Trial De Novo for Speeding, CVC 22350

[layman]

My question involves a traffic ticket from the state of: California.

Hello, all. I've been lurking in these forums for months now and I very much appreciate how good of a resource this is for those looking to get a better understanding of the law in general and, of course, as related to traffic infractions.

I am here now to offer my own case for review and discussion in preparation for my Trial de Novo, set for 4/12/12.

• On 10/22/11, I was cited for CVC 22350, driving W/B @ 58mph in a 40mph zone, on Pacific Coast Highway between Judson Ave and E O St. You can see this section on a map here. The officer was using LIDAR and was, to the best of my knowledge, situated at Point B, indicated on the map.
• This is the citation I received, personally identifying information redacted.
• I contested the ticket by sending my TBD on 12/16/11. The court entered its decision on 2/1/12, after reviewing the officer's declaration against mine.
• When I obtained the copy of his declaration, I did ask about court recordings, but the clerk's office told me that I had to hire my own court-approved recorder (at something like $90?).
• I was offered traffic school, but I was waiting on my request for the Engineering and Traffic Survey to decide whether to continue or not. Unfortunately, the window was closing on my 20 days and I still hadn't received the survey, so I decided to opt for the TDN.
• I received the ETS yesterday (side note: apparently, the last survey was conducted Dec. 1989, which makes it look like they've been running a speed trap for at least 10 years between 1999 and 2009!).
• I did not make an informal discovery request because I've been debating its usefulness in my case. I have until 3/29/12 to stay outside the 14 day period if I need it, though I wouldn't cut it that close.

What I've been considering:

• Going through the survey, I didn't find too much out of order, which leaves me little room to make a case about an illegal speed trap. Although this stretch of road has a low (I think) accident rate of 1.20 and a critical speed of 44mph, the limit was lowered to 40mph through this survey. In my research, I found that it is acceptable for a speed limit to be rounded down to the nearest 5mph. It appears that the justification is lacking because neither of the engineers cite specific reasons or make a strong case about lowering the limit, and the raw data doesn't seem to support it either. Still, I guess I can't touch it because it is within a 5mph reduction and I suppose this isn't strong enough a point to drive.
• From what I could make out from the officer's shorthand, there is no indication whatsoever of weather, visibility, the traffic on, the surface/width of the highway, or the endangerment of persons/property. While he does mention commercial truck traffic and pedestrians in the last line of his declaration, it is merely conjecture. Moreover, the "several intersections" that he mentions don't exist; the stretch of road between Point A and S Alameda St is one mile long with no intersections. I made these points clear, citing from People v. Behjat (2000) and People v. Huffman (2000) in my own declaration, but we can guess that they were summarily ignored.
• Looking over those two cited cases again, I'm not sure how to approach the issue that no substantial evidence is available to support the conviction. In Behjat, the conclusion seems to be that introducing a survey is not enough because the information pertinent to CVC 22350 must be indicated. In Huffman, on the other hand, although a survey was not introduced at all, the conclusion seems to be that any survey need only justify the speed limit. Then again, the disposition in each lays out the opposite conclusion. Clearly, they disagree in their opinions, so I don't feel so bad about mixing it up.
• If I am to chase this point, I'm not sure which way to go in cross-examination. If I allow the prosecution to make their case without substantial evidence regarding the factors in CVC 22350, then I imagine I could pick that apart with the precedents set in Behjat and Huffman. At this point, I'm not sure yet about how. Going at it a different way, I wonder if I could set the officer up for failure by picking apart his conjecture about the traffic and pedestrians, and especially the bit about the intersections. In addition, I see an opportunity in his recollection of the weather, as it was at that time clear and sunny, but only so in a small window on a cloudy day with high humidity and high winds. (Are these two routes of cross-examination even mutually exclusive? )

All right, these are my thoughts. I do apologize that they are rough, but I wouldn't be here if I had everything figured out. I've been thinking a lot about what it would be like to have That Guy and quirkyquark tear me down.

Thanks in advance for your time and consideration.

[That Guy]

That was a long comprehensive post (yours), lots of information to review (particularly long survey with several sections to try and sift through)....

I think this should pretty much cover it all...

One note I should include is: I do mention “motion” but you must keep iun mind that different courts will handle those differently. Some will allow you quite a bit of leeway, while others may force you to file them in criminal court (instead of traffic) and yet others will simply -at least initially- deny the entire idea.

[*]When I obtained the copy of his declaration, I did ask about court recordings, but the clerk's office told me that I had to hire my own court-approved recorder (at something like $90?).

Well, if a recording is something you want to do for the TDN, and regardless of whether you plan on providing your own or not, I would suggest you start with a “motion to record proceedings”.

Keep in mind that the Los Angeles Superior Court has a policy AGAINST recording/photographing in court; permission for use of a personal recording device maybe allowed up to the discretion of the judge. I wouldn't wait until the trial day to ask, because they will simply say “denied”. Even if allowed (See California Rule of Court 1.150, and if the judge allows one,, it can only be used for personal notes and might not do much good as a way to preserve and document any appeals issues.

Don't count on the traffic clerk though, you might want to ask the clerk in the courtroom and/or the clerk at the criminal window.

[*]I was offered traffic school, but I was waiting on my request for the Engineering and Traffic Survey to decide whether to continue or not. Unfortunately, the window was closing on my 20 days and I still hadn't received the survey, so I decided to opt for the TDN.

You may still be offered traffic school right before the TDN, but then again, based on what I see here (and though that might change) you may have potential (but it will take some wrangling).

[*]I received the ETS yesterday (side note: apparently, the last survey was conducted Dec. 1989, which makes it look like they've been running a speed trap for at least 10 years between 1999 and 2009!).

Interesting, but obviously not relevant!

[*]I did not make an informal discovery request because I've been debating its usefulness in my case. I have until 3/29/12 to stay outside the 14 day period if I need it, though I wouldn't cut it that close.[/LIST]

Obviously the officer totally skipped mentioning that part in his declaration (the written part). However, he did check the appropriate boxes 4.b. and 5.b. Stating it is on file with the court.... So he knows what's up! And when it is on file with the court, more often than not the officer will testify to its existence “by reference”... Some may suggest that this is not acceptable... I agree to a degree. IMO, I think you still must ask for itto be produced. So rather than waiting for the officer to finish testifying, then make a motion to dismiss simply because they failed to produce a survey in open court, is not likely to work in your favor... If you do that, you will likely get the “Oh, you wanted to see it, you should have said so... here you go”... I think in cases when you know it is lacking, you simply ask for it to be produced, argue on the record that it is invalid, object to its introduction into evidence by reference, judicial notice or otherwise, and now you've preserved your issue for appeal!

So how do you try and get as close as you can to the exact survey the officer will present in court? You make a discovery request. If he happens to produce a more complete one in court, you object on the grounds that his now produced copy was not provided to you in discovery.

Without that, I think you're on a fishing trip, hoping you'll catch something for the day... Who knows what you might catch!

So if I were you, I would go ahead and do it NOW! Serve (on the county D.A., the Long Beach city Atty AND the Citing agency), file it in court under your case #... Whether you get something or not, who knows... I would not let that stop me! (I don't what you mean by 14 days....)

[LIST][*]Going through the survey, I didn't find too much out of order, which leaves me little room to make a case about an illegal speed trap. Although this stretch of road has a low (I think) accident rate of 1.20 and a critical speed of 44mph, the limit was lowered to 40mph through this survey. In my research, I found that it is acceptable for a speed limit to be rounded down to the nearest 5mph. It appears that the justification is lacking because neither of the engineers cite specific reasons or make a strong case about lowering the limit, and the raw data doesn't seem to support it either. Still, I guess I can't touch it because it is within a 5mph reduction and I suppose this isn't strong enough a point to drive.

Let me start this bit by posting the reference points shown under “Section C” of the survey (with the exception of the first point “Los Angeles/Orange County Line” are marked HERE: http://g.co/maps/2tth5.

The segment in question is the last one described as: From Post Mile 8.266 -Long Beach, JCT, RTE. 103, Terminal Island Freeway to Post Mile 9.253 -Los Angeles, Alameda Street


For one thing, the entire survey is missing the speed count sheets for ALL segments! (Referred to in People v. Ellis as the “Raw Data”....)

If you look at page 4 under Conclusions, it shows that the last spot survey was stationed slightly to the Northbound (westbound) side of Route 103, though the segment extends Northboound (westbound) from there until it reaches Alameda Street which is 0.983 miles away!

Lets go to Section IV titled “Conclusions”:

This starts on Page 4 and if you go to the bottom of that table, the last (row) entry:
(I am going to skip the S/B figures simply because you were headed N/B (or “westbound” as the officer describes it and as it appears on that section of the map)
[B/Route 103 (PM 8.270)

Posted Speed (N/B) 45

85th Percentile Speed (N/B) 44

10 MPH Pace Speed (N/B) 33-42

Average Speed (N/B) 36

Proposed Speed (N/B) 40


Now, with the 85th Percentile Speed being @ 44mph, that gets a 1mph bump to the “nearest 5 mph increment” which makes it 45 mph, the regulatory authority can in fact reduce that by 5mph if conditions as well as the needs of the community support such a reduction.

And this is consistent with the paragraph below:

For the segment that concerns you, (see middle of Page #5) under “Conclusion” starts with:

“For the 45mph posted speed zonefrom River Avenue to North of Hobson Avenue the critical speeds were lower between 43 mph to 44 mph, and the average speeds ranged from 36 mph tp 37 mph. Based on the accident rate, current land uses and the 85th percentile speed on this segment between River Avenue to North of Hobson Avenue, it is recommended that the speed limit be lowered to 40 mph.

OK< so lets go back to take a look at accident rates:

Remember, our segment started at Mile marker 8.266... So under “Section E. Accident Rates (starts @ page 2) look at the table on Page 3... The last NB entry is:

(I'm going to skip the Fatality Rate Columns simply because they make no mention of any way to utilize such figures in the MUTCD or the VC....


Highway Segment --—Accident Rate (Accidents/MVM)
Postmile---------------- Total Actual --- Total Average --
8.266 to 8.440 ------------- 1.20 ------------ 2.40 ----------

I believe “Total Average” here referes to the State Average... Which makes it obvious that the Actual Accident Rate in this segment is exactly HALF of the state rate. This would certainly negate any possibility of utilizing this factor in reducing the speed limit.

Personally, and having drriven that segment of PCH several times, I can tell you that if it were me (even though I am no traffic engineer), I would tend to agree that a 5mph speed limit reduction would be justified simply due to the volume of commercial traffic through the area.

The problem is for this survey, and in spite of all the data that was collected, the engineer got sloppy at the end. So due to the fact that accident rate is not a good reason, that leaves “... current land uses and the 85th percentile speed on this segment...”... Well, “.. the 85th Percentile speed...” cannot be used to reduce the “85th percentile speed”, so that reason is out.... Leaves us with “... current land use...” and unfortunately, I think he should have been a bit more descriptive than that.

The last line in that last paragraph on top of page 2 (“There are numerous driveways and alleys from 7th Street through Oregon Avenue”) would have been best included under the conclusion section, however, that entire section is East (or actually South) from the segment of concern.... So it would still have made zero effect!



This kleaves me with the following few sections to respond to.....

• Looking over those two cited cases again, I'm not sure how to approach the issue that no substantial evidence is available to support the conviction. In Behjat, the conclusion seems to be that introducing a survey is not enough because the information pertinent to CVC 22350 must be indicated. In Huffman, on the other hand, although a survey was not introduced at all, the conclusion seems to be that any survey need only justify the speed limit. Then again, the disposition in each lays out the opposite conclusion. Clearly, they disagree in their opinions, so I don't feel so bad about mixing it up.
• If I am to chase this point, I'm not sure which way to go in cross-examination. If I allow the prosecution to make their case without substantial evidence regarding the factors in CVC 22350, then I imagine I could pick that apart with the precedents set in Behjat and Huffman. At this point, I'm not sure yet about how. Going at it a different way, I wonder if I could set the officer up for failure by picking apart his conjecture about the traffic and pedestrians, and especially the bit about the intersections. In addition, I see an opportunity in his recollection of the weather, as it was at that time clear and sunny, but only so in a small window on a cloudy day with high humidity and high winds. (Are these two routes of cross-examination even mutually exclusive? )

All right, these are my thoughts. I do apologize that they are rough, but I wouldn't be here if I had everything figured out. I've been thinking a lot about what it would be like to have That Guy and quirkyquark tear me down.

Thanks in advance for your time and consideration.

Well, in glancing at them, I can see that you've mentioned Behjat, Huffman and are discussing the officer's testimony.

You are in luck, simply because fresh off the press, I just posted a newly concluded, perfectly sensible (in my opinion) analysis of those two case and more HERE: See posts #4 and #5 in this thread -<California VC 22350 Trial De Novo>-

[layman]

Thanks so much for taking the time out to address everything with so much detail. I know it's something you enjoy (why else would you hang around here for so long?), but it's easy to take for granted that you, and others, actually go through things that people have posted and offer your knowledge.

Well, if a recording is something you want to do for the TDN, and regardless of whether you plan on providing your own or not, I would suggest you start with a “motion to record proceedings”.

I'm mainly concerned about preserving details in case I need to go to appeal. Is getting a recording of the proceedings the only way to go about this? How are the proceedings in court otherwise noted if there are no recordings, say if I make an objection to preserve something for appeal?

I think in cases when you know it is lacking, you simply ask for it to be produced, argue on the record that it is invalid, object to its introduction into evidence by reference, judicial notice or otherwise, and now you've preserved your issue for appeal!

Ah, I see. As we move further in boiling down my arguments and making a solid case, I'm sure we will revisit this.

So if I were you, I would go ahead and do it NOW! Serve (on the county D.A., the Long Beach city Atty AND the Citing agency), file it in court under your case #... Whether you get something or not, who knows... I would not let that stop me! (I don't what you mean by 14 days....)

I think I was just waiting to be convinced to actually get it over with... So, I managed to put together a discovery request over this weekend and my friend will be serving it for me tomorrow. I'll file it all in court once I've received his completed Proof of Service form. As far as "14 days" goes, I meant that if I was going to make a discovery request, I would have had to make sure that I gave the agencies sufficient time before the trial to respond to my request. My research leads me to believe that the agencies have 15 days (15, now that I've checked again) from my request to respond, but if I did not give them those 15 days, then I would not have grounds to raise this issue in court.

For one thing, the entire survey is missing the speed count sheets for ALL segments! (Referred to in People v. Ellis as the “Raw Data”....)

Could you explain or provide an example of "speed count sheets"? How is this data different from what is made available in this ETS?

Now, with the 85th Percentile Speed being @ 44mph, that gets a 1mph bump to the “nearest 5 mph increment” which makes it 45 mph, the regulatory authority can in fact reduce that by 5mph if conditions as well as the needs of the community support such a reduction.

I just want to make sure I understand this correctly--critical speeds are rounded to the "nearest 5mph increment," not automatically rounded down, which means that the 5mph reduction to 40mph from 45mph requires justification in the ETS? Could you explain why critical speeds are rounded this way and provide a source for this reasoning?

Accident Rate
Postmile ---------- Total Actual --- Total Average ---
8.266 to 8.440 --- 1.20 ----------- 2.40 -------------

I somehow confused the accident rate when I was writing my post. The actual accident rate for N/B at that section is 0.40.

The problem is for this survey, and in spite of all the data that was collected, the engineer got sloppy at the end. So due to the fact that accident rate is not a good reason, that leaves “... current land uses and the 85th percentile speed on this segment...”... Well, “.. the 85th Percentile speed...” cannot be used to reduce the “85th percentile speed”, so that reason is out.... Leaves us with “... current land use...” and unfortunately, I think he should have been a bit more descriptive than that.

I also felt that the conclusions were lacking in substance, but wanted to temper my expectations about it while awaiting some feedback.

You are in luck, simply because fresh off the press, I just posted a newly concluded, perfectly sensible (in my opinion) analysis of those two case and more

I did look over your analysis and I pretty much came up with the same conclusions about the cases myself. I'm sorry if I'm missing something, but it looks like we still don't have a strong answer either way about whether or not the prosecution's case hinges on more than the ETS justifying the prima facie limit. But now that we've broken down the ETS that we have, it doesn't hurt to make clear cases about both 1) the holes in the ETS and 2) the lack of substantial evidence pertaining to the factors in CVC 22350.

Pending our review of any responses to my discovery request, is the next step to formulate a concise defense strategy?

[That Guy]

Thanks so much for taking the time out to address everything with so much detail. I know it's something you enjoy (why else would you hang around here for so long?), but it's easy to take for granted that you, and others, actually go through things that people have posted and offer your knowledge.

actually, I had intended on replying in segments... But got halfway there and decided to finish it up... No thank you needed!

I'm mainly concerned about preserving details in case I need to go to appeal. Is getting a recording of the proceedings the only way to go about this? How are the proceedings in court otherwise noted if there are no recordings, say if I make an objection to preserve something for appeal?

There are other alternatives, however, and depending on the issues you may be bringing up on appeal, it might necome quite challenging to get the judge to agree to your version when it comes to submitting the 'settled statement"... With an official recording and/or transcript, there is no disputing the documented facts.

So inquire with your court again. get a supervisor if need be to get a straight answer. Or simply prepare a motion requesting permission or requesting that the court do the actual recording and see what response you get.

I think I was just waiting to be convinced to actually get it over with... So, I managed to put together a discovery request over this weekend and my friend will be serving it for me tomorrow. I'll file it all in court once I've received his completed Proof of Service form. As far as "14 days" goes, I meant that if I was going to make a discovery request, I would have had to make sure that I gave the agencies sufficient time before the trial to respond to my request. My research leads me to believe that the agencies have 15 days (15, now that I've checked again) from my request to respond, but if I did not give them those 15 days, then I would not have grounds to raise this issue in court.

Actually, in reality, you are supposed to give them 15 days (realistically should be about 20 days) to respond... And in return, disclosure shall be made at least 30 days prior to the trial (see Penal Code section 1054.7) and obviously, you cannot ask them to push back time so that their response is timely... In other words, you're running pretty short on time...

My suggestion to attempt a discovery request would be to simply establish whether the officer intends on producing a survey in court or not...

Still, there is no guarantee that will be a sure tell-tale... I mean even if he does not provides one in discovery, he will likely still be able to use on in court or he may likely refer to a survey that is on file with the court (just like he did in his written declaration)...

Also, don't get your hopes up on getting much of anything... If you do, great, if you don't... You will have to do your research, understand what to look for what to object to and what to dispute... play it out as it happens in court.

And no, if they do not reply/respond, and while you can bring it up in court, the only relief you will likely get is that the judge will ask the officer to provide you with copies of the items he planed on using in his testimony, and you will get a short recess to review them just before trial.

Could you explain or provide an example of "speed count sheets"? How is this data different from what is made available in this ETS?

Your survey was conducted on or about March 29, 2009, it was signed off/approved on or about April 30, 2009... That means it follows the criteria and rules listed in the 2006 California MUTCD (you might want to download a copy of that... It is however a voluminous document... So at minimum, you should download the part described as "Part 2: Signs".

The discussion regarding speed limits and E&T surveys starts under Section 2B.13 which starts on page 2B-7;
scroll down to page 2B-9 and about mid-page, you will see the following:

1. State Highways - The E&TS for State highways is made under the direction of the Department of Transportation’s District Traffic Engineer. The data includes:

Since PCH is a state highway, it follows that an E&T survey conducted to establish its speed limit should follow the description under referenced under #1...

In that description you will see a reference to "the Standard Speed Zone Survey Sheet (See Figure 2B-101(CA))"...

Now if you go to page 2B-86, you will find Figure 2B-101(CA) which shows the the Standard Speed Zone Survey Sheet which should have been used for that survey...

I just want to make sure I understand this correctly--critical speeds are rounded to the "nearest 5mph increment," not automatically rounded down, which means that the 5mph reduction to 40mph from 45mph requires justification in the ETS? Could you explain why critical speeds are rounded this way and provide a source for this reasoning?

Critical speed is the 85th percentile speed as established by the E &T Survey...
You should read section 2B.13, and review all the sample forms from page 2B-86 through 2B-89...

On the [right side of the] chart that is on page 2B-89, you will see "Critical Sped Calculation", so basically they radar a certain # of cars (preferably over 100 cars) and write down their speeds. They then perform the calculation described there, and come up with the critical speed -also known as- the 85th percentile speed.

In your case and since we don't have the actual speed counts (which would go on a sheet similar to that on page 2B-89) we have to take the engineer's word for it. And in that case, the critical speed/85th percentile speed for the segment where you were cited, (look at the table shown on page 4 of your survey;
the last entry;
"Route 103 (PM8.270)";
Under the "85th percentile" for the N/B direction (since you were travelling Northbound), shows a value of 44mph.
So 85th percentile is 44mph
Now, at the time your survey was conducted and pursuant to the procedures in the MUTCD version valid and most current at the time which is the 2006 version (go back to page 2B-7, read the first few paragraphs under "Section 2B.13 Speed Limit Sign (R2-1)" in cluding the first paragraph in blue fone under "Option"...
They follow those descriptions with a few examples on how the speed limit is adjusted up to this point...

Now, once at this point, California vehicle Code section 627 requires that the roadway conditions be examined to establish whether certain conditions exist which may require an additional reduction of the speed limit. If the conditions call for it, and the engineer does choose to go with that opion, the maximum reduction he can do is by 5mph... Reductions of more than 5 mph at this stage are frowned upon and more often than not a defendant like you or I can argue that such a reduction is excessive and therefore not proper.

So in your case, if accident rates (based on "speed related midblock accidents") where higher than the state expected rate for that type of highway then a 5mph reduction would likely be justified... There are obviously other reasons which you can read about in the MUTCD.

I somehow confused the accident rate when I was writing my post. The actual accident rate for N/B at that section is 0.40.

I'm reading it as 1.20... Either way, whether it is 1.20 or 0.40, it is still less than the state's expected rate of 2.4 and therefore, it had no impact on the speed limit... i.e.the speed limit was not reduced as a result!

Pending our review of any responses to my discovery request, is the next step to formulate a concise defense strategy?

I say wait a couple of days for the possibility that you might get another opinion.... In the meantime, do some reading, browse the forum, search for 22350 and read a few threads... There are no two cases that are alike, but it will be worth your time to familiarize yourself with the process, and you'll also get an idea on what is likely to have potential and what isn't. Come back here in a few days, post any questions you have, and we'll go from there.

[layman]

Okay, so my trial is less than a week from today. Time to distill my arguments and put together my defense strategy.

I went to the court yesterday to ask the clerk some questions and to observe the court proceedings in preparation for my own trial.

• I asked the clerk about making a motion to record the proceedings, but she said that what I would have to do is make the motion in court on the day of. I asked about having to hire my own recorder or recording the proceedings myself (and mentioned that I expected there not to be a stenographer in place), but she said it didn't matter until the judge said whether he would allow it or not. Rule 1.150 states that I can only make a personal recording to use for personal notes. I'm weighing the hassle of figuring this out vs. preserving the record in case it turns out badly... On the whole, the atmosphere was formal, and the presiding judge struck me as cut-and-dried.
• The discovery request has been served on the county DA, the Long Beach attorney, and the LA Port Police. No response, and we're probably not expecting one anyway.
• My officer appeared in court, but not much happened because, IIRC, the defense lawyer asked for a continuance. I don't remember him carrying much of anything with him (e.g. an ETS).
• The one case that did play out involved an officer that testified and appeared to be holding notes that he only referred to at the beginning. The defendant testified against himself and was found guilty. It wasn't a speeding case; it was about the defendant driving a truck that was over the weight limit for a certain stretch of road, so I don't know whether the officer would have needed to produce anything, but even so, it probably wouldn't have been an ETS. It lasted all of 2 minutes.

My approach:

1. I expect that the officer will not produce an ETS. When he begins to testify about LIDAR, I will object to the lack of foundation under VC 40803(b). If he does produce an ETS, I will object to it being introduced when it was not provided to me in my Informal Discovery Request. Now I know that the judge can simply compel the prosecution to show me the survey, at which time I will have to review it quickly to check for the holes we’ve talked about (speed count sheets, justification for lowering 5mph).
2. How hard do I chase the subject if no ETS is produced in court? It seems to me that if the judge simply “takes judicial notice” of it, he’s basically allowing the prosecution to testify against me without proving that the location of the citation is not a speed trap, which means 40803, 40804, and 40805 go out the window. The conventional wisdom seems to be that it’s better not to push a topic if it will anger the judge, but isn’t it more important to expose the judge if he is not acting as an impartial trier of facts?
3. Now that I’ve objected to the ETS, when is the proper time to argue that it is inadequate in justifying the speed limit and that the relevant section of roadway is therefore a speed trap? Do I continue to point out these inadequacies before the officer can testify (since he shouldn’t be able to without the proper foundation) or do I bring them up in cross-examination, perhaps by getting the officer to testify about what is and what isn’t there in the ETS?
4. I want to have another strong argument, especially in case the prosecution does show up with a more complete ETS. In cross-examination, I’d like to press the officer about the elements of 22350 and his statements in his declaration. He mentioned that I passed two other vehicles; I will ask him to describe make/model. He mentioned pedestrians on the street; I will ask him to describe those pedestrians. I will ask him to describe weather conditions and visibility, since he’s made no mention of these at all; if he mentions fog/low visibility, I will ask him to read the hourly weather conditions for the time of citation. All of this leads to the most damning part, I think, in that he testified under oath about several intersections on this stretch of road when there aren’t any. Is it worthwhile to print out a map and images to corroborate this fact?
5. I’d like to print out any relevant excerpts of the CVC and the MUTCD to provide clear justification for my arguments. Will this be useful?

Thanks for referring me to those sections of the MUTCD. It helped me better understand the procedures for a proper ETS and, in turn, helped me see more clearly why this particular ETS is inadequate.

[That Guy]

As far as the recording, if you have any intention of requesting a recorded hearing, I would not wait until the trial date. but that is just me. I addition to the issues you mentioned having to decide, you have to also consider that an official recording and one which will be used as the record for a possible appeal will have to be professionally transcribed... At your cost... (Don't ask me how much because I have not looked into it, but it ain't cheap). And unless you are willing to go through with paying for it, there is no use to request it.

On the other hand, personal recordings ARE indeed only used for personal notes and will not serve as an official record... And aren't that bad of an alternative, but you still have to request permission

My approach:

1. I expect that the officer will not produce an ETS. When he begins to testify about LIDAR, I will object to the lack of foundation under VC 40803(b). If he does produce an ETS, I will object to it being introduced when it was not provided to me in my Informal Discovery Request. Now I know that the judge can simply compel the prosecution to show me the survey, at which time I will have to review it quickly to check for the holes we’ve talked about (speed count sheets, justification for lowering 5mph).
2. How hard do I chase the subject if no ETS is produced in court? It seems to me that if the judge simply “takes judicial notice” of it, he’s basically allowing the prosecution to testify against me without proving that the location of the citation is not a speed trap, which means 40803, 40804, and 40805 go out the window. The conventional wisdom seems to be that it’s better not to push a topic if it will anger the judge, but isn’t it more important to expose the judge if he is not acting as an impartial trier of facts?
3. Now that I’ve objected to the ETS, when is the proper time to argue that it is inadequate in justifying the speed limit and that the relevant section of roadway is therefore a speed trap? Do I continue to point out these inadequacies before the officer can testify (since he shouldn’t be able to without the proper foundation) or do I bring them up in cross-examination, perhaps by getting the officer to testify about what is and what isn’t there in the ETS?
4. I want to have another strong argument, especially in case the prosecution does show up with a more complete ETS. In cross-examination, I’d like to press the officer about the elements of 22350 and his statements in his declaration. He mentioned that I passed two other vehicles; I will ask him to describe make/model. He mentioned pedestrians on the street; I will ask him to describe those pedestrians. I will ask him to describe weather conditions and visibility, since he’s made no mention of these at all; if he mentions fog/low visibility, I will ask him to read the hourly weather conditions for the time of citation. All of this leads to the most damning part, I think, in that he testified under oath about several intersections on this stretch of road when there aren’t any. Is it worthwhile to print out a map and images to corroborate this fact?
5. I’d like to print out any relevant excerpts of the CVC and the MUTCD to provide clear justification for my arguments. Will this be useful?

Thanks for referring me to those sections of the MUTCD. It helped me better understand the procedures for a proper ETS and, in turn, helped me see more clearly why this particular ETS is inadequate.

Sounds to me like you're planning a show and my advice to you is grandstanding and challenging (or is it "exposing") the judge will not earn you any points nor will you intimidate him/her into dismissing your case!

Also, planning a certain course of action, and one which involves the officer's failure to produce the survey will only work against you... Going in with the assumption the case will work out your way is the worst thing you can do.. Well, actually, a cocky attitude might hurt you more. Not saying you have one but I can tell you that it doesn't take much to tick off a judge, one word could do it... One interruption while he is talking may set him off. I can also tell you from experience that you can set the best of plans, and come time when your name is called, the slightest hick up will throw you off course and you'll never recover.

Bringing up the discovery issue will be a waste of your time and a good opportunity to get started early on getting under the judge's skin... After all, even if they wanted to provide you with anything, they would be pressed for time simply because you waited until it was the eleventh hour and 59th minute...

Instead, and I know several people will disagree with me here, but if the officer simply mention it as being on file with the court, or does produce a copy but does not hand you one, I - personally - would - respectfully - ask - to - review - it. The alternative is that you not say anything, wait until the officer is done testifying, and you either motion for a dismissal or expect the judge to rule in your favor on the survey issue... Well, what if it doesn't happen that way? Mow, you are back tracking in an attempt to get the opportunity to review it when you could have done that to begin with, AND gave yourself the opportunity to organize your thoughts and set the entire trial. The risk, of course, is that he produces a valid survey but, still it is a chance I would take rather than cornering my self into having to go the long route of an appeal.

I think if you are going to make an issue of discovery, I would start with that before the officer begins... Just raise your hand as soon as you walk up and either submit to the fact you "may have requested it a little too late, but you are wondering if it is possible that you can have a short recess to review the evidence the officer plans on presenting against you"... I think this may even score you some points with the judge rather that expecting him to offer you a recess mid trial... Your choice though!

As for questioning the officer about his declaration, I see zero value in that, UNLESS he mentions the same issues... But for you to bring them up... What is the point?

Last but not least... I don't know where people get the idea that the officer has to remember ANYTHING about other cars, what color they were when all this happened over six months ago!

Think about it this way... Do you remember what make/model those cars were? Unless you were following one of them (or racing them), you are not likely to remember, but even if you did...

What if he says yeah, there was a "white Toyota pick up and a silver Honda Accord"... Now what? Can you prove that they were anything else? How? There isn't any way!

What if he says "no, I have no recall whatsoever"! How does that affect whether you were speeding or not? It does not!

Worse yet, (notice he states "vehicles" in his declaration)... what if he says "yeah, two tractor trailers"?

You're sunk!

Anyways, it is your case and far be it for me to dictate how you should try it...

Good luck!

[layman]

No, I am not planning on a grand show or anything like that. I was just wondering what others thought about the merits of giving the judge the opportunity to "expose" himself if he is willing to skirt the edges of the rules with inappropriate conduct; mainly I had quirkyquark's appeals case in mind. I suppose the real question is whether I'm more interested in just getting my ticket dismissed or challenging the establishment. But who am I--just a grain of sand in the gears of the justice machine, right?

And no, I didn't want to go in with the assumption that the case would work out my way, which is why I mentioned the need for a strong argument against the case outside of the survey.

So, what this tells me is that I have to be sure that any angle I take is geared towards getting my case dismissed, and nothing else; otherwise it will be to my detriment. Your suggestion is that it would be best to raise the issue of discovery before anything even happens; basically, bring it up in a polite manner as opposed to objecting about it during the officer's testimony and risk incensing the judge. I see that based on quirky's experience, bringing up discovery in that manner only served to set him off on the wrong foot.

The reason for bringing up issues about his declaration and about his recollection of the surrounding facts is, supposedly, to bring down his credibility. I believe that people, like Brown in his book, come up with the idea because they find it a valid way to discredit the officer and by extension his testimony. For me, if I were to try this line of questioning, I would be looking to establish that the officer isn't making any case as to the elements of CVC 22350, and that therefore, based on case law in Behjat and Huffman, the prosecution has not proven beyond a reasonable doubt that there was a violation of CVC 22350.

Based on the points you raise, it seems to be more beneficial to only attack weak issues that the officer raises himself. If he doesn't make any strong case about CVC 22350, is it best to leave it as it is and make a closing argument about Behjat/Huffman in the end?

And as far as the closing argument, would I not be pointing out the deficiencies in the survey and the lack of a case for CVC 22350? Would I be picking the survey apart in my closing argument and moving to exclude it from the evidence? And what if the survey is on file with the court and it's simply not produced?

I just want to make sure my end-goal is solid so that I have something to prepare my mind in adapting as the case unfolds.

[layman]

Update:

So I had my trial today, and here is more or less how it went:

• The officer approached me before trial and offered the ETS that he had with him for my review. I asked him if he had anything else to present, like notes on the back of his citation; he said that he only had the survey and that his notes were on the front of the citation.
• The data from the survey (May 2009) actually begins at Junction 103 (as opposed to ending just beyond there, as in my survey) and continues westward (N/B) on from there. The N/B critical speed was listed as 53 mph and the accident rate as 0.10 for the relevant section of roadway. The recommendations offered by the engineers were not different from the survey that I had, and were even leaner because it was simply relying on the speed limit of 40 mph already posted because of my survey (March 2009). The same "based on the accident rate, current land uses and 85th percentile speed" were present as "justification" in the survey that he presented me.
• Knowing that this was lacking, I went in there prepared to make an objection as to the inadequacy of the survey. As soon as the officer mentioned LIDAR in his testimony, I objected and began attacking the survey and its lack of justification, mentioning that it did not meet the requirements as laid out in both CVC 627 and the CA MUTCD and citing 40802, 40804, and 40805. The judge then said that the prosecution had yet to bring up the survey and asked that the officer hand it to her (this made me think that I probably jumped the gun in laying out everything so quickly in my objection; I apologized to the judge for not allowing her time to review the survey before making my statements). She asked me if she could see what I wrote about this; I told her that I had not prepared a brief, but she said that what I had written down was fine and that I could get a copy of what I wrote if I wanted.
• The judge said that she wanted to let the officer finish his testimony so as not to waste the court's time. The officer testified basically the same way he had in the declaration, as to commercial truck traffic, pedestrians on the side walk, and several intersections and driveways. He did testify to the critical speed being 53 mph.
• The judge asked me if I wanted to testify; I said I did not. She then asked if I had questions for the officer; I said I did. I asked the officer if it was true that he testified to there being several intersections on the relevant section of roadway. He acknowledged that. I then brought out a map depicting the section of roadway and showed it to him, pointing out the lack of intersections between Junction 103 and E O St. He said that there are driveways along there, but I said that there are no intersections as controlled by traffic devices.
• The judge asked if I had any further questions; I said I did not. She then said that she would take the matter under submission and that I would received notice in the mail as to the judgment.
• I asked the judge if I could make a closing argument. She allowed me to, and so I reiterated the inadequacy of the ETS in justifying a 40 mph speed limit, a whole 13 mph down from the critical speed and with an accident rate of 0.10, as it had not satisfied the requirements of CVC 627 and the CA MUTCD as to such a reduction. I stated that, furthermore, the officer's credibility was called into question because of his recollection/knowledge of the roadway in question; at this point, she said that I had not entered the map into evidence and that I had not laid the proper foundation for it--if I wanted to enter it into evidence, I would have to testify. I decided not to pursue that route. Continuing, I stated that the record did not contain substantial evidence as to the elements of CVC 22350, cited People v. Behjat, and stated that the prosecution had failed to make its case as to a violation of CVC 22350.
• Again, the judge said that she would take it under submission. That was all.

Some immediate thoughts:

• There was another fellow whose case came right before mine, and he was charged with doing 65 at the exact same place; I felt bad that he didn't seem to have any proper defense prepared, especially because I had already seen the ETS by this time. It did give me time to absorb a case similar to mine. Both his officer and my officer gave nearly identical testimonies.
• I don't think there was much I could have done in terms of supplying a good written argument; the survey was given to me minutes before the trial, and I couldn't do much else besides note the important information down on my legal pad. I did tie it together with the requirements in the CVC sections and the MUTCD, and mentioned all this a couple times in court, so it should be enough.
• I had printed out all the sections I was citing from as far as the CVC and MUTCD, but didn't think to actually hand those copies to the judge for her review in the midst of the trial. Pro-tip: Make sure all of your documents are clearly noted on top so you are exactly sure which documents are used for which purpose. I found myself in a haze in the middle of the proceedings staring at the different packets of documents I had brought with me.
• I was debating this right before my trial, but I'm not sure when the best time to make an objection about LIDAR is. Based on her reaction, it's probably best to wait for the officer to both introduce the survey and testify as to using LIDAR to read your speed, and to make a simple objection and take the time to explain it after the officer has testified.
• If I really wanted to make the point about the intersections, I think I should have prepared a deeper line of questioning; I was also caught off-guard about having to introduce the map as evidence. As it stands, that part of my trial was weak, I think, but I didn't really want to chase it too much with the speed trap being as glaring as it is.
• I also wondered if it would have been better for me to have the officer also testify to the information in (or not in) the survey, but seeing as the judge had already taken the survey from him, I probably wouldn't have been able to.
• Is it true that if it comes down to appeals, the higher court can reverse this judge's ruling because she took the matter under submission without my permission (as per People v. Kriss)?

[layman]

Final Update:

Not guilty!

I hope now that this thread will prove to be another valuable resource to those looking for help with their cases just like I was over these past six months.

Thank you all, and special thanks to That Guy!

[That Guy]

Final Update:

Not guilty!

I hope now that this thread will prove to be another valuable resource to those looking for help with their cases just like I was over these past six months.

Thank you all, and special thanks to That Guy!

Congratulations!