Tag Archives: lidar

Defences to a Lidar speeding fine

Speeding fines based on Lidar or radar readings are difficult to defend, but not impossible, says NSW traffic and criminal law specialist Chris Kalpage.

The Ducati-riding solicitor has previously provided our readers with tips on what to do when pulled over by police and defences to speeding fines based on a police officer’s estimate or “check speed”.

Check out his tips on defending a Lidar or radar speeding fine:

Chris Kalpage evidence pulled lidar
Chris on his Ducati at the track

Lidar readings

Lidar speed readings are potentially more accurate than “check speeds” and police estimates which were covered in my previous article.

So they need more careful analysis prior to any court hearing.

“LIDAR” stands for Light Detection and Ranging which means it uses pulsed lasers of light.

Police aim the hand-held Lidar device at an object and a laser beam of light bounces back and forth to measure changes in the distance over time.

It is the most accurate form of speed assessment.

Radar devices work the same way, but use radio waves instead of light.

Calibration

However, like any measuring instrument, these can be compromised depending on calibration and manner of use.

Failure to produce a S137 Road Transport Act certificate at a hearing could call into question the reading obtained.

We also consider whether the device has been properly calibrated. The prosecution would have to produce a certificate signed by the police officer at the start and end of their shift certifying the device was tested over a measured prescribed distance of 25m and 50m.

Each Lidar has a prolaser testing book, which is completed and signed off when the tests are done.

Lidar use

LIDAR Low speed threshold a danger hidden demons lidar
LIDAR is used around the world

We also consider the use of the Lidar on a motorist.

  • Was there a clear line of sight for the officer during the duration of the test?
  • Was the required three-second observation and testing likely, based on available distance for the test and the alleged speed? For example if the maximum sighting distance from the officer is 30m and you are meant to be travelling at 30m/second they only have one second to conduct the test which is insufficient time.
  • Was there excessive movement of the unit?
  • Is there the potential for the laser to be reflected back from another surface?

Radar devices

If the radar device uses a Doppler beam, we again consider calibration.

However, there are other contentious issues with a Doppler beam as they are much wider than a Lidar beam.

The old Silver Eagle Radar used to have a beam of about 20x20m for every hundred metres of projection.

This creates confusion over which vehicle provided the speed reading.

I have run cases where a small vehicle such as a motorcycle was traveling in front of a speeding four-wheel drive and may not be the vehicle giving the speed reading.

Police always argue that if there are multiple vehicles in the beam then an error reading should show on the device but that is subject to question and scientific challenge.

We also consider whether there were multiple vehicles in the beam and whether there were many vehicles of a similar size. This raises the question of identity of the offending vehicle.

Use of mobile radars in areas where traffic isn’t sparse raises the issue of target identification.

Use guidelines

LIDAR radar speed gun pulled
LIDAR radar speed gun

Guidelines for the use of Lidar and radar have previously contained prohibitions such as at the bottom of a hill or within 50m of a change in speed zone sign.

Those restrictions on police have now been considerably eased in many jurisdictions, despite public criticism.

However that information may be relevant in a defence or in a plea of guilty.

Also, keep in mind that both these devices can be used in approaching or receding mode, which means they can hide in the bushes and activate the device once you have gone past them and shoot you from behind.

When defending these cases, especially the Lidar, some magistrates wish to have scientific evidence from the defence supporting the basis of the challenge to the instrument.

Disclaimer

This article is for reader information and interest only and is based on New South Wales law. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice.

Please be aware that every case is different and the matters raised may not be of specific relevance to your situation but may have a general application. You must seek specific advice tailored to your circumstances. Chris is happy to talk to anyone needing clarification. He can bet contacted on 0418 211074.

Source: MotorbikeWriter.com

Tips when pulled over for speeding

Motorists sometimes inadvertently convict themselves for speeding when they are pulled over by the police, says NSW traffic solicitor Chris Kalpage.

We have previously offered tips on what to do if pulled over by the police as well as tips from the police themselves!

Now, Chris has offered the following tips on what to do when pulled over specifically by NSW police for speeding, although the lessons are generally applicable around the world.

Chris Kalpage evidence pulled
Chris Kalpage on his Ducati

Recorded

If you are pulled over by a NSW highway patrol vehicle, the conversation is being recorded on both audio and video.

Even if it is not a highway patrol vehicle, the officer will make notes on your responses.

Often people are nervous and say things. It is sometimes safer not to make any admissions, especially if you do not have all the facts.

Even then, be wary of making admissions as they may seriously compromise your potential defence.

For example, where exactly do they say they observed you speeding and how did they assess your speed?

It can be the case that where you were alleged to be speeding is not where you have been pulled over by police. You may not have been speeding at the point they say you were.

In one case I defended, the in-car video clearly showed the bike passed the unmarked police car travelling in the opposite direction some 15km from where the rider was eventually pulled up. The rider obviously had no idea what the officer was talking about. 

Identity crisis

If a police officer comes knocking on your door accusing you of failing to stop, there are clearly issues about the potential identity of the rider, etc.

In another situation on the Wisemans Ferry, a Ducati 748R rider went past a police four-wheel-drive and they accused my client some days later.

We successfully defended the case over the accuracy of the police recording of the bike rego number and whether it was his bike at the scene.

You generally don’t know all the facts on the side of the road so why step on a potential landmine?

Assessing speed

LIDAR radar speed gun pulled
LIDAR radar speed gun

Generally there are four methods police use to assess speed, excluding fixed and mobile speed cameras. They are listed here in descending order of accuracy:

  1. The Lidar, which is a gun-like object which projects a laser beam and is aimed by the officer at an alleged specific target;
  2. The in-car radar which is a radar attached to the police car and uses a Doppler beam;
  3. Check speed which is a police officer following you and assessing your speed by using the car’s digital speedometer. It essentially shows their speed which may not be yours; and
  4. Police officer’s estimate, which has no objective measurement of speed.

Often the police will use one of the first three methods, combined with their estimate. 

Things to consider on the roadsideRider pulled over by police licence checks

If you have the presence of mind, ask the officer where specifically you are alleged to have been speeding and how they assessed your speed.

It is beneficial for you to take photographs of where the incident is meant to have taken place. If you have the capacity on your GPS or phone, record the exact longitude and latitude.

On country roads it may be difficult to pinpoint the exact location weeks later when you decide you want to challenge the allegation.

If the police officer was stationary when they alleged they observed you speeding, try to observe from that vantage point.

That will provide you with the officer’s visibility of your approaching vehicle and their maximum sighting distance.

Again, take photographs from that vantage point. Take notice of anything that may have obstructed the officer’s vision in tracking your vehicle.

Try to assess the distance you travelled from when the officer first observed you to when they started their test. This distance will depend on your alleged speed. Consider the following:

  1. What is the maximum sighting distance the officer had from where they were standing or where their vehicle was parked;
  2. From the maximum distance, how far had you travelled when the officer finished their test? Often we roughly work that out from when they step out on to the road or when they turn their lights on if facing you or if you get shown the reading on the Lidar; and
  3. If they are mobile, we use either when they turn their lights on as they are approaching or, at the worst, the “crossover point”. That is the point at which they go past you and are no longer getting a reading from your vehicle.

Disclaimer

Chris Kalpage evidence pulled
Chris Kalpage

This article is for your information and interest only. It is based on New South Wales law only. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters raised may not be of specific relevance to your situation but may have a general application. Seek specific advice tailored to your circumstances.

Chris can be contacted via email (mailto:kalpage@aol.comor phone 0418211074.

Source: MotorbikeWriter.com

Cops withdraw Lidar speed gun fines

South Australia Police is temporarily suspending use of the Lidar speed gun and withdrawing 150 speeding fines after three court decisions found police can misuse the handheld guns.

The three defendants charged with speeding detected by police on Lidar guns had their fines overturned.

Now, SAPOL is temporarily withdrawing Lidar guns until legislation is amended to resolve the legal issues with regard to the evidentiary certificates.

They are also withdrawing 125 speeding fine prosecutions.

South Australian Ride to Review spokesman Tim Kelly says anyone who copped a Lidar speed fine and has not yet paid should apply for a review.

Contact lidarenquiries@police.sa.gov.au or write to SAPOL addressing the request to Expiation Notice Branch, GPO Box 2029, Adelaide, SA 5001.

Impact for other states?

While the judgments were delivered in the South Australian Supreme Court, they could have an impact for all states and territories if the calibration of the guns is questioned.

However, there is no movement yet by other states to withdraw Lidar guns.

The three decisions were all based on an argument put forward by lawyer Karen Stanley of Stanley Law. Her full statement on the judgments is included in full at the end of this article.

LIDAR radar speed gun
Karen Stanley

The judgments are based on a previous case run by Ms Stanley in 2016 case where speeding charges were thrown out because of the police calibration methods for the LIDAR hand-held speed gun. In one of the three recent cases, a motorcyclist was recorded riding 126km/h in a 60 zone in Adelaide.

“My attack was to the certificates that prosecution uses to prove that the guns were accurate,” Karen says.

Lidar gun ‘not at fault’

LIDAR Low speed threshold a danger hidden demons lidar
LIDAR is used around the world

She points out that the Lidar guns are not necessarily inaccurate or unreliable, but that the police method of calibration, and the way police certify their accuracy, is at fault.

Whether the judgments will apply across all states and territories will depend on the wording of the certificates and what the law says, she says.

“However, I expect that the broad principles His Honour addressed in the substantive case of Police v Hanton, will apply in all states,” she says.

The Crown may appeal against the judgments so until that time has lapsed, it would not be appropriate to draw conclusions about the future of speeding charges from these judgments” Reviewing methods

Justice David Peek criticised South Australian Police for failing to change their testing system since the 2016 verdict.

He wrote that police appeared willing to “accept the odd setback in terms of a not-guilty trial because the cost of that is less than fixing the system”.

There is no word yet from government on changes to legislation to allow police to start using the guns again.

Meanwhile, SAPOL say they will continue to use other “well-established speed detection options” such as hand-held radar devices and fixed and mobile speed cameras.LIDAR radar speed gun

Stanley Law statement regarding South Australian Supreme Court Judgments

  • POLICE v HANTON [2018] SASC 96
  • POLICE v MILLER [2018] SASC 97
  • POLICE V HENDERSON [2018] SASC 98

On Thursday 19 July 2018, the South Australian Supreme Court published three significant judgments about the use of hand held LIDAR speed guns to detect vehicle speeds. These cases all relied on the argument successfully raised in Police v Butcher, a 2016 Supreme Court decision that resulted in speeding charges against the defendant being dismissed. While the individual cases are complex, the unifying issue in each was the reliance by prosecution on a certificate to prove the accuracy of the speed guns used to detect the speed of the defendants’ vehicles. Justice Peek found that the certificate relied on by the prosecution was not capable of proving the accuracy of the speed gun to within the margin of error stated in the certificate.

To be clear; the Supreme Court did not say that the speed guns were inaccurate. Rather, the Court found that prosecution could not prove that the devices were accurate by relying on the certificate. Speculation on social media that the judgments have “proved” that speed guns are inaccurate and unreliable, is incorrect.

There is always a presumption of innocence and prosecution must prove, beyond reasonable doubt, that the offence was committed. One of the things that prosecution need to prove for speeding charges is that the device used to detect the vehicle is accurate. It would be cost prohibitive for prosecution to prove the technology behind the speed devices in every case. This would require experts to give evidence at every trial on how the devices work. To simplify this, the law in Australia allows the prosecution to rely on certificates, signed by a senior police officer, that certify the accuracy of the speed gun used. That certificate then becomes proof of the accuracy of the speed gun and the onus then switches to the defendant to provide “proof to the contrary” of what is certified.

While it may appear that this shifting of the evidentiary burden means that in speeding cases the defendant has to prove that they are not guilty, in actual fact, this only occurs once prosecution have proved that the device is accurate. It’s the certificate that prosecution relies on to prove this. The burden of proof only switches to the defendant once there is proof of the accuracy of the device.

The argument in the 2016 case, and in each of the three judgments handed down last week, was that the prosecution could not rely on the certificate because prosecution could not prove that the gun was accurate to the extent certified in the certificate, ie, within a margin of +2/-3kph. Without the certificate, there was no evidence of the accuracy of the device and therefore prosecution could not prove the speed of the vehicle. This is why the alleged speed of the defendant was irrelevant. For these purposes it does not matter whether the alleged speed was 5kph over the speed limit or 100kph over the speed limit.radar police speed camera demerit hidden lidar

Speed guns are required to be calibrated every 12 months in accordance with the Australian Standards. This involves an extensive process of testing the gun in a simulator. When a speed gun is calibrated, a report is issued which states that the gun is accurate to within a specific margin of error.

In addition, police are required to perform a number of daily tests, as prescribed by the manufacturer. These tests are recorded as pass/fail. The law requires that these tests are performed on the day that the device is used. The results of these tests are then used when producing the certificate.

In each of judgments published in July 2018 Justice Peek held that prosecution could not rely on the certificate because the daily testing by police doesn’t show that the devices are accurate to within +2/-3kph. The finding in each of these cases is the defendant did not need to prove that the device was inaccurate, but only that the daily testing done by police didn’t prove that the device was accurate to the extent claimed in the certificate. Without the certificate the prosecution was unable to prove the speed of the vehicles.

In addition, Justice Peek made a number of criticisms of the current testing regime of speed detection devices, and the circumstances under which the certificates are issued. Justice Peek further expressed concern that despite warnings in 2016 (Butcher) and 2017 (Henderson), the prosecution of speeding charges has continued without addressing the issues raised in the earlier cases.

SAPOL has issued a statement confirming that they are assessing the judgments “to fully comprehend if changes need to occur”. These judgments make it abundantly clear that changes need to occur. While SAPOL and prosecution continue to prosecute speeding charges in the manner they have to date, defendants will continue to have speeding charges dismissed. The argument first raised in Police v Butcher is clearly not a “one-off” as stated at the time.

The judgments handed down last week are lengthy and complex and will require further analysis in order to determine what ramifications these judgments have beyond the individual cases, although it is already clear that the broader implications are significant.

There is some commentary on social media about what impact these judgments will have on expiation notices issued since SAPOL was first put on notice about problems with relying on the certificates. At this stage it is too early to speculate on this.

Source: MotorbikeWriter.com