[2] A98A2475.
[3] 236 Ga.App. 282, 511 S.E.2d 625, 1999.GA.42178
[4] February 05, 1999
[5] IZER
v.
THE STATE.
[6] Johnson, C. J., Smith and Barnes, JJ.
[7] The opinion of the court was delivered by: Johnson, Chief Judge.
[8] In the Court of Appeals of Georgia
[9] JO-116C
[10] After a bench trial, David Izer was found guilty of speeding.
He appeals from the conviction, claiming that evidence obtained from
a laser speed detection device should not have been admitted because
the state failed to introduce any evidence establishing the
reliability of laser-based speed measuring techniques. We agree.
[11] "In Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982),
the Supreme Court held that the test for admissibility of novel
scientific evidence is whether the procedure or technique has
reached a scientific stage of verifiable certainty, or . . . whether
the procedure rests on the laws of nature. The court went on to say
that once a procedure has been recognized in a substantial number of
courts, a trial Judge may judicially notice, without receiving
evidence, that the procedure has been established with verifiable
certainty, or that it rests upon the laws of nature." (Citations and
punctuation omitted.) Hubbard v. State, 207 Ga. App. 703, 704 (429
SE2d 123) (1993). "The trial court may make this determination from
evidence presented to it at trial by the parties; in this regard
expert testimony may be of value. Or the trial court may base its
determination on exhibits, treatises or the rationale of cases in
other jurisdictions." (Citations and punctuation omitted.) Smith v.
State, 250 Ga. 438, 440 (4) (298 SE2d 482) (1983); Manley v. State,
206 Ga. App. 281 (424 SE2d 818) (1992).
[12] At trial, the arresting officer testified that he was certified
to operate the device, that the particular unit was approved by the
Department of Public Safety, and that the device had been tested and
was working properly on the date in question. However, the state did
not introduce any expert testimony to establish that the technique
of using laser-based devices to measure vehicle speed has reached a
scientific stage of verifiable certainty. See generally Caldwell v.
State, 260 Ga. 278, 286 (1) (b) (393 SE2d 436) (1990). Nor did the
state bring to the trial court's attention any exhibits, treatises
or cases from other jurisdictions establishing the reliability of
the technique.
[13] Of course, as noted above, once a procedure or technology has
been recognized in a substantial number of courts, or has been
utilized for a significant period of time and expert testimony has
been received thereon in case after case, a trial court may take
judicial notice of the device's reliability and acceptance. See
Hawkins v. State, 223 Ga. App. 34, 36 (1) (476 SE2d 803) (1996). The
trial court does not have to keep reinventing the wheel; a once
novel technology can and does become commonplace. Id.
[14] Surprisingly, we have not yet reached that stage regarding
laser technology. While the use of radar as a technique for
measuring speed and its admissibility as scientific evidence is
widely accepted in Georgia and other states, see Discussion in
Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991), the
use and admissibility of laser evidence has apparently not been
explored by the appellate courts of this state. The state has not
shown the two techniques to be the same.
[15] Only a few courts in other jurisdictions have published
opinions discussing the issue of the scientific acceptability or
reliability of laser-based speed detection devices. See In the
Matter of the Admissibility of Motor Vehicle Speed Readings Produced
by the LTI Marksman 20-20 Laser Speed Detection System, 314
N.J.Super. 233 (714 A.2d 381) (1998) (use of lasers to calculate
vehicle speed is generally accepted in the scientific community, is
valid and reasonably reliable, and should be received as evidence of
speed; no expert testimony is required); People v. Clemens, 642
N.Y.S.2d 760 (168 Misc.2d 56) (1995) (scientific expert proved the
reliability and acceptance within scientific community of laser gun
as accurate means of measuring speed); People v. Depass, 629
N.Y.S.2d 367 (165 Misc.2d 217) (1995) (use of laser device was based
upon well-accepted scientific principles and could be accepted in
court as accurate method of measuring vehicle speed; expert
testimony was also presented); Goldstein v. State, 664 A.2d 375 (339
Md. 563) (1995) (laser evidence admissible where statute so provides
or state proves technique is generally accepted in scientific
community; parties stipulated that the use of lasers to measure
speed was generally accepted in scientific community and trial court
made extensive investigation into the reliability of laser speed
measurements). Although these courts have accepted laser evidence,
in some cases only with expert testimony, it cannot be said that a
substantial number of courts have recognized the technique. See
generally Hawkins, supra. Considering the dearth of authority
showing the scientific certainty of the technique, as well as the
absence of expert testimony on the subject, the trial court erred in
admitting the evidence. See generally Gentry v. State, 213 Ga. App.
24, 25 (2) (443 SE2d 667) (1994); compare Allison v. State, 179 Ga.
App. 303, 306-308 (1) (346 SE2d 380) (1986), rev'd on other grounds,
256 Ga. 851 (353 SE2d 805) (1987).
[16] The state argues that laser evidence must be admitted because
the legislature has included in its definition of acceptable methods
for detecting speed any speed-measuring device based upon "the speed
timing principle of laser." See OCGA § 40-14-1 (4). That the
legislature included laser-based devices in the definition of "[s]peed
detection device[s]" does not mean that evidence obtained from
laser-based devices is not, at the same time, "novel scientific
evidence." Novel scientific evidence is not admissible in court
until it has reached a scientific stage of verifiable certainty. See
Gentry, supra. Indeed, the admissibility provisions of the statute
at issue concern whether a particular device is in good working
order, which officers may use the device, and under what
circumstances it may be used. The statute does not concern the
threshold issue of whether the novel scientific principles upon
which the device is based are verifiably certain or rest upon the
laws of nature. See OCGA § 40-14-1 (4); § 40-14-4; § 40-14-5; §
40-14-6.
[17] In Georgia, statutes are to be construed in harmony with
existing law; their meaning and effect will be determined in
connection with, among other things, the common law and the
decisions of the courts. Hillman v. State, 232 Ga. App. 741, 743 (1)
(b) ( SE2d ) (1998). We will not presume that the legislature
intended to effect a greater change in existing law than is clearly
apparent. Id. We hold that the inclusion of laser-based devices in
the definition of "[s]peed detection device[s]," without more, does
not vitiate the state's burden of satisfying the requirements
applicable to "novel scientific evidence."
[18] The state's reliance on Wiggins v. State, 249 Ga. 302 (290 SE2d
427) (1982), is misplaced. The challenge there was to the admission
of radar evidence on the grounds of hearsay and lack of
authentication of documents. Id. at 304-305 (2) (a), (b). This case
involves laser, not radar; radar has long been accepted as reliable.
See Lattarulo, supra. Moreover, this case does not concern hearsay
or authenticity issues but, as noted above, the reliability and
acceptance of the scientific principles involved. The trial court
erred in admitting the readings obtained from the lased-based speed
detection device. See Hubbard, supra. That being the only evidence
supporting Izer's conviction, the judgment of conviction must be
reversed.
[19] Judgment reversed. Smith and Barnes, JJ., concur.
