Request By:
Honorable Harold Stumbo
District Judge
31st Judicial District
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter to us contains the factual background and the legal question raised for our opinion. It reads:
"Several speeding citations were stricken from the docket in my Court. The County Attorney made a motion to strike on the grounds that the Officer who issued the citations had not been trained in the use of radar. All of the citations were issued due to radar.
"I approved the action of the County Attorney.
"QUESTION: If the County Attorney or one of his Assistants makes a Motion to dismiss or strike a citation due to the above reason, may the Judge of the Court approve his action?"
KRS 431.015 reads:
"(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
"(2) A peace officer may issue a citation instead of making an arrest for a violation committed in his presence but may not make a physical arrest unless there are reasonable grounds to believe that the defendant, if a citation is issued, will not appear at the designated time or unless the offense charged is a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080 or 525.070 committed in his presence.
"(3) If the defendant fails to appear in response to the citation, or if there are reasonable grounds to believe that he will not appear, a complaint may be made before a judge and a warrant shall issue.
"(4) When a physical arrest is made and a citation is issued in relation to the same offense the officer shall mark on the citation, in the place specified for the court appearance date, the word 'ARRESTED' in lieu of the date of court appearance. "
See KRS 431.450 to 431.455, relating to the uniform traffic citation.
The citation is not a court process. It issues from a peace officer, but not from the court. However, the court's jurisdiction attaches when the accused delivers himself to a judge in obedience to the citation or he enters his appearance by other means.
Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961) 400. Once the court's jurisdiction over the person attaches, the charges then, in legal effect, become the charges of the court. See RCr 8.12.
Since the citations issued were all based upon the use of radar, the first question concerns the admissibility of evidence of speed as recorded by a radar device.
Judge Cullen, in Honeycutt v. Commonwealth, Ky., 408 S.W.2d 421 (1966) 422, wrote that the courts will take judicial notice of the fact that a properly constructed and operated radar device is capable of accurately measuring the speed of a motor vehicle. In 7A Am.Jur.2d, Automobiles and Highway Traffic, § 372, page 564, we find this about radar evidence of speed.
"In the absence of any statute to the contrary, evidence as to speed based upon untested radar equipment is not sufficient to sustain a conviction for speeding, although such evidence is sufficient where there is additional corroborative testimony by a qualified and experienced police officer who had adequate opportunity to observe the defendant's motor vehicle as it approached the radar equipment and moved through the radar beam, and who independently formed opinions as to its excessive speed. "
It was also pointed out in Honeycutt v. Commonwealth, above, that the courts will not take judicial notice of the accuracy of the particular instrument employed on a specific occasion, but will treat, as sufficient evidence of accuracy, uncontested testimony that the instrument was tested within a few hours of its specific use, and found to be accurate, by use of a calibrated tuning fork and by a comparison with the speedometer of another vehicle driven through the radar field. In addition, as said in Honeycutt, it is sufficient to qualify the operator of radar that he have such knowledge and training as enable him to properly set up, test, and read the instrument; and it is not required that he understand the scientific principles of radar or be able to explain its internal workings.
Thus central to radar evidence admissibility is that the radar equipment be properly constructed and operated.
State v. Dantonio, N.J., 115 A.2d 35 (1955). To be properly operated means that the operator must necessarily be properly trained in the proper use of such device. Cf.
People v. Maniscalo, 94 Misc 2d 915, 405 N.Y.S.2d 888 (1978). In
Akron v. Gray, 60 Ohio Misc 68, 14 Ohio Ops 3rd 303 (1979), the court observed that a court may judicially notice that a speed measuring device, such as a specified radar unit, is reliable for its intended purpose; however, in each case there must be a further determination that the particular unit was in good operating condition, that the operator was properly qualified in the use of the unit, and that the operator properly read the unit. See also
State v. Tomanelli, Conn., 216 A.2d 625 (1966) 629; and the annotation in 49 ALR2d 469, relating to proof, by means of radar or photographic devices, of violation of speed regulations. See also the later extensive annotation on this subject in 47 ALR3d 822.
CONCLUSION
Here the prosecutor and the court were acutely aware of the fact that the officer, who had issued the citations for speeding, was depending upon radar as the sole basis of alleged unlawful speed. Both the prosecutor and the court were aware of the fact that the officer, who gave the citations, was not trained in the use of radar. If he was not trained in the use of that equipment, then his testimony about the radar device registering a certain speed would have been inadmissible upon trial.
The law does not require the doing of a vain thing. We are of the opinion that your sustaining the motion to dismiss the charge or charges involved in the citations was proper.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. It is further our opinion that the county attorney in moving for dismissal of the charges and the court's granting the motion were, under the factual circumstances, an exercise of their sound discretion. 27 C.J.S., District & Pros. Attys., § 10, p.p. 648-649. In
Workman v. Com., Ky., 580 S.W.2d 206 (1979), the court noted that under RCr 9.64 the attorney for the Commonwealth, with the permission of the court, may dismiss an indictment prior to the submission of the case. The motion of an attorney for the Commonwealth to dismiss an indictment may be granted or denied by the judge in his discretion. The court in Workman said that it is axiomatic that the exercise of such discretion must be reasoned and supported by evidence. The principle involved in the dismissal of an indictment applies equally to the dismissal of misdemeanor charges, since RCr 9.64 includes citations. RCr 9.64 reads:
"The attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness."