Virginia DUI: I Saw Him Speeding There

Can you be convicted of speeding on the basis of an officer’s estimation of your speed?

In Lewis v. Commonwealth of Virginia, Record No. 1195-12-1 (unpublished), an officer was running his radar gun from his moving police cruiser.  He clocked a driver going 56 mph in a 35 mph zone going the opposite direction.  He turned around, flashed his lights, and tracked down the driver who weaved ever so slightly within his driving lane but otherwise was not driving erratically.  The driver looked drunk, smelled of alcohol, admitted to having one beer and one shot, and failed five field sobriety tests.  The officer arrested him for speeding and driving under the influence of alcohol.

The main issue at trial was whether the officer had reasonable suspicion for the initial traffic stop.  The primary suspicion that led to the initial stop was the radar gun reading, which should have been accepted as prima facie evidence of the driver’s speed.  The problem at trial was that the state failed to introduce into evidence a certificate demonstrating that the radar unit has been properly calibrated per Va. Code § 46.2-882.  The state therefore only had evidence of speeding in the form of the officer’s statements that it looked like he was speeding.  The trial court nevertheless convicted the driver of speeding and driving under the influence.

The driver appealed the decision.  The Virginia Court of Appeals held that the trial court’s decision was not plainly wrong.  It primarily justified the decision with only the following:

“An estimate of the speed at which an automobile was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is accordingly well settled that any person of ordinary experience, ability, and intelligence having the means or opportunity of observation, whether an expert or nonexpert, and without proof of further qualification may express an opinion as to how fast an automobile which came under his observation was going at a particular time. . . . Speed of an automobile is not a matter of exclusive knowledge or skill, but anyone with a knowledge of time and distance is a competent witness to give an estimate; the opportunity and extent of observation goes to the weight of the testimony. Greenway v. Commonwealth, 254 Va. 147, 152, 487 S.E.2d 224, 227 (1997).”