10/25/2010 09:01 am ET Updated May 25, 2011

Guessing Games: Ohio Supreme Court Allows Law Enforcement to Cite Motorists for Speeding Without Radar

Imagine this -- it's a beautiful sunny Sunday afternoon. You are on the way to church, a football game or an afternoon with the kids at the park. You are driving the speed limit when suddenly you hear sirens. You check the rearview mirror. "It can't be me," you think to yourself ... but it is. The State Trooper pulls you over.

"Do you know how fast you were driving?" the officer asks. You know you were driving the speed limit but you don't have time to respond. "Well," the officer says, "my estimate is that you were driving over the speed limit." Puzzled, you're thinking - "estimate?"

Thanks to the Ohio Supreme Court, it is no longer required for Ohio law enforcement to use radar when observing traveling vehicles to identify suspected speeders, because an educated guess of a moving vehicle's speed is sufficient to support a conviction in traffic court.

In writing the majority opinion in Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420 (2010), available in .pdf format here, Justice Maureen O'Connor upheld a speeding ticket based solely on how fast the police officer guessed a driver appeared to be traveling. Justice O'Connor, a Republican who is opposing Democrat Chief Justice Eric Brown in next week's election, even established a new precedent for Judicial Conduct when she wrote an editorial: "Speeding Ticket Does Not Give Police 'free pass' to Issue Tickets." For some reason, O'Connor found it necessary to explain her opinion further.

Yes, that's right, the court held that "a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding in violation of Ohio Revised Code 4511.21(D) without independent verification of the vehicle's speed," quoting from Justice O'Connor's opinion. As a practical matter, does this create a standard that the police officer is always right?

Mark Jenney drove through a radar speed trap operated by Copley police officer Christopher R. Santimarino on July 3, 2008. Officer Santimarino issued Jenney a speeding ticket because Santimarino guessed, based on the appearance of Jenney's SUV, that Jenney was traveling in excess of 79 MPH in a 60 MPH zone. The district court convicted Jenney based on Santimarino's thirteen years of experience and certification in speed estimation by the Ohio Peace Officer Training Academy. On appeal, Jenney was able to have the radar evidence ruled inadmissible because the required certification documents were not presented at trial. His conviction stood, however, as the appeals court ruled that a visual guess is sufficient evidence for a conviction.

O'Connor and the majority have created a standard that allows duly trained police officers to prove their case with nothing more than witness testimony. Justice Terrence O'Donnell's dissent points out that the court's broad standard "eclipses the role of the fact-finder to reject such testimony," and that "like any other witness, a police officer's credibility is to be determined by the jury or other fact-finder." The standard articulated by the court implicitly presumes the credibility of the police officer and allows the state to prove their case, which must be proved beyond a reasonable doubt, with greater ease and less evidence.

Motorists beware: the appearance of speed is enough to be proven guilty beyond a reasonable doubt.