Gray v. Commonwealth

446 S.E.2d 480, 18 Va. App. 663, 11 Va. Law Rep. 45, 1994 Va. App. LEXIS 482

• Court: Court of Appeals of Virginia
• Decided: July 19, 1994
• Docket: No. 1570-92-2
• Status: Published

Opinions

Opinion

KOONTZ, J.

Pearl Spears Gray (Gray) appeals her conviction for operating a motor vehicle in excess of the posted speed limit in violation of Code § 46.2-870. Gray was issued a summons by state trooper J.P. Holley (Holley) after Holley’s radar device measured Gray’s vehicle traveling seventy-seven miles per hour in a sixty-five mile per hour speed zone. At trial, the court reduced the offense to traveling seventy-four miles per hour, found Gray guilty of that offense, and assessed a fine of twenty-seven dollars plus court costs. In this appeal, Gray contends that her conviction should be overturned on the ground that the Commonwealth failed in its burden of proving that the radar device used to measure the speed of her vehicle was calibrated properly. We disagree and affirm the conviction.

At trial, Gray conceded that she was traveling above the speed limit, but maintained that she was traveling “with the flow of traffic” between sixty-five and seventy miles per hour, probably “closer to seventy.” Holley testified that he performed multiple tests on the radar device at the beginning of his patrol shift as he was required to do. These tests involve preprogrammed checks of the device’s internal calibrations and field tests of the device using tuning forks both while the patrol vehicle is stationary and while it is moving, and a separate test against the patrol vehicle’s speedometer. Holley testified that the device registered accurately during all of these tests.

Holley further testified that the two tuning forks used to test the radar had been calibrated recently as shown on a certificate verifying their accuracy. Gray objected to the introduction of the calibration certificate on the ground that it was not a true copy of the original. The trial judge, while preserving Gray’s objection, received the certificate “conditionally” into evidence. Without objection, Holley was permitted to testify that the patrol vehicle’s speedometer had been calibrated recently for accuracy and to identify a certificate confirming that calibration. Both certificates were then marked and received into evidence.

Holley then testified that he used the radar device to measure the speed of Gray’s vehicle. Gray objected to the introduction of the evidence of the radar device’s use “just so I preserve [the objection].” The court noted Gray’s objection and allowed Holley to testify. Holley further testified that Gray was upset and told him that she would lose her license if she received another speeding ticket.

At the close of the Commonwealth’s case, Gray moved to strike the evidence, asking the trial court to rule on her objection to the introduction of the tuning fork certificate. She argued that on this ground the Commonwealth had failed to prove the accuracy of the radar device. Gray asserted that Holley was required to perform all the tests and that without proof of the efficacy of the tuning fork test, the accuracy of the radar was inconclusive. The trial judge opined that the speedometer test alone would be enough to assure the accuracy of the radar. The trial judge then stated, “I’m going to take your motion under advisement and your objection is preserved.”

After Gray presented her case, she renewed her motion to strike, restating her objection to the introduction of the tuning fork calibration certificate. The trial judge asked Gray’s counsel whether Code § 46.2-882 required proof of both the tuning fork accuracy and the speedometer accuracy to prove accuracy of the radar device. Counsel conceded that the statute did not expressly require both tests, but added that Holley had testified that he was required to perform both tests. The Commonwealth asserted that Code § 46.2-882 requires proof of accuracy by one method only. The trial judge stated, “I think the speedometer calibration is sufficient to prove the accuracy of the radar” and on that basis found Gray guilty of the offense.

In this appeal, Gray reasserts that pursuant to Code § 46.2-882, the Commonwealth was required to prove the accuracy of both the tuning fork and speedometer tests performed by Holley. She also argues that the lack of a “true copy” of the tuning fork accuracy certificate prevented the Commonwealth from meeting that burden.¹ We disagree.

Code § 46.2-882 provides in pertinent part:

The speed of any motor vehicle may be checked by the use of radar .... The results of such checks shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceeding where the speed of the motor vehicle is at issue.

In any court or legal proceeding in which any question arises about the calibration or accuracy of any radar . . . device as defined in this section used to check the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of the speedometer of any vehicle or of any tuning fork employed in calibrating or testing the device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.

(Emphasis added.)

The statute allows the speed of motor vehicles to be checked by radar. The results of such checks are accepted as prima facie evidence where speed is an issue. Sweeny v. Commonwealth, 211 Va. 668, 670-71, 179 S.E.2d 509, 511-12 (1971). The statute must be strictly construed, id., but we are not required to adopt a curious, narrow or strained construction. Crews v. Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d 1, 3, appeal denied, 360 S.E.2d 715 (Va. 1987). By using the alternative conjunction “or” the legislature clearly intended to provide alternate methods of proving the accuracy of the radar device.

It is well established that the Commonwealth must prove that the radar device “had been properly set up and adjusted” and “must have been recently and accurately tested.” Royals v. Commonwealth, 198 Va. 876, 882, 96 S.E.2d 812, 816 (1957). In Thomas v. City of Norfolk, 207 Va. 12, 147 S.E.2d 727 (1966), the appellant contested whether sufficient evidence in the record proved that the radar device had been recently tested for accuracy. The Supreme Court stated:

While the matter has not heretofore been presented to us it is well recognized in other jurisdictions that evidence of a test of radar equipment by tuning forks in this manner is admissible as tending to prove the accuracy of the equipment.

In the absence of evidence to the contrary in the present case, the trial court accepted, as it had a right to do, the evidence of [tuning fork tests] as adequate proof of the accuracy of the radar set.

Id. at 14, 147 S.E.2d at 728 (citations omitted). Thomas clearly stands for the proposition that testing a radar device by tuning forks alone is sufficient to prove the accuracy of the equipment, a position widely adopted by other jurisdictions. See Myatt v. Commonwealth, 11 Va. App. 163, 171-72, 397 S.E.2d 275, 280-81 (1990) (Cole, J., dissenting). In Myatt, this Court found that insufficient evidence had been entered to support the accuracy of the tuning forks, noting, however, that a subsequent amendment to the statute would have cured the defect. Id. at 167 n.4, 397 S.E.2d at 277 n.4. It stands to reason that if tuning fork tests alone are sufficient to convict, the speedometer test is equally efficacious, a position which again finds support in other jurisdictions. See, e.g., State v. Kincaid, 453 N.W.2d 738, 740 (Neb. 1990).

Judge Benton, in his dissent, asserts that because Holley was required to perform both the tuning fork and speedometer tests prior to placing the radar device into service each day, the Commonwealth was required to prove the efficacy and accuracy of both tests at trial. Although it is true that Holley could not have put the radar device into service had it not passed each of the tests, that fact alone does not raise the subsequent burden of proof placed on the Commonwealth by Code § 46.2-882 when evidence of the radar’s use is introduced at trial. Rather, the requirement of duplicate testing merely suggests that when proof is required in court, the Commonwealth will be able to elect between methods of proof according to the evidence available. Where, as here, the Commonwealth by reason of a technical, rather than factual, defect cannot demonstrate the accuracy of both methods, proof by a single method will suffice.

Accordingly, we hold that it was not error for the trial judge to accept Holley’s testimony that the radar properly registered the speed of her vehicle when tested against the vehicle’s speedometer. We further hold that the certificate of that speedometer’s accuracy constituted prima facie evidence of the accuracy of the speed recorded by the radar when trained on Gray’s vehicle. For these reasons, we affirm Gray’s conviction.

Affirmed.

Elder, J., concurred.

1 While Gray objected to its introduction, the certificate of tuning fork accuracy was received into evidence by the court. Although the trial judge indicated that he would take her objection under advisement, the record before us does not indicate that the objection was ever sustained. Moreover, during closing argument the trial judge stated that both certificates were in evidence. Accordingly, it would have been possible for the trial judge to accept the accuracy of all tests performed by Holley. However, because the admission of the tuning fork certificate is, at best, equivocal, and because the trial judge specifically stated that he was relying solely on the speedometer test, we will address the specifics of Gray’s claim.