Can a cop write you a ticket because you "sounded" like you were speeding? An Ohio court says no, but the story opens up some interesting discussion on the use of sensory evidence by traffic police. (Getty Images)

    by: Jonathon Ramsey | Aol Autos

    There are numerous tools and techniques available to police officers to issue you a speeding ticket: four different radar bands, lasers, and VASCAR for instance. The one thing they have in common is that they use a precise method to determine how fast you were going. Even if a radar gun isn't calibrated correctly, it will assess your speed based on a fixed mathematical process, and even though it's wrong it will be wrong in the same way for every car.

    Police can even pull you over based on their observations and cite you for driving too fast - but they can't say they knew how fast you were going based solely on their observations.

    Nor would one suspect that a speeding ticket could be supported based on an officer saying he could hear a driver exceeding the speed limit, but that's exactly what happened to Daniel Freitag.

    On October 18, 2007 in the Village of West Salem, Ohio, Patrolman Ken Roth was sitting in a marked police car on the shoulder of Route 42. Roth was parked parallel with the flow of traffic, while Daniel Freitag, driving his 2006 Lincoln Navigator, was approaching him from behind. Roth would later say that he could hear the Navigator speeding, even though there was other traffic and Freitag was more than 150 yards away. Roth turned on his Genesis Radar unit and waited. When Freitag was 100-150 yards away, his headlights appeared in Roth's sideview and rearview mirrors. When Freitag passed the patrol car, Roth worked his radar unit and measured Freitag's speed at anywhere from 42 to 46 mph in the 35-mph zone.

    Then he followed Freitag and issued a ticket.

    Then Freitag, instead of paying the $22 fine and submitting to the 2 points that would have gone on his license, put up a defense stiff enough to impress Rocky.

    Freitag and his attorney, Brent English, took the case to trial, but lost. Then they appealed the trial court's decision by noting six "assignments of error" -- mistakes made by either Roth or the State of Ohio -- that should reverse the conviction. These included more mundane assertions such as the stop being unconstitutional because the officer was out of his jurisdiction, and legally arcane protests that "the trial court erred in treating the violation as a 'per se' violation, rather than a 'prima facie' violation."

    But one of the assignments of error appeared to be absurd: Officer Roth testified that he could hear the car speeding based on training he had received from an unknown member of the force several years before. Roth also testified that he could see the car speeding by watching its lights in his mirrors, even though he had no visual markers to measure the Navigator's progress.

    When it was brought up that there were other cars on the road, Roth testified that he could only hear the Navigator. Going ten miles per hour over the limit. From more than 450 feet away. In traffic.

    The Court of Appeals declined four of the six assignments of error, and split the decision on the other two. It threw out the Genesis Radar evidence, noting that the State didn't identify the specific Genesis model that was used. That left Officer Roth's testimony concerning his rather high-powered and bionically focused ears to be decided, and they sent the case back to the trial court to judge the issue.

    The trial court, unable to factor in the radar gun evidence, decided that Roth's statements on his hearing abilities were enough, and supported the conviction.

    Freitag appealed a second time, and it went back to the Court of Appeals again.

    This time, appeals judge Donna J. Carr responded to Roth's assertions with phrases like "the trier of fact lost its way and committed a manifest miscarriage of justice." In her decision she wrote, "It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle 'speeding' without being able to determine the actual speed of the vehicle."

    One of the Appeals Court judges disagreed with part of Carr's decision, but Freitag won the day -- two years later, mind you -- and the State won the right to pay Freitag's court costs.

    We should note, though, that it has been made to sound like Roth ticketed Freitag solely based on what he heard. That's not the case. Roth ticketed Freitag based on the reading given by his Genesis Radar unit, which registered Freitag's speed as anywhere from 42-46 mph. Freitag exercised his legal rights and got that evidence thrown out. The eyebrows get raised when it takes two trips to court to assess Officer Roth's ability to hear one single car, in traffic, further away than the length of a football field, speeding.

    Roth never mentioned the person who trained him to develop such hearing acumen, and if he had it might have altered the outcome by giving him the weight of an expert. We suspect -- and this is only a guess -- it could have been Homer Simpson; after all, not only can Homer smell the words written on a cake, he can hear pudding.

    Now that's hearing.

    UPDATE: Officer Roth Responds:

    It is not as simple as "factual inaccuracies;" it is the intentional absence of facts that would present (in this case me) the subject in a favorable light. The title of the article (Can Police Give You A Ticket For "Sounding" Too Fast?) would make people believe the citation was issued and upheld based on my hearing a vehicle and telling you how fast it is traveling. Quoted in the dissent to the first appellate court's decision: [“the sound is what drew [his] attention specifically to the mirror to begin an observation of the vehicle.” Officer Roth testified that he visually monitored the vehicle traveling in excess of the speed limit for 100-150 yards as it approached his police car before he activated the Genesis Radar].

    Although Donna Carr believes:

    "As a preliminary matter, the determination of the speed of any number of makes and models of motor vehicles upon a roadway, based solely upon sound from a distance of more than 150 yards away, is certainly beyond the knowledge or experience of a lay person. We reach the same conclusion regarding the determination of speed by merely seeing headlights in a rear and side-view mirror. Accordingly, Ptl. Roth’s testimony in this regard necessarily could only have been offered in the nature of expert testimony. Therefore, we question whether the officer was qualified as an expert based on specialized knowledge, skill, experience, training, or education; and whether his testimony was based on reliable scientific, technical, or other specialized information."

    "I would like to point out that my notes from that citation indicate I estimated the vehicle's speed to be 42 mph and accelerating. They also note the radar "track" started at 42 mph and jumped to 44, 45, and 46. Mr. Freitag was ultimately cited for 46 mph in a 35 mph zone. If I were untrained or inexperienced, how was the estimate accurate. If Judge Carr's thought process were universal and applied to all citizens of the United States, only "experts" would be able to look in their side mirrors and determine if it were safe to make a lane change on the interstate. If you drive, you have stopped at a stop sign looked left and thought, "That car is approaching too fast. I can't pull out now." Despite not being an "expert" you are allowed to drive at night. If you would like, we could make arrangements for a visit to a basic police academy during the speed measuring devices training. You will see there how un-trained cadets can easily estimate speed based on observation and life experience."

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    1 - 20 of 303 Comments
    jgmatt1951 Oct 18, 2010 12:29 AM
    In Oregon you can get cited for sounding too fast. We have a statute called "Speed racing"and its all inclusive. I have seen cases where a person just squealled his tires and was convicted. I spoke to the cop afterward where he told me even loud engine noises even though the vehicle didn'texceed the speed limit would be a violation. In the case of the squealing tires the truck wasn't even moving.
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    sholdgreve Sep 24, 2010 11:24 PM
    I am not concerned as much about some one driving a few miles over the limit on an Interstate as I am about all the people who run red lights to the point that in some cases I cannot make a right turn although I have the Green light. I have been rear ended several times while stopped at a red light. The hassel of getting my car fixed and monety from the insurance Co. for bodyly injuries is sickening. The last time Medicare paid for my DR. bills which is not Medicares responsibility.
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    sholdgreve Sep 24, 2010 11:14 PM
    I was ticked on I-25 near the town of Walsenberg, CO. for goimg 79 MPH when in fact I had my cruise control set at 55 MPH. I chalanged the two officers to get into my car and I would hit the cruise "RESUME" buttton so they could witness my actual speed. YThey replied that it was against the law for them to take my offer. I then asked to see the the radar reading in the police car but it was blank. Their reply was "It was there a minute ago. I was then issued a speeding ticket. I planned to got to court in this small town and take my vacation and set in jail if found guilty by the Judge. I discussed this with my neighbor who happened to be a top criminal lawyer who I had done favors for as a good neighbor. He said He would go to Walsenberg to appear on my behalf at "No Charge" and I accepted his offer. Walsenberg is a 90 minute drive from my home. Upon arriving at the Court House prior to my hearing He went to the judges chambers and appeared in about 10 minutes and advised me to pay a $50.00 fine and there would be no Points assessed. Case closed. I responded by saying I was not speeding and was ready to set in jail for as long as necessary to prove my point. He asserted that this would shown as if I was a criminal on my record and could cause possible harm to my carear in the future. His reply was; I could not possibly win in this Court and all they wanted was my MONEY which is basically what the Judge told my neighbor Lawyer. This happened years ago when the nantional speed limit was 55 MPH and I can tell you I an still pissed about this unjust action on the part of the State Police and the Walsenberg Court system. EAH 9/24/10
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    criticismrus Jun 18, 2010 7:45 PM
    Yea, you can hear a car speeding but the ticket shouldn't be issued without evidence. Imagine if the vehicle has an exhaust leak or is loaded to capacity it would also sound like it was speeding. BTW i get stopped often just for looking out of place in urban neighborhoods. Is that fair?
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    catmagic43613 May 24, 2010 3:17 AM
    BS I bet the guy went to court beause those 2 points would have had his license suspended. See this as proof that even people who commit offenses an still get off.
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    oldgr1z May 10, 2010 11:08 PM
    Absolutely not, Underwood vs New York the US Supreme Court decided that no matter how many years or expierience an officer has he cannot draw a conclution as to the speed of a vehicle.
    Report This
    carmackmatt Apr 30, 2010 3:08 PM
    Cops SUCK!
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    purleyaddicted Apr 30, 2010 2:30 PM
    There needs to be more cameras at stop lights to catch more speeders and issue more tickets. And every 4 years there should be a law to take a written/driving test to keep your license if you fail So sad too bad. I guess you'll be taken a bus or taxi to work. Driving is a privilege it's not a job. I don't care if you fail it or not. Learn to drive and you won't have any concerns about it. If I was a Governor the law would pass.
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    deelsnw Apr 30, 2010 2:09 PM
    It is not pssible to hear how fast a car is going or even to know it is speeding without a lot of imperical data taken for different roads, cars and tires. The reason is that there are many varibles including but not limited to tire size, tread and pavement. A smaller tire wheel of 13" and snow tires or studs on smooth asphalt will sound like it is going faster (higher frequency noise) than an 18" wheel with normal tread on rough road even if they are traveling at the same speed.
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    zzetty Apr 30, 2010 12:31 PM
    i'm not from ohio but i visit often enough because of in-laws... but the amount of cop cars i see parked in parking lots or streets.. waiting to nab the next ticket is just freakin' amazing... and annoying for that matter. everytime i visit the state of ohio... i have this distaste to drive thru their cities especially the city of Stow!! also, i had driven from pittsburg into ohio... and i cannot believe cop cars in the highway waiting or giving tickets for EVERY mile or so i passed thru the highway... i kid you not...
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    nq00000000049441 Apr 30, 2010 12:09 PM
    I'm no fan of radar cops, maybe not even cops in general, but this cop gave a valid citation to a person who was clearly exceeding the posted speed limit. If he'd kept his mouth shut, or worded his initial actions differently, it would have been a "slam-dunk". I'm guessing there's a little more to this; he probably made a value judgement about the driver, and cited him at the "ax" reading, knowing that "more than 10 mph over" fine is a "quantum" step larger. As it turned out, the driver and his lawyer successfully abused the law and the system.
    Report This
    scrides Apr 30, 2010 11:46 AM
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    dewey115 Apr 30, 2010 11:31 AM
    I think he would take off caps lock...
    Report This
    grrdgal Apr 30, 2010 11:27 AM
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    dewey115 Apr 30, 2010 11:20 AM
    And having the public vote on what they will allow the police to enforce is just asinine. Sure lets ask the people if the police should ignore murders and break-ins... that is just plain not using your brain at all, of course the people dont want to get into trouble, so the first thing they will do is vote to have to police not enforce everything they are doing wrong... The laws of this country/state/county/city are in place for the greater good of this country (for the most part) not for YOUR benefit. The police are there to make sure everyone follows those laws. Now that doesn't mean that there are not corrupt police, there most surely are... but it would be irresponsible to say that all police are corrupt because of those isolated cases. Are all white people crazy serial murderers because of Charles Manson and Westley Dodd?
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    grrdgal Apr 30, 2010 11:11 AM
    WHAT??????? $22.00 FOR TEN MPH. OVER THE LIMIT? In Florida you would be paying somewhere in the $150.00 range. If you faught it and lost, you would be charged another $30.00 Court cost and possibly sent to Drivers school, another $45.00. My last speeding ticket in Fla. was $269.00. I always fight my tickets. These are the reasons 1) the cop might not show up; case dismissed. Every time I go I see at least 5 people walk away because of a NO SHOW officer. 2) if he DOES appear and you really DON'T have a defense, ALWAYS ask the Judge to WITHOLD AJUDICATION (sp?) of the points. In other words, ask if the Judge would consider NOT PUTTING POINTS on your license. I have been going to traffic court for 40 years and only once have I seen a Judge refuse this request, and THAT was a 22 yo kid who had gotten 2 tickets per year EVERY YEAR since he had first gotten his license. If your Judge agrees to withold the points, your Ins. carrier will (should) not raise your rates. I don't know if its because they raise strictly on points assessed or its that their computers don't pick it up, but for some reason they don't raise the rates. Keep in mind that I'm in Florida, and your state may be different, but then again, It may not. See you in Court;-)
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    michaeldoq Apr 30, 2010 11:07 AM
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    dewey115 Apr 30, 2010 11:06 AM
    And my comment on sound is in regard to the engine RPMs, not things like the air resistance which would depend very heavily on the type and size of the vehicle, probably even more than the speed it is traveling. And the comments about stopping "real crime" are just dumb. If you break the law you are committing a crime. Just because your crime of driving 10 over the speed limit are mild compared to a murder in no way means your doesn't count, just that you are a "little fish" on the radar. If you dont want to get a speeding ticket then dont speed. If your states speed limit is too low then move to another state or deal with it. Many areas have officers whose sole responsibility is traffic patrol, not responding to calls. They are doing their job by catching people breaking the traffic laws. You guys are the same ones to complain about how much insurance premiums are, but dont care that you are going 10 over the speed limit, switching lanes without signaling while blabbing on your cell phones causing accidents every day. If people took driving more seriously instead of driving with this feeling of entitlement then insurance companies wouldn't have to jack up premiums to cover for people like you. And I most definately do speed many many times a day, but I dont talk on my phone and I always use my turn signal because of the safety factor (I feel that if you are actually a GOOD driver you can technically exceed the speed limit and still be safe) but I also know if I get a ticket it is because I broke the law and deserve it, not because of some "moron cop" who is only doing his job.
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    skidor Apr 30, 2010 10:57 AM
    rserspmer the lawyer was doing his job. Since this countries police have decided that predatory police practices against average citizens is appropriate behavior and judges are willing to accept the perjry the police commit in courts all over this country every day our lawyers become our only defense of justice in this abusive predatory police environment. There is a simple answer to the problem. Let the citizens vote on exactly what we want the police to do and to have. If we do nto want police sitting on the side of the road "hearing speed", "seeing speedin the their rear view mirror", smelling speed, or eating doughnuts then we can vote to have fewer of them around. Afterall police will never stop crime they only write down stuff after teh crime happens. For the most part they are worthless. We have three of them tazing a pregnant lady in washington state becuase she would not climb out of her car. Who should be shot for that abuse of power rserspmer? How about the cop that shot the drunk seven times becuase he woudl not get out of his car. The cop was standing next to the drivers door and cliamed he felt threaten by the car? Lawyers are liers and they do it for a living; cops are liers and they do it to cause other people problems. Judges who believe cops are even worse and should be sent to prison (in teh genreal population). On the moral scale cops and judges fall far lower then lawyers. Dante's circles of hell put lawyers at about 3, judges at 8, and cops at about 9 with corrupt Popes! No Rserspamer the lawyer shoudl not be shot, but maybe that mentally ill cop shoudl be jail prison along with most of his co-workers. Just about every police office and Judge in the United States are gong to spend their afterlife withthe same people that messed with during life. that is going to be their torment in hell.
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    choicef Apr 30, 2010 10:52 AM
    my experience with cops is that most of them are criminals with a badge- most seem to be like the kids who got picked on in school and now are out to get even- i do not trust them
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    No one would suspect that a speeding ticket could be supported based on an officer saying he could hear a driver exceeding the limit, but that's what happened to Daniel Freitag.


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