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  1. #1

    Default Writing a Good Trial by Written Declaration for CVC 22349(A)

    My question involves a speeding ticket from the State of: California

    I need a little help with the trial by written declaration I'm writing. What else should I add to it or should I remove from it? Should I request laser maintenance information too? How about a written statement from my brother who was in the vehicle with me? Here is what I have so far, Thanks!

    On October 1, 2010, my brother and I were heading back home from a trip to Reno. We were traveling west bound on highway 80 in the number 1 lane. The weather was bright and sunny with no rain. We were in no rush at all, so I was cruising at 65 mph. A silver 4 door Audi was coming up behind us probably around 75-80 mph so I pulled over to the number 2 lane to let him pass. After he passed us, I moved back over to the number one lane and continued cruising at 65mph. Around the next bend on the freeway, I noticed that there was a police car parked under an overpass with its door open. The police officer was leaning out of his car with his radar equipment. I continued traveling at the same speed I had been going but I noticed the silver Audi that had passed me a minute or so before had not slowed down. It was about the instant that the Audi was side to side with the police officer that the driver of the Audi noticed the officer and stepped on his brakes suddenly. However, he only momentarily slowed down then accelerated back to his previous speed. The officer quickly closed his door to his vehicle and began to pursue the Audi. I was near a group of other vehicles traveling all around the same speed as me. There were two suv's and a large semi truck behind me in close proximity. While the officer tried to merge on to the freeway from the shoulder he was obstructed mainly by the semi truck but also the suv's in the number 2 lane. The officer lost sight of the Audi for about a minute due to this. I was slightly ahead of these vehicles and I noticed the officer was having difficulties merging. I decided to merge over to the number two lane since I knew the officer was trying to merge over to the number 1 lane to catch up to the Audi that passed me. By this time the Audi was about 3/4th of a mile to 1 mile ahead of me and the officer was quite a bit behind due to not being able to merge onto the freeway. The officer finally made it to the number one lane and accelerated to a high rate of speed to make up for lost time. He caught up to me and paced me for around 30 seconds. I was going the same speed I had been traveling at for several hours now (65mph). I noticed he was looking at my car, then looking forward at the Audi still visible in the distance. He looked back and forth at our two vehicles several times. The vehicle I was driving was a silver 4 door Lexus that unfortunately looked very similar to the Audi that was speeding. The officer then mistook my car for the Audi, braked and pulled behind me to pull me over around the Gold Run area on Highway 80. I pulled over to the side of the road and waited for the officer to approach. He came up to my vehicle and asked me if I was in a rush. I said, "no officer, I am in no rush at all." He informed me that he caught me going 82mph in a 65mph zone with his laser equipment. I however, told him in the most respectful way I could that I believe he mistook me for the Audi that was speeding in front of me. Officer (name and number) then told me "I saw you the whole time" when in fact he was stuck behind the semi truck and suv's that with out a doubt blocked his vision for quite some time. I stayed quiet and he then asked for my drivers license. He told me to drive up to the next off ramp and meet him there. When I drove to the next off ramp I noticed other officers waiting there. Officer #2 (name and number) approached my vehicle and asked how I was doing. I replied, "not too good anymore" and we both laughed. I then proceeded to tell Officer #2 (name) the same story I described above. Officer #2 (name) then wrote me the citation for 75mph in a 65mph zone giving me a break. I then asked politely if I could see the Laser reading. Officer #1 (name) informed me that he did not have me locked in, but showed me the speed of 81mph and 79mph on his Laser gun, none of which displayed the 82mph speed that he told both Officer #2 (name) and I. I then told Officer #1 (name) what I believed happened. Officer #1 (name) then asked, "how fast were you going then." I responded with 65mph. After we spoke, he agreed that he was in fact blocked by the semi truck and vehicles in the slow lane for quite some time. This confirmed that his vision was in fact blocked for enough time to confuse the silver 4 door Audi with my silver 4 door Lexus.

  2. #2
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    Default Re: Writing a Good Trial by Written Declaration for CVC 22349(A)

    Quote Quoting forevralegend
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    Should I request laser maintenance information too?
    Sure, why not... Though don't be too surprised if the Calibration Certificate is current and valid.

    Quote Quoting forevralegend
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    How about a written statement from my brother who was in the vehicle with me? Here is what I have so far, Thanks!
    Not sure how much weight that would add, but you're free to include whatever you like.

    As for your declaration, here are MY pointers (a few things to keep in mind as you make your arguments):

    - Break it up into paragraphs.. Try to make it easy to read rather than having it all in one big block of text!

    - You've included way too many details most of which are either guesses on your part or are irrelevant to the elements of the violation. Read 22349(a) and base your arguments off of that. (Though typically under normal circumstance (aside for the "two officer matter" that i will touch on below), there is not much you can present that will refute the officer's testimony).

    - Unless the officer testifies (or admits to (under cross examination)) that there was another silver vehicle ahead of you, I highly doubt that such an argument will work in your favor. Judges have heard that more times than you and I can count...

    - You should also understand that the officer should have also estimated your alleged speed by visual estimate. Add that to the way a LASER measurement is obtained (the officer specifically targeting your vehicle by looking through a view finder while he aims his gun), and your argument that it simply was "another silver vehicle" that he mistook you for might not fly...

    - Typically, officers do not make it a habit of showing the driver the LASER measurement, nor are they required to "lock in" a speed measurement in preparation of proving anything to the driver.

    Quote Quoting forevralegend
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    I noticed he was looking at my car, then looking forward at the Audi still visible in the distance. He looked back and forth at our two vehicles several times.
    - Are you suggesting that while you were driving at 65mph, and instead of watching the road ahead of you, you were watching to see where the officer was looking?

    Quote Quoting forevralegend
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    He told me to drive up to the next off ramp and meet him there. When I drove to the next off ramp I noticed other officers waiting there. Officer #2 (name and number) approached my vehicle and asked how I was doing. I replied, "not too good anymore" and we both laughed. I then proceeded to tell Officer #2 (name) the same story I described above. Officer #2 (name) then wrote me the citation for 75mph in a 65mph zone giving me a break.
    ^This^, in my opinion, is the only point of contention that may get you some relief. If Officer #1 witness the alleged violation, then officer #1's name (signature) should appear on the citation and he would also be required to testify (or submit/participate in the writing of the officer's declaration).

    Similarly, if officer #2 did not witness the alleged violation, and while he can in fact write the citation, he cannot testify on behalf of officer #1 (that would be "hearsay"). Both of them would have to testify as to what roll they played.

    That being said, the biggest challenge with a TBD is that you have no idea what he/they will testify to (as compared to an in court trial where the officer testifies first, and then you are given the opportunity to cross examine his testimony)...

    The way to overcome that hurdle, and prior to writing/submitting your TBD, you can make a discovery request and ask for a copy of the officer's notes (usually on the back of his copy of the citation). That too should give you an idea on what he/they will testify to... (Google "California informal discovery request" or search the forums here for direction on how to proceed with such a request).

    On the other hand, and if you prefer to avoid the hassle and headache of a discovery request, you can submit your declaration, (bring up the "hearsay" issue of there being 2 different officers), and if you happen to lose, you would then be able to get a copy of his/their declaration from the clerk, review his/their testimony as you prepare for a Trial De Novo (assuming you choose to take it that far).

    Good luck!

  3. #3

    Default Re: Writing a Good Trial by Written Declaration for CVC 22349(A)

    Quote Quoting That Guy
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    - You should also understand that the officer should have also estimated your alleged speed by visual estimate. Add that to the way a LASER measurement is obtained (the officer specifically targeting your vehicle by looking through a view finder while he aims his gun), and your argument that it simply was "another silver vehicle" that he mistook you for might not fly...
    Where can I find the Laser procedures to quote for this?

    Quote Quoting That Guy
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    - Typically, officers do not make it a habit of showing the driver the LASER measurement, nor are they required to "lock in" a speed measurement in preparation of proving anything to the driver.
    I was hoping that by stating he said I was going one speed then showing me the reading of different speeds that it would show he made a mistake and its more possible he made another mistake too.
    Quote Quoting That Guy
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    - Are you suggesting that while you were driving at 65mph, and instead of watching the road ahead of you, you were watching to see where the officer was looking?
    Good drivers are aware of their surroundings, not just what is up ahead of them.

    So the first thing I should do is request both of the officers notes through a discovery request, then turn in the written declaration? Do I bring up the hearsay issue in the trial by written declaration or during the trial de novo? Since there were two officers involved, they would both need to turn in a declaration so it should better my chances correct? Lastly, I have until Feb of next year to turn this in since the court postponed the court date, should I wait until closer to Feb or turn it in soon since it will be closer to the holidays for better chances?

    Thank you so much for your help!

  4. #4
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    Default Re: Writing a Good Trial by Written Declaration for CVC 22349(A)

    Quote Quoting forevralegend
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    Where can I find the Laser procedures to quote for this?
    I am not aware of any "procedures" that I can direct you to. My statement was based on my limited knowledge of the P.O.S.T. training and certification requirements, AND the numerous times I have heard officers testify in court.

    Quote Quoting forevralegend
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    I was hoping that by stating he said I was going one speed then showing me the reading of different speeds that it would show he made a mistake and its more possible he made another mistake too.
    Well, you should also keep in mind that while the officer's claim is that he measured you at 82, you were cited you for 75 in 65... So the 82mph, 81mph and 79mph readings are not relevant per se.

    In other words, you were cited for driving in excess of the maximum 65mph speed. And as long as the officer can prove that your speed was in excess of that limit (theoretically, even if it is by 1 mph) then he has essentially met the required burden to prove your guilt. The particular speed that you maybe convicted of goes to determine the fine amount that you would pay upon a finding of guilt. (the fine for 1mph to 15mph over the limit = approx $220 whereas the fine for 16mph to 25mph over the limit = approx $330). So the way I see it, and by citing you for 75mph instead of the alleged 82mph, the officer offered you a break that can potentially save you $110 or so, if you are found guilty!

    Quote Quoting forevralegend
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    Good drivers are aware of their surroundings, not just what is up ahead of them.
    Being aware of one's surroundings (glancing at one's mirrors, glancing to one's side... etc) is quite a different matter from making the claim (a mere "guess") that you knew what the officer was thinking/doing at the time (over a 30 second period, possibly longer) and where HE was looking "several times"... For all we know, he could have been running your plates during that 30 or so seconds!!!

    Furthermore, (let's speculate some more)... You stated that the "Audi" only slowed down momentarily... And then sped back up... You also stated that the Audi was "still visible" while you watched the officer look back and forth at you and at the Audi... Considering the fact that you and the officer were traveling at approx 65mph at the time, it can be easily determined that the Audi was traveling at a higher rate of speed as he "pulled away"... So if he was looking back and forth, why would the officer not pursue the Audi and instead, pull you over???

    At any rate, you asked for an analysis of your declaration and I offered you my opinion on one part that sounded speculative. You're free to leave that in there if you so choose!

    [QUOTE=forevralegend;478226]So the first thing I should do is request both of the officers notes through a discovery request, then turn in the written declaration?/QUOTE]
    Rather than requesting "both officers' notes", I would request "a list of witnesses who maybe called to testify" AND "any and all relevant notes"...(etc)... and see what you get.

    Quote Quoting forevralegend
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    Do I bring up the hearsay issue in the trial by written declaration or during the trial de novo?
    Based on what you've posted, that is, as I see it, the only viable argument that you have in this case (everything else is, in my opinion, "fluff"). So why not bring up the hearsay issue during both?

    Quote Quoting forevralegend
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    Since there were two officers involved, they would both need to turn in a declaration so it should better my chances correct?
    Possibly...

    Quote Quoting forevralegend
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    Lastly, I have until Feb of next year to turn this in since the court postponed the court date, should I wait until closer to Feb or turn it in soon since it will be closer to the holidays for better chances?
    I'm not sure how the holidays have much to do with how your case proceeds. Serve you discovery request, review the info you receive, and proceed accordingly! By the time you get to that point, the holidays will be history!

  5. #5

    Default Re: Writing a Good Trial by Written Declaration for CVC 22349(A)

    Okay, thank you so much for your advice!

  6. #6
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    Default Re: Writing a Good Trial by Written Declaration for CVC 22349(A)

    Just write "I stand by my plea of not guilty" on your declaration, and leave it at that.

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