Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. GORDON MOFFETT, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
At issue in this case are the following questions: Whether there was sufficient foundation for the introduction of radar evidence of speeding; whether the radar unit was functioning properly at the time; and whether the defendant was proven guilty beyond a reasonable doubt.
The defendant was charged with driving 76 m.p.h. in a posted speed zone of 55 m.p.h., on Route 64 near Pearl Street in the Village of Glendale Heights. At the place in question, Route 64 is a straight four-lane highway, with some inclines and declines in its surface.
Ray W. Markham, a police officer of the Village, was the principal witness for the State. He testified that on the date in question, at 9:10 p.m., he was on routine traffic duty in this area; that his car was parked next to Route 64 facing east, about 300 feet east of Pearl Street, with the radar cone pointed west; that the unit was set to pick up eastbound traffic; that he was conducting a radar check on eastbound traffic on Route 64; that he observed an automobile approaching the squad car, travelling rapidly in an eastbound direction in the outer lane of Route 64; that as the car entered the radar beam, its speed, as indicated on the radar meter, was at 76 m.p.h.; that this speed was observed for 200 to 300 feet; and that he activated the lock switch, which locked the meter at 76 m.p.h.
As the defendant's car proceeded eastward, the police gave chase immediately, and when the defendant's car stopped for the stop light at Glen Ellyn Road, the police car approached, and the officers signaled him to pull off the highway, which he did. Officers Markham and Thien, and the defendant had a conversation while standing between the police car and the defendant's car. Officer Markham testified that he asked the defendant if he was aware of the speed limit in this area and the defendant replied that it was 65 m.p.h., or better; that he, Markham, informed the defendant there were several signs in the area posting the maximum speed limit at 55 m.p.h.; that he asked the defendant if he knew how fast he was travelling and the defendant said 63 m.p.h.; and that he asked the defendant if he was watching his speedometer and the defendant said he was not, but that he was driving 63 m.p.h.
Officer Markham further testified that he informed the defendant that the police car had been parked on the highway; that the officers had observed his car approach, had measured its speed on the radar, and he was travelling 76 m.p.h.; and that the defendant stated this was not possible in that he was driving 63 m.p.h. Markham also stated that no other traffic was present as the defendant's car came within the beam of the radar, although two other cars had previously gone eastward in the center traffic lane.
The testimony and exhibits established that the police car was stationed at the bottom of a slight hill across the highway from a Chevrolet agency, and that business buildings were on both sides of North Avenue, which was in the area where the radar check was made on the defendant's car.
Officer Markham also testified that the radar machine had been in use for three hours prior to the "clocking" of the defendant's car, and that it "was more than warmed up." He stated that the unit was always allowed to warm up for twenty to thirty minutes before it is used; that after the warm-up period, the battery test button is pressed and if it indicates over 20 m.p.h. the unit "is sufficiently warmed up."
He further stated that on this occasion, the radar was tested by means of a tuning fork which is preset to give off vibrations of 65 m.p.h.; that the fork is activated by striking it against a solid object and it is then held perpendicular to the radar transmitting head; that the vibrations from the fork cause a speed reading on the radar meter; that if the meter reads 65 m.p.h. it is properly calibrated; that this procedure of testing was followed by the officers on the evening in question, shortly prior to 9:10 p.m., and about 6:00 p.m.; that on each occasion the meter read 65 m.p.h.; that no other tests were made; and that the tuning fork which was used, came with the radar unit.
Officer Markham further testified that the radar unit was made by the Reynaldi Company, which conducted indoctrination and training classes for police officers to familiarize them with its operation; that he attended such classes, as well as a one-day familiarization session given by the Lombard Police Department in 1967; that the engine of his automobile was idling at the time, but he had been instructed that this would not interfere with the correct operation of the radar; that the unit, for proper operation, should be located on a straightaway; that a steep hill would limit the range of the unit, but there would be an indication on the meter as to speed within a given area as the vehicle approached; that in case of a slight hill, as in this instance, there is a slight deviation on the radar; that electrical and electronic devices can interfere with the correct operation of the radar; that the maximum range of this radar unit was between one-fourth and one-half mile; and that it was set at one-half of its maximum with its field being 200 to 300 feet.
Officer Thien testified, and his testimony was essentially the same as that of Officer Markham.
It is undisputed that the tuning fork, in question, was in the possession of Officer Markham, and that it had been tested, other than when manufactured, only when the radar unit was sent in to the company for its periodic test. The police officers never tested the tuning fork. The evidence was in conflict with reference to whether the defendant asked to see the radar meter and whether Officer Markham refused his request. Markham stated that no request was made and the defendant stated that such request was denied.
The defendant was accompanied by his wife at the time, and they were familiar with the streets of the area. Mrs. Stankovich testified that she was a speedometer watcher; that the speed of their car was under 55 m.p.h. at all times; and that this was the reading on the speedometer. She also said that her husband was "sort of surprised" when the officers in the police car motioned him to pull over; and that he did not state how fast he had been driving.
The defendant testified that he operated radar units in the navy, that radar can be affected by neon lights, high frequency transmitters, and spark-gap modulations from the spark plugs of an automobile, and he identified certain radio antenna, transmitting equipment and neon signs in the area from picture exhibits of area buildings. He further testified that he was driving 55 m.p.h. at the time in question; that he neither told the officers that he had been driving at a speed of 63 m.p.h., nor that the speed limit was 65 m.p.h.; and that he knew the speed limit was 55 ...