Speeding and Due Process
![handle is hein.journals/flr28 and id is 135 raw text is: SPEEDING AND DUE PROCESS
MORRIS D. FORKOSCH*
R1ECENT developments in the law concerning the proof of speeding
violations disclose judicial awareness of technological developments,
acceptance of a new method of proof, but a continued insistence, never-
theless, upon procedural requirements for a conviction. While the prin-
ciples here discussed are generally applicable, we concentrate upon one
state's approach to these problems.
States have undoubted and unquestioned police powers over their
roads, at least insofar as speeding by private persons is concerned.1 We
are not concerned with the existence or the use of this power of control,
but rather with the method of its effectuation and its abuses, considered
either in constitutional terms of a deprivation of property without due
process, or else within the framework of procedural due process.2
First the possible methods of effectuating control over private speed-
ing are considered, and, secondly, the due process abuses which may be
found. In the first aspect we touch upon a recent judicial policy change,
while in the second, we see a continued rigidity in procedural require-
ments.
I. METHODS OF PROVING SPEEDING VIOLATIONS
We assume a speeding violation. In general, how may it be proved?
There are several ways to do this, but only a few are here touched upon.
A. Opinion Evidence
The first general method utilizes sensory perception, and involves the
opinion of any ordinary witness, not necessarily an expert, as to the speed
of the automobile.' All that is required, as a basis for the admissibility
* Professor of Law, Brooklyn Law School.
1. Johnson v. Maryland, 254 U.S. 51 (1920), held that a state could not arrest a postal
employee for driving a mail truck in the performance of his functions without first ob-
taining a state license. But, said Mr. Justice Holmes, an employee of the United States does
not secure a general immunity from state law while acting in the course of his employ-
ment. Id. at 56. As to state power to exclude automobiles from the roads, see Walker
v. Commissioner, 40 Pa. Super. 638 (1909), and more recently, Perlmutter v. Greene, 259
N.Y. 327, 182 N.E. 5 (1932).
2. See, e.g., Forkosch, American Democracy and Procedural Due Process, 24 Brooklyn
L. Rev. 173 (1958).
3. See, e.g., People v. Dusing, 5 N.Y.2d 126, 128, 155 N.E.2d 393, 394 (1959) which de-
clared: Admissibility and weight of opinion evidence and measuring device evidence in
speeding cases is governed by the same rules applied in other types of cases. Qualified
[not expert] individuals at appropriate observation posts have always been allowed to
state opinions as to speed ... . See also People v. Boehme, 1 Misc. 2d 629, 152 N.Y.S.2d
759 (County Ct. 1955).](ViewImageLocal?handle=hein.journals/flr28&div=11&collection=&method=preview&ext=.png&size=3)
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