Re: Trial by Written Declaration for California Speeding Ticket CVC 22349 (A)
So we're both on the same page, the law prohibits anyone from driving on any (and all) highways at a speed exceeding 65mph (with the exception of highways that are posted for a higher limit (i.e. the 70mph limit)).
At first glance, it seems like a petty citation... But, add in your twist and it becomes even more legit...
Before we go further, you should understand that the fines for speeding in California are set up on a graduated schedule... for "1 to 15mph" over the limit, the fine is approximately $230; for "16 to 25mph" over the limit, the fine increases to approximately $356; and for 26mph and over, the fine increases to approximately $476.
Hey, that's where Eminem used to live... Oh wait, that was in Michigan, never mind!
Here is the California Vehicle Code definition of "highway":
360. "Highway" is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.
Obviously, the highway you were cited on qualifies as one.
So... he could have cited you for 71 in 55 and in violation of 22349(b) which states:
(b) Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour
unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following apply:
(1) A two-lane, undivided highway is a highway with not more than one through lane of travel in each direction.
(2) Passing lanes may not be considered when determining the number of through lanes.
And with 16mph over the limit (71 - 55), that would have set your fine amount at the $356 level. Instead, he cited you for another VC section where the max limit is higher thereby resulting in a lower fine amount around $230.
Whether he did it on purpose or not, I don't know... But a break is a break regardless of who it happened!
If you're determined on fighting it, I would simply offer a basic argument stating:
I was cited for driving at 6mph in excess of the 65mph speed limit. I understand that the 65mph speed limit is an absolute maximum in this state; while I do respect the officer's authority to enforce such a limit, as well as appreciate his concern for safety, it is my understanding that most officers would not even bother citing anyone for such a minor fluctuation. Additionally, the officer used Radar to estimate my speed, and with a +/- 2mph potential margin of error, the alleged 6mph over might become even smaller. As such, I move for a dismissal of this charge in the interest of justice. ... or words to that effect. Some people may see that as an indirect admission of guilt, but its not like you had a valid defense to begin with anyway.
Will it work? I don't know... It may ultimately depend on whether the officer is going to make any mention of "the 2 lane hwy + 55mph posted limit" elements or not.
I think it is safe to assume that the officer has written quite a few declarations before this one, and since he carries the burden of proving his case, the final outcome will mainly depend on how articulate he is and what he chooses to mention and describe.
Citations for 22349(a)/(b), 22356... etc, are extremely difficult to beat for a number of reasons. You were caught in excess of the maximum state limit and your speed was measured by Radar; Assuming this was issued by the CHP, officer training and certification are not likely to be a point of contention, and radar calibration is typically done on a regular basis would mean there is no dice there either. In spite of the fact that the officer cited you for an alternate code section and only 6 miles over the limit, there are no flaws/errors in the citation. Because he did only cite you for 6mph over the limit, it would be safe to assume that his testimony, whether it be by declaration, or in person before the judge, will more likely than not, include a description of the highway and some sort of indication that he opted to cite you for section (a) instead of (b) as a way of giving you a break.
All of that leaves you with very little as far as plausible defenses and with only an ever so slight possibility that he might not file his declaration, and/or might not appear in court on the date of a trial.
In spite of the fact that most people rarely have anything that resembles a decent defense, yet due to the potential reward (a dismissal and a refund of the bail amount), some people may still choose to take their chances by contesting it. What they might not realize is that if he does file/appear, the only likelihood of them avoiding a conviction from appearing on their record is by way of traffic school.
Some judges may allow that option after a TBD and/or a trial, others will not, and there is nothing that obligates the court to grant such a request. So you contest it, he respond/appears, you have no defense, you lose at which point, you ask for traffic school and your request can be denied. Shoulda, coulda, woulda...
Not relevant for a maximum speed citation of 22349(a) or (b) (amongst others) and only slightly relevant for a 22350 citation.
As long as the citing officer had the access and the ability to control the Radar unit, and can read the display from his position, then it doesn't matter where he sat at the time.
An admission of guilt would make it easier for them, however, without one, their case is not difficult to prove, not by any means...
I doubt that the judge would be interested in hearing anything about that... Then again, it might be a she and she might sympathize a bit... But probably not to a degree where I'd see her dismissing the case because you had to pee...
A bladder infection AND Stacey Fever at the same time? J/K
If you do choose to include it, I would skip the part about being inattentive ("was not looking at my speedometer during the occurrance"...).
Not sure how the officer finding out that you're contesting the citation would make much of a difference either way. He gets a notice and a request to complete his declaration shortly after you submit your request for a TBD, and the same due date given you by the court to submit yours, so he's going to find out regardless.
Discovery can be a frustrating process, and not only do most people misinterpret the benefit behind it, they misunderstand the remedies it offers. In a case like this, and while you're still entitled to discovery, the single item that might benefit you in any way would be the officer's notes. But this is a simple citation and his notes are not likely to provide you with a better defense than what you'd have without them. If you do choose to contest it, then you might want to simply request and file a TBD, if you happen to lose, you can contact the court and request a copy of the officer's declaration and all supporting documentation that he filed in the case. That should give you anything and everything that you're bound to get via discovery and instead of a copy of his abbreviated notes, you'd be getting a copy of his full statement. Less of a hassle, more information...
The only benefit I can see behind requesting an extension is it allows you to save up the bail amount if you don't have it (yes, you have to post bail equal to the fine amount at the time you plead not guilty and/or request a trial by declaration. If your case gets dismissed, the court will refund that same amount in 6 to 8 weeks). Other than that, the officer's testimony, the evidence, and him potentially filing/appearing... etc, all remain the same!
I am right 97% of the time... Who cares about the other 4%!