Re: Writing an Appeal and Appealablity of My Arguments
For what its worth, I have a comment (or two) with regards to the survey extension past the 5 year period. It sounds to me like you've already stated the appeals process so this is not an opinion as to whether you should file it, or continue with it, but only as a side note as the process contunues.
For one, I am beyond shocked, way past disappointed, maybe even confused that an officer, ..., a CHP officer at that, with the primary duty of traffic enforcement, can stand there in court claiming to have been POST certified over 10 years ago, AND even re-certified within the last year, and yet the impression that I got of his understanding of what a "speed trap" is, (again, assuming I am correct in my understanding) is an embarrassment to agency he represents! If you were to put that alongside a personal experience I recently had with a CHP officer which was highlighted by the -laughable- answer he gave to my question as to how he obtained my speed, I seriously am at an impasse with my entire view of law enforcement.
Back on topic though...
I agree wholeheartedly, and I'll add that the issue is compounded by the fact that some people aren't even aware that 22351(b) exists, others know of it and yet still ignore it simply because their of misunderstanding of it, and yet others realize its full impact and yet mix that along with the requirement that "The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406" in 40802(c)(1)(C)(ii).
The answer IMO, is quite clear maybe not by the language of the code section, but specifically, in the related case law citations. In other words, 22350, and while setting the "speed trap" issue aside for a second, requires a showing that the driver's speed was EITHER considered to be unreasonable or imprudent for the conditions existing thereupon at the time (that is one element)... OR that it endangered person or property at the time, ..., OR both! The qualifier for what is referred to in this thread as the primary/main grounds on appeal does not come by way of proving that the elements of 22350 occurred, and at least not as part of the legal requirement to prove your guilt pursuant to 22350, but INSTEAD, it comes in by way of the prosecution's burden to prove that a speed trap did not exist at the time, pursuant to VC 40802. Furthermore, the issue of safe/prudent/reasonable speed must be revisited again in the same trial, only that the second time, it is the defendant's burden to do so as is required by 22351...
Now if we shift to the speed trap analysis of the case, and since the survey is older than 5 years, that initiates the requirement that the prosecution MUST meet ALL 3 requirements (including, again, the "primary issue" brought up on appeal in this case), specifically, whether the officer's testimony fulfilled the requirement I cited above from VC 40802. the underlying issue to decide whether grounds for appeal can be established or not, is dependent on whether you interpret that requirement to fulfill VC 40802(c)(1)(C)(ii) by way of >(A)< the officer articulating the specific reasons why he thought the defendant's speed violated the basic speed law or >(B)< whether that is a conclusion that the trier of fact must come to based upon several elements of the officer's testimony?
Now, at this point in the case, and barring any objectionable methods by which the survey was authenticated and admitted into evidence, and assuming that there are no disputable issues relating to the manner the data was collected + there are no arguable matters regarding the manner by which the data was analyzed and subsequently utilized to justify the limit (pursuant to CVC 627)... Then the only question that remains is whether the prosecution can meet the burdens now required due to the age of the survey being over 5 years... With all that said, I think we can agree that it would be a fair and reasonable assumption to say that the 35mph speed limit is "THE" safe and prudent speed under "normal conditions".... That is what the survey says!
So, in the way I am reading and understanding the cited paragraph from Ellis, the question as to whether the prosecution has met the burden that the defendant's speed was in violation of the basic speed law, is more in line with option >(B)< above, meaning it is a decision that the trier of fact can come to based on whether he/she thinks that 50mph in 35mph is unreasonable.
Here are both citations from QQ's post above:
Now, in the Ellis citation, the court began that paragraph by "enumerating the considerations" (i.e. the elements that must be proven) that may deem a specific speed as unreasonable/imprudent or unsafe. Then described those considerations as being sufficient to meet the legal standards (and for the recorrd, a jury WAS present during the Ellis case due to the fact that he was also charged with other misdemeanors -in addition to the speeding infraction-, so for our purposes let me refer to them/him/her as being "the trier of fact"...) then it went on to say that the question of guilt or innocence then becomes a matter for the trier of fact to decide...
This is even made clearer in the way Ellis was cited as part of the Huffman decision where in Huffman it was stated: "In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude that the defendant drove at a speed that either endangered people or property or was unreasonable for the driving conditions".
So again, it is a decision that the fact finder must arrive at, and not necessarily a specific statement by the officer as to why, in his opinion, the defendant's speed was unsafe. This establishes one reason why I would not place the question of whether the burden of proving safe/prudent/reasonable speed as being a primary grounds for appeal as compared to the P.O.S.T. issue being secondary. If anything, I think they are both on equal grounds... But that's just me!
And as I have argued in another recent thread, the requirement that the prosecution prove unsafe/unreasonable under 40802 in cases where the survey is over 5 years old, is not even remotely related to the shifting of the burden to prove guilt of the defendant from the prosecution, to a requirement that the defendant show by competent evidence that his/her speed was not in violation of the basic speed law = VC 22351(b).
Agreed again... And to further highlight my point, I don't know if I would put any more weight to the "officer proving/testifying to unsafe speed" condition under 40802, than I would give to his testimony regarding the "POST" training issue. I think they both sit on an equal footing when it comes to the viability of each as sufficient grounds for appeal.
With that being said, let me also add that if we were to look at the "conditional" requirements under which ANY speed survey is normally conducted, you will see the weather should be clear, the roadway surface should be dry and traffic should be light/medium (but certainly NOT heavy). So you cross examine the officer using the 30 question defense, and his answers confirm that the conditions are: Clear/Dry/Light to Medium...
What have you proven?
Simply because the survey indicates that the safe/prudent/reasonable speed under those "normal" conditions is 35mph, and yet you are using all that info to try and prove that 50mph in 35mph is still safe/reasonable/prudent?
I'm not convinced....
And this is only ONE reason why I'll never buy into the claim that the 30 question defense is of any value under those circumstances.
One other reason is simply my firm belief that once it can be established that a speed trap did not exist in the case, the legislature made it into a huge uphill climb for the defendant to come up with sufficient "competent evidence" to overcome the presumption of guilt; so much so that it becomes similar to maximum speed citations where if you're speed was in excess of the P.F. limit (or maximum limit), no matter what you say or do, and *EVEN IF* you can get the office to recite his testimony and the agree that he's competent, you're still up that same stinky creek.
Now, if you can go through the 30 questions as the foundation for question # 31, that being: "Officer after having given the answers you just gave me, that my speed was NOT unsafe/unreasonable/imprudent, why did you issue me a citation?"... And if you can get him to answer "because I screwed up", I think you've got it made!!!
I am right 97% of the time... Who cares about the other 4%!