How to Leverage a Calibration Certificate Issue

I’ve talked and written a lot about calibration certificates. It’s one of the main defenses in a reckless driving by speed or speeding case in Virginia.

The next question is: how do we actually leverage a problem? Let’s say that I found an issue with a tuning fork, radar, or lidar calibration certificate. What do I do then? The answer varies depending on the facts of the case, and this is one reason why having an attorney is vital. If there is an issue, an attorney will find it and figure out the best way to use it in your defense.

If the calibration certificate problem is something that can’t be corrected by the officer, then that issue should be leveraged into a dismissal. If the certificate problem is not fixable, then the case should most likely be dismissed. Many officers will recognize these problems immediately and most of them will agree to drop the case. We call that nolle pros in Virginia, which means decline the prosecution.

Sometimes the officer won’t agree to just drop the case and we’ll have to enter a not guilty plea. Then we would argue to the judge that there’s a problem with the certificate. In those kinds of cases most judges will see that there’s a problem and dismiss the case.

The real subtlety arises when the calibration issue could be corrected by the officer if he had time. This typically happens when the officer simply doesn’t have the correct certificate with him, but he claims that he has it at the office, in his cruiser, or someplace else. Sometimes they just forget the correct certificate and are caught off guard at court. To leverage that kind of problem, it does take a little bit of navigating the court system. If the officer goes up to the judge and mentions his problem and asks for a continuance, in many cases the judge will simply grant a new court date, especially if the officer has not had a continuance previously. If a continuance is going to result in the officer having his calibration certificate and proving his case, then perhaps that’s a case where a plea bargain of some type might be in order.

This where an attorney is incredibly valuable. I would discuss the calibration issue with the officer and say something to the effect of, “Look officer, how about we just resolve this today as a lesser offense?” That way the officer doesn’t have to go to the trouble of tracking down some other paperwork. And then your case is not at risk of being found guilty of the higher offense when the officer comes back next time with his paperwork.

This is one example of how we leverage a calibration certificate issue in our defense. There are lots of other issues that come up much more complicated than this, but as you can see, there are two basic scenarios. If it’s a non-fixable problem, a lot of times we’ll try to make the case be dismissed and it should be. If it’s a fixable problem by the officer, then it’s a much more subtle case that we have to work out to get the best possible result for your case.

Photo by: ~Jetta Girl~

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, and Facebook. 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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