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January 13, 1970
Honorable Al Henry
Chairman Joint Committee on Highways
Olympia, Washington 98501
Cite as: AGLO 1970 No. 2
Dear Senator Henry:
By letter previously acknowledged, you requested our opinion as to whether the present provisions of RCW 46.61.470 ‑ commonly known as the "speed trap" law ‑ preclude the admission in court of evidence as to the speed of a motor vehicle which is obtained through the use of a certain electronic computer device known as Vascar.
As originally enacted in 1927,1/ the statute in question read as follows:
"No evidence as to the speed of a vehicle operated on a highway by any person arrested for violation of the provisions of this act or a city or town ordinance or regulation shall be admitted in evidence in any court at the subsequent trial of such person in case such evidence relates to or is based upon the maintenance or use of a speed trap. A 'speed trap' within the meaning of this section is a particular section of or distance on any highway the length of which has been or is measured off or otherwise designated or determined and the limits of which are within the vision of an officer or officers who calculate the speed of a vehicle passing through such speed trap by using the elapsed time during which such vehicle travels between the entrance and exit of such speed trap."
[[Orig. Op. Page 2]]
This version of the law remained in effect until 1937, when the legislature amended it through addition of the following provisos:2/
". . . Provided, however, Evidence shall be admissible against any person arrested for violation of any of the laws of this state or of any orders, rules or regulations of any city or town or other political subdivision regarding speed if the same is determined by a particular section of or distance on a public highway, the length of which has been accurately measured off or otherwise designated or determined and the limits of which are controlled by a mechanical, electrical or other device capable of measuring or recording the speed of a vehicle passing within such limits within an error of not to exceed five per cent (5%) using the lapsed time during which such vehicle travels between such limits: Provided, Such limits shall not be closer than one‑fourth (1/4) mile."
The apparent purpose of this amendment was to allow the use of evidence obtained by means of mechanical and electrical speed "counting" devices of the type which were then being developed. Typically, these involved the stringing of cables across the highway at designated distances; the cables would be electronically equipped so as to actuate and then terminate a timing recorder when struck by the wheels of a passing vehicle. Notably, however, the scope of this 1937 amendment was sufficiently broad to include radar measuring devices which have since been developed.
Your question is whether a certain newly developed computer device known as Vascar can be said to come within the scope of the present statute. Following receipt of your inquiry we requested the assistance of the Washington State Patrol in obtaining information pertaining to the precise manner of operation of this device. In response, we have received both written materials and have been provided with a first-hand demonstration of each of the five different ways in which Vascar can be used to determine the speed of a moving [[Orig. Op. Page 3]] vehicle; i.e.,
(3) being followed;
(4) crossing at intersection; and
(5) parked using measured distance in either direction.
Based upon this study of the operation of Vascar and of the various ways in which this device can be used, we have determined that we must express considerable doubt as to the admissibility of evidence obtained through the use of this device under the present statute (above quoted). As was previously stated by this office in an informal opinion to the assistant chief of the Washington State Patrol3/
". . . the VASCAR unit does not in itself control the limits of the test course nor does it in itself record the speed of the vehicle even though a trained officer might by using the VASCAR in fact be able to accurately gauge a vehicle's speed."4/
However, inasmuch as we understand your interest in obtaining clear legal sanction for the use of Vascar, we have taken the liberty of preparing the draft of a bill amending RCW 46.61.470 in such a manner as to alter the terminology of the 1937 provisos to the extent necessary to remove the language thereof which appears to be inconsistent with the use of Vascar and to substitute other language more appropriately describing the device and its operations.
You will find a copy of this draft bill enclosed, should you care to seek its enactment during the current special legislative session; of course, the basic policy question of whether an amendment such as this should be adopted by the legislature is one upon which we express no opinion.
[[Orig. Op. Page 4]] It is hoped that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/See, § 7, chapter 309, Laws of 1927.
2/See, § 74, chapter 189, Laws of 1937. In addition, this 1937 amendment made minor (and immaterial, in so far as the present question is concerned) changes in the terminology of the first portion of the statute.
3/Letter dated February 4, 1969, copy enclosed.
4/In considering your question, we have, inter alia, reviewed the very recent opinion of the Attorney General of California (dated November 14, 1969) concluding that evidence as to the speed of a motor vehicle obtained through the use of "Vascar" would be admissible, notwithstanding that state's "speed trap" law, provided that the device is used in certain ways. Notably, however, the California law is worded quite differently from ours. Furthermore, even if we were to find it possible to accept the reasoning of the California Attorney General, as applied to the terms of our "speed trap" law, our conclusion with respect to the admissibility of evidence obtained through the use of Vascar would still have to be qualified in terms of the particular technique applied in a given case, just as the California Attorney General's conclusion was so qualified.