DUI Appeal - Lidar Speed Guns OK Says Oregon Court

In State of Oregon v. Branch, --- P.3d ----, 2011 WL 2138054 (Or.App.), a non-DUI case, the court was asked to determine the admissibility of LIDAR for the purpose of measuring distance. The defense argued that the trial court erred by failing to perform a Frye/Daubert styled hearing regarding its general admissibility. On appeal, the court first explained the fundamentals of Lidar, and whether Lidar was 'scientific evidence' :
"Lidar devices “shoot” a series of laser pulses at a target, generally one every five milliseconds. When a pulse hits the target, a portion of the light from the laser beam is reflected back to the device. Lidar devices calculate the distance between the target and the device by analyzing the average time that it takes the reflected light to return to the device from the target through an algorithm based on the speed of light, which is a known constant; that process of measurement is similar to the process by which radar devices measure distance and speed. Vladimir A. Kovalev & William E. Eichinger, Elastic Lidar: Theory, Practice, and Analysis Methods 53 (2004); Mark Fischetti, Working Knowledge: Radar Guns, Sci Am, Mar 2001, at 76, 77.

Lidar devices consist of three basic components: (1) a laser diode, which serves as the source of the laser pulses; (2) a photoreceiver, which receives the reflected light and converts it into an electrical signal; and (3) a computer system, which tracks the time that elapses between the laser pulses leaving the device and the generation of the electrical signal and calculates the distance to the target. Kovalev & Eichinger, Elastic Lidar at 53. The devices have numerous applications, ranging from the everyday, e.g., measuring distances and angles on construction sites and in surveying projects, Jeff Hecht & Dick Teresi, Laser: Light of a Million Uses 154–56 (1988), to the more far reaching, e.g., measuring the distance to and orbit of the moon, J.O. Dickey et al., Lunar Laser Ranging: A Continuing Legacy of the Apollo Program, Sci, July 22, 1994, at 482, 482.

Here, as noted, the distance evidence proffered by the state is based on the premise that measurements of distance can be derived through the lidar device's use of a certain scientific principle, viz., the speed of light. Data generated by the computer in the device are then analyzed through the use of a mathematical algorithm based on that principle. As such, that distance evidence draws its convincing force from a scientific principle and would be more persuasive to the trier of fact due to its scientific nature. Accordingly, we conclude that it is scientific evidence."
The court then described its role in regards to admitting scientific evidence:

“[I]n the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding. Once a trial court has decided that proffered expert scientific testimony is scientifically valid and has admitted such evidence for the particular purpose to which it is directed, and that decision is affirmed by this court in a published opinion, it will become precedent controlling subsequent trials.”

321 Or at 293 (footnote omitted; emphasis added). Therefore, before applying the multifactor test to the evidence in question, a court must decide whether the scientific evidence is of a type for which the test outlined in Brown and O'Key does not apply: viz., evidence whose admissibility an Oregon appellate court has approved; evidence whose scientific validity is clear; evidence whose scientific validity may properly be established through judicial notice; or evidence whose prima facie scientific validity has been established legislatively. See Laird C. Kirkpatrick, Oregon Evidence § 702.04[1][b], at 606 (5th ed 2007).
Finally, it held that Lidar was a clear case for admissibility without the need for a Frye-type hearing:

"As noted above, the basic scientific principle underlying the conclusions generated by the algorithm used by a lidar device—the distance measurements—is the speed of light, one of the “fundamental constants of physics and chemistry” in our universe. Peter J. Mohr et al., CODATA Recommended Values of the Fundamental Physical Constants: 2006, at 95 tbl L (2007). The universal acceptance of using lidar devices to measure distances is shown by its widespread, everyday use in multiple contexts, including its pervasive use as a replacement for tape measures in construction projects and as a measuring device for surveying purposes. Further, as Balzer testified at trial, law enforcement departments nationwide, including the Portland Police Department for the past 13 years, routinely use lidar devices for forensic purposes, e.g., to measure distances and the speed of automobiles. Put succinctly, the employment of a lidar device to measure distance is far from a novel means of obtaining those measurements. Further, and importantly, although defendant argues that the state failed to present evidence at trial to establish that the scientific principles behind the development and use of lidar devices to measure distance are universally accepted in the scientific community, he does not substantively challenge on appeal those principles or the scientific validity of using lidar devices to measure distances."

Therefore, the appeals court found that there was no error in the admission of the lidar device's measurement of distance in the case sub judice.


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DUI Appeal - Trial Taxes and LIDAR in Vermont

State of Vermont v. de Macedo Soares, --- A.3d ----, 2011 WL 2091122 (Vt.), 2011 VT 56 is not a DUI - it is a speeding LIDAR case. However, the challenges raised may help DUI/DWI attorneys. Here, the defense challenged the legality of a system where those who went to trial were required to pay more than those who pleaded guilty. Defendant first argued that the traffic citation was unconstitutional because: (1) the penalty range applies only when a defendant chooses to maintain a constitutionally protected right to challenge the citation; (2) the $50 in court costs is assessed only if a defendant is found guilty following a hearing; (3) the waiver amount is an improper incentive to settle that chills a defendant's right to challenge a citation; (4) the solicitation of a guilty plea violates the principle of a presumption of innocence; and (5) the process for issuing a citation does not assure a knowing and intelligent waiver of constitutional rights.

The Vermont court acknowledged that the arguments had merit, but ultimately declined to find in the defendant's favor, stating as follows:

"Defendant was cited for a civil traffic violation, not a criminal offense; therefore, the principal cases he relies on to support his constitutional arguments— United States v. Jackson, 390 U.S. 570 (1968) and Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620 (1973)—are inapposite. In Jackson, the Supreme Court struck down the death penalty clause of the Federal Kidnapping Act, which allowed the death penalty to be imposed only on those defendants who were found guilty after pleading not guilty and requesting a jury trial. 390 U.S. at 585. The Court concluded that applying the death penalty only to defendants who assert their right to contest their guilt before a jury unconstitutionally chilled defendants' right to plead not guilty and to demand a jury trial. Id. at 581. In Veilleux, we applied the Jackson rationale to strike down a statute that provided for a six-month driver's license suspension only for defendants who pled not guilty after being charged with driving while intoxicated. 131 Vt. at 38–39, 300 A.2d at 624. We emphasized that the provision could not pass constitutional muster because the license suspension “falls only upon those who exercise the fundamental right to plead not guilty to a criminal charge upon which the constitutional rights guaranteed to a defendant in criminal proceeding are contingent.” Id. at 40, 300 A.2d at 625."

Insofar as the LIDAR Frye issue (which was also raised) was concerned, the court also found againt the defendant:

"Before the traffic bureau, defendant moved to dismiss all evidence concerning use of laser technology for “lack of foundation” because “there is no judicial notice of laser.” In making this argument, defendant cited an Illinois appellate court case rejecting a trial court's judicial notice of an evidentiary hearing held in an unrelated trial court case in which the court found the use of a laser device to be generally accepted. See People v. Canulli, 792 N.E.2d 438, 444–45 (Ill.App.Ct.2003). On appeal, in a one-sentence argument, defendant asserts that the court erred in admitting the LIDAR results because radar and LIDAR are not the same, no Vermont authorities confirm the reliability or admissibility of LIDAR technology, and the district court did not give “judicial notice” of the reliability of the technology. We find no merit to this argument. Defendant has not identified any evidence suggesting that the LIDAR device incorporates a novel technology or is significantly different from or less accurate than other speed-detection devices. Indeed, several jurisdictions, including Illinois, have held that the reliability of this technology has been sufficiently demonstrated to allow its introduction into evidence without first holding an underlying evidentiary hearing on its reliability. See, e.g., State v. Williamson, 166 P.3d 387, 389–90 (Idaho Ct.App.2007) (citing other jurisdictions that have accepted general reliability of laser device in support of holding “that laser speed detection devices are generally reliable and their results may be admitted into evidence in Idaho courts” without either taking specific judicial notice or requiring scientific evidence of laser's reliability); People v. Mann, 922 N.E.2d 533, 537–38 (Ill.App.Ct.2010) (concluding that decisions from other jurisdictions “are ample authority that the use of LIDAR to measure the speed of moving vehicles is based on generally accepted scientific principles”). Defendant's reliance upon Canulli is unavailing insofar as the appellate court in that case reversed the trial court because it had relied upon an inadequately litigated, nonbinding decision in another trial court case involving a different type of laser technology from the technology being challenged in Canulli. See Mann, 922 N.E.2d at 535–36; Canulli, 792 N.E.2d at 444–45. Accordingly, the hearing officer did not abuse his discretion in admitting results from the use of the LIDAR laser device without first holding an evidentiary hearing on the device's reliability.

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