The verdict rang alarm bells far beyond The Buckeye State. On June 2nd, the Ohio Supreme Court ruled that police officers could issue speeding tickets based merely on visual estimates. The media frenzy was predictable, with most outlets mirroring a CNN report that said, "Motorists in Ohio, beware: Speeding is in the eye of the beholder, especially when police are the ones guesstimating."
But what’s the real story here? Have Ohio police truly been given official sanction to write you a speeding ticket without any radar proof? When it’s your word against the cop’s, does this mean the cop automatically wins, and you have no recourse to appeal? Will this decision grossly impact traffic enforcement in Ohio?
To answer these and other implications of the decision AOL Autos did some digging, starting with getting the facts about the case that led to this landmark decision.
Speeding, But How Fast?
It all started on July 3, 2008, when Christopher R. Santimarino pulled over Mark Jenney and wrote him a ticket. Santimarino, a Copley, Ohio, police officer, claimed to have clocked Jenney doing 82 miles per hour in a 60-mph zone. But Santimarino wrote the ticket for just 79 mph -- meaning it was no longer 20-plus mph over the limit -- to save Jenney the court time. Jenney decided to go to court anyway; he got an attorney and fought the ticket.
Read About What to do if You Get a Ticket:
The first stop in the case of City of Barberton vs. Jenney was the Barberton Municipal Court, where the radar evidence was thrown out because Santimarino couldn't produce his radar-training certificate. Jenney might have thought that would be enough to win the case, but "Santimarino testified that based on his training and experience, he had estimated that Jenney’s vehicle was traveling 70 miles per hour."
The presiding judge, David Fish, then amended the citation to state that “Jenney was traveling 70 miles per hour in a 60-mile-per-hour zone." So the case continued, but from that point forward, Jenney was being tried for going ten over the limit. His defense strategy seemed simple enough: With the radar evidence nullified, an officer's visual estimation alone couldn't be used to support a conviction.
The court disagreed, however, and the case was eventually appealed all the way to the Ohio Supreme Court. In a 5-1 decision, the court decreed that "Given Santimarino’s training, OPOTA (Ohio Peace Officer Training Academy) certification, and experience in visually estimating vehicle speed, his estimation that Jenney was traveling 70 miles per hour was sufficient to support Jenney’s conviction for driving over the posted speed limit of 60 miles per hour."
But it wasn't just about Santimarino's ability, with the court writing, "A police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding... without independent verification of the vehicle's speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of the communities they serve."
Yet while the court said that yes, an officer's visual estimate can be enough for a conviction, the emphasis is on the phrase, "can be."
We spoke to several attorneys in Ohio, a couple of professors, a former Georgia prosecutor and a NASA physicist about the decision and what it meant for Ohio drivers. Opinion covered the spectrum, with Cleveland attorney Mark Gardner at the severe end.
"It's a total abdication of courts' supervising what the government does to its citizens," said Gardner. "It's basically saying the Wild West is open."
One of his prime concerns is that the court wouldn't allow the reading from the radar gun because of the lack of a training certificate, but would allow the much less precise evidence of the officer’s visual estimate.
"It's saying we are happy to accept an opinion of a police officer over a scientific device," Gardner said. "There's little doubt in my mind that this officer was probably trained a lot more on how to operate that radar device than he was on how to guess the speed of a car."
Gardner might have a point. Remember, the radar gun indicated Jenney's speed at 82 mph, but Santimarino testified that he visually estimated Jenney was going 70 mph. Granted, in this case it was a 12 mph discrepancy in Jenney's favor, but that's still a big difference that makes for big irony given that the Supreme Court cited Santimarino's "training, OPOTA certification and experience in visually estimating speed" when deciding against Jenny.
The training the court refers to is given by the Ohio Peace Officer Training Academy, and its rigor is questionable. To pass the test, an officer has to determine the speed of a moving vehicle by watching cars go by and estimating their speeds. Guess the speed to within five miles per hour of the radar-gun-detected speed and you get a certificate and are officially "trained."
At least one scientist finds such testing ridiculous.
"I would say virtually without exception the ability of a human being to estimate the speed of a moving vehicle to one mile an hour is beyond absurd," said Paul Greenburg, a NASA physicist dealing with optics and an expert witness for the defense in traffic cases that deal with speed measurement. "I would say five miles an hour is probably absurd. What that exact number is on the average remains to be seen."
Assessing The Fallout
The other issue is that a visual estimate does not take into account time of day, angle, lighting, visibility, other traffic, distance from the officer to the car -- the kinds of scenarios you'd expect to be a factor in any the average road scenario. The lack of a thorough or scientific process to visual estimation that is repeatable under various conditions is what has other attorneys worried about the effects the Ohio Supreme Court's decision might have on drivers. After all, a speeding ticket can have serious consequences on people's finances, livelihoods and lives.
"I think the court really overstepped," said Carole Lohr, of counsel at Cathleen Bolek, LLC, "Even with standardized training you're still talking about officers getting it possibly wrong even by only five miles per hour, and in Ohio five miles can be the difference between receiving points and no points. You can lose your license or your job."
Watch your speed while in these fast cars.
What's more, if the officer's testimony can carry the weight of conviction on its own, that has been seen as closing the door on a driver's ability to appeal.
"Prosecutors have the burden of proof," said Lohr, "and they're supposed to put on evidence of guilt that's beyond a reasonable doubt. When a driver fights their ticket, now they've essentially lost the presumption of innocence as soon as the officer testifies."
"It seems to me that 'the beyond a reasonable doubt' standard necessary for a conviction requires more than a guesstimate," said Lewis Katz, John C. Hutchens Professor of Law at Case Western Reserve University School of Law.
Katz succinctly summed up the fear that many seem to have about what the decision will mean for drivers: "I think it may, in some courts, involve the judge rubber stamping the officer's guesstimate."
But Will Anything Really Change?
Not everyone shares the “rubber stamp” fear, not even Greenburg, the NASA physicist who questions the accuracy of any human's guesstimating ability.
"The way the media is reporting this is disserving the issue," said Greenburg. "Essentially what [the Supreme Court] said is it is possible, an officer's visual estimate could serve as a sole basis for conviction. But the Supreme Court did not rubber stamp and say anytime a police officer stands up and says I estimated this it's automatically true. Unfortunately this is the impression many people seem to be coming away with."
This is where the phrase "can be" comes in. Greenburg is referring to the fact that the officer's testimony will need to stand up to cross-examination. However, given that Santimarino's testimony and training was given credence when his estimate was 12 mph adrift from the radar reading -- so far away that he would not have got OPOTA certification for that car -- Katz's worries about rubber-stamping could be more valid.
Firmer ground might be found in the fact that police can already issue tickets for infractions they only gauge visually. You can be cited for driving too fast or too slow for conditions, based solely on what an officer sees.
"Way before there was radar there were speeding tickets based on an officer's observations," said Martin H. Belsky, Dean and Randolph Baxter Professor of Law at the University of Akron School of Law. "This new decision still allows the credibility of the officer to be challenged by the lack of radar info -- but just as an officer can say a driver is drunk without a breathalyzer, so can she or he give his or her best judgment for the fact-finder to consider."
Nor does Belsky think the decision will cause police departments to leave their radar guns back at the office, or that it will change things at all.
"It will have very little impact," Belsky said, "as the police will continue to use radar to back up their judgment. Police continue to use breathalyzers even though they can get a conviction based on their own testimony."
A recently introduced bill, however, could make this entire discussion pointless. Two Ohio State Senators have just introduced a bipartisan bill, cosponsored by ten other senators, that would pre-empt arrest “based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar."
That means no radar, no laser and no pacing equals no ticket, no matter what the Supreme Court says. If the bill passes, Jenney might have spared other Ohio drivers from suffering his fate.
Until then, for the time being at least, there has never been a better time not to speed in Ohio.