State v. Primm

• Decision Date: 08 February 1980
• Docket Number: No. 50725,50725
• Citation: 4 Kan.App.2d 314,606 P.2d 112
• Parties: STATE of Kansas, Appellee, v. James F. PRIMM, II, Appellant.
• Court: Kansas Court of Appeals

Page 112

606 P.2d 112

4 Kan.App.2d 314

STATE of Kansas, Appellee, v. James F. PRIMM, II, Appellant.

No. 50725.

Court of Appeals of Kansas.

Feb. 8, 1980.

Syllabus by the Court

1. Judicial notice may be taken of the general reliability of radar mounted in a stationary or moving vehicle to measure the speed of motor vehicles without requiring expert testimony showing the nature and function of or the scientific principles underlying the device.

2. Evidence of speed obtained through the use of radar is admissible into evidence provided a foundation is laid establishing that the particular radar unit used in determining the speed was functioning accurately at the time the evidence was obtained.

3. The accuracy of a particular radar unit can be established by showing that the operator tested the device in accordance with accepted procedures and the unit was functioning properly and that the operator is qualified by training and experience to operate the unit.

4. In a prosecution for speeding, it is Held that the trial court did not err in overruling the defendant's motion for acquittal at the conclusion of the State's evidence.

Marian M. Burns of Burns & Burns, P. A., Lyndon, for appellant.

Michael J. Hines, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This is an appeal from defendant's conviction by a jury of speeding in violation of K.S.A. 8-1336. The defendant was fined $11 and costs.

The sole issue on appeal is whether the trial court erred in denying defendant's motion for acquittal which was made at the conclusion of the State's evidence. Defendant contends the State's case was defective in that no expert testimony was adduced as to the construction or method of operation of the radar utilized.

The sole witness appearing at trial was Highway Patrolman Terry J. Affholder. Trooper Affholder testified that on October 3, 1978, he was proceeding in his patrol car toward defendant's oncoming vehicle in Osage County. The patrol car was equipped with a KR11 radar unit which showed defendant's speed at 66 mph in a 55 mph speed zone. Affholder issued defendant a citation for speeding.

At trial, Affholder conceded he was not an expert with regard to the internal mechanisms of the radar unit, but that he had received training as to the machine and was a certified operator. Affholder explained tests he performed on the machine that were designed to test its accuracy. These tests included internal calibrations and checks with two different tuning forks. Affholder stated he performed these tests prior to his arrest of defendant, that he showed defendant the speed which the machine registered at the time of the arrest, and checked the unit again at the end of his work shift. All tests indicated the radar was functioning properly. He did not verify the speed of his own vehicle by any means other than the internal calibration of the radar machine. Affholder did not give his opinion of the speed of defendant's vehicle based on his visual observation.

At the close of the State's evidence, defendant made a motion for judgment of acquittal. The trial court overruled the motion, taking judicial notice of the reliability of radar generally and finding that no expert testimony was required as to the internal workings and principles involved. The jury found defendant guilty as charged and this appeal resulted.

The question presented here has not been previously addressed by our courts. Cases from other jurisdictions, however, have consistently held that evidence of the accuracy of the radar unit is necessary to sustain a conviction for speeding obtained solely by radar. Evidence of accuracy generally is a Prerequisite to the admissibility of evidence of speed obtained by the use of a radar device. See Everight v. City of Little Rock, 230 Ark. 695, Syl. P 1, 326 S.W.2d 796 (1959); People v. Flaxman, 74 Cal.App.3d Supp. 16, 23-24, 141 Cal.Rptr. 799 (1977); State v. Tomanelli, 153 Conn. 365, 371, 216 A.2d 625 (1966); Honeycutt v. Commonwealth, 408 S.W.2d 421, 422-23 (Ky.1966); Kansas City v. Hill, 442 S.W.2d 89, 91 (Mo.App.1969); Peterson v. State, 163 Neb. 669, Syl. P 3, 80 N.W.2d 688 (1957); State v. Cardone, 146 N.J.Super. 23, 27, 368 A.2d 952 (1976); Hardaway v. State, 202 Tenn. 94, Syl. P 2, 302 S.W.2d 351 (1957); State v. Doria, 135 Vt. 341, 342, 376 A.2d 751 (1977).

The accuracy of a particular radar unit can be established by showing that the officer tested the device in accordance with accepted procedures. People v. Burch, 19 Ill.App.3d 360, 363, 311 N.E.2d 410 (1974). In the present case there was evidence Trooper Affholder had tested the unit's internal calibration devices, and checked the unit before and after defendant's arrest by using two different tuning forks. Additionally, Affholder stated the tuning forks had been checked by the manufacturer in February 1978. Cases have found both tuning forks and internal calibration devices to be acceptable means of proving radar accuracy. See People v. Flaxman, 74 Cal.App.3d Supp. at 23, 141 Cal.Rptr. 799; State v. McDonough, 302 Minn. 468, 470, 225 N.W.2d 259 (1975); Kansas City v. Hill, 442 S.W.2d at 92; People v. Lynch, 61 Misc.2d 117, 120, 304 N.Y.S.2d 985 (1969). We are of the opinion there was sufficient evidence of the radar unit's accuracy at the time of the alleged offense to establish a sufficient foundation to admit the radar reading into evidence.

It is also generally required that proof be offered that the operator of the radar unit is qualified to operate the radar device. The cases agree that the officer need not be an expert in the science or theory underlying the functions of the instrument. See People v. Stankovich, 119 Ill.App.2d 187, 194, 255 N.E.2d 461 (1970); State v. Graham, 322 S.W.2d 188, 196 (Mo.App.1959). In the present case, Trooper Affholder testified he had received several hours of classroom training and field training as to the particular radar unit in question and had used the radar unit for over a year as a highway patrolman. Such evidence was sufficient to establish his qualifications to operate the device.

Defendant's main complaint is that the State should be required to present expert testimony regarding the construction and method of operation of the radar in order to demonstrate that the device can accurately measure speed. The great majority of cases have held that judicial notice may be taken of the general reliability of radar to measure the speed of motor vehicles. See cases cited in Annot., 47 A.L.R.3d 822, § 3. Defendant distinguishes such cases on the basis that they involve use of Stationary radar as opposed to radar mounted on a moving patrol vehicle as was used in this case. Defendant relies heavily on the case of State...