How to beat criminal speeding in Arizona A.R.S. §28-701.02

by | Aug 23, 2015 | Articles

What is criminal speeding in Arizona?

(Updated 2/24/17) When most people think of speeding, they think of civil traffic tickets. These are the vast majority of speeding tickets. Most people will get at a civil speeding ticket at least once in their lives. But occasionally speeding tickets can be far more serious. We defend against those rare but serious charges: criminal speeding.

There are three ways to be charged with criminal speeding in Arizona. Pursuant to A.R.S. §28-701.02, they are:

  1. Driving over 35mph in a school zone;
  2. Driving over 20mph above the posted speed limit. (If no speed limit is posted, i.e. rural areas, anything over 45mph will qualify); and
  3. Driving over 85mph on the highways and freeways.

The most common criminal speeding charge is going over 85mph. We’ve all done it–that stretch from Tucson to Phoenix is a killer.

What are the consequences of criminal speeding in Arizona?

Criminal speeding is a class 3 misdemeanor. The maximum penalty is 30 days in jail, a $500 fine plus an 83% surcharge, and up to one year of probation.

Collateral consequences of a criminal speeding charge can include:

  • Three points on your license.
  • License suspension (if you have too many points already).
  • Increased insurance rates.
  • Your vehicle can be towed.
  • You can be arrested (it’s rare but has happened because it’s a criminal charge).

The minimum consequence is a terminal disposition or court-ordered defensive driving school. A terminal disposition means that you were convicted but the court gave you no penalties.

What is the most common penalty for criminal speeding?

The most common penalty is usually a fine and a conviction on your record. The real issue is the conviction. While fines are painful, they’re momentary. But a conviction on your record lasts forever. For some reason, the Arizona legislature made it impossible to set aside a criminal speeding violation. Once convicted, you can’t get it off your record, ever. That’s harsh. A criminal conviction is public and can have employment, financial and other unintended but harsh consequences.

Jail time is unlikely unless you have prior criminal speeding violations or a significant record.

How can the government prove I was speeding and how do I fight criminal speeding charges in Arizona?

There are three main ways an officer will try to prove you were speeding. They are: 1) Pacing, 2) Radar, and 3) LiDAR.

Pacing and how to defend against it:

Most speeding violations start with a visual estimate. If you happen to be passing through a speed trap, the officer will hide in a discreet location with a laser or radar set up. If the officer doesn’t have any of these items on hand, he or she will follow your vehicle. This is called pacing. The idea is that the officer matches your speed and gets a reading from the officer’s speedometer.

This is by far the most inaccurate way to determine speed. Commons sense tells you how much can go wrong. For example, was the officer’s speedometer calibrated? Was the officer ever so slightly gaining on your car? While officers might think they’re infallible, we’re all human beings, and our perceptions are limited. Slight speed changes are imperceptible to even the best of us.

Unfortunately, Arizona City and Justice Courts admit pacing testimony as evidence to determine speed. While pacing might be useful for determining reasonable suspicion or probable cause, it’s too unreliable for evidence beyond a reasonable doubt. But because the courts allow it, it’s important to properly cross-examine the officer on the inherent unreliability of pacing to determine speed.

RADAR and how to defend against it:

RADAR is short for Radio Detection And Ranging (RADAR). This technology is over one hundred years old. It was the gold standard but, over time, it’s proven less reliable. The basic science is that objects in view scatter radio frequency (RF) energy in all directions. Some of that energy goes towards an antenna designed to pick it up. But RF clutter from other sources can mask signals from targets.

The way police radars work is they send out a microwave beam on a particular frequency. The target then reflects that microwave energy back to the antenna. An internal computer will then analyze the change of frequency and spit out a reading to the officer.

The biggest flaw is that police radar doesn’t tell the officer which object it’s measuring or the direction it’s traveling. If there are other objects in the way, you could get a false increased reading.  Shaking road signs, other cars, or even the officer’s air conditioning can cause this type of interference. Also, there are other forms of interference you can’t see such as radio or microwaves that overload sensitive circuitry. In an age of increasing cell phones, tablets, and other portable computers, outdated RADAR technology is problematic.

Proper care and conditions must be present to get an accurate reading.

LiDAR and how to defend against it:

LiDAR is the most difficult of the three to beat. It’s more precise than RADAR (and you already know how I feel about using pacing as a reliable measure). LiDAR measures the flight time of multiple near-infrared laser pulses. LiDAR is the speed “gun” you see officers using on the side of the road. Because it measures a focused beam instead of all RF energy, it’s much more accurate. Even though it’s the “gold standard” for determining speed, it’s not without problems. These problems are usually user error.

LiDAR comes from mixing the words “Light” and “RADAR”. The basic science is it measures the beam sent to an object by analyzing the light reflected off the object. To get the measurement, an officer must aim the LiDAR gun at the object and carefully fire the beam. These guns usually come with a small telescope so the officer can see you before you see the officer and slow down. The officer usually aims at your license plate because they have a reflective coating that makes it easier for the LiDAR to get a good reading. The more reflective, the better. The gun emits sounds to tell the officer if the gun is aimed at a good reflective place to get a reading. Once fired, the gun measures based on the time it took for the laser to reflect back. The gun makes at least two–usually several–pulses. The difference between the two pulses show the amount of time that’s elapsed, and the distance traveled. From that, the gun spits a reading back to the officer.

Nevertheless, certain factors can skew the speed results. In Arizona, refraction is the most common interference (especially in our sweltering summers). Refraction is caused by the differences in air density due to heat waves coming off a road surface. The second environmental issue with LiDAR only occurs during our monsoon season: rain. Beaming light through water causes refraction. So if the officer is in the vehicle, the windshield can scatter that beam ever so slightly.

But the biggest weakness is police misuse. Sweeping, also known as panning, is a problem. Sweeping is caused by an officer being in motion. This motion can be caused by driving or physical movement when holding the gun. If the officer moves slightly, the pulses beam in different places, creating a false reading. Officers try to get your speed head on or directly behind you because if the officer is off to the side, sweeping could become a problem.

I’ve never been to a trial where an officer doesn’t deny sweeping. I’d fall over in my seat if I heard an officer admit it. The reality is we all move. Any photographer knows that there is always “camera shake” no matter how still we stand. The most accurate way to take a measurement is with a tripod, but this isn’t always available to the officer.

One common fallacy is when the government relies on the built-in sensors. The most common LiDAR gun, the LTI 20/20, has built-in sensors to detect sweeping. They’re supposed to go off when sweeping occurs. However, recent studies show that those sensors don’t work as well as the government likes to claim. The BBC televised a short segment on those studies. In that study, they even used the LTI 20/20 and proved sweeping can happen without the sensors going off.

Sweeping is bad because if two cars are going the posted speed limit of 45mph and one car is slightly ahead of your’s, an officer’s unsteady hand can cause the LiDAR beam to send one pulse your way and a second pulse to the car just in front of you. The LiDAR’s second pulse will measure the lead vehicle causing a distance jump. This will result in a high reading. Another scenario is if the officer moves the gun along the side of your car. The slight movement makes the gun think you’re traveling faster than you were.

An experienced attorney will challenge the government on these issues and bring them to light in court.

Criminal speeding and defensive driving school.

One of the biggest defenses in Arizona is that the legislature granted the court authority to allow someone to attend defensive driving school for criminal speeding under A.R.S. §28-3392(A)(2). If you haven’t been to DDS within the last year, this is a great option. DDS will dismiss the ticket off your record.

The only issue is that unlike DDS for civil tickets, it’s entirely discretionary. You must convince the judge or prosecutor to grant this mercy. There are certain risks in doing that, but it beats a conviction.

If you’ve been charged with criminal speeding, you should hire an attorney that’s trained to deal with this issues. At The Heath Law Firm, we focus on criminal traffic offenses. We’ll carefully sift through the facts of your case and advise you how best to proceed. We strive to provide the highest level of case care in working to get you the best results possible. Don’t trust your case to novices or try to beat the police yourself. Get experienced legal help. If you caught an Arizona criminal speeding charge, don’t hesitate to give us a call.

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