Speeding Ticket in California - VC22350

[nevraider]

My question involves a traffic accident in the State of: CA

A friend received a sppeding ticket going 45 in a 35 mph. I will preface this conversation that with the Nolo "How To Fight A Ticket" book, I'm 5 for 6 getting out of tickets even when I'm 100% guilty!!!! The book is awesome.

Curious to get some feedback on this one: Not a radar ticket, speed survey is bogus....done over a 4th of July weekend showing 85th percentile at 34 mph. Was going to shoot a video of pace car going 35 & cars whizzing by to prove a prima facie case that 45 mph in dry conditions wa safe. There was a 35 mph sign posted but no road markings.....I wonder if there is anything illegal about not having the road properly marked? Any other thoughts? Once you fight a ticket & win, its terrific taking on the system, catching police officers in lies & getting out of tickets!!!! I only lost the last case because the ticket was up near the OR border and fighting a ticket via mail is tough.

[Mr. Knowitall]

I'm obviously not familiar with the road or its markings. You're talking about what type of markings? Lane markings? A center dividing line?

[DavidForthoffer]

Not a radar ticket, speed survey is bogus....done over a 4th of July weekend showing 85th percentile at 34 mph.

Except for prima facie conditions (business zone, etc.), the State of California only allows local authorities to establish speed limits by following procedures set forth in the Vehicle Code. So if the procedure requires an engineering and traffic survey, but the survey is invalid, the speed limit is illegal.

But keep in mind that invalidating a speed limit (sign) would imply a reversion to the prima facie speed limit (for a non-radar case). If that prima facie speed limit were e.g. 25 mph, you would have just made life harder. If the prima facie speed limit were e.g. 55 mph, that would help a lot.

Nevertheless, many traffic courts will just take an officer's word that the defendant was driving unsafely.

Was going to shoot a video of pace car going 35 & cars whizzing by to prove a prima facie case that 45 mph in dry conditions wa safe.

I'd bet the judge would "just" side with the officer that they were all driving unsafely.

A better approach might be to create his own engineering and traffic survey. A video shot far enough away and analyzed frame by frame could establish speeds accurately. That would be the data for the "traffic survey" part of it. Then you'd do the "engineering" part by following the rest of the requirements of the CalTrans manual. You would wind up with a document showing e.g. 48 mph was the 85 percentile speed and any speed no faster was by definition safe.

[That Guy]

Not a radar ticket, speed survey is bogus...

If not Radar, then how was the speed measured?

If it was a "pace", then the survey is immaterial...

A better approach might be to create his own engineering and traffic survey. A video shot far enough away and analyzed frame by frame could establish speeds accurately. That would be the data for the "traffic survey" part of it. Then you'd do the "engineering" part by following the rest of the requirements of the CalTrans manual. You would wind up with a document showing e.g. 48 mph was the 85 percentile speed and any speed no faster was by definition safe.

You're joking, right?

[DavidForthoffer]

If it was a "pace", then the survey is immaterial...

The survey is required to legally establish the speed limit in certain cases, perhaps including this case. See, for example, Vehicle Code 22357.

So, yes, the survey is material in invalidating a speed limit.

You're joking, right?

No. It's not that hard. I've done it. And, on the face of it, it is as valid for establishing a safe speed as is the government's engineering and traffic survey.

[That Guy]

So, yes, the survey is material in invalidating a speed limit.

Point is, if this was a pace, "speed trap laws" (see VC 40802) do not apply and as such, the prosecution is not required to prove that the speed limit is justified by a valid E&T survey.

No. It's not that hard. I've done it. And, on the face of it, it is as valid for establishing a safe speed as is the government's engineering and traffic survey.

So while you've suggested (in other threads) that the prosecution must prove that the survey was conducted by a governmental agency (or however you described it), yet now you're saying that the defendant can conduct their own survey and if the results vary from the official E&T survey, then that invalidates the posted limit?

That said, I would love to see how a judge would react to a defendant presenting his own survey and arguing that it should invalidate the speed limit.

Back to your previous post...

But keep in mind that invalidating a speed limit (sign) would imply a reversion to the prima facie speed limit (for a non-radar case).

I'm not sure what you mean by "reversion to the prima facie speed limit". For one thing, there is no "reversion" and two, the speed limit which is justified by an E&T survey is referred to as the "prima facie limit"... So "reverting back to the prima facie speed limit" isn't changing much, is it? The posted limit is either justified or it is not.

[DavidForthoffer]

Point is, if this was a pace, "speed trap laws" (see VC 40802) do not apply and as such, the prosecution is not required to prove that the speed limit is justified by a valid E&T survey.

I am glad we agree on that point.

So while you've suggested (in other threads) that the prosecution must prove that the survey was conducted by a governmental agency (or however you described it),

I didn't say that. I said that if the survey was conducted by a non-governmental agency, then the author or custodian of the document must testify to its authenticity before the document may be admitted into evidence. That is a burden that is rarely borne.

yet now you're saying that the defendant can conduct their own survey and if the results vary from the official E&T survey, then that invalidates the posted limit?

No. I am saying that if the official E&T survey is invalid, and the defendant submits their own E&T survey that satisfies all the requirements for an E&T survey, then that establishes what "safe speeds" are.

I'm not sure what you mean by "reversion to the prima facie speed limit". For one thing, there is no "reversion"

Yes, there is "reversion". There is a reversion from the posted speed limit to the prima facie speed limit that would exist without a speed limit sign. In other words, in this case there would be a reversion from 35 mph to e.g. 25 mph or 65 mph.

and two, the speed limit which is justified by an E&T survey is referred to as the "prima facie limit"...

Good point. I used the wrong wording. That does not change the tactic.

The posted limit is either justified or it is not.

Right. If the posted limit is not justified, then the prima facie speed limit is the speed limit dictated by the Vehicle Code and surrounding circumstances (e.g., 15 mph, 25 mph, 65 mph, etc.)

[blewis]

I didn't say that. I said that if the survey was conducted by a non-governmental agency, then the author or custodian of the document must testify to its authenticity before the document may be admitted into evidence. That is a burden that is rarely borne.

You're missing one VERY important point -- "authentication" is MORE than just saying, "Yeah, I wrote this". Before a defendant's "scientific" or "engineering" evidence can be admitted, the author must first qualify as an EXPERT in the field. The author must demonstrate to the court that they have the knowledge, training and experience which allows them to conduct such a survey and reach VALID conclusions from the data. Being able to follow guidelines from an E&T manual might give you an idea as to how to CONDUCT the survey, but "expertise" is required before your CONCLUSIONS can be admitted. And remember, the 85 percentile speed, while fairly important, is only ONE of the factors used in setting a speed limit.

You claim you've actually done this? Pardon me for being incredulous.

Barry

[That Guy]

I didn't say that. I said that if the survey was conducted by a non-governmental agency, then the author or custodian of the document must testify to its authenticity before the document may be admitted into evidence. That is a burden that is rarely borne.

In addition to the excellent analogy that Barry has pointed out, you should probably reasearch and understand what "judicial notice" means and how it applies with regards to the E&T survey?

Kinda screws up that whole entire idea, doesn't it?

No. I am saying that if the official E&T survey is invalid, and the defendant submits their own E&T survey that satisfies all the requirements for an E&T survey, then that establishes what "safe speeds" are.

Huh??? If the survey is invalid, it would be much easier to simply cite 40802, 40803, and move for a dismissal.

And if the defendant were to conduct his/her own survey, that does NOT, by any stretch of anyone's imagination, invalidate the E&T survey.

Yes, there is "reversion". There is a reversion from the posted speed limit to the prima facie speed limit that would exist without a speed limit sign. In other words, in this case there would be a reversion from 35 mph to e.g. 25 mph or 65 mph.

And I assume you have a statute and/or a case law citation that supports your claim of this... uhm... "reversion", right?

Right. If the posted limit is not justified, then the prima facie speed limit is the speed limit dictated by the Vehicle Code and surrounding circumstances (e.g., 15 mph, 25 mph, 65 mph, etc.)

You seriously need to do some research on California's speed trap laws.

[DavidForthoffer]

You're missing one VERY important point -- "authentication" is MORE than just saying, "Yeah, I wrote this". Before a defendant's "scientific" or "engineering" evidence can be admitted, the author must first qualify as an EXPERT in the field. ...

I would agree with you if the issue were admission of scientific or engineering opinion. But it is not. The issue is about admitting a document, not about the contents of the document.

The difference is clarified in California Evidence Code 1401(b), which says, "Authentication of a writing is required before secondary evidence of its content may be received in evidence."

you should probably reasearch and understand what "judicial notice" means and how it applies with regards to the E&T survey?

I have. It doesn't.

Huh??? If the survey is invalid, it would be much easier to simply cite 40802, 40803, and move for a dismissal.

That would be much easier, if this were a radar ticket, which it is not.

And if the defendant were to conduct his/her own survey, that does NOT, by any stretch of anyone's imagination, invalidate the E&T survey.

I completely agree. That is why I said one's own E&T survey comes into play when the government's E&T survey has been shown to be invalid.

And I assume you have a statute and/or a case law citation that supports your claim of this... uhm... "reversion", right?

Yes. VC 22358(a) says, "Whenever a local authority determines upon the basis of an engineering and traffic survey that the limit of 65 miles per hour is more than is reasonable or safe upon any portion of any street other than a state highway where the limit of 65 miles per hour is applicable, the local authority may by ordinance determine and declare a prima facie speed limit of 60, 55, 50, 45, 40, 35, 30, or 25 miles per hour, whichever is found most appropriate to facilitate the orderly movement of traffic and is reasonable and safe, which declared prima facie limit shall be effective when appropriate signs giving notice thereof are erected upon the street." (and similar codes)

"Engineering and traffic survey" means a valid engineering and traffic survey. Therefore, if the proffered document is not a valid engineering and traffic survey, then the local authority is not authorized to change the speed limit, and the previous speed limit applies.

You seriously need to do some research on California's speed trap laws.

I would not be surprised if I have thoroughly known California's speed trap laws longer than you have been alive.

You seriously need to understand the difference between VC 22350 violations involving speed traps and VC 22350 violations not involving speed traps.