State v. Roberts, 73 Wn. App. 141 (1994), https://tinyurl.com/kwts6pwc
On May 18, 1990 Terry Roberts, an attorney, was driving on Highway 101 in Thurston county and was clocked at doing 65 miles an hour in a 55 mile an hour zone. The matter went to a contested hearing and the only evidence was the evidence from the officer and the evidence from the defendant. Roberts moved to dismiss as the evidence was not presented to indicate the speed measuring device was constructed or designed to be able to turn to determine speed.
The district court denied the motion indicating that Roberts had failed to request discovery under IRLJ 6.6. The court imposed a $20 fine. Roberts appealed to the Thurston County Superior Court and found that the district court had errored due to the lack of proper foundation for the speed measuring device.
The matter was appealed to the Court of Appeals which framed the issue as: was the radar gun evidence admissible and was all the evidence sufficient to support the District Court’s judgment.
ER 901 requires that evidence from a radar gun be authenticated. Seattle v. Peterson, 39 Wn. App. 524, 693 P.2d 757 (1985); 5 Karl B. Tegland, Wash. Prac., Evidence § 102, at 333 (3d ed. 1989); 5B Karl B. Tegland § 451, at 305 (3d ed. 1989); cf. Bellevue v. Mociulski, 51 Wn. App. 855, 860, 756 P.2d 1320 (written certificate found adequate to authenticate), review denied, 111 Wn.2d 1019 (1988).
The Court of Appeals found that Roberts had waived his objection to the admissibility of the radar gun results, he did not waive his right to challenge the sufficiency of all the evidence by means of a motion to dismiss. Thus, he was entitled to make his motion to dismiss when he did.
The court then held:
In evaluating Roberts’ motion to dismiss, the District Court was required to consider, in the light most favorable to the State, all evidence properly admitted during the evidential phases of the case. Porter v. Sadri, 38 Wn. App. 174, 175, 685 P.2d 612, review denied, 102 Wn.2d 1021 (1984). Such evidence included the radar gun results, for evidence admitted without objection is properly before the trier of fact. Peeples v. Port of Bellingham, 93 Wn.2d 766, 774, 613 P.2d 1128 (1980); Beam v. Beam, 18 Wn. App. 444, 450, 569 P.2d 719 (1977), review denied, 90 Wn.2d 1001 (1978); 5 Karl B. Tegland, Evidence § 10(1), at 25 (3d ed. 1989). Viewed as a whole, the evidence admitted during the evidential phases of the case was sufficient to support a finding of 65-plus in 55 m.p.h. zone, and the District Court did not err by denying Roberts’ motion to dismiss.