COA rejects circuit court’s factual findings in speeding appeal
State v. Jeremy Kris Pool, 2025AP1228, 8/20/26, District IV (ineligible for publication); case activity
In a rare case where COA opts to critique and then ultimately reject the factual findings of the circuit court, COA concludes the lower court erred in determining Pool’s speed. It rejects his argument that the citation was improperly amended during the trial.
Amendment of Charge
Pool is alleged to have traveled in excess of the 55 mph speed limit. (¶6). At trial, there was some uncertainty as to the specific statutory provision at issue. (¶8). The circuit court initially agreed to use a jury instruction premised on theory that Pool was prohibited from driving over 55 mph when no speed limit is posted on a rural highway. (Id.). During trial, however, it turned out there was a posted speed limit of 55 mph. (¶9). Pool moved to dismiss, arguing the elements of the offense at issue could not be proven. (Id.). The prosecutor moved to amend the charging document to conform to the evidence and the circuit court granted that motion. (¶10).
The case law is not defense-friendly: § 802.09(1) permits amendment of a pleading “by leave of court” and informs the reader that such leave “shall be freely given at any stage of the action when justice so requires.” (¶15). Pool, however, maintains that the prosecutor did not adequately “request” amendment of the pleadings, focusing on the somewhat colloquial nature of the in-court discussion about the elements to be proven in court. (¶17). Reviewing the transcript, however, COA is unpersuaded and finds that the record supports a finding that the prosecutor requested, and the court properly granted, amendment of the pleading. (¶18).
Speed Finding
A crucial issue at this trial was Pool’s speed, as that determined the applicable penalty to be assessed (in terms of demerit points). (¶21). Pool testified at the trial and admitted to driving no faster than 62 mph. (¶11). Although a radar device measured the speed at 88 mph, the State failed to satisfy the criteria for reliance on that reading under State v. Hanson. (¶13). The circuit court found Pool’s testimony incredible and fixed Pool’s speed at 75 mph, thus triggering the loss of six demerit points for traveling 20 miles over the post limit. (Id.).
While the circuit court was not required to establish an exact speed, it was required to estimate the actual speed in order to determine the proper penalty. (¶25). COA reads the circuit court’s remarks, therefore, as a finding that “Pool traveled 75 mph or faster.” (¶26). It then rejects that factual finding.
To begin, COA agrees with the circuit court that it could not consider the radar reading under Hanson, as the State failed to satisfy the criteria set forth in that case for use of “moving radar.” (¶31).When that evidence is removed from the equation, the remaining evidence fails to support the finding at issue. Thus, while the trooper testified that Pool was traveling “pretty quickly” and “at a high rate of speed” this testimony is insufficiently vague and does not prove the speed was in excess of 75 mph. (¶34). And, while the trooper was sure Pool was traveling faster than the posted limit, he did not provide a particular speed estimate in his testimony. (¶35). The mere fact that Pool was incredible in claiming his speed as 62 mph does not prove he was traveling 75 mph or faster, (¶36), and his testimony that he was traveling “way too fast” is, like the trooper’s testimony, insufficiently vague. (¶37). Accordingly, COA declines Pool’s invitation to dismiss the speeding violation and instead remands so that the circuit court can apply a lower demerit punishment.
All this for a speeding case? Well, as it turns out there’s at least two interesting things about this case. First, for those readers who also practice traffic defense, COA’s discussion of Hanson–a case which sets rigorous requirements for the reliance on certain radar readings in speeding prosecutions–should ring some alarm bells. Hanson was issued in 1978 and is viewed here as perhaps somewhat dated in its view of what was then a “new” technology; accordingly, COA comes just shy of inviting SCOW to overturn that decision in a future case.
Second, while this is “just” a speeding case, the case is notable for the scrupulous manner in which the court’s factual findings are dismantled by COA. As the case is citable for its persuasive value, we thought readers in the criminal arena might find some use in trying to poke similar holes in factual findings when faced with equivalently murky records.