In Virginia traffic cases where speeding is alleged, such as in Virginia Reckless Driving by speed cases, a traffic defense attorney should review the police officer’s or trooper’s calibration certificate evidence. (State Bar Required disclaimer: NOTE THAT CASE RESULTS DEPEND UPON A VARIETY OF FACTORS THAT ARE UNIQUE TO EACH CASE. PREVIOUS RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN A FUTURE CASE THAT I UNDERTAKE.) My client had her reckless driving by speed charge for 98 mph in a 60 mph zone dismissed because Section 46.2-882 of the Virginia Code requires that “No calibration or testing of such device shall be valid for longer than six months.”
Certificate errors can be determinative in the outcome of a case if a traffic defense attorney can point out any deficiencies in the certificate. The most common error is where an officer has a calibration certificate but the date of the certification is just slightly outside of the 6 month window from the date of the traffic stop. Judges will strike the officer’s testimony concerning a defendant’s speed if a proper motion to strike the evidence is made.
I normally do not make an officer introduce his certificate and take up the judge’s time if the officer has his certificate in order. Judges do not mind if you have a legitimate concern, but they appreciate if you do not waste the court’s time if it is something you can research beforehand. This is why I normally arrive early to court to ask the officer to review his certificate, whether it is a calibration certificate for RADAR, LIDAR, or his own speedometer if he did a pace.
My friend Andrew Flusche, a traffic defense attorney in Fredericksburg and Spotsylvania, notes that an officer’s certificates must be the original certificate with a signature or a “true copy” as defined by Virginia Code 8.01-390 or 8.01-391. Andrew explains: “Basically, it needs some type of certification and signature to confirm that it really is a correct copy of the original.” A xerox copy is not sufficient!
As you can see, while an officer with a piece of paper that specifies it is a calibration certificate may seem intimidating, the fact that he has a piece of paper is not enough. I am on the lookout for these issues when I review an officer’s calibration certificate to make sure any evidence presented is adjudged accurate and in compliance with the law.
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