How to Make and File an Effective Appeal

[kutorei]

TMN and That Guy, Thank you very very much for the info + case law. By POST standards, this guy is definitely not certified. Not sure it applies since you pointed to the 5year max necessity(survey is about two years old). I'm writing the Opening brief now, and it really helps not to have to work so hard to find relevant case law. At this point, I'm writing down anything and everything in the hopes that something will stick.

I
You only need to succeed on one set of grounds to remand/reverse!

Yep, but with my knowledge of law? Better to exceed that miss entirely!

If you have any other suggestions, please do post. I'm turning this in on April 10th, so any additional advice would be wonderful.

Thanks again!

[That Guy]

TMN and That Guy, Thank you very very much for the info + case law. By POST standards, this guy is definitely not certified. Not sure it applies since you pointed to the 5year max necessity(survey is about two years old). I'm writing the Opening brief now, and it really helps not to have to work so hard to find relevant case law. At this point, I'm writing down anything and everything in the hopes that something will stick.



Yep, but with my knowledge of law? Better to exceed that miss entirely!

If you have any other suggestions, please do post. I'm turning this in on April 10th, so any additional advice would be wonderful.

Thanks again!

Just wanted to wish you best of luck... And urge you and trust that you will continue to to update this thread at whatever steps you feel, until the final outcome!

[themadnorwegian]

Seconded. Good luck!

[kutorei]

OP sent in, now waiting for DA/Oral Arguments(late June).

LINK TO EVERYTHING IN THIS CASE: https://www.box.com/s/uoaz0xpmozlvj1nqdunp
LINK TO OPBRIEF: https://www.box.com/s/330c301f2a13ceca3479

OP brief is a mess. I literally cobbled together everything I had and threw it in. Formatting was borrowed heavily from Quirky's, with messier results. Well, I tried right? Let's hope I don't sound cocky/arrogant so the DA's office will leave me alone.

Also, I realised while writing this brief that the MUTCD has changed since the 2003 edition I referenced initially. It no longer specifies setting prima facie to nearest 5mph, or mentions other considerations in the matter to speed. It's no longer a good basis for a speed trap defence.

[kutorei]

Okay, so my Oral Arguments: I'm not sure if it's because of where I am or if I just got them on a bad day or something, but the appellate division affirmed judgement. If they had defeated me on some point, I would just say "well, I did my best." But that didn't happen. It really doesn't make sense to me since they conceded pretty much all points on a) Judge being of questionable credibility(by taking judicial notice of his own experience, but somehow everything else is still valid?), b) the officer unknowingly perjuring himself, and that c) the prosecution did not present any evidence to sustain a conviction therefore proving existence of reasonable doubt.

Essential presentation points I noticed:
1. There is no standard procedure used for traffic appeals. For my appeal, you come forward and the Justice(s) simply asks "Do you have anything you'd like to add to your Opening brief?" And that's it unless you argue your case.
2. The Justices try hard to get rid of you. After restating a few brief points from my brief, a Justice then went on a long spiel about how this seems to support this(when it doesn't) and therefore affirm conviction over a span of about two or three minutes.
3. I really don't understand how you can refute all the objections made to your argument(and the Justices have nothing to say in response-not even a "well, that's your opinion") and still get an affirmed judgement. Whatever it is, it proves that having a solid case does not necessarily mean they're even going to consider it.
4. Bring everything. Even if you ask for a transmission of evidence ahead of time like I did (per Rules of Court), the evidence might still not be transmitted. It will save your case.
5. They REALLY want to get rid of you. Be prepared to put forth your case strongly.

I'm really disappointed. However on a positive note, two of the Justices complimented my work and arguments on my way out. So I suppose all was not lost. Still down on my $250 though.

[themadnorwegian]

I'm sorry to hear that. Can you give us some more details about what happened with your case? Did the DA ever submit a reply brief, and if so, did you file a rebuttal? Was the DA there to argue their side of the appeal at the oral arguments? Are you able to explain more about why the justices believed that the prosecution had proved the elements necessary to sustain the conviction? Do you know if they'll publish a written opinion, or is this all you get?

[kutorei]

Hmm, where to start....first, DA did not show up nor did he send a reply brief for all 3 traffic cases heard that day. Mine was last-likely due to the sheer size of my brief. Perhaps it was the length that discouraged them, but seeing as how the defendant before me had the basic 22351 argument only and was shot down even faster than I was, I doubt it. Anyway, after giving a brief breakdown of my brief(basically points 1,2 and 4), the justices began a 3 minute long spiel essentially boiling down to two things:

a) They did not read my brief. Either that, or they were testing me.
b) Because there is a LIDAR reading saying I was speeding, nothing else basically matters(more on this in a bit)

It really didn't matter what was in my brief. I swear to you now, my brief and oral argument was just a formality. It was clear they made their decision from the transcript and were going to stick with it. My brief may not have been formatted and worded well, but I thought it was at least good enough to get my points across. I received the impression they didn't even read my brief because my first point addresses their immediate spiel with the observation of the prosecution's failure to establish I was endangering people or property etc. with the appropriate citations of People v. Ellis and 22351. Furthermore, all their other objections to my case were actually addressed in my brief. Case law and arguments aside, they acted like they'd never heard of anything I brought up. In retrospect, their counterarguments border ridiculousness. Here's the break down(in order):

1. The justices claimed that the burden of proof was shifted from the prosecution to myself upon immediately producing the survey with the requisite LIDAR certification. Upon hearing that, I cited case law(People v Ellis) and 22351 citing that speed not proven in violation of basic speed law is lawful. When I cited the transcript, they claimed with all flourish that since I couldn't prove I wasn't endangering people or property and regardless of the fact that the officer's testimony had no notations to that effect, it was not beyond a reasonable doubt. To top it off, they then claimed that since the Trial Judge and seen fit to judge me endangering people or property, and therefore they can only accept his judgement.

2. At this, I then mentioned the Trial Judge's use of Judicial Notice where he took his own opinion a matter under dispute. The Justices said that they had duly "disregarded" his use of judicial notice, but otherwise everything else was otherwise admissible. I then countered that the frequent interruptions and the very existence of the questionable use of judicial notice brought his credibility and objective role into question. The response was (paraphrasing) "Well, all other parts of the court transcript seem fine." They then relaunched into the qualifications of the Officer, essentially saying since the officer claimed he was POST certified and the LIDAR was calibrated and the speed was high, that therefore there was no reasonable doubt.

3. At this, I then brought up the fact that his certification is not POST and that he was not qualified per 40802. The Justices objected that according to testimony, his certification is indeed post certified and he submitted it to the court. I countered that it does not comply with the POST administrative manual(thanks TMN!) and that the officer had perjured himself unknowingly(Quirky's mention of 1473.6 was useful-thanks!). The Justice claimed it had to be knowingly. I then cited the Rampart scandal(per Quirky) and how it in no way states knowingly but just "false testimony".

The justices then took another vote and affirmed judgement. As they left, two justices gave me a "good job", and no other comments. They did not oppose any points I had made except for the Trial Judge's credibility....and it was an opinion to agree to disagree. In all fairness, my oral argument was not nearly as detailed and precise as I'd have liked, but as I got my point across(and it seemed to make no difference) I suppose it didn't matter. I'd like to add that between each point (by either side) they tried to re-affirm judgement. If it weren't for sheer dogged persistence in presenting my points, I'd have been thrown out along with the first guy in a matter of a minute or so.

At this point, I'm starting to wonder what their written opinion will say. Because unless they entirely disregard my arguments and oral argument transcript, this is going to look terrible. They said they'll mail me something but whether it'll have a opinion I have no idea.

Hope this was informational TMN.

[That Guy]

OK, I am going to make a few comments, and some of what I believe are corrections to what seems to be matters that you misstated... Some of these corrections are my own personal beliefs, others are factual and basic information that you clearly misunderstood!


Also, please keep in mind that I don't remember all the details of your case... So I will probably ask some questins as my way of giving an answer.

the defendant before me had the basic 22351 argument only and was shot down even faster than I was,

I'm not going to get into that simply because we don't know the details of his case...

It really didn't matter what was in my brief. I swear to you now, my brief and oral argument was just a formality. It was clear they made their decision from the transcript and were going to stick with it.

Well, an appeal is really a review of the record of the case... And the record is NOT in your brief, not in the way you presented your case after the trial. If for some reason or another, an issue is not clear in the record, and a review of your written submissions does not add clarity to it, then you are called in for oral arguments! And so a decision follows based on the info in the transcript...

1. The justices claimed that the burden of proof was shifted from the prosecution to myself upon immediately producing the survey with the requisite LIDAR certification.

OK, looked through the transcript, and with a survey conducted on August 10, 2010, you having been cited in December of 2011... You were cited for driving in excess of the PF limit.

The survey is less that 5 years old. And with that, the burden that the prosecution has is to prove that the PF limit is justified.... Once that is done (no lidar certification is required (that is for surveys 5 years or older))... Then the burden shifts to you to prove that your speed which was in excess was safe for conditions at the time.

Upon hearing that, I cited case law(People v Ellis) and 22351 citing that speed not proven in violation of basic speed law is lawful.

OK, IU can see how Ellis might fit here... As for 22351, you actually cited subsection (a) which is relevant for speeds UNDER the posted limit... Were you not caught at over the limit?

When I cited the transcript, they claimed with all flourish that since I couldn't prove I wasn't endangering people or property and regardless of the fact that the officer's testimony had no notations to that effect, it was not beyond a reasonable doubt.

I personally agree... (meaning TMN might disagree)... But this is something that i tried to get across in a fairly involved discussion with Quirky... Then I slacked and it was never resolved ... Then had a similar discussion with TMN which, again was interesting but then it ended before it was resolved.

Remember, if you read 40802 it says noting about the officer proving your speed was unsafe for violation in a speed zone where the E&T survey is undr 5 years old. It only has such a requirement for 5 year or older surveys. Additionally, the other controlling code section is 22351 and the subsection which applies to your case here is 22351(b):

The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.

To top it off, they then claimed that since the Trial Judge and seen fit to judge me endangering people or property, and therefore they can only accept his judgement.

They won't second guess judicial decisions when it comes to credibility, believability, or factual information....

2. At this, I then mentioned the Trial Judge's use of Judicial Notice where he took his own opinion a matter under dispute. The Justices said that they had duly "disregarded" his use of judicial notice, but otherwise everything else was otherwise admissible. I then countered that the frequent interruptions and the very existence of the questionable use of judicial notice brought his credibility and objective role into question. The response was (paraphrasing) "Well, all other parts of the court transcript seem fine." They then relaunched into the qualifications of the Officer, essentially saying since the officer claimed he was POST certified and the LIDAR was calibrated and the speed was high, that therefore there was no reasonable doubt.

OK, this part is all convoluted in the transcript possibly because it is a redacted version, but the part that the Judge took judicial notice of is "the City if the City and the County is the City... Let us pretend this was San Diego, he took judicial notice that the city of San Diego is the City of San Diego and the county of San Diego is the San Diego County... How is that a matter of dispute?

And how much of an impact did it really have on the end result?

And if he had not taken judicial notice of that thing -whatever it was- would it have impacted the final verdict?

3. At this, I then brought up the fact that his certification is not POST and that he was not qualified per 40802. The Justices objected that according to testimony, his certification is indeed post certified and he submitted it to the court. I countered that it does not comply with the POST administrative manual(thanks TMN!) and that the officer had perjured himself unknowingly(Quirky's mention of 1473.6 was useful-thanks!). The Justice claimed it had to be knowingly. I then cited the Rampart scandal(per Quirky) and how it in no way states knowingly but just "false testimony".

This is one of the areas that caused you to lose focus, i think.... And while I agree that the POST certification is an issue, I think you had bigger fish to fry than a dispute as to whether he perjured himself knowingly or unknowingly.

The part I see no one making mention of was the fact that the survey makes too big of a reduction of the speed limit from an 85th percentile speed of 38, which gets upped to 40, and assuming valid reasons can be dropped to 35 but not 30 which is what it was posted at!

That, the way I see it, is where it all started and that is where it ends!

I still would like to congratulate you though. Seriously... You made it to a stage that I have never been to. Actually, a stage that very few people have reached. That alone required enough focus, hard work and dedication that I am yet to test myself on. Sorry the outcome was not in your favor.

[kutorei]

Well, an appeal is really a review of the record of the case... And the record is NOT in your brief, not in the way you presented your case after the trial. If for some reason or another, an issue is not clear in the record, and a review of your written submissions does not add clarity to it, then you are called in for oral arguments! And so a decision follows based on the info in the transcript...

Actually, this particular locale automatically schedules oral arguments immediately upon receiving the Record on Appeal. So no, they didn't technically request one. Also, I was under the impression that they would at least look at the brief to see if I even had any legitimate reasons to file an appeal in the first place, rather than just reading the whole transcript before making a decision.

OK, IU can see how Ellis might fit here... As for 22351, you actually cited subsection (a) which is relevant for speeds UNDER the posted limit... Were you not caught at over the limit?

Limit was 35, I was apparently doing 45. I know it doesn't hold water, but I have no idea how the cop got me at 45 when my car barely gets to 40 smoothly. Anyway, my impression was that 22351(a) was valid for speeds under the maximums. So, as I wasn't exceeding 65, I believe 22351(a) applies.

I personally agree... (meaning TMN might disagree)... But this is something that i tried to get across in a fairly involved discussion with Quirky... Then I slacked and it was never resolved ... Then had a similar discussion with TMN which, again was interesting but then it ended before it was resolved.Remember, if you read 40802 it says noting about the officer proving your speed was unsafe for violation in a speed zone where the E&T survey is undr 5 years old. It only has such a requirement for 5 year or older surveys. Additionally, the other controlling code section is 22351 and the subsection which applies to your case here is 22351(b)

I'll leave those two much more learned individuals to argue that one. Essentially though, I agree with them-given that what you say is true, how else are you supposed to conclusively prove there was no danger to people or property? Also, this kind of approach would completely disregard the 'beyond a reasonable doubt' burden the prosecution has to prove for endangering people or property per People v. Behjat. (that's my short version of Quirky's argument)

Also, how are you dividing the subsections of 40802? I'm under the impression that surveys in general have to be justified regardless of age. I don't see anything about the 5 year or under clause. Could you direct me to that subsection?

They won't second guess judicial decisions when it comes to credibility, believability, or factual information....

The justices conceded that the judge used judicial notice improperly. I argued that his general behaviour and the improper use of judicial notice itself brought the judge's credibility and impartiality into question, which they partially conceded.

OK, this part is all convoluted in the transcript possibly because it is a redacted version, but the part that the Judge took judicial notice of is "the City if the City and the County is the City... Let us pretend this was San Diego, he took judicial notice that the city of San Diego is the City of San Diego and the county of San Diego is the San Diego County... How is that a matter of dispute?

And how much of an impact did it really have on the end result?

And if he had not taken judicial notice of that thing -whatever it was- would it have impacted the final verdict?

Sorry, I think it is indeed the redacted version that is making this look very convoluted. The judge took judicial notice of traffic conditions on the road I was ticketed on....which was one of the things I was disputing. By taking judicial notice of his experience of the traffic conditions, he essentially eliminated about half my argument, especially in light that he wouldn't consider pretty much anything else I tried to admit into record.

This is one of the areas that caused you to lose focus, i think.... And while I agree that the POST certification is an issue, I think you had bigger fish to fry than a dispute as to whether he perjured himself knowingly or unknowingly.

The part I see no one making mention of was the fact that the survey makes too big of a reduction of the speed limit from an 85th percentile speed of 38, which gets upped to 40, and assuming valid reasons can be dropped to 35 but not 30 which is what it was posted at!

That, the way I see it, is where it all started and that is where it ends!

You're right. Toward the end, they were throwing a number of things in, and I wanted to get something solid in to at least make them rethink their position even slightly...which got me off-track and distracted.

In all fairness though, I doubt they would have listened even had I been a better presenter and brought up the unjustified survey. We spent something like 3 minutes arguing POST certification, even in the face of the POST administrative manual.

I still would like to congratulate you though. Seriously... You made it to a stage that I have never been to. Actually, a stage that very few people have reached. That alone required enough focus, hard work and dedication that I am yet to test myself on. Sorry the outcome was not in your favor.

Thank you =) I learned a lot, and at least I got a compliment in the end.

[That Guy]

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Warning -LONG POST-

Actually, this particular locale automatically schedules oral arguments immediately upon receiving the Record on Appeal. So no, they didn't technically request one. Also, I was under the impression that they would at least look at the brief to see if I even had any legitimate reasons to file an appeal in the first place, rather than just reading the whole transcript before making a decision.

Well, then maybe the lesson to be learned here is to select an issue, ONE SINGLE issue and base you entire appeal, brief, oral argument on that one issue. That way they could not miss it in all the fluff, and we won't need to make such a huge impression during oral arguments in order to prevail!

Limit was 35, I was apparently doing 45. I know it doesn't hold water, but I have no idea how the cop got me at 45 when my car barely gets to 40 smoothly. Anyway, my impression was that 22351(a) was valid for speeds under the maximums. So, as I wasn't exceeding 65, I believe 22351(a) applies.

Sorry... Not to argue but simply to stick to facts: Limit was 30, albeit unjustified, it was posted at 30, the consensus here is that it would have been justified at 35, but it was posted at 30 meaning the prima facie limit as per the E&T survey is 30mph; alleged speed was 45, that makes it in excess of the posted prima facie limit of 30 which was established (erroneous as it may have been) via and E&T survey as authorized in this code.

22351.

(a) The speed of any vehicle upon a highway not in excess of the limits specified in Section 22352 or established as authorized in this code is lawful unless clearly proved to be in violation of the basic speed law.
(b) The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.

You were indeed in excess of the PF limit, and hence subsection (b) would apply.

Even if the limit was properly set at 35, you were measured at 45 and it would still be your burden to prove how 45 was safe in a 35mph posted zone.

But NONE OF THE ABOVE HAD ANYTHING TO DO WITH THE STATE'S MAXIMUM 65MPH LIMIT!

I'll leave those two much more learned individuals to argue that one. Essentially though, I agree with them-given that what you say is true, how else are you supposed to conclusively prove there was no danger to people or property? Also, this kind of approach would completely disregard the 'beyond a reasonable doubt' burden the prosecution has to prove for endangering people or property per People v. Behjat. (that's my short version of Quirky's argument)

I could happily give you my version but that might take hours to sift through... So I'll summarize:

People v. Behjat is a "joke"; why?

Simply because it went from a record of the officer's testimony, describing the average typical "script" used by California law enforcement officers everywhere, to the appellant's claim "that the officer could not have obtained a radar reading on his vehicle", i.e. "did the officer get a reading on the defendant's speed or did he simply make it up" (as the defendant claims), which is clearly a credibility issue, but the case all of a sudden jumped to the appellate deciding that it is a "sufficiency of evidence" and a review of ALL evidence was made.

Mainly, it is because Behjat was decided by a couple of judges who believe that the people/prosecution and in addition to 22350 also have the the option of 22351 as a charging section whose required elements of proof are less restrictive than those in 22350. Moreover, neither of the two cases cited by Behjat with regards to elements of the offense were 22350 cases; One was a robbery case (PC 211), the other a DUI case (VC 23152) which came close by virtue of a description of what constitutes speeding, and yet according to the reviewing court in that case, extracting the pure elements from code VC section 22350 was not sufficient to providing a jury with sufficient information to convict. It still fell short and frankly, you don't need me to tell you that a 22350 case does not follow the standard defense your typical speeding case will follow. In fact, it does not follow the normal scheme a typical criminal case would follow. Instead, it depends more upon the methodology of establishing a set definition for "safe and prudent" for that particular location and determining whether you exceeded that or not.

In other words, Behjat looks at People v. Ellis, 82 Cal. Rptr. 2d 409 - Cal: Court of Appeal, 5th Appellate Dist. 1999 as one case which defines the elements of the offense and attempted to apply those standards to a 22350 charge. And I'd be a fool to try to sit here and argue that Ellis provided anything less than a perfect theoretical analysis, however, it did so without any consideration of the practical speed trap definitions or related considerations we would discuss as we prepared a case to defend that same charge in court. And so to cite Ellis, a case that defined the theoretical elements of the basic speed law, but left out any mention of the practical elements we need to establish when deciding a speed trap case, as a case that described the burden of proof in a speed trap case is in essence using apple juice to make lemonade. It won't taste the same!

In other words, the average individual driver out there looks at a speed limit sign and thinks: if I'm caught driving at faster than that speed, then I'm guilty of speeding.

If and when that person happens to read VC 22350, she might conclude yet another definition for speeding. i.e. driving in excess of a speed that is safe and prudent, where different conditions may require a driver to exercise some caution.

Those are the two definitions of "speeding" that were discussed in Ellis. And, yes... When it comes down to it, the first one simply means what it says: see that posted limit, stay under it and you're fine. The second concept remains vague in most minds simply because it leaves out any mention of a predetermined/set speed. It gives the impression that you can decide upon a safe speed for yourself, I can decide on a different one for my self and the guy down the street, and although he had always thought 35mph was safe on XYZ road, when he got caught doing 45 on the same stretch, he changed his mind and upped his "safe speed" to 45... The judge didn't buy it!

So no, we cannot easily or successfully argue that "yes, I was driving 15mph over that limit but I still though my speed was safe under conditions" and have it get us out of the citation, simply because the term "safe speed" as it is often described, is a predetermined existing, posted and enforced speed limit. Often enough, or at least in theory, the safe speed is supposed to be the 85th percentile speed limit.

What are the two main goals for traffic regulation?

1. To maintain a certain level of safety; and
2. To facilitate the orderly movement of traffic.

Well, conducting a survey and posting the 85th percentile as that roadway's limit accomplishes both goals as inclusively and efficiently as possible. How do we know this? Simply because the 85th percentile speed represents the upper bounds of the preferred driving speed by the majority of drivers, but it also corresponds to the upper bounds of the speed ranges where crash rates are at their lowest... That is why it is called the safe speed, and people need to stop fooling themselves into believing that they can simply walk into court and claim "I though my speed was safe for the conditions at the time, your honor, ... so how do we go about dismissing this thing over here so the officer can get back to work"... It won't work!

And last point on this subject is any possible reduction. So if the 85th percentile speed is the speed preferred by most, and it is the speed at which the lowest number of accidents is reported, why are we messing with “perfect” and allowing engineers to reduce it any? Simply because those reductions are based upon factors that are not apparent to drivers and the presumption is that if they were apparent, those drivers would reduce their speed by a similar amount. A good example is the “accident rate”... Typically, a factor that is unknown to the average driver passing through on the average stretch of highway, if that driver was aware that a particular stretch had an accident rate that is double that of the city/county/state, he is bound to slow down a bit. So “engineering judgment” takes over and reduces the speed by 5mph for that reason.

By the way, and this is something that TMN should make a note of. My lack of commentary in your thread (or in TMN's thread when his was gong strong) had nothing to do with my not wanting to comment. And it is not because I did not disagree with some of what Quirky was posting, far from it. It was more based upon the fact that I was avoiding posting a disagreement with Quirky (and not that we fought or were disrespectful, quite the opposite, I enjoyed arguing and discussing with him because we kept it on the level and it was quite the enjoyable experience, always ended up learning something or refining a skill or two) but only that it would have resulted in a long, heated and drawn out argument, which at best, would have detracted and distracted from the purpose of the thread, which naturally is you hopefully prevailing on appeal. And although I had disagreed with a number of issues he presented, the only thing I could add was reasons why I would NOT try those, which could really get shut down by simply saying "why not try and see what happens"!

Also, how are you dividing the subsections of 40802? I'm under the impression that surveys in general have to be justified regardless of age.

I realize that the terminology is difficult to grasp at time, so let me properly set the stage: Surveys need not be justified, they are required by law. Speed limits on the other hand MUST be justified by a valid, current and complete E&T survey© . (Yes, I've applied for copyrights to that phrase).

So you're under the impression that speed limits must be justified regardless of the age of the survey, and you would be correct. In other words, the requirements under VC 40802 must be met at all times for a 22350 adjudication to proceed normally in court, otherwise the case must be dismissed.

Better yet, the presumption is that a speed trap does indeed exist, and the prosecution has the burden of rebutting that presumption each and every time, by providing a valid current and complete E&T survey pursuant to VC 40802.

Now, meeting the requirements of VC 40802 varies depending upon the period of time since the last valid, current and complete E&T survey© was conducted. So the older the survey gets, the more requirements that the prosecution must meet.

I don't see anything about the 5 year or under clause. Could you direct me to that subsection?

I posted a clearer version of 40802 than what we would normally see, and you'll note the 5 year, 7 year and 10 year references shown in red font below.

The justices conceded that the judge used judicial notice improperly. I argued that his general behaviour and the improper use of judicial notice itself brought the judge's credibility and impartiality into question, which they partially conceded.

And while it may be 100% true that they conceded that an error was committed, not every error will result in s reversal or a remand. Why? Simply because some errors are considered harmless. In other words having little or no effect on the out come of the case... How?

Well, apparently the judge in your case felt that the officer's recitation of the conditions on that roadway were similar to his own experience... While I don't know what those conditions were, how he described them or which part of his description you were attempting to refute, whether he had taken judicial notice of those statements or not, it is still his belief that the described conditions were similar to those he had experienced... Had you been able to discuss and or attempt to refute the existence of those conditions, his impression, with or without judicial notice would more likely than not still be more in line with what the officer stated. Come final decision time, if a consideration of those conditions was required, whether he had taken judicial notice or not and in spite of your attempt to disprove them, such consideration would still be more comparable to the officer's description instead of yours.

End result: judicial notice <<-- or -->> no judicial notice :the judge still agreed with the officer's description of them.

Sorry, I think it is indeed the redacted version that is making this look very convoluted. The judge took judicial notice of traffic conditions on the road I was ticketed on....which was one of the things I was disputing. By taking judicial notice of his experience of the traffic conditions, he essentially eliminated about half my argument, especially in light that he wouldn't consider pretty much anything else I tried to admit into record.

Not trying to be sarcastic, not by any means but by not allowing you you admit evidence to the contrary, he simply saved time... Not to undermine your arguments, but again, where is it that conditions became relevant in your case? It is my opinion that your case, and since it utilized an E&T survey that is under 5 years old, the prosecution did not carry the burden of proving "unsafe under conditions". So citing Ellis (even if it were on point) and arguing that the officer failed to articulate why your speed ws unsafe, was not a requirement, in my opinion! You'll see what I mean in a minute...

In all fairness though, I doubt they would have listened even had I been a better presenter and brought up the unjustified survey. We spent something like 3 minutes arguing POST certification, even in the face of the POST administrative manual.

Yet another burden that is assumed to be carried by the prosecution for surveys under 5 years old when in fact, it is not so.

You might note from the posted VC 40802 below that the POST certification is required for a survey that is 5+years old or older.

In reference to the previous paragraph I quoted and as far as the proof that your speed was unsafe, you can clearly see that the part stating: “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.” (i.e. subparagrah 40802(c)(1)(C)(ii)) is in light blue font – meaning it falls under the requirements for surveys that are 5years + 1 day to 7 year old.

Similarly, the training requirement for Radar AND Laser, meaning “When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training” AND “When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training”, better described as subparagraphs 40802(c)(1)(A) and 40802(c)(1)(B), respectively, also appear in a light blue font meaning they fall under the requirements for surveys that are 5years + 1 day to 7 year old.

Since your survey was LESS than 5 years old, the prosecution did not carry those two burdens to prove!

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Here is the way I divide VC 40802 (Note: all references to the # of years applicable to different provisional requirements are shown in RED font):

California Vehicle Code section 40802.

(a) A "speed trap" is either of the following:

(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

(b)

(1) For purposes of this section, a local street or road is one that is functionally classified as "local" on the "California Road System Maps," that are approved by the Federal Highway Administration and maintained by the Department of Transportation. When a street or road does not appear on the "California Road System Maps," it may be defined as a "local street or road" if it primarily provides access to abutting residential property and meets the following three conditions:

(A) Roadway width of not more than 40 feet.
(B) Not more than one-half of a mile of uninterrupted length. Interruptions shall include official traffic control signals as defined in Section 445.
(C) Not more than one traffic lane in each direction.

(2) For purposes of this section, "school zone" means that area approaching or passing a school building or the grounds thereof that is contiguous to a highway and on which is posted a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. "School zone" also includes the area approaching or passing any school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children if that highway is posted with a standard "SCHOOL" warning sign.

(c)

(1) When all of the following criteria are met, paragraph (2) of this subdivision shall be applicable and subdivision (a) shall not be applicable:

(A) When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.
(B) When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.
(C)

(i) The prosecution proved that the arresting officer complied with subparagraphs (A) and (B) and that an engineering and traffic survey has been conducted in accordance with subparagraph (B) of paragraph (2). The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D).
(ii) 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.

(D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

(2) A "speed trap" is either of the following:

(A) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(B)

(i) A particular section of a highway or state highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within one of the following time periods, prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects:

(I) Except as specified in subclause (II),

seven years.

(II) If an engineering and traffic survey was conducted more than seven years prior to the date of the alleged violation, and a registered engineer evaluates the section of the highway and determines that no significant changes in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume, 10 years.

(ii) This subparagraph does not apply to a local street, road, or school zone.

So for a survey that is less than 5 years old, and while sticking to the color scheme described below, the following and as it appears in a Black font describing the items the prosecution must prove:

1) The PF limit is posted and is justified by a current, complete and valid E& T survey. That would make that speed the safe speed under ideal conditions;

2) That a reliable speed measurement was obtained showing your speed was in excess of said speed described above as the safe speed/P.F. speed.

(You'll note I described it as a "reliable" speed measurement; the fact is and although there is no requirement that the officer present a calibration certificate, chances are, he probably will; if he doesn't present one, or if he presents one that is not certified as a true copy or one that is certified by a private firm, or one that shows the device is calibrated but not to NHTSA standards... etc, the defendant is free to bring up the point or make an issue of it, while the judge is free to ignore that point, since it is not a statutory requirement).

If those two elements are proven, the prosecution has met its burden of proving you guilty of 22350. No need to establish which element of the offense itself were violated. From here, we are back to the traditional manner of adjudicating offenses. You get your chance to refute the prosecutions evidence by one of 3 methods:

I. Prove that the provided E&T survey fails to justify the posted limit.

II. Prove the speed measurement was questionable or inherently erroneous.

III. Utilize 22351 as well as the survey (the one document which establishes the conditions and the description of the roadway where the stated speed limit was determined to be safe by a majority of 85% to 15%) to show how your speed in excess of said -justified- limit and under the conditions described on that particular date did not compromise the "safe and prudent" factors under those conditions.[/COLOR]

As per VC 40802, and for cases where the E&T survey is 5 years or older, and in addition to the 2 elements described above which the prosecution has to prove, they carry the burden to prove the following (to continue with color scheme below, this will appear in a light blue font):

1) (A) RADAR TRAINING: When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.

1) (B) LASER TRAINING (If LASER was used): When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.

2) RADAR CALIBRATION: The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

3) THE ELEMENT OF SAFETY: 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.[/B]

Last but not least, appearing in a GREEN FONT , this is for surveys that are 7 years and 1 day old to 10 years, and in addition to the requirements for surveys that are under 5 years, and the requirements for surveys that are 5 to 7 years old, the one qualifier that would deem a survey valid for up to 10 years from its original issue date is:

* The section of highway was evaluated by a registered engineer who determined that no significant changes have occurred in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume. This evaluation must be included in writing on the copy of the survey or an attachment to it.

And to clarify what these "changes in roadway or traffic conditions" might entail a few examples are given on page 142 of the 2012 CA-MUTCD: the addition or elimination of parking or driveways, changes in the number of travel lanes, changes in the configuration of bicycle lanes, changes in traffic control signal coordination, or significant changes in traffic volumes

As for changes in adjoining property or land use, and regardless of what the property or land is zoned for (by municipal standards and zoning criteria), it is the actual type/use the structure is intended for and as such the categories described as residential, business and commercial will have some impact.

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For a survey that was conducted less than 5 years (prior to the date of the citation), everything in the BLACK FONT would apply....

For a survey that was conducted 5 years and 1 day to 7 years (prior to the date of the citation), everything in LIGHT BLUE and DARK BLUE would apply.

For a survey that was conducted 7 years and 1 day to 10 years, (prior to the date of the citation) Then every thing in in LIGHT BLUE, DARK BLUE and GREEN FONT would apply.

Why the LIGHT BLUE and DARK BLUE in cases where the survey is over 5 but under 7 and over 5 but under 10?

Well, simply because the DARK BLUE is the definition of a "Speed trap" whereas the LIGHT BLUE is a list of items the prosecution must provide (i.e. the burden they must prove) to rebut the presumption that a speed trap was maintained at the time and place where the alleged violation had occurred!


Hope this helps!