SPEEDERS SHOULD BE SEEN AND NOT HEARD

Can a motorist be charged and convicted of a speeding violation because the police officer “heard” his or her automobile driving at an excessive rate of speed? Apparently that question is a close one in the State of Ohio. But now the Court of Appeals for the Ninth Judicial District has spoken, sort of, in State of Ohio v. Daniel W. Freitag, 2009-Ohio-6370.

The facts, as recited in the opinion of the Court, were as follows:

On October 18, 2007 a man by the name of Daniel Freitag was driving his SUV through the village of West Salem when he pulled into the driveway of his business, which was located outside of the town. There he was pulled over by Patrolman Ken Roth of the village police department. Freitag was then charged with speeding, in violation of a local ordinance.

The damning evidence: Officer Roth’s testimony was that he was parked on the side of U.S. 42 when he “heard” Mr. Freitag’s car traveling at a speed he believed to be in excess of 35 m.p.h. Officer Roth testified, “As it approached I could hear the vehicle on the roadway which based on my training and experience it is consistent with a vehicle that was in excess of posted speed limit.” Officer Roth further testified that he learned how to audibly determine if a vehicle was speeding through his experience and training with an unidentified field-training officer when he first began working in the field seven years previous.

Mr. Freitag was found guilty, but the Court of Appeals reversed stating: 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. * * * In addition, although he admitted that there was another vehicle on the roadway and traveling the same direction as Freitag’s at the time, the officer did not explain why he could hear and distinguish Freitag’s vehicle, while he could not even hear the other traffic. * * * A thorough review of the record compels this Court to conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Freitag of speeding.

Incredibly the opinion was not unanimous. A dissenting justice would have affirmed the conviction. Yikes.