Can a cop write you a ticket because you "sounded" like... Can a cop write you a ticket because you "sounded" like you were speeding? An Ohio court says no, but the story opens up some interesting discussion on the use of sensory evidence by traffic police. (Getty Images)

There are numerous tools and techniques available to police officers to issue you a speeding ticket: four different radar bands, lasers, and VASCAR for instance. The one thing they have in common is that they use a precise method to determine how fast you were going. Even if a radar gun isn't calibrated correctly, it will assess your speed based on a fixed mathematical process, and even though it's wrong it will be wrong in the same way for every car.

Police can even pull you over based on their observations and cite you for driving too fast - but they can't say they knew how fast you were going based solely on their observations.

Nor would one suspect that a speeding ticket could be supported based on an officer saying he could hear a driver exceeding the speed limit, but that's exactly what happened to Daniel Freitag.

On October 18, 2007 in the Village of West Salem, Ohio, Patrolman Ken Roth was sitting in a marked police car on the shoulder of Route 42. Roth was parked parallel with the flow of traffic, while Daniel Freitag, driving his 2006 Lincoln Navigator, was approaching him from behind. Roth would later say that he could hear the Navigator speeding, even though there was other traffic and Freitag was more than 150 yards away. Roth turned on his Genesis Radar unit and waited. When Freitag was 100-150 yards away, his headlights appeared in Roth's sideview and rearview mirrors. When Freitag passed the patrol car, Roth worked his radar unit and measured Freitag's speed at anywhere from 42 to 46 mph in the 35-mph zone.

Then he followed Freitag and issued a ticket.

Then Freitag, instead of paying the $22 fine and submitting to the 2 points that would have gone on his license, put up a defense stiff enough to impress Rocky.

Freitag and his attorney, Brent English, took the case to trial, but lost. Then they appealed the trial court's decision by noting six "assignments of error" -- mistakes made by either Roth or the State of Ohio -- that should reverse the conviction. These included more mundane assertions such as the stop being unconstitutional because the officer was out of his jurisdiction, and legally arcane protests that "the trial court erred in treating the violation as a 'per se' violation, rather than a 'prima facie' violation."

But one of the assignments of error appeared to be absurd: Officer Roth testified that he could hear the car speeding based on training he had received from an unknown member of the force several years before. Roth also testified that he could see the car speeding by watching its lights in his mirrors, even though he had no visual markers to measure the Navigator's progress.

When it was brought up that there were other cars on the road, Roth testified that he could only hear the Navigator. Going ten miles per hour over the limit. From more than 450 feet away. In traffic.

The Court of Appeals declined four of the six assignments of error, and split the decision on the other two. It threw out the Genesis Radar evidence, noting that the State didn't identify the specific Genesis model that was used. That left Officer Roth's testimony concerning his rather high-powered and bionically focused ears to be decided, and they sent the case back to the trial court to judge the issue.

The trial court, unable to factor in the radar gun evidence, decided that Roth's statements on his hearing abilities were enough, and supported the conviction.

Freitag appealed a second time, and it went back to the Court of Appeals again.

This time, appeals judge Donna J. Carr responded to Roth's assertions with phrases like "the trier of fact lost its way and committed a manifest miscarriage of justice." In her decision she wrote, "It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle 'speeding' without being able to determine the actual speed of the vehicle."

One of the Appeals Court judges disagreed with part of Carr's decision, but Freitag won the day -- two years later, mind you -- and the State won the right to pay Freitag's court costs.

We should note, though, that it has been made to sound like Roth ticketed Freitag solely based on what he heard. That's not the case. Roth ticketed Freitag based on the reading given by his Genesis Radar unit, which registered Freitag's speed as anywhere from 42-46 mph. Freitag exercised his legal rights and got that evidence thrown out. The eyebrows get raised when it takes two trips to court to assess Officer Roth's ability to hear one single car, in traffic, further away than the length of a football field, speeding.

Roth never mentioned the person who trained him to develop such hearing acumen, and if he had it might have altered the outcome by giving him the weight of an expert. We suspect -- and this is only a guess -- it could have been Homer Simpson; after all, not only can Homer smell the words written on a cake, he can hear pudding.

Now that's hearing.

UPDATE: Officer Roth Responds:

It is not as simple as "factual inaccuracies;" it is the intentional absence of facts that would present (in this case me) the subject in a favorable light. The title of the article (Can Police Give You A Ticket For "Sounding" Too Fast?) would make people believe the citation was issued and upheld based on my hearing a vehicle and telling you how fast it is traveling. Quoted in the dissent to the first appellate court's decision: [“the sound is what drew [his] attention specifically to the mirror to begin an observation of the vehicle.” Officer Roth testified that he visually monitored the vehicle traveling in excess of the speed limit for 100-150 yards as it approached his police car before he activated the Genesis Radar].

Although Donna Carr believes:

"As a preliminary matter, the determination of the speed of any number of makes and models of motor vehicles upon a roadway, based solely upon sound from a distance of more than 150 yards away, is certainly beyond the knowledge or experience of a lay person. We reach the same conclusion regarding the determination of speed by merely seeing headlights in a rear and side-view mirror. Accordingly, Ptl. Roth’s testimony in this regard necessarily could only have been offered in the nature of expert testimony. Therefore, we question whether the officer was qualified as an expert based on specialized knowledge, skill, experience, training, or education; and whether his testimony was based on reliable scientific, technical, or other specialized information."

"I would like to point out that my notes from that citation indicate I estimated the vehicle's speed to be 42 mph and accelerating. They also note the radar "track" started at 42 mph and jumped to 44, 45, and 46. Mr. Freitag was ultimately cited for 46 mph in a 35 mph zone. If I were untrained or inexperienced, how was the estimate accurate. If Judge Carr's thought process were universal and applied to all citizens of the United States, only "experts" would be able to look in their side mirrors and determine if it were safe to make a lane change on the interstate. If you drive, you have stopped at a stop sign looked left and thought, "That car is approaching too fast. I can't pull out now." Despite not being an "expert" you are allowed to drive at night. If you would like, we could make arrangements for a visit to a basic police academy during the speed measuring devices training. You will see there how un-trained cadets can easily estimate speed based on observation and life experience."

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