Lost Trial in New Jersey Traffic Court

[plex]

My question involves traffic court in the State of: New Jersey

When the trial is in New Jersey!

I have written written about my speeding ticket in another post leading up to this day, check it out here:

http://www.expertlaw.com/forums/show...ht=#post485708

So I finally get a court date when the officer shows up and once again I'm the last person called (3 and half hour wait). I start off with an oral motion to have the prosecution be precluded from using the traffic survey. My original motion to compel (months earlier) was denied, so I figured I'd give it another shot since it seems the prosecution is clueless on what this document really means. The judge then asks me some questions, then decides the court needs a break. I wait about thirty minutes, he comes back, then more questions and finally I convince him to grant my motion. I believe the only reason my motion was granted was because the prosecuter told the judge he wasn't going to bring a traffic survey.

I know just about everybody in California who has fought a speeding ticket is thinking this is a slam dunk win! No traffic survey from the prosecution, no way they can win! Think again, this is New Jersey! Of course, my next motion was to have the case dismissed based on the state being unable to prove the legal speed limit, an essential element of the case. The judge denied the motion on the basis that its up to the court to decide what evidence is needed to try the case.

And so the circus begins!

My first objection came at the mention of the officers mention of the speed limit. I objected on lack of proper foundation, no proof of the legal speed limit. Officer states that there is a speed limit sign showing the speed limit. I provide numerous case law...a sign is not the law...stating the Speed limit is not sufficient...state must prove sign is legal...a traffic survey in accordance with MUTCD...etc

That got shot down.

The car speeding was a dark color, my car is a light color

Judge: who cares? anything else?

All documents related to the radar and tuning forks cerification were just black and white copies, no official seals.

Thats not hearsay, because the state says their official.

Yes you showed the officer did not calibrate the radar unit according to the owners manual

Judge: He did a step wrong, that shouldn't change anything right? Anything else?

Let me get this straight, officer, you don't know what a traffic survey has to do with the speed limit nor the significance of the 85th percentile speed?

Move to strike, wintess has no personal knowledge of legal speed limit, testimony should all be striken (in accordance with Rules of Evidence)

Judge: He saw a Speed limit sign, good enuf for me, Anything else?

I went to the DOT and got a letter from the Comissioner of Transportation stating that the speed limit can not be lowered to 40 mph on this road. This letter was from a few years ago when the town was asking if it could lower the speed limit.

Wait? how did it get lowered to 30 mph, if they didn't have permission to lower it to 40 mph? The town must have done it illegally and the legal speed limit is greater than 40 mph.

Prosecution : Your Honor these documents are hearsay!! (How do you like that for hypocrisy!)

But these papers have an official seal and are signed...
Judge: (Stop trying to make this hard) Do you have anymore questions?

I rest my case and give my closing arguments, showing how the state has not shown what the legal speed limit is for the location, how a legal speed limit is posted in accordance with the MUTCD and state law. At the end I start my soap box speech how the town is risking our lives by placing the speed limit artificially low for the sake of revenue.

A few minutes later, the judge thinks I'm guilty because the officer saw a speed limit sign that says so (with no proof to show the sign was legally placed).

Now I appeal by having the Superior courts review the case.

Maybe they'll know the importance of a traffic survey?

Maybe they won't even care.

I'm betting it won't get overturned until it reaches an Appellate court.

Wish me luck!

[jk]

glad to see you are learning that California seems to coddle their residents and basically sets up their system so that the only people that are found guilty of tickets are those that simply refuse to argue against them. They are probably the most defendant friendly state.

I am missing something though. You are trying to argue the validity of the speed limit based on a traffic survey yet you argued to have the survey not allowed in as evidence. How can you prove the speed limit is improper if you cannot use the traffic survey? Without that, the courts will accept the posted speed as the speed you are required to follow.

In most of the states other than California, you have to defend the actual charge rather than all the games California allows to defeat a ticket.

Oh, and to your MUTCD arguments in the other threads; if NJ does not follow the MUTCD, it is their choice. The MUTCD being a federal rule (not law by the way), the state can refuse to conform if they desire. Federal law (or even rules) do not automatically override state law.

Paraphrasing Dorothy in the Wizard of Oz:

I don't think we are in California anymore Toto.

[plex]

Whether or not to use the traffic survey was a long debate for me. The survey showed the speed limit at 45 mph, which means the state can't prove the legal speed limit is 30 mph. Now, if no survey is produced, the state can't prove the speed limit. If I help them out and prove the legal speed limit is 45mph, then there is a chance they could amend the ticket and charge me for doing 50 in 45 mph. If I am convicted of doing 50 in a 45, an appeal is very unlikely. If the survey can be excluded or never produced in trial(which is what I was able to do), then a successful appeal is likely. I would have been glad to have produced the survey, if the state had a speed trap law like California's, but it doesn't, so that is just another reason why I didn't produce the survey.

If a defendant challenges a posted speed limit as hearsay, the state must prove that sign was legally ordained. There is numerous case laws supporting this specifically.

I did not feel I had to "defend" myself from the charge, just make the state prove every element of the case...prove it was my car, prove I was driving it, prove my speed, prove the legal speed limit. Thats all I was asking for. I think it is pretty much the standard that when the state charges an individual with a violation, the burden of proof is on the state to prove each element of the charge. Hopefully, the state will do it beyond a reasonable doubt.

In the US Constitution Article VI paragraph 2 (otherwise known as the Supremacy Clause) it states that the laws of the federal government overrule any state laws. So federal laws are the Supreme Law of the Land, if a state law is in conflict with a federal law...the state loses everytime.

As for the MUTCD, Section 1A.07 Responsibilty for Traffic Control Devices, paragraph 4b basically states the Manual shall have the force and effect of law. Since this a federal document, then it has the force of federal law. New Jersey basically adopts the Federal MUCTD as the State Traffic manual. I know states are allowed to add on, as long as they don't conflict with the Federal MUCTD.

You are right jk, about not being in California anymore. I long for those days when I could push a trial date for over a year and a half. Being able to have a change of venue to the county seat or being able to disqualify the judge without having to ask him/her to disqualify themselves. Speed trap laws, prima facie...oh those were the easy days.

[jk]

Ok, let's make this easier. Here is a FAQ from http://mutcd.fhwa.dot.gov/knowledge/faqs/faq_part2.htm

Q: Is an engineering study required for posting speed limits?
A: It depends. Maximum statewide speed limits are established by state legislatures according to road class (e.g., Interstate highways) and geographic area (e.g., rural vs. urban areas). The legislated maximum speed limit generally applies to all roads of a particular class throughout the State. This is referred to as a statutory maximum speed limit, which applies "unless otherwise posted" and above which a speed limit cannot be legally posted. For example, the statutory maximum speed limit for rural freeways in a given State might be 65 MPH. No engineering study would be needed to post a 65 MPH speed limit on a rural Interstate highway in that State, and even if an engineering study indicated that 75 MPH might be a more appropriate speed for the conditions, the statutory maximum would prohibit the State from posting any limit higher than 65 MPH. Similarly, statutory maximum limits are often legislated for urban streets within city limits, such as 30 MPH. However, State and local governments typically have the authority to change the limits by establishing speed zones, with posted speed limits lower than the statutory maximum, for highway or street sections where statutory limits do not fit specific road or traffic conditions. An engineering study is required for setting the limit for altered speed zones. The engineering study takes into consideration such factors as operating speeds of free-flowing traffic, crash experience, roadside development, roadway geometry, parking, and pedestrian traffic.

so, with that statement in mind, can you show me where the MUTCD specifies speed limits or requires any type of study for the state to set a particular limit?

and while you are answering that, please provide proof of the requirements that NJ must comply with to establish a speed limit.

[blewis]

Just to add to what JK has already said, as far as I can tell, NJ law contains the following provision:

When designating reasonable and safe speed limits for a street under its jurisdiction pursuant to this subsection, as part of an engineering and traffic investigation, a municipality or county shall consider, but not be limited to, the following criteria: residential density; the presence, or lack, of sidewalks; the prevalence of entry and exit ways for business and commercial establishments; whether school children walk adjacent to the street on their way to and from school; and the proximity of recreational or park areas, schools, community residences, family day care homes, child care centers, assisted living facilities or senior communities. Nothing in this paragraph shall substitute for traffic count, accident, and speed sampling data as appropriate.

It appears that, by law, the 85 percentile speed is only one small part of the engineering and traffic investigation. California is different. In CA, the PROSECUTION, as part of its case, MUST show that the speed limit does not constitute a "speed trap". I could find no such provision in NJ law. In fact, some states -- such as WA -- have provisions like:

(4) Any official traffic control device placed pursuant to the provisions of this chapter and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this chapter, unless the contrary shall be established by competent evidence.

If NJ has such a provision, YOU will have to show, "by competent evidence", that the speed limit and the posted signs did NOT comply with the laws.

Good luck,
Barry

[plex]

To answer your first question jk, the MUTCD deals with speed limits in Section 2B.13 SPEED LIMIT SIGN

Speed zones (other than statutory speed limits) shall only be established on the basis of an engineering
study that has been performed in accordance with traffic engineering practices. The engineering study
shall include an analysis of the current speed distribution of free-flowing vehicles.

(a little inside information, in legal talk, when the word SHALL appears this means that the action is mandatory, so this means everybody who is under federal law must do this. This includes all 50 states, territories and Washington D.C. I don't think the moon would be included due to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. So I'll just leave that for another thread)

Now, I'll get into statutory speed limits later because that deals with Barry's question. As I'll show later, a 30 mph speed limit does not fall into the statutory speed limit designation. Instead the street is considered an adjusted speed zone. I proved it was an adjusted speed zone by the fact that the town has to get permission from the Comissioner every time it wants to change the speed limit. Unless some kind of rezoning or big construction took place, a statutory speed is not going to change. If it did change, the town doesn't need any permission from the Commissioner or a traffic survey.

Next...

When a speed limit within a speed zone is posted, it should be within 5 mph of the 85th-percentile speed of
free-flowing traffic.

As a reminder, this road is in an adjusted speed zone (its not a statutory speed) and the 85th percentile is found by performing a traffic survey.

The manual goes a little further with...

Other factors that may be considered when establishing or reevaluating speed limits are the following:
A. Road characteristics, shoulder condition, grade, alignment, and sight distance;
B. The pace;
C. Roadside development and environment;
D. Parking practices and pedestrian activity; and
E. Reported crash experience for at least a 12-month period.

The letter from the Comissioner showed that the characteristics of the road had not changed (besides being changed from a single lane to a two lane), pace and flow were the same, no sidewalks and no speed related accidents during the year of the survey. So these factors were considered when the traffic survey was done.

In the MUTCD's Q & A on whether an engineering study is required for posting speed limits, as it stated in its answer... statutory...no, adjusted...yes

An engineering study is required for setting the limit for altered speed zones. The engineering study takes into consideration such factors as operating speeds of free-flowing traffic, crash experience, roadside development, roadway geometry, parking, and pedestrian traffic.

To me, it seems very clear that the federal government is saying that they are setting a uniform standard on how a speed limit is to be designated. The federal government is not saying that speed limits are mandatory (see Montana No daytime Speed limit, which is ironic that the Supreme Court ruled it unconstitutional back in the late 90's), just that a committe of scoundrels can't make up a number and say thats the speed limit to help with revenue. The federal government has decided what this sign will look like, where it can be placed and not be placed, how big the sign will be, etc...

When a state decides to place a speed limit sign, they'll refer to their traffic manual. I don't want to get into the differences of every states traffic manual, so I'll just refer to the federal one since every state's traffic manual has to conform to that one.

This leads up to answering Barry's and jk's questions. This is where one differentiates between a statutory speed and an adjusted speed zone...

39:4-98 Rates of speed.

39:4-98. Rates of speed. Subject to the provisions of R.S.39:4-96 and R.S.39:4-97 and except in those instances where a lower speed is specified in this chapter, it shall be prima facie lawful for the driver of a vehicle to drive it at a speed not exceeding the following:

a.Twenty-five miles per hour, when passing through a school zone during recess, when the presence of children is clearly visible from the roadway, or while children are going to or leaving school, during opening or closing hours;

b. (1) Twenty-five miles per hour in any business or residential district;

(2)Thirty-five miles per hour in any suburban business or residential district;

c.Fifty miles per hour in all other locations, except as otherwise provided in the "Sixty-Five MPH Speed Limit Implementation Act," pursuant to section 2 of P.L.1997, c.415 (C.39:4-98.3 et al.).

]

According to this intro on Rates of Speed, statutory speeds are 25, 35 or 50 mph. The alleged speed limit is 30 mph, the legal speed limit is 45 mph. Neither of these is a statutory speed. So, any arguments or regulations that talk about statutory speeds does not appliy to this situation.

So if one looks a little further we get into adjusted speed zones. If the state wants to put up an adjusted speed limit sign, one of the things it has to do is the following...

When designating reasonable and safe speed limits for a street under its jurisdiction pursuant to this subsection, as part of an engineering and traffic investigation, a municipality or county shall consider, but not be limited to, the following criteria: residential density; the presence, or lack, of sidewalks; the prevalence of entry and exit ways for business and commercial establishments; whether school children walk adjacent to the street on their way to and from school; and the proximity of recreational or park areas, schools, community residences, family day care homes, child care centers, assisted living facilities or senior communities. Nothing in this paragraph shall substitute for traffic count, accident, and speed sampling data as appropriate.

So that just basically says, get an engineering & traffic survey done based on good engineering principles to figure out a safe and reasonable speed limit for a non-statutory road.

As an added bonus...

39:4-8 Commissioner of Transportation's approval required; exceptions.

39:4-8. a. Except as otherwise provided in this section, no ordinance, resolution, or regulation concerning, regulating, or governing traffic or traffic conditions, adopted or enacted by any board or body having jurisdiction over highways, shall be of any force or effect unless the same is approved by the commissioner, according to law. The commissioner shall not be required to approve any such ordinance, resolution, or regulation, unless, after investigation by the commissioner, the same shall appear to be in the interest of safety and the expedition of traffic on the public highways. The commissioner's investigation need not include more than a review of the ordinance, resolution, or regulation, and the supporting documentation submitted by a board or body having jurisdiction over highways, unless the commissioner determines that additional investigation is warranted.

it goes on also to say...

The provisions of the ordinance, resolution, or regulation shall be consistent with the Manual on Uniform Traffic Control Devices for Streets and Highways, consistent with accepted engineering standards, based on the results of an accurate traffic and engineering survey, and not place an undue traffic burden or impact on streets in an adjoining municipality or negatively affect the flow of traffic on the State highway system

So the comissioner approves speed limits if they follow the guidelines of the MUTCD.

To get to Barry's question pertaining to signs presumed to comply with the necessary requirements. NJ does have a law similar to that...

39:4-202. Approval of resolutions, ordinances or regulation by commissioner
No resolution, ordinance or regulation passed, enacted or established under authority of this article shall be effective until submitted to and approved by the Commissioner of Transportation, as provided in R.S. 39:4-8, except as otherwise provided therein.

This was one of the things I weighed in when deciding what to do with the traffic survey. I looked at a few case laws dealing with the subject.

The State of New Jersey vs. Edward T. Miller (Nov 1959)

...There was evidence that signs showing the number 25 had been erected, but no proof of the authority by which they were placed as required by statute.
A sign showing the speed limit is merely a notice of the law or an ordinance or regulation prohibiting a greater speed. The sign itself does not set the speed limit. There can be no conviction of the edict of a posted sign, but only for violation of the statute, ordinance, or regulation having the force of law. There are many unauthorized signs in the State which may serve as a warning but have no effect in creating an offense.

but then another case seems to say something different, but this is in regards to a traffic light...

The State of New Jersey v. Ross L. Cooper (July, 1974)

...Existence of such a presumption does not relieve the State of the burden of proving that the light was official and properly placed. Once theState has proved, however, that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden going forward and adducing evidence to rebut the presumption then falls upon defendant.

Although they are talking about a traffic light, the key word used here is "a specific location". So in this case, if the state claims the light was at the intersection of main and 1st, this is an intersection (unlike saying it was in a parking lot at car space 34D) so the defendant would have to prove it wasn't legal to have it at that intersection. In the matter of speed limits, "a specific location" would be a school zone, residential, business, etc. Unless the State proves the location, it can't be presumed to be properly placed.

I was able to find a more modern interpretation in State of New Jersey v. Robert C. Morgan Jr. (June, 2007)

]...We, therefore, take this opportunity to reaffirm our holding in Craig to this extent -- "sworn testimony from a police officer relating the speed limit in a zone in the municipality in which [s]he is employed," 150 N.J. Super. at 515, if addmissible and believed, may be suffieicent proof of the lawful speed limit in the area in question. If persuaded by such testimony, the court need not require the State to prove that fact through the introduction of a certified copy of an ordinance or regulation. To extent Miller holds otherwise, we disapprove it.

Although we reaffirm Craig's general approach to the issue, we reject the suggestion that the officer's testimony creates a "rebuttable presumption" of the lawful speed in the area. In the absence of any specific statutory language, it has been noted that "[c]ourts are generally reluctant to create presumptions."

(case law from any state can befound at findacase.com)

So to answer Barry's last question, I had to take a gamble with proving the speed limit. If I proved the speed limit I then ran the risk of getting the charge amended. If I didn't prove the speed limit but proved the speed limit wasn't 30 mph, maybe I stood a chance on appeal. So Barry may be right, but hopefully the Superior court will dismiss the case on lack of evidence.

Thanks for the questions.

[jk]

ok, let's accept you are right. So, where is your proof the posted speed limit is not proper? The two citations you posted are not exclusive of each other. Yes, the first one does state that the sign doesn't make the law, the law makes the law BUT it doesn't say it is the onus of the state to prove the sign is proper. It merely says a sign without a traffic survey supporting the speed limit posted does not make exceeding that speed a crime.

Then, you go you your second citation. It specifically states that the presence of the light (I would believe "traffic control device" would be able to be generically applied to all traffic control devices, including signs) is prima facia evidence of it being proper and it is upon the defendant to prove it is not properly placed. The citation simply said that the existence of the control device itself was all the state had to prove. Then it became the defendants requirement to prove the placement was improper.

So, that is why this:

Judge: He saw a Speed limit sign, good enuf for me, Anything else?

and you not disputing it then put the onus upon you to prove it was incorrect. When you prevented the support for that claim, you shot your own foot.

So, while you might have actually won your case if you had not prevented the traffic study to be allowed, your defense failed because you prevented it from being allowed. The state proved their case as your citations required. There was no lack of evidence on the states part. You simply failed to provide an adequate defense.

[plex]

I may have not been clear on the officer's testimony regarding the speed limit. When the officer stated what he thought was the speed limit, I objected based on proper foundation. The officer replied that there is a speed limit sign of 30 mph. I then used the case law from my posts listed here. When I testified in my defense, I stated that I went to the NJ DOT and got the letter from the Comissioner that refused to approve LOWERING the speed limit to 40 mph. I stated that I had seen the traffic survey and the legal speed limit is not 30 mph. Since the Comissioner never legally allowed a reduction to 40 mph, the only logical conclusion is that the town illegally lower it to 30 mph.

So I did dispute the sign and I did disprove it while not giving an exact speed limit number.

To be fair, one can't just look at the first two citations I mentioned. One needs to look at everything to get the full picture.

The oldest case, Miller, says a sign is merely a warning it is not the law

The next oldest case, 15 years later, says that if the government puts a sign there, they did it legally unless someone can prove they didn't do it legally.

The last case mentioned is only 3 or 4 years old and states that the court rejects the idea that an officer's testimony creats a "rebuttable presumption".

So it can be seen the courts have kind of flip flopped on this. New Jersey Rules of Evidence ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS goes on about this, pretty much saying that the courts should be very leery of presumptuions. There was also an amendment rule 303 back in 2005,

Instructing the jury. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge may instruct the jury that it may regard the basic fact as sufficient evidence of the presumed fact but that it is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense, the judge shall instruct the jury that its existence, on all of the evidence, must be proved beyond a reasonable doubt. The judge shall not use the word "presumed" or "presumption" in [his] instructions to the jury.

I couldn't find this on a quick search of the 2010 revision, so maybe I'm not looking hard enough.

As for an adequate defense, I believe showing that the officer pointed out the wrong color car, calibrated the radar unit incorrectly and I was able to get the traffic survey excluded all in one trial is hardly a definition of not providing an adequate defense. I would think most people would be happy just to get one of these done for their trial, let alone all three.

[jk]

When I testified in my defense, I stated that I went to the NJ DOT and got the letter from the Comissioner that refused to approve LOWERING the speed limit to 40 mph. I stated that I had seen the traffic survey and the legal speed limit is not 30 mph. Since the Comissioner never legally allowed a reduction to 40 mph, the only logical conclusion is that the town illegally lower it to 30 mph.

Your testimony of what you found is not legal support for your statement. Your failure to introduce the source of your claims was required or all you have is hearsay i.e. worthless.

this. New Jersey Rules of Evidence ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS goes on about this, pretty much saying that the courts should be very leery of presumptuions. Th

Civil actions? Is a speeding ticket considered to be a civil action in NJ?

As for an adequate defense, I believe showing that the officer pointed out the wrong color car, calibrated the radar unit incorrectly and I was able to get the traffic survey excluded all in one trial is hardly a definition of not providing an adequate defense. I would think most people would be happy just to get one of these done for their trial, let alone all three.

vehicle color; not a big issue unless you want to challenge the officers testimony due to his inability to be properly observant of the situation which it appears you weren't arguing.

calibrated the radar incorrectly; not sure it makes any difference. I don't have enough information to make that call. In some states, the officers testimony is all it takes to determine the violation and the radar is merely support for their claim. If that were the case, then your wrong color argument might have been valuable.

tossing the survey; as I said; I believe you have to have the survey to support your claim. Without it, all you have is your claim of what the law says. That is meaningless.

When the officer stated what he thought was the speed limit, I objected based on proper foundation. The officer replied that there is a speed limit sign of 30 mph.

and based on your citation of:

.

..Existence of such a presumption does not relieve the State of the burden of proving that the light was official and properly placed. Once theState has proved, however, that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden going forward and adducing evidence to rebut the presumption then falls upon defendant.
Although they are talking about a traffic light, the key word used here is "a specific location". So in this case, if the state claims the light was at the intersection of main and 1st, this is an intersection (unlike saying it was in a parking lot at car space 34D) so the defendant would have to prove it wasn't legal to have it at that intersection. In the matter of speed limits, "a specific location" would be a school zone, residential, business, etc. Unless the State proves the location, it can't be presumed to be properly placed.

first; it is your interpretation that "a specific location" refers to a school zone, etc. I would understand it as any place a sign may be posted. You are speaking of that specific location as opposed to 3 miles down the road.
but anyway; that citation requires you to prove the traffic control device is not proper once it is determined there is a device there.

[flyingron]

Sorry plex. MUTCD does *NOT* apply to all 50 states. While it is a federal standard, each state is free to adopt it or not.
However, New Jersey did adopt it, but you'd have to do some legal research to find the enabling statute to see if there are any reservations on that adoption.