Fighting Virginia Radar / Lidar Calibration Certificates

If you have a ticket for speeding or reckless driving by speed in Virginia, the officer’s calibration certificate is a critical piece of evidence against you. But what defenses are available? I’ll explain a few.

Transcription

For those visitors who prefer reading, here is a transcription of the video.

Hello, I’m Andrew Flusche. I’m talking to you today about calibration certificates.

In any case where there’s a question of speed, whether you’re charged with speeding or reckless driving by speed, the Commonwealth has to prove that the device they used to measure your speed was calibrated and accurate on the day in question. And they have to prove it was calibrated within the past 6 months. There’s a statute in Virginia that covers that calibration. That’s 46.2-882.

That statute says that the officer has to have a calibration certificate for the device that he used to measure your speed, whether that device was radar, laser gun, or speedometer.

The interesting thing about the statute and defending speed-related cases is that simply seeing a piece of paper that the officer claims is his certificate, that’s not enough. The certificate has to meet the requirements in the statute to actually count to prove that his device was accurate.

The first main one is simply the timing. The calibration on the certificate has to have been done within the past 6 months from the date you were stopped. So if the certificate is older or newer than that, it doesn’t count. You have to look at that 6 month window before the date of the stop and see if the calibration is dated sometime within that window.

The second set of issues is a little more complicated. And it’s dealing with what people might call technicalities, but what I call defenses. They’re your rights under the law. There’s a few we look at. Two main ones to see if the certificate meets the other requirements of the statute, on it’s face.

One main issue that I see a lot of times – that doesn’t always work – but it’s an issue we look at: does the certificate actually identify who did the calibration sufficiently so that we could subpoena that person if we wanted to, if we wanted to ask them about the calibration, since you do have the right to confront the witnesses against you. Now that right is limited in some ways, but it’s important to be able to do that. The statute, 882, says that the calibration certificate needs to show “when and by whom” the calibration was done. Some certificates I’ve seen don’t sufficiently do that.

The second issue is if the piece of paper the officer has actually counts as a certificate. The statute says the certificate needs to be a “certificate” or a “true copy.” If you have a xerox that’s just a xerox of some original somewhere, that wouldn’t count under the statute. There are some ways that you can make copies, but it gets a lot trickier if it’s a copy. There are some arguments we can make that basically that certificate doesn’t meet the requirements of the statute, even if everything else looks good. If it’s just some kind of xerox, that’s just not good enough.

As you can see, the officer waiving a piece of paper at you, saying “here’s my certificate,” that’s just not enough to meet the requirements of the statute. In a lot of cases, the officers do have their certificates in order. But there are sometimes that they’re not. So it makes sense in every case to check the certificate of calibration and make sure that it is in order and meets the requirements of the law.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then I have earned over 600 5-star reviews from happy clients on Google, Yelp, Facebook, and Avvo. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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