch and turned it off when the vehicle 'hit the shadow' of the overpass. It was dusk, and the shadow was visible although the sun had already set. The unit showed a reading of 75.3 m.p.h. Thereupon the troooper overtook defendant, showed him the reading on the unit and issued him a summons for driving 75.3 m.p.h. in a 55 mile zone.

Trooper Leach testified that he had 25 hours of instruction and practice with the VASCAR unit and had passed the necessary tests before being certified as a qualified operator of the apparatus by the Superintendent of the State Police in January 1973.

Defendant on cross-examination sought to impair the trooper's credibility by showing that the hour of the test was too late in the day to permit any discernible shadow from the overpass. He also implied that the difference between the time when the measured course distance was fed into the computer and that of the speed check was such as to render use of the distance factor unreliable. He testified that he could not have been driving at 75.3 m.p.h. because he customarily exercised great care to drive slowly on account of a serious heart condition; that when he noticed the lights of the police car behind him he was going 'slightly over' 55 m.p.h. in congested traffic, and that he told the trooper when stopped that if the latter had told him he was going 60 m.p.h. '(he) would believe him,' but for the trooper to tell him his speed was 75 m.p.h. he would 'have to be crazy.'

It should be noted that the issue before us is not whether the proofs justify a trial finding of defendant's speed at 75.3 m.p.h. but rather whether they support an adjudication that defendant beyond a reasonable doubt was proceeding at a rate in excess of 55 m.p.h.--the lawful limit. State v. Dantonio, 18 N.J. 570, 581, 115 A.2d 35 (1955).

The municipal court judge found the defendant guilty of driving 75.3 m.p.h. in a 55 m.p.h. zone. He gave credence to the trooper's testimony that there was a shadow from the overpass on the road, notwithstanding the sum had set at 7:58 p.m. He had previously overruled the objection of absence of expert proof as to the 'scientific accuracy' of VASCAR on the basis of his own previous instruction concerning the instrument by the New Jersey State Police and by his study of the manufacturer's detailed manual. The County Court judge, in also finding, without the need for expert proof as to the reliability of the device, that defendant drove at 75.3 m.p.h., was of the opinion that VASCAR did not involve 'a new...