Legal defences to a speeding fine

If you have been fined for speeding based on a police officer’s estimate or “check speed”, there may be several defences, 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 which expanded on our article “tips on what to do if pulled over by the police” and even these tips from the police.

Now, Chris follows up with information a lawyer seeks when defending a rider on a speeding fine based on an estimate:

Collecting information

As I stated in my previous article, photographs of where the incident occurred are a great help as it provides information about what may have obstructed the proper tracking of the vehicle.

Distances will also enable the calculation as to the distance over time and therefore the potential speed.

We usually attend the police station to see the police in-car video (ICV). That video will show in many cases what the officer could see and what you may have said when pulled over.

In a hearing, the officer may produce a transcript of what you said which is another reason to be wary of saying anything.

If it is an in-car radar breach, it provides us invaluable information of what speeds were registering, the time between observation of the vehicle and locking the speed, and any other matters that could potentially affect the Doppler beam or the reading on the radar, in addition to the patrol speed of the police vehicle. 

Check speed

A “check speed” fine is based on the speed the police vehicle was travelling.

In this case, examining the ICV will show whether the officer had the ability to maintain a consistent distance and speed to provide an accurate reading.

In many of these cases I have observed the highway patrol (HWP) vehicle being baulked by slower vehicles that the smaller, lighter and more nimble motorcycle has been able to get around unaware they are being followed.

When the HWP vehicle gets around the obstruction, seconds have gone past and the police have to accelerate hard to catch up.

In the heat of catching up, it has, on occasion, been that the speed alleged is the speed of the HWP vehicle and not that of the bike.

Similarly, if the HWP vehicle is parked on the side of the road and the officer has to accelerate in pursuit, there is often a degree of hard acceleration involved.

The ICV may also show whether the officer was able to view the bike consistently during the test or lost sight of the vehicle, which would put the check speed or estimate in question.

Example case

I ran a case on the Old Pacific Highway where the officer passes the bike and the radar showed the bike was travelling at the speed limit of 80km/h, as shown in the ICV.

The bike pulls into Pie in the Sky cafe and a number of minutes later the HWP vehicle pulls in. The officer gets out and starts yelling at the rider and charges him with speed over 45.

When I examined the ICV it showed the bike had travelled past the HWP vehicle at 80km/h but more importantly the police vehicle had done a u-turn and did not see the offending motorcycle until it was pulling up.

So how was an estimate or check speed of more than 45km/h made in the absence of seeing the vehicle?

More importantly, why had the HWP been unable to catch up to the bike, which was the other issue, relied on by police seeing the PV had been hitting speeds of 140-150km/h.

On closer examination of the video it was seen that the HWP vehicle was held up when doing its u-turn by several cars pulling out of Brooklyn, including a learner driver who held up the police by a considerable amount of time.

As many riders are aware, if you give someone a 15-second rolling start at the track, it takes a long time and a lot of speed to catch up. We obtained scientific calculations relating to this, which established that the bike could not have been travelling at the speed alleged. Our client was successful at the hearing.

Officer’s estimate

A police officer’s estimate is the least reliable assessment of speed.

Observing the ICV may give us information as to time and distance that the officer had to make their assessment.

I ran a case where two bikes crested a hill on the Putty Rd at the same time as a police vehicle travelling in the opposite direction. The officer saw the bikes and locked on to their speed within a second.

They did not allow for three seconds of observation and testing with the radar, nor did they allow for multiple vehicles in the beam.

When that was challenged, the officer relied on his estimate which was dubious because of the short observation time as the bikes went past.

At the hearing, the officer conceded a lesser speed and our client retained his licence.

The longer the observation, the greater the accuracy of the estimate.

If an officer is coming around the corner as you are tipping in going in the opposite direction we have to challenge the speed estimate over the length of observation time.

Often it is based on a momentary snapshot and preconceived ideas based on the rider’s posture on the bike, noise, etc, not hard facts. Therefore, it is subject to challenge.

Technology

Potentially more accurate forms of speed assessment such as lidar and radar needs more careful analysis which will be covered in a future article.

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.