IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35767
STATE OF IDAHO, )
) 2009 Opinion No. 75
Plaintiff-Respondent, )
) Filed: December 1, 2009
v. )
) Stephen W. Kenyon, Clerk
DAVID M. ESTES, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
Perce County. Hon. Carl B. Kerrick, District Judge; Hon. Jay P. Gaskill,
Magistrate.
District court’s appellate decision affirming magistrate court judgment of guilt on
speeding infraction, reversed.
David M. Estes, Lewiston, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Rosemary Emory, Deputy
Attorney General, Boise, for respondent. Rosemary Emory argued.
________________________________________________
LANSING, Chief Judge
David M. Estes appeals from the district court’s intermediate appellate decision affirming
the magistrate court’s judgment in which it found that Estes committed the infraction of
speeding, Idaho Code § 49-654(2). Estes asserts that the state trooper’s testimony concerning his
visual estimate of the speed of Estes’ vehicle, standing alone, was insufficient to prove the
speeding violation beyond a reasonable doubt.
I.
BACKGROUND
A state trooper employing a speed detection device stopped and cited Estes for driving 65
miles per hour in a 55-mile-per-hour zone while descending the Lewiston Grade section of U.S.
Highway 95. Through discovery, Estes requested that the prosecution identify the speed
detection device employed, and he was informed that it was a “Super B” Doppler radar device.
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At the ensuing bench trial on the infraction, however, the officer revealed that he instead had
used a laser device. Estes objected to admission of the laser reading, and the magistrate excluded
that evidence as a sanction for the discovery violation. Estes then moved to dismiss the
infraction charge, but the magistrate denied the motion and granted the prosecutor’s request to
proceed with evidence of the officer’s visual estimation of speed.
The officer testified that he had been trained in visually estimating the speed of vehicles
and had received certification of the ability to make estimates within 5 miles per hour of the
actual speed. He said that he had estimated the speed of Estes’ vehicle at 65 miles per hour, 10
miles per hour over the speed limit.
At the close of the case, the magistrate found, based on the officer’s testimony, that the
State had met its burden to prove the speeding infraction.
Estes appealed to the district court, arguing that the evidence was insufficient to support
the magistrate’s finding of guilt. Giving deference to the trier of fact, the district court concluded
that sufficient evidence of speed was presented at trial and affirmed the judgment. Estes now
appeals to this Court.
II.
ANALYSIS
Appearing pro se, Estes states his issue on appeal as follows:
Should the State of Idaho allow courts to convict defendants based solely on the
visual estimation of speed by police officers without corroborating those estimates
using speed detection devices or other scientific methods?
Addressing this issue, Estes first argues that the prosecution failed to establish that visual
estimation of speed is scientifically reliable and, therefore, the officer’s testimony was
inadmissible under Idaho Rule of Evidence 702. However, the State correctly notes that Estes
did not object to the officer’s testimony regarding his estimate of the speed of Estes’ vehicle.
This Court will not address an evidentiary issue not preserved for appeal by a timely and specific
trial objection. I.R.E. 103(a)(1); State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432
(1989); State v. Parmer, 147 Idaho 210, 220, 207 P.3d 186, 196 (Ct. App. 2009); State v.
Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997). Estes also argues,
however, that the evidence is insufficient to support the finding of guilt. This is an issue that is
properly presented on appeal. State v. Doe, 144 Idaho 819, 822, 172 P.3d 1094, 1097 (2007);
State v. Faught, 127 Idaho 873, 877-78, 908 P.2d 566, 570-71 (1995).
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In Idaho, although a traffic infraction is denominated a “civil public offense” and carries
no right to trial by jury, it is otherwise treated like a criminal offense for the purposes of trial and
is subject to the same burden of proof. Idaho Code §§ 49-1502; Idaho Infraction Rules 1 and 7.
Thus, the State must prove the elements of an infraction beyond a reasonable doubt. I.I.R. 7(e).
Our review of the sufficiency of the evidence is limited to ascertaining whether there is
substantial evidence upon which the trial court could have found that the prosecution met its
burden of proving the essential elements of the infraction beyond a reasonable doubt. State v.
Bettwieser, 143 Idaho 582, 588, 149 P.3d 857, 863 (Ct. App. 2006); State v. Thompson, 130
Idaho 819, 821, 948 P.2d 174, 176 (Ct. App. 1997); State v. Reyes, 121 Idaho 570, 572, 826 P.2d
919, 921 (Ct. App. 1992).
This State’s appellate courts have not previously addressed whether an officer’s
testimony as to his visual estimation of a vehicle’s speed can constitute proof of speed beyond a
reasonable doubt.1 Other states that apply a “beyond a reasonable doubt” standard of proof for
traffic infractions, and that have no independent statutory requirement for corroboration of an
officer’s visual estimation of speed, have reached differing conclusions. The Georgia Court of
Appeals held, without analysis of case specifics, that an officer’s visual estimate of speed is
sufficient proof. Ferguson v. State, 587 S.E.2d 195, 196 (Ga. Ct. App. 2003). Three of the
twelve appellate districts of the Ohio Court of Appeals are of the view that an officer’s estimate
of speed, standing alone, is insufficient to sustain a conviction, while five other districts of the
same Court are of the view that an estimate is sufficient. See State v. Kincaid, 796 N.E.2d 89, 95
(Ohio Co. 2003), and cases cited therein.
Other courts have conducted a more case-specific inquiry in determining sufficiency,
addressing matters such as the officer’s training and the amount by which the estimated speed
exceeded the posted limit, or the magnitude of the variance as a percentage of the posted speed
limit. Again, these courts have reached varying conclusions. For example, in State v. Ali, 679
N.W.2d 359 (Minn. Ct. App. 2004), the defendant was cited for driving 41 miles per hour in a
30-mile-per-hour zone. The officer testified that he had been trained to visually estimate the
speed of a vehicle within 5 miles per hour and that he had perfected that skill over the previous
1
This issue should not be confused with the admissibility of an officer’s estimation of
speed nor with the sufficiency of an estimate to provide reasonable suspicion to stop a vehicle,
reasonable suspicion being a much less exacting standard than proof beyond a reasonable doubt.
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twenty-five years, in part based upon comparing his visual estimates with laser readings. The
Minnesota Court of Appeals upheld the trial court’s finding of a speeding violation, reasoning
that even allowing a 5-mile-per-hour margin of error, the defendant’s vehicle would still have
been in excess of the speed limit. Id. at 368.
In People v. Olsen, 239 N.E.2d 354 (N.Y. 1968), the officers’ estimates were that the
defendant was driving between 50 to 55 miles per hour in a 30-mile-per-hour zone. The Court of
Appeals of New York upheld the speeding conviction because the difference “of 20 to 25 miles
above the speed limit was clearly sufficient to justify a finding of guilt,” id. at 355, but the court
further explained:
A police officer’s estimate that a defendant was traveling at 50 to 55 miles per
hour in a 30-mile-an-hour zone should be sufficient to sustain a conviction for
speeding. On the other hand, his testimony, absent mechanical corroboration, that
a vehicle was proceeding at 35 or 40 miles per hour in the same zone might for
obvious reason be insufficient, since, it must be assumed that only a mechanical
device could detect such a slight variance with accuracy sufficient to satisfy the
burden necessary to sustain a conviction.
Id.
The Missouri Supreme Court reached a similar conclusion in City of Kansas City v.
Oxley, 579 S.W.2d 113, 115-16 (Mo. 1979), reversing a conviction where the 45-mile-per-hour
speed estimation was only 10 miles per hour over the posted limit of 35 miles per hour. In State
v. Kimes, 234 S.W.3d 584, 588-90 (Mo. Ct. App. 2007), where the estimate was 35 miles per
hour in a 20-mile-per-hour zone, the Missouri Court of Appeals, expanding on Oxley, considered
the variance between the estimation and the speed limit in percentage terms. The Court noted
that the variance between the speed limit and the estimate found insufficient in Oxley was only
twenty-nine percent, whereas in the case before it the variance was seventy-five percent and,
viewing this as a significant difference, the Court affirmed the conviction. Id.
In the present case, the officer testified to his training in the visual estimation of speed as
follows:
A: Well, when I went through basic POST Academy and the State Police
Academy, as part of our radar training and certification, we were required to
estimate vehicles as we were in a traveling mode or as we were in a stationary
mode. That was back in 1988.
On subsequent recertifications, we’re required to maintain that proficiency
of speed estimation, both stationary and moving. And in the 20 years that I’ve
been a state trooper, I’ve basically - the training has been ongoing, because I use
that in my everyday patrol duties.
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Q: Is there a standard of accuracy that you have to obtain to, I guess, pass
that class, or to be certified in the visual estimation of speed?
A: Yes, there is. And also with the recertification process, your
estimations have to fall within plus or minus five miles an hour. If you’re out of
that, then we just disregard the reading and carry on as normal.
The trooper then testified that his visual estimation of the speed of Estes’ vehicle was 65 miles
per hour. On cross-examination, Estes inquired as to the officer’s accuracy rate and the
standards for estimating vehicle speed as part of the officer’s radar certification as follows:
Q: And what was your accuracy rating as far as estimating?
A: I -- I can’t remember Mr. Estes.
Q: And how many hours of that training did you have?
A: The -- the initial radar class at the Academy was 40 hours.
Q: That was 20 years ago?
A: Uh-huh. And then the recertifications, I believe, we were required to
estimate, I believe, six stationary and six moving.
Q: That’s --
A: But if you do not achieve the desired standard, then they will not
requalify you on the radar.
This was the totality of the evidence presented concerning the officer’s training and his
proficiency in estimating vehicle speed.
We conclude that the evidence was insufficient to meet the State’s burden to prove Estes’
guilt beyond a reasonable doubt. Although the officer implied that he met a certification
standard requiring that he be able to make estimations falling within 5 miles per hour of the
actual speed, he did not testify as to the required accuracy rate. That is, he did not disclose
whether certification required that he be able to meet that 5-mile-per-hour variance standard
65 percent of the time or 99 percent of the time, nor what his actual rate was. An accuracy
frequency approaching 100 percent would give far greater support to a finding of guilt beyond a
reasonable doubt than would a substantially lower accuracy rate. Here, the trial evidence is void
of any information at all on the officer’s accuracy rate. In addition, the State produced no
evidence of the distance between the officer’s location and Estes’ vehicle when the officer made
his estimation, the angle of his view, or how long he observed the vehicle before reaching his
conclusion. We do not hold, as some courts apparently have, that an officer’s estimate can never
be sufficient to prove a speeding infraction. We hold only that on this evidentiary record, and
given that the difference between the estimated speed and the speed limit in this case was not
great, the State failed to prove beyond a reasonable doubt that Estes’ vehicle was travelling
above the speed limit.
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III.
CONCLUSION
The district court’s appellate order affirming the magistrate court judgment is reversed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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