Village of Schaumburg v. Pedersen

• Decision Date: 23 May 1978
• Docket Number: No. 77-1228,77-1228
• Citation: 60 Ill.App.3d 630,377 N.E.2d 252,18 Ill.Dec. 99
• Parties: , 18 Ill.Dec. 99 VILLAGE OF SCHAUMBURG, Plaintiff-Appellee, v. Phillip A. PEDERSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 252

377 N.E.2d 252

60 Ill.App.3d 630, 18 Ill.Dec. 99

VILLAGE OF SCHAUMBURG, Plaintiff-Appellee, v. Phillip A. PEDERSEN, Defendant-Appellant.

No. 77-1228.

Appellate Court of Illinois, First District, Second Division.

May 23, 1978.

Edwin R. McCullough, Chicago, for defendant-appellant.

Jack M. Siegel, Chicago, for plaintiff-appellee.

PERLIN, Justice:

Defendant Phillip A. Pedersen was found guilty of violating a municipal ordinance by driving 62 miles an hour in a 45 mile per hour zone, and he was fined $20 and assessed costs of $5. The issues presented for review are whether the court erred in refusing to let defendant testify as to his opinion concerning the visibility from one car to another on a particular stretch of road; whether the evidence failed to establish the accuracy of the police officer's speedometer used to determine the speed of defendant's car; and whether the finding of guilt was against the manifest weight of the evidence.

At trial, Officer DeGeorge testified that at about 1:30 p. m. on February 10, 1977, while driving a marked squad car, he "paced" defendant, who was driving southbound on Meacham Road, for a three mile distance between Routes 58 and 62. During this time he followed defendant's car at a rate of speed so that the distance between the cars did not fluctuate. The officer stated he kept defendant's car in full view the entire time and determined from his speedometer that defendant was driving at the rate of 62 miles per hour. When asked whether his speedometer was calibrated for accuracy both before and after the pace, he replied, "It was checked after, yes."

Defendant testified he was a salesman who drove his car approximately 18,000 miles per year. He stated that the first time he noticed the officer was about two-tenths miles south of Route 58, but prior to that time there was no squad car visible in his rear view mirror. He had measured the distance between Routes 62 and 58 with the odometers on both of his cars and found it to be one and two-tenths miles rather than three miles. He then produced a map and testified that this exhibit also indicated that the distance was one and two-tenths miles. Defendant stated the fastest he was going was 45 miles per hour and although he looked at his speedometer only occasionally, there were cars moving along at the same rate of speed he was prior to his being stopped.

Defendant first contends the court erred in not letting him testify as to his opinion concerning the visibility from one car to another on the portion of road in question. Defendant contends he was entitled to state his opinion as to what he had observed and that nonexpert opinion testimony is permitted with reference to matters perceived by the senses. Although opinion testimony of this nature is admissible (Lawson v. Belt Ry. Co. (1st Dist. 1975), 34 Ill.App.3d 7, 22-23, 339 N.E.2d 381; State Farm Mutual Automobile Insurance Co. v. Short (5th Dist. 1970), 125 Ill.App.2d 97, 103-106, 260 N.E.2d 415), we do not believe that prohibiting it was prejudicial error. Defendant testified he did not see a police car behind him until shortly before he was stopped, which contradicted the testimony of the officer that he was several car lengths behind defendant for about three minutes. This presented a question of fact to be resolved by the court.

Defendant next contends the evidence fails to establish that the speedometer of the police car was properly tested for accuracy before the arrest. When asked if the speedometer had been calibrated both before and after the arrest, the officer stated, "It was checked after, yes." Defendant argues this testimony was not sufficient to meet Illinois requirements that a timing device be tested before and after use.

The law is clear in Illinois that the results of a radar reading are insufficient to convict for a traffic violation unless there has been sufficient proof of the accuracy of the radar device. It has been repeatedly held that proof of accuracy requires that the device be tested either both before and after the particular use in question (People v. Hiller (2nd Dist. 1974), 23 Ill.App.3d 66, 67-68, 318 N.E.2d 506; People v. Burch (4th Dist. 1974), 19 Ill.App.3d 360, 363, 311 N.E.2d 410; People v. Barbic (2nd Dist. 1969), 105 Ill.App.2d 360, 368-369, 244 N.E.2d 626; People v. Abdallah (1st Dist. 1967), 82 Ill.App.2d 312, 316, 226 N.E.2d 408) or shortly before such use; (People v. Stankovich (2nd Dist. 1970), 119 Ill.App.2d 187, 192-194, 255 N.E.2d 461; People v. Cash (5th Dist. 1968), 103 Ill.App.2d 20, 242 N.E.2d 765. Also see 47 A.L.R.3d 822.) We have found no cases in which the radar device has been tested only after the occurrence in question.

The law is not clear, however, with respect to requisite proof for the accuracy of speedometers (21 A.L.R.2d 1200, 1202), although in People v. Fair (1st Dist. 1965), 61 Ill.App.2d 360, 210 N.E.2d 593, the court stated in dicta that the State was not required to assume the burden of proving the accuracy of a speedometer beyond a reasonable doubt. Courts in some jurisdictions have required evidence that the officer's speedometer had been tested within a reasonable time prior to the time when defendant was alleged to be speeding (Government of Virgin Islands v. Rodriguez (D.St. Croix 1969), 300 F.Supp. 909; State v. Ellis (1968), 5 Conn.Cir. 190, 248 A.2d 71; People v. Skupien (1962), 33 Misc.2d 908, 227 N.Y.S.2d 165; People v. Heyser (1957) 2...