I recently was cited for driving 48 miles per hour in a 35-mph zone. The officer informed me that I could either pay the fine or argue my case in court. I chose the latter. My day in traffic court has many parallels to EHS legal concerns.
Discovery: I made a request for discovery, a legal term, asking for copies of the officerâ€™s field notes, radar make and model number, equipment calibration records, and evidence of the officerâ€™s training and qualifications. The information I requested is similar to what we EHS pros routinely create and obtain during our jobs.
Had these documents been solid I would have stopped my defense and paid the fine. The officerâ€™s field notes, though, were not precise, equipment calibration was incomplete, and the officer only had on-the-job (no formal) training for use of the speed detecting radar. To support my defense I took pictures and measurements at the location where I was alleged to have been speeding.
Measurement errors? In court the officer and the prosecutor representing the officer simply relied on the reading from the radar as proof I exceeded the posted speed limit. To them, operating state-of-the-art radar for speed detection was straight-forward and accurate. Modern equipment for measurement gives the appearance the equipment is infallible, but errors are still possible. Placing too much trust in measuring equipment is a problem I see all too often among EHS pros.
Qualifications: My certificate as a Certified Safety Professional was presented to the court to help demonstrate my commitment to safety laws, including traffic safety. I wore a coat and tie to present a professional image. And I presented evidence to the court showing my experience and qualifications â€” my Certified Industrial Hygienist certificate and experience performing hundreds of calibrations for a variety of measurement devices.
Questioning: I was permitted to question the officer and he stated he clocked me at 100 feet past the posted speed limit, and it took him at least ten seconds to catch up and pull me over. His field notes identified the address where he stopped me. I ran the math for the court. If I was driving 48 mph my vehicle would be traveling more than 70 feet per second. Based upon the officerâ€™s testimony of how long it took him to pull me over, it would be impossible for us to have stopped where his field notes said we did. I had to have been driving much slower.
The officer also admitted that he did not calibrate the radar externally using a tuning fork before and after I was ticketed. He could not discount possible interferences â€” electrical surges, etc., to the radar during the time of its use. And he could not produce any evidence of formal training on measurement equipment calibration.
Verdict: The prosecutor offered to reduce my citation to a â€œbrake failure,â€ thus avoiding any points being assessed to my driving record. I declined the offer. The prosecutor then asked the court for a continuance â€” come back to court at a later date to better address my line of questioning. I countered that I was not being afforded my due process to a speedy trial and the prosecutor should have been aware of my line of questioning based upon the documents I requested during discovery. In short, I won my day in court.
EHS casesIâ€™ve spent more than half of my career reporting to attorneys. And now in my consulting practice I find a growing portion of my time working with lawyers preparing for potential litigation or court issues. The stakes are much higher than traffic court. Claims can run into millions of dollars.
We should be more familiar with how the EHS legal system works beyond simple regulatory compliance. If for no other reason than all the exposure records we create must be maintained for a minimum of 30 years. Will your field notes and actions/inactions survive scrutiny if a legal issue arises sometime in the future? Make no mistake about it, an EHS proâ€™s actions/inactions are often a prime determinant of whether some disputes are easily resolved or end up in a mess.
Every EHS pro should assume all our work will someday come under legal scrutiny. With this as a starting point we must impress upon our bosses and clients why we must spend the time, care, and professionalism in what we do.
Iâ€™m often questioned why it takes me about ten hours field time to conduct an eight-hour industrial hygiene exposure survey. Clients may not realize the best value theyâ€™re getting is that the results and records will have a good chance of standing legal scrutiny decades after theyâ€™re created.
Likewise for credentials. A credential such as a CIH doesnâ€™t mean the person with the CIH is smarter than someone without it or that a CIH does better work. Somewhere down the road the credential may sway the day in court. That may be its highest value.