60-6,192. Speed determination; use of speed measurement devices; requirements; apprehension of driver; when.

(1) Determinations made regarding the speed of any motor vehicle based upon the visual observation of any peace officer, while being competent evidence for all other purposes, shall be corroborated by the use of a radio microwave, mechanical, or electronic speed measurement device. The results of such radio microwave, mechanical, or electronic speed measurement device may be accepted as competent evidence of the speed of such motor vehicle in any court or legal proceeding when the speed of the vehicle is at issue. Before the state may offer in evidence the results of such radio microwave, mechanical, or electronic speed measurement device for the purpose of establishing the speed of any motor vehicle, the state shall prove the following:

(a) The radio microwave, mechanical, or electronic speed measurement device was in proper working order at the time of conducting the measurement;

(b) The radio microwave, mechanical, or electronic speed measurement device was being operated in such a manner and under such conditions so as to allow a minimum possibility of distortion or outside interference;

(c) The person operating the radio microwave, mechanical, or electronic speed measurement device and interpreting such measurement was qualified by training and experience to properly test and operate the radio microwave, mechanical, or electronic speed measurement device; and

(d) The operator conducted external tests of accuracy upon the radio microwave, mechanical, or electronic speed measurement device, within a reasonable time both prior to and subsequent to an arrest being made, and the device was found to be in proper working order.

(2) The driver of any motor vehicle measured by use of a radio microwave, mechanical, or electronic speed measurement device to be driving in excess of the applicable speed limit may be apprehended if the apprehending officer:

(a) Is in uniform and displays his or her badge of authority; and

(b)(i) Has observed the recording of the speed of the motor vehicle by the radio microwave, mechanical, or electronic speed measurement device; or

(ii) Has received a radio message from a peace officer who observed the speed recorded and the radio message (A) has been dispatched immediately after the speed of the motor vehicle was recorded and (B) gives a description of the vehicle and its recorded speed.

Source

Annotations

Before evidence of vehicular speed determined by use of a speed measurement device is admissible, the State must establish with reasonable proof that the equipment was accurate and functioning properly at the time the determination of the speed of the vehicle was made. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

To present "reasonable proof" that a primary measuring instrument that measures the speed of a vehicle was operating correctly, one must show that such device was tested against a device whose instrumental integrity or reliability had been established. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Where evidence of speed is adduced not to establish a driver's rate of travel so as to prove a charge that he or she exceeded a particular speed limit, but, rather, as one piece of evidence tending to establish that the driver operated a vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property, the speed is not "at issue", as contemplated by this section and therefore need not be corroborated by a microwave, mechanical, or electronic speed measurement device. State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998).

The speed of a vehicle is not at issue under this section when the crime charged is reckless driving and evidence is adduced to establish the defendant drove in a manner demonstrating indifferent or wanton disregard for the safety of persons or property. State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).

In order to support admission of a VASCAR speed measurement into evidence, the record must reflect compliance with the requirements for the operation and testing of the measuring device as described in subsection (1) of this section. State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992).

The accuracy of a primary measuring device must be tested against a reliable testing device. State v. Chambers, 241 Neb. 60, 486 N.W.2d 219 (1992).

Radar-based evidence of defendant's speed inadmissible where police officer testified that he had tested radar unit using "inscribed" tuning fork which was not shown to be intended or accurate for that purpose. State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991).

Subsection (2) of this section should be read to require a showing of subparts (a) and (c) or a showing of subparts (b) and (c). State v. Kincaid, 235 Neb. 89, 453 N.W.2d 738 (1990).

A battery-operated stopwatch is not an "electronic speed measurement" device within the purview of this section. State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989).

Corroboration of testimony estimating the rate of speed by visual observation of an officer is not needed when the testimony is offered to show that the defendant was driving recklessly rather than that the defendant was speeding. State v. Howard, 5 Neb. App. 596, 560 N.W.2d 516 (1997).