Traffic Survey Where I Was Cited is More Than 5 Years Old - Can the Case Be Dismissed

[AJAlegria]

My question involves a traffic ticket from the state of: California.
after getting a ticket for speeding I sent out a discovery request letter to the police department and D.A.'s office. I just received a response packet from the police department and among the other things I requested I was given two traffic surveys. In my request letter (which they photocopied and sent back to me in the packet) I specified that I wanted the most recent survey conducted in the last 5 years. I chose this time frame based on threads from this site on how to request informal discovery. The two survey's were conducted in september of 2006 and certified in february of 2007 My ticket was in late march of 2012.

Does the fact that the survey is over five years old from the day I was ticketed mean I can get the case dismissed and if so, how and when can I make this happen? My arraignment is June 8th. I appreciate your input.

[That Guy]

My question involves a traffic ticket from the state of: California.
after getting a ticket for speeding I sent out a discovery request letter to the police department and D.A.'s office. I just received a response packet from the police department and among the other things I requested I was given two traffic surveys. In my request letter (which they photocopied and sent back to me in the packet) I specified that I wanted the most recent survey conducted in the last 5 years. I chose this time frame based on threads from this site on how to request informal discovery. The two survey's were conducted in september of 2006 and certified in february of 2007 My ticket was in late march of 2012.

Does the fact that the survey is over five years old from the day I was ticketed mean I can get the case dismissed and if so, how and when can I make this happen? My arraignment is June 8th. I appreciate your input.

The vehicle code has provisions allowing for surveys as old as 7 as well as 10 years old. See VC 40802

[AJAlegria]

Thanks for the heads up and the link. I checked it out and understood the VC excep the last paragraph about 7 or 10 year periods at the end. It was not a local street- 3 lanes in each direction, and there was a recommeneded speed limit reduction by 5mph because of "high accident rate" of 3.2 accidents per million cars passed. Does this mean it stays in the 5 year limit period? Like I said I couldn"t understand what differences that last section was trying to set for a 7 year period. Basically, to me, the last paragraph (2)(B) looks like a photocopy of the first paragraph (2), but calls for a 7 year period instead of a 5. ??

[That Guy]

Thanks for the heads up and the link. I checked it out and understood the VC excep the last paragraph about 7 or 10 year periods at the end.

LOL... Well, then you didn't understand it. But don't feel bad.... I bet you there are some judges who look at that and say "wait, wait.... Let me read that again".

While it is indeed the FEW paragraphs ending with the 2 subsections about the 7 and 10 year periods at the end.

How is this:

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.

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 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!

Let me also add that even though there is no statutory requirement for it, and in cases where the survey is LESS than 5 years old (whereas the paragraphs in the BLACK FONT apply, the officer will more likely than not still present items from the paragrpahs with LIGHT BLUE FONTS such as:

• "When radar is used" Minimum of 24 hours of P.O.S.T. Radar Training and certification;
• "When LASER/LIDAR is used", the above PLUS not less than 2 hours of P.O.S.T. LASER/LIDAR training;
• Present a current valid and complete Engineering and traffic Survey which justifies the posted Prima Facie speed limit;
• Describe conditions or events that led him to conclude that the defendant's speed was unsafe; And lastly,
• Present proof that the speed measuring device has been calibrated within the last 3 years prior to the date of the citation.

It was not a local street-

Did you in fact check the California Road System Maps?

I've never come across one that is, but it is always good to eliminate that as a possibility. If you didn't, you might go through with a request and wait forever for a survey that is not likely to show up!

... and there was a recommeneded speed limit reduction by 5mph because of "high accident rate" of 3.2 accidents per million cars passed.

Sound to me like you've already requested and obtain the E&T survey.... I obviously would have to look at it to offer an opinion, so if you can scan it, upload it to a web-hosting site (photobucket.com works well).. and then post links to it here that would be great.

Does this mean it stays in the 5 year limit period? Like I said I couldn"t understand what differences that last section was trying to set for a 7 year period.

Well, whether the survey justifies the posted speed or not does not necessarily reflect on how long it can be utilized for.

The survey MUST justify the limit for RADAR?LASER evidence to be valid. Whether that happens within the 5 year age of the survey or whether it happens within the period of 7 years since it was conducted, a valid speed limit (and unless something major is changed on that roadway) will remain valid for the entire period, regardless of whether it is 5 years or 7 years.

In other words, you evaluate the survey and see whether it was done correctly, that it meets certain requirements, and if a speed limit reduction is recommended and implemented, that it is done with a valid justification which fits the guidelines. As far as it being over 5 years old, there is nothing to consider or think about until trial time. You simply listed and watch as the officer testifies, to see whether he will meet the requirements and present the items required of him. If he does then that is not an issue, if he doesn't then you can object and he ill have to produce what is required, otherwise, and if he has not met the burden required, you can motion for a dismissal!

IN spite of what most people say, ^that^ is much easier said than done!

Basically, to me, the last paragraph (2)(B) looks like a photocopy of the first paragraph (2), but calls for a 7 year period instead of a 5. ??

Irt sure does. However, the difference lies in the prosecution's burden which is described under 40802(c)(1)(A) through 40802(c)(1)(D).

[AJAlegria]

So basically no matter what, the fact that the survey is over 5 years old is not enough to get the case dismissed.

My original intent was to submit a trial by written declaration, is there a way I can use the" burden of proof clause" you referenced in that scenario to get the reviewing judge to dismiss the case?

[That Guy]

So basically no matter what, the fact that the survey is over 5 years old is not enough to get the case dismissed.

Correct. The fact that the survey is over 5 years old is not enough to get the case dismissed!

My original intent was to submit a trial by written declaration, is there a way I can use the" burden of proof clause" you referenced in that scenario to get the reviewing judge to dismiss the case?

They still have the burden of proving a speed trap did not exist but just the fact that the survey is over 5 years old isn't going to cut it!

So, as I already suggested, you can post a survey or a link to it, so we can see what, if anything, might improve your odds of a dismissal. Otherwise, I'm sorry you're disappointed!

[AJAlegria]

I won't be able to set up a link or scan etc. Because i'm a very lo-tech guy. I don't have internet at my house, i've just been using wifi on my barely smart phone for all this.

So for the written trial should I mention somewhere that it was a speed trap to bring to the judge's mind to look for burden of proof or does the judge just automatically look for that?

[That Guy]

I won't be able to set up a link or scan etc. Because i'm a very lo-tech guy. I don't have internet at my house, i've just been using wifi on my barely smart phone for all this.

Well, here is a picture I took with my phone, uploaded to the net and here is the link...

[IMG][/IMG]

So if you want to do it, it can be done... When there is a will, there is away!

Also, you maybe able to get internet access at your local library.

There are often times that E & T surveys have many issue that you can compile to try and argue for a dismissal, but unless I can see the survey, I wouldn't be able to point to any of those issues, and even if I do see it, I cannot guarantee that it you upload it and post it, that your case will be dismissed.

So it is up to you...

So for the written trial should I mention somewhere that it was a speed trap to bring to the judge's mind to look for burden of proof or does the judge just automatically look for that?

Well, you don't really mention or state it was a speed trap... The proper way of of saying it would be as follows:

"A current and valid engineering and traffic survey must be introduced by the prosecution into evidence to rebut the presumption of a speed trap"

[AJAlegria]

That sounds pretty good to mee, thank you for all your time.

[AJAlegria]

Alright, so my trial date is set a little over a month from now. After reading from this and other sites and books I have a few questions.

- I was clocked at 71mph in a 40 zone, can my ticket be changed at any time from a 22350 to a 22349?

- After pleading Not Guilty, the judge advised me that my license could be suspended for 6 months if I am found guilty. Is this a bonus punishment they are adding because I plead not guilty, and if so, what are the chances that they will incur this punishment? My trial is in Sacramento county in the Carol Miller Justice Center.

- I have read that since the traffic survey is over 5 years old that it puts additional burden on the prosectution. Does anyone know what this additional burden is?

I would like to share the traffic survey here, but apparently I am not tech savvy enough. I scanned the survey to a PDF, but I have no idea how to post it to a URL in order to share it here...???

I will have further questions about the survey when I can get it posted, but I don't want to get ahead of myself.

thank you for your help so far.

- - - Updated - - -

Oh, one last thing. I received my discovery request right on time from the Police Department, but it has been over a month and I still have not recieved anything from the D.A.'s office. I was advised from the clerks office to send out a request to the DA vs the city attourney. Does not getting anything back make any difference?