How to Create and Present Your Own Speed Survey

[That Guy]

Again, to be clear, I am not trying to REPLACE the city survey.

No seriously... Get over yourself.. You couldn't change that if you tried. None of us can!

Again, to be clear, I am not trying to REPLACE the city survey. I appreciate that many of you are pessimistic of my chances to have the evidence considered which is very helpful feedback to receive.

Call us pessimistic, yet helpful? Fact it everybody is being realistic! You can look at it however which way suits you though... Your citation, your case, your driving record!

Seriously, the only thing that is likely more skewed than your so called survey here is how everybody is telling you your plan will fail, you're still stuck on the idea that you have a valid defense and your description of everyone's posts...

According to what's written on the city's survey, it was done for one hour (mid-morning): sample size just over 100.

Where do you get the idea that the survey should last more than an hour? (I've seen surveys that were done 20 minutes)

And as long as they did obtain 100 samples, that satisfies the requirements in the MUTCD...

Now, the question is, your claim is your methods are “rigorous and an improvement on the existing traffic survey” provides "competent evidence" of whatever, and the presumption is that you followed the guidance of the MUTCD, and yet you didn't know about the 100 sample size? How about time? How long did your speed survey take you to conduct? God only knows what else you missed or messed up... In fact, here is another question:

I only counted platoon cars that are selecting their own speed. If you have additional insights drawn from HCM or the green book, I particularly welcome your comments and suggestions.

I don't know what you mean by "platoon cars" or how you could establish which car is selecting its own speed or not, but you cannot be selective. You would start with the first vehicle to pass you, and stop at 100 vehicles or higher. But while doing so, you are actually reading vehicle speeds from the speed measuring device, making a note of each speed whether by checkmark/dash/ however, and you are also surveying vehicles going in two different directions (either east/west or north/south) on that particular stretch of roadway.

Really, not an easy task for a busy street!

The city cited as the reason for lowering the limit 5mph that they wanted to match the speed limit in the other direction. This strikes me as an invalid reason to lower a speed limit (creating an invalid prima facie speed limit)

Posting bits and pieces is not likely to get you an opinion.. Certainly not a valid one.

You either post the entire survey and the details of your citation, or you should really stop wasting everyone's time, and more importantly to you, stop wasting your own time! You are doing yourself a disservice not only by trying this meaningless stunt, but by simply spending all this time talking about some wild hair up your you know what, when in reality, you are clueless when it comes to the most basic defense elements, here is what I mean:

...although ThatGuy suggests that the survey doesn't matter in California pacing cases.

Are you a troll?

Seriously!

You seriously are trying to suggest that you are still clueless that the E&T Survey has ZERO impact and that it plays NO PART in a pace citation defense?

I'm well aware of the other characteristics you cite, and to be brief, none justify a reduced speed limit (e.g crashes are 1/3 of the expected level).

Anybody else calling troll on this one?

I selected the location of my survey based on where I was ticketed (a very small area). Again, I'm not trying to replicate the existing survey, I'm trying to answer the question: what is the speed distribution and characteristics (85th percentile, pace, standard deviation, ...) for free-flowing traffic at the location and under conditions that I was ticketed for. The idea is to provide competent evidence to establish that I was driving safely.

Still pitching the damn meaningless survey!

---

I see the home-grown survey as a straight-forward way to show that I was driving safely.

The law requires you to make such a showing based upon the “posted speed limit”, not based on an individualized artificial speed that is the result of a survey that is likely unfairly skewed... The fairness of the legal justice system is based upon the application of one standard, not individualized standards.

So when it comes to your case and since this is the determining factor:

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.

You are judged against “the” prima facie (posted) speed limit, which is a speed limit that was established “as authorized in this code”... Under the direction and authority of either the Dept of Transportation or local authority (ex: dept of Public Works) [see VC 21400]... But not under the authority of an individual, and certainly not the defendant!

The CHP officer never rode the same speed as my car for any relevant length of time, so "pacing" to me meant that in a quarter mile a motorcycle started from 0 caught up to me and pulled me over. It's my understanding that the courts will accept "pacing" testimony based on essentially no time that the police actually goes the same speed as the violating vehicle so I downplayed the quality of the pace as an issue in the original post.

You're short changing yourself by not posting your info...... And no, the courts do not accept a “no time period pace”... Unless you're referring to a visual estimate, a zero time pace would actually defy logic, would it not?

FACT- NOT OPINION: A proper pace, and one which will be deemed sufficient for a conviction requires a speed measurement for a mere two second or so... Your quarter mile at 40 mph will take approximately 22.5 seconds, and at 50mph it will take 18 seconds.... That is way too long. Fact is the officer only needs to match your speed for as long as it would take him to simply glance down from monitoring your vehicle (while attempting to keep a fixed distance) onto his speedometer to read his speed which naturally, if he as relatively at pace with yours, it wouldn't take more than 1 to 2 seconds to do that!

I saw the motorcycle approaching from behind me; there was very light traffic. I was driving in the slow lane, a safe distance behind a car. It didn't occur to me AT ALL, that I might be the target of the police: I was an hour early to where I was going and not in any sort of rush (yes, I know this is legally irrelevant). When I determined he was a police officer, I still had no inkling that he would be targeting me (because I know I wasn't speeding)

So you know you were not speeding...

Do you mean at the moment the officer lit you up? (pulled you over?), or at any time through this trip?

And if you weren't speeding, how/why did you get cited for speeding? You mean the officer made it all up?

so my first reaction was to ensure I was driving safely and to look for a place to pull over because I thought he was maybe trying to flag down the car ahead of me.

You said you were in the slow lane.... That implies that there is a fast lane... Correct?


So why would you pull over if “he was maybe trying to flag down the car ahead of you”? Why would you not simply slow down, allow the officer in front of you -behind the other vehicle-, you change lanes and pass them both!

FWIW: if I know a police officer is present I make a conscious effort to ensure I do not exceed the speed limit.

Every one does that Larry! The problem is, when they sneak on you from behind, and though everyone would like to be able to say “oh, I seen him coming” and “I know I wasn't speeding”, more often than not, and until those red and blue lights start flashing, most people have no clue!

Just curious, how did you measure the speeds? Do you own a radar gun? When was the last time the radar gun was serviced and calibrated?

Precisely the 2 question I was about to post... But there are other questions like where is the official survey, what was the speed limit, what speed was he cited for... And, sure... Let's see that special survey...

There seems to be a lot of negativity out here about doing your own survey, but I haven't heard anything substantive about why it's bad/wrong.

I'm not going to give you substantive... I'll give you short and blunt: it is a waste of time!

please someone tell me what is the element of conducting a speed survey that - FOR PURPOSES OF DEMONSTRATING THE PREVAILING FREE-FLOW SPEEDS - requires a traffic engineer's expertise?

If you go back to VC 627 above, you'll see that “prevailing speeds is only but one criteria that is used to make up a survey. So are you now changing your mind and only wanting to offer speed charts rather than an entire survey? Or are you still conducting a full survey?

Speed charts alone, and although one can figure out an 85th percentile speed, yet without considering other roadway features, as well as all the other criteria under VC 627, that 85th percentile speed could NOT be qualified as the “safe speed”... For one, accident records will have to be considered along with traffic volumes, to establish an accident rate for that roadway segment and then a determination is made as to whether the safe speed would be best represented by a speed that is 5mph less than the 85th percentile speed.

If you leave out this step entirely, then sure, chances are you WILL come up with a speed that is higher that which is justified by the official survey...

But to answer your question, Search the 2012 MUTCD for the term "Engineering Judgment"... And you'll see how that "element", as you described it, would apply to ANYTHING MUTCD related!

Engineering Judgment—the evaluation of available pertinent information, and the application of appropriate principles, experience, education, discretion, provisions, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. Engineering judgment shall be exercised by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. Documentation of engineering judgment is not required.

If you want to present one in court, you'll need to either hire a traffic engineer to testify on your behalf, or meet the requirements in the evidence code for expert witnesses. Evidence Code 720 says: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." How do you plan to show that your training, knowledge, and experience qualifies you to offer an opinion comparable to one from a professional engineer?

Even hiring a traffic engineer is not likely, in my opinion, to accomplish the OP's goal simply because if he's hiring an engineer, then why not have him conduct the full survey? And who knows what those results will come out as! Then again, you can pretty much get any expert witness to tell whatever story you want him to tell.

Also, and in spite of your clear misunderstanding the the Goulet case offers yours any support, you are clearly mistaken:

Most drivers cited for traffic violations post and forfeit bail, feeling they cannot afford the inconvenience or the time off work to contest even a citation they believe to be unfair. Conviction of common, frequent traffic infractions, with the attendant consequences of fines, points toward suspension of driver's licenses, and increased insurance rates, ought not depend on the ability of a driver to obtain the assistance of a licensed traffic engineer. The Legislature has carefully constructed the speed trap laws to be jurisdictional in nature. The prosecution ought not attempt to invoke, and the judiciary ought not attempt to exercise, jurisdiction contrary to the clearly expressed statutory limitation.

That to me means, that a fair an impartial decision can only be based when the same scale is used for everyone. I briefly touched on that above!

Assuming that the officer is going to testify that the OP was going an unsafe speed simply because he was going faster than the speed limit (unlike, say, weather or something else), if he can prove that the speed limit should be raised then there's a valid argument that he has met the second part of 22351(b). I don't think the defendant conducting his own speed study, even if the defendant was a licensed engineer, would meet the requirement of "competent evidence" simply because of the inherent conflict of interest. 22351(b) isn't reliant on how the speed was measured, just that it was a prima facie speed limit violation.

For starters, not only are you assuming whatever you described about the officer, but you're also assuming that there is some freaky convoluted way that the court would even consider the OPs survey or that it will allow him more than 60 seconds to clarify what he means by "conducted my own survey"...


Furthermore, you are assuming that proving that the speed limit should be raised would be sufficient to rebut the officer's testimony about the driver's speed which is in excess of the posted limit was simply unsafe because it was so (in excess of the posted limit). Factually, and even if this idea has a 1% chance of success, simply proving that the speed limit must be raised (as if that is even remotely possible) is NOT ever going to work for ANYONE, but the OP would also have to prove that the speed limit must be increased to s number that is ABOVE whatever speed he was cited for.

Since the OP is only here to play games and hypotheticals instead of being real and getting real, we have no idea what the speed limit is, what his cited speed was, what he claims should be the new limit. This entire discussion is a waste of time! But there are other reasons why we are all wasting our time....

Let me remind everyone of one thing. And for those who do not know, I will elaborate a bit further.

The idea of one conducting his own survey, and presenting it in court has been discussed on this forum twice, as far as I know...
The first came about as a suggestion by a previous forum member... If you go back to the first post you will see the link to that thread.
The second time happens to be this thread here!
While I do not know whether the OP got the idea and then found that thread, or if he found the thread and liked the idea, the idea has no basis, it will not accomplish much, it is a waste of time to even consider it or discuss its merits or lack thereof simply because it is lacking!
You might note that David Forthover (from the other thread), has not posted much recently...
In fact, his last post was back on 05/06/2011...
Why do you think that is?

Do you think he simply voluntarily stopped posting his idiotic drivel? Or do you think he was restricted... More likely BANNED simply for posting inaccurate, incorrect unsupported legal information, misleading people with his invalid advice and causing several distractions on the forum in several threads.

Feel free to read some of his posts, I'm sure you'll understand how this weird idea belonged to him!


Furthermore, you are assuming that proving that the speed limit should be raised would be sufficient to rebut the officer's testimony about the driver's speed which is in excess of the posted limit was simply unsafe because it was so (in excess of the posted limit). Factually, and even if this idea has a 1% chance of success, simply proving that the speed limit must be raised (as if that is even remotely possible) is NOT ever going to work for ANYONE, but the OP would also have to prove that the speed limit must be increased to s number that is ABOVE whatever speed he was cited for.

Since the OP is only here to play games and hypotheticals instead of being real and getting real, we have no idea what the speed limit is, what his cited speed was, what he claims should be the new limit. This entire discussion is a waste of time! But there are other reasons why we are all wasting our time....

Let me remind everyone of one thing. And for those who do not know, I will elaborate a bit further.

The idea of one conducting his own survey, and presenting it in court has been discussed on this forum twice, as far as I know...
The first came about as a suggestion by a previous forum member... If you go back to the first post you will see the link to that thread.
The second time happens to be this thread here!
While I do not know whether the OP got the idea and then found that thread, or if he found the thread and liked the idea, the idea has no basis, it will not accomplish much, it is a waste of time to even consider it or discuss its merits or lack thereof simply because it is lacking!
You might note that David Forthover (from the other thread), has not posted much recently...
In fact, his last post was back on 05/06/2011...
Why do you think that is?

Do you think he simply voluntarily stopped posting his idiotic drivel? Or do you think he was restricted... More likely BANNED simply for posting inaccurate, incorrect unsupported legal information, misleading people with his invalid advice and causing several distractions on the forum in several threads.

For the second part, if the judge is a neutral judge, and the officer is just a witness, then who is left to object to his testimony. I remember TG posting a link to case law that says that the judge can disregard expert testimony under certain circumstances, but at a minimum it gets presented (thereby wasting everyone's time).

The judge DID disregard TWO, not ONE , but TWO Expert witness testimonies:

People v. Goulet, 13 Cal. App. 4th Supp. 1 - Cal: Court of Appeal 1992

In this case, two licensed traffic engineers testified there are no driveways that affect safety for traffic traveling in the direction of appellant.

The two traffic engineers gave compelling testimony explaining the insufficiencies of the engineering and traffic survey in this case. We have not dwelt on their testimony for several reasons. A trier of fact may, at least under certain circumstances, reject the testimony of expert witnesses. (People v. Green (1984) 163 Cal. App.3d 239 [209 Cal. Rptr. 255].) Most drivers cited for traffic violations post and forfeit bail, feeling they cannot afford the inconvenience or the time off work to contest even a citation they believe to be unfair. Conviction of common, frequent traffic infractions, with the attendant consequences of fines, points toward suspension of driver's licenses, and increased insurance rates, ought not depend on the ability of a driver to obtain the assistance of a licensed traffic engineer. The Legislature has carefully constructed the speed trap laws to be jurisdictional in nature. The prosecution ought not attempt to invoke, and the judiciary ought not attempt to exercise, jurisdiction contrary to the clearly expressed statutory limitation.

ALso...

Disagreement of experts will not necessarily invalidate a prima facie speed limit. But if respondent is arguing that an engineer's stated opinion is merely a procedural prerequisite not subject to judicial review, we disagree. A trial judge must first see if there is a timely survey that purports to justify the speed limit. If so, the trial judge must determine if the facts stated in the survey justify the speed limit set. If the judge determines that the speed limit is not justified, the speeding charge must be dismissed. If the judge determines the speed limit is justified, the judge will then decide whether guilt is proved beyond a reasonable doubt, subject to review on both issues if there is a conviction.

Of course the judge's review is not of this homemade survey. It is of the "official" survey... The same one that every speeder through that segment of roadway gets thrown at him. Why should this one defendant be any different?

Also, lets not forget that we don't have any experts testifying here. We have the defendant -of all people- decided to go out and somehow, mysteriously conduct his own survey and what do you know.. This of course was not anticipated but Surprise, surprise... The survey establishes a higher limit than the official survey!

Thank you "themadnorwegian"; your comments are critical but constructive.

Dude... Really... There has been NOTHING posted in this thread that could even remotely resemble “constructive” to your claim! I don't know why it pains me to see people in denial of the obvious, they know it, I know it, everybody knows it... Yet they keep coming back hoping someone would blow a head gasket and change their mind.

I have a 22350 ticket. You correctly cite the MUTCD that a certified traffic engineer must conduct a traffic survey, and I am not a certified traffic engineer. The reason, as I understand the law, that a certified traffic engineer must conduct the survey is to ensure the survey has some validity if someone gets a ticket and challenges it under a speed trap law.

Great... That should be “The End” right there...

This is where this comes up on the screen:

By contrast, I am not seeking to create a new 85th percentile for the city I was ticketed in.

You couldn't if you tried... None of us can!

I am simply trying to demonstrate that I was driving safely under the conditions I was ticketed for.

Wait... I though you said you knew you were not speeding? When the cop appeared behind you?

Anyways, if you were driving faster the the P.F. Limit, then you were very likely speeding!
And you try and do that by describing YOUR actions versus the conditions at the time!

Not by suggesting that the actions of however many drivers, while they too likely violated the law by exceeding the posted limit, their actions are not a viable defense to your being guilty!

Instead, you've wasted your time (assuming you even started anything you can call a survey). You are attempting to waste the court's time, and the judge simply will not allow you that opportunity.

I concede and agree wholeheartedly that my survey is irrelevant outside of my case. My survey provides competent evidence to overcome the prima facie case that my speed was inherently dangerous - or at least I'm willing to stand by it.

Not even close.. Of course I haven't seen it... Probably never will... But again, the actions of others is not a defense!

[California student]

I don't know what you mean by "platoon cars" or how you could establish which car is selecting its own speed or not, but you cannot be selective. You would start with the first vehicle to pass you, and stop at 100 vehicles or higher. But while doing so, you are actually reading vehicle speeds from the speed measuring device, making a note of each speed whether by checkmark/dash/ however, and you are also surveying vehicles going in two different directions (either east/west or north/south) on that particular stretch of roadway.

The way I read that was that if there's a line of cars following 1 car closely, then only the lead car counts as the following cars are assumed to not be selecting it's own speed. Of course whether cars in a pact (like a group that left a red light a block ago) are setting their own speed or are letting it be set for them is going to be a judgement call.


Posting bits and pieces is not likely to get you an opinion.. Certainly not a valid one.

For starters, not only are you assuming whatever you described about the officer, but you're also assuming that there is some freaky convoluted way that the court would even consider the OPs survey or that it will allow him more than 60 seconds to clarify what he means by "conducted my own survey"...

Is it off base to assume that the vast majority of 22350 cases are based off of 22351 saying that speeds above the posted limit is a violation of 22350? That is in contrast to, for example, a 22350 charge where the defendant is going under the speed limit, but too fast for conditions such as heavy rain or heavy fog.

Furthermore, you are assuming that proving that the speed limit should be raised would be sufficient to rebut the officer's testimony about the driver's speed which is in excess of the posted limit was simply unsafe because it was so (in excess of the posted limit). Factually, and even if this idea has a 1% chance of success, simply proving that the speed limit must be raised (as if that is even remotely possible) is NOT ever going to work for ANYONE, but the OP would also have to prove that the speed limit must be increased to s number that is ABOVE whatever speed he was cited for.

I agree that, in the hypothetical case where his 85th percentile is above the closest 5 mph above his speed limit by at least 2.5 mph (i.e. if he was going 53, then the 85th percentile must be at least 57.5 mph, since speed limits have to be rounded to the closest 5 mph, and if rounded up the engineer can choose to round down based on judgement, but can't take an additional 5 mph off of it) that it would justify his speed and remove the issue about engineering judgement (since with that judgement would still be above his speed limit).

However there is too much that is just procedurally impossible for someone to run their own speed study with any actual validity in the eyes of a neutral party, like the judge.

[That Guy]

The way I read that was that if there's a line of cars following 1 car closely, then only the lead car counts as the following cars are assumed to not be selecting it's own speed. Of course whether cars in a pact (like a group that left a red light a block ago) are setting their own speed or are letting it be set for them is going to be a judgement call.

And yet the proper way to do that, along with using the proper equipment, each of those vehicles register independently on a radar gun would they not?

Posting bits and pieces is not likely to get you an opinion.. Certainly not a valid one.

I don't know where I have heard that one before but I AGREE!

Is it off base to assume that the vast majority of 22350 cases are based off of 22351 saying that speeds above the posted limit is a violation of 22350? That is in contrast to, for example, a 22350 charge where the defendant is going under the speed limit, but too fast for conditions such as heavy rain or heavy fog.

No, actually that is a pretty good explanation... If above the posted speed limit, then the defendant has to prove by competent evidence how his/her speed was safe for conditions (i.e. how it did not violate the basic speed law); whereas it wojuld be the prosecutions burden to prove why his/her speedeven that it was under the postd limit was unsafe at which time, rain/fog/sleet/snow/rush hour traffic...etc, would play a big roll.

I agree that, in the hypothetical case where his 85th percentile is above the closest 5 mph above his speed limit by at least 2.5 mph (i.e. if he was going 53, then the 85th percentile must be at least 57.5 mph, since speed limits have to be rounded to the closest 5 mph, and if rounded up the engineer can choose to round down based on judgement, but can't take an additional 5 mph off of it) that it would justify his speed and remove the issue about engineering judgement (since with that judgement would still be above his speed limit).

However there is too much that is just procedurally impossible for someone to run their own speed study with any actual validity in the eyes of a neutral party, like the judge.

The judge might find it funny, creative... whatever... And yet it has just as much potential to insult him/her simply because it is so wrong, it assumes that he/she is delirious.

[themadnorwegian]

Even hiring a traffic engineer is not likely, in my opinion, to accomplish the OP's goal simply because if he's hiring an engineer, then why not have him conduct the full survey? And who knows what those results will come out as! Then again, you can pretty much get any expert witness to tell whatever story you want him to tell.

I agree, but my point was that unless the OP can demonstrate that he's qualified to give expert testimony about the conditions and the survey, then his entire opinion is inadmissible and irrelevant. Hiring an engineer as an expert may not help the OP win his case, but it's the only way to get an alternate expert opinion admitted into evidence.

[California student]

And yet the proper way to do that, along with using the proper equipment, each of those vehicles register independently on a radar gun would they not?

It's supposed to measure unimpeded traffic. In that thread with the guy going 10 mph at LAX, it would be inappropriate to think that the cars behind him were similarly choosing to go 10 mph. However that's an extreme. The judgement comes in when the speeds are much closer to the limit.

I don't know where I have heard that one before but I AGREE!

Haha... while I agree I meant to cut it out of my prior post.

No, actually that is a pretty good explanation... If above the posted speed limit, then the defendant has to prove by competent evidence how his/her speed was safe for conditions (i.e. how it did not violate the basic speed law); whereas it wojuld be the prosecutions burden to prove why his/her speedeven that it was under the postd limit was unsafe at which time, rain/fog/sleet/snow/rush hour traffic...etc, would play a big roll.

Here's where I'm getting stuck with this. Assuming that the defendant's self-ETS and the city's ETS were equal (we both agree they're not) why would the city's ETS be competent enough to prove that speed above X mph are unsafe, but not the defendant's ETS be competent enough to prove that speed under Y is not be safe?

The judge might find it funny, creative... whatever... And yet it has just as much potential to insult him/her simply because it is so wrong, it assumes that he/she is delirious.

"5 points to Gryffindor, but you're still guilty."

[lbk]

Posts are constructive despite opposing my ideas when they offer substantive thoughts that strengthen my understanding.

Thatguy: your most recent post was more heat than light. The invective-laced personal attacks don't help me much. I've read numerous posts of yours, so I know you have valuable insights. Perhaps my approach just grates at you.

On a couple of points that seemed troubling to you, we pretty much agree, but I simply didn't myself well enough.

1)

Where do you get the idea that the survey should last more than an hour? (I've seen surveys that were done 20 minutes)

And as long as they did obtain 100 samples, that satisfies the requirements in the MUTCD...

I agree with ThatGuy that 100 samples is plenty; it's plainly in the MUTCD. I was responding to trafeng who attempted to demonstrate my ignorance by saying that the sample was probably taken over 24 hours.

2)
More importantly is the issue of whether a survey matters in a "prima facie pacing" case (that's my shorthand phrase for a 22350 ticket based on a prima facie speeding limit tracked by pacing rather than radar). This was a question that I asked in the original post.

I can't unwind some of the misinterpretations, but reading through the above comments there is obviously some confusion, so let me affirmatively state my understanding.

The survey matters in establishing the prima facie speed limit even in pacing cases. If the survey is valid, it establishes a presumption of guilt. The confusion arose because I quoted ThatGuy without providing a good context for his quote.

What's not clear to me is what impact or consequences accrue if the survey is invalid. Also, what constitutes an invalid survey.

a)
I have asked and continue to ask what the consequences/ramifications are for an invalid survey in a pacing case. For purposes of this discussion, let's assume a survey that set a prima facie speed limit CAN BE shown in court to be invalid.

Does that mean the burden of proof shifts back to the prosecution? I would think so, but in practice this wouldn't mean much. The officers testimony still stands.

Does that mean a ticket that relied on an invalid prima facie speed limit would be automatically invalidated? I doubt it.

A quote from the Huffman case here:

No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude that the defendant drove at a speed that either endangered people or property or was unreasonable for the driving conditions. (People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [discussing statutory elements of basic speed law violation].) If the section 22350 charge rests on an allegation that defendant exceeded a posted or prima facie speed limit, the People must introduce into evidence or permanently lodge with the court a certified copy of a traffic and engineering survey, made within the past five years, justifying that speed limit. (People v. DiFiore (1987) 197 Cal.App.3d Supp. 26, 28-29.) If the court finds the survey does justify the speed limit, then the burden shifts to the defendant to prove his speed was nevertheless safe under the circumstances.(Veh. Code, § 22351, subd.(b).) On the other hand, if a survey is required but not introduced, the officer is incompetent to testify as to the defendant' s speed. (Veh. Code, § § 40802 40804.)

Although this case was a radar case, the wording above outlines the issue of valid prima facie speeding limits BEFORE it ever mentions radar issues on the last line. This sounds to me like Huffman is saying there are definite consequences to an invalid survey in a "prima facie pacing" case.

b)
So, how can one invalidate a speed survey?

Is the law similar to speed trap cases except for two MAJOR factors: the prosecution bears no burden to prove the surveys validity (as it does in speed trap cases) and if it is invalidated, underlying data (such as speed distributions) are still allowed as evidence/testimony?

By "similar to speed trap cases" I mean does one invalidate a speed survey in a "prima facie pacing case" the same way you would in a speed trap case: 5, 7, 10 year "expirations" on the survey, showing invalid reasons for reducing speed zones, etc....

In my case the survey is over 5 years old and has an invalid reduction of the speed limit (IMO) and other problems I won't get into now.

If these defects in the survey are indeed problematic, what is the best way to raise the issue in court?

Lastly, could it be that the survey is invalid (too old, say) but the speed distributions can still be used to convict?


Thanks all for the input,

Larry

[That Guy]

It's supposed to measure unimpeded traffic. In that thread with the guy going 10 mph at LAX, it would be inappropriate to think that the cars behind him were similarly choosing to go 10 mph. However that's an extreme. The judgement comes in when the speeds are much closer to the limit.

I'm not sure where you're going with that one... But if it is unimpeded traffic then we can safely assume that there aren't any slow pokes trying to lower everybody else's average! I wouldn't really assume that it is only speeds closest to the speed limit that matter. Remember, if the posted speed limit can suffer a set back of 5mph simply because the 85th percentile speed happened to be 42.5mph versus 42.6, every driver coming through at or below that speed counts. And even if one out of a minimum sample of 100 happens to get stuck behind a slowpoke, has his speed register at 27 mph whereas normally, he would have gone through at 45+mph, that will obviously be detrimental to the final outcome!

Here's where I'm getting stuck with this. Assuming that the defendant's self-ETS and the city's ETS were equal (we both agree they're not) why would the city's ETS be competent enough to prove that speed above X mph are unsafe, but not the defendant's ETS be competent enough to prove that speed under Y is not be safe?

It depends on what you mean by equal! If you mean that they both have the same authority then they both should be competent enough to do both, declare a speed that is higher than the P.F. Posted speed as unsafe unless that presumption is rebutted by the defendant by way of competent evidence; AND, declare a speed that is lower than the P.F. posted speed as unsafe when the prosecution is able to articulate less than favorable conditions such as inclement weather, heavy traffic, low visibility... etc!

Alternatively, if you mean that they both discuss the same issues which eventually led to the setting of the speed limit (either at the first increment or after the one allowed 5mph reduction), then the defendant's self-ETS coincidentally matched the official ETS and yet it still does not make it a valid substitute for the official ETS simply because it does not represent


If that didn't cover your misunderstanding, assign values to X & Y explain what you mean by "self ETS and city ETS are equal"... And we'll see what we can hash out!

"5 points to Gryffindor, but you're still guilty."

Not a fan but yeah... Judges have a sense of humor too. But most of them take maintaining order in their courtroom seriously!

[lbk]

My reasoning is simple:

1)
CA-MUTCD says that the 85th percentile (or slower) is safe: from the CA-MUTCD-2012:

"Speed limits established on the basis of the 85th percentile conform to the consensus of those who drive highways as to what speed is reasonable and prudent"

2)
My speed was less than the 85th percentile for Saturday morning driving which [IF the evidence were allowed], per 22351b

"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."

Every Saturday morning anyone can see that the speeds in my survey are what's actually going on, so if you've got ideas other than conducting my own speed survey, let's hear them.

And for those that need an extra kicker: here's a nice image from the government indicating that the 85th percentile is not just safe and prudent, but actually the SAFEST.

[That Guy]

---

I agree, but my point was that unless the OP can demonstrate that he's qualified to give expert testimony about the conditions and the survey, then his entire opinion is inadmissible and irrelevant. Hiring an engineer as an expert may not help the OP win his case, but it's the only way to get an alternate expert opinion admitted into evidence.

TMN... My comments there were not to dismiss what you posted, but simply to provide an alternative which I felt should be explored simply as attempt to get through to the OP and clarify how off the presumption that a private survey will make the slightest bit of difference. And yes, admitting facts into evidence would much easier via an expert (and much ore costly), but fact still remains, the judge is under no obligation to take that into consideration when deciding the case. He has the official survey to review, and good bad, justified or not, his decision in this case should follow the same standard and be judged against the same criteria he used in the previous several citations issued on this same road, as well as the same standard and criteria he will use until this particular survey expires.

---

Posts are constructive despite opposing my ideas when they offer substantive thoughts that strengthen my understanding.

It didn't seem to strengthen your understanding when you still, if I am understanding your coded messages correctly, under the impression that your survey has any value whatsoever!

Thatguy: your most recent post was more heat than light.

Two different forms of "energy"... I'm not sure what your point is!

The invective-laced personal attacks don't help me much. I've read numerous posts of yours, so I know you have valuable insights. Perhaps my approach just grates at you.

If you've read my posts, then you know that I post information that I believe to be factual... If that happens to help you, that is great... If it happens to work against you, or hinder your plans, then it is up to you to either continue on your path and hope it works for you, or follow my lead and hope that will help out.

And yes, it is irritating to think that a few months from now, someone will come across this thread and rather than understand that they will simply be making a fool of themselves in court if they were to walk in with a "your honor, I conducted my own survey and .....". I cannot dictate what you or anyone will do in court, so I have no vested interest in that process or in your outcome. My purpose here is to provide information as accurately as I know it, debate relevant issues with anyone who has any basis to question it. Call me selfish, if you will, but eventually, my data-base of info gets refined, and anyone who comes across it can hopefully benefit from it somehow.

On a couple of points that seemed troubling to you, we pretty much agree, but I simply didn't myself well enough.

1)



I agree with ThatGuy that 100 samples is plenty; it's plainly in the MUTCD. I was responding to trafeng who attempted to demonstrate my ignorance by saying that the sample was probably taken over 24 hours.

See... It is comments such as the part I underlined, that really prove beyond any shadow of a doubt that you haven't the slightest little clue about how to conduct a survey, and yet here you are still arguing that every time someone posted a "no, hell no it won't work" it strengthened your point and made your plan even more solid.

In other words, trefang simply made a few harmless comments, which in turn, you took, formed into a trap, set it up and fell for it... The 24 hour comment by trefang, is also related to his 3 day comment as well as his 1 week comment. All of that is also related to the same information cdwjava posted here:

Also, if the officers are going out and collecting the data, it is likely that they are the ones setting up the equipment that collects the data, not that they are doing ANY of the calculations or interpretations necessary. Even if the officers collect the data, the engineer must still evaluate and certify the information.

In my county the traffic engineer does NOT go out and set up the equipment. He puts in a work order to county streets and THEY place the equipment per his instructions for the requisite period of time, and they remove it. The data is then provided to him ad he evaluates it and produces the report.

If you can get permission from the city to lay out your own survey equipment (which generally requires laying a line across a roadway and stapling it to the pavement) then, perhaps, you can get a decent survey. Otherwise, what do you plan to do? Stand there with a clipboard and estimate speeds? Buy and then run your own radar survey (which will be subject to a number of flaws)?

Now, the reference about laying road tubes, and using staples is in reference to those boxes with rubber tubes that come out of them which are used to perform traffic volume counts, more commonly referred to in the MUTCD as ADTs ("Average Daily Traffic volumes")or vpd's (Vehicles Per Day)... What are those? well those are counts that along with accident records (as described in VC 627) are used in calculating Accident Rates which are then compared to an average county rate or avg. state rate, and all this would then be an essential element to establishing a "safe speed"... You clearly have no idea about any of this and yet here you are, still discussing how your methods are “rigorous and an improvement on the existing traffic survey” provides "competent evidence" of your "safe speed" when it is obviously far from!


This is where I am going to stop... I think I've gotten my point across. You obviously came here for help, and honestly there is no denying that quite a few people have been quite accommodating (no, I'm not including myself).

I will refer to and address one comment of yours from below:

I have asked and continue to ask ...

Yeah.. Several people have asked several times as well, that you post the copy of the official survey, you obtained from the city/county, and the relevant info from your citation (P.F./Max speed, Safe Speed, Vehicle Speed, what markings if any are in the Radar/Lidar/Patrol Vehicle No" box as well as any additional comments from the citation) and you've continued to ignore each and every request... The answers to your questions are highly dependent upon that specific information. For you to expect us to sit here for hours trying to provide answers to each and every set of hypotheticals that might exist for each and every question, I think you're asking for a bit too much. I mean here we are on post 29 and we still have no idea if this was a pace case or a Radar/Lidar case!

I can only speak for myself but until I see the information that I requested, I have very little if anything to offer.

Good luck!

2)
More importantly is the issue of whether a survey matters in a "prima facie pacing" case (that's my shorthand phrase for a 22350 ticket based on a prima facie speeding limit tracked by pacing rather than radar). This was a question that I asked in the original post.

I can't unwind some of the misinterpretations, but reading through the above comments there is obviously some confusion, so let me affirmatively state my understanding.

The survey matters in establishing the prima facie speed limit even in pacing cases. If the survey is valid, it establishes a presumption of guilt. The confusion arose because I quoted ThatGuy without providing a good context for his quote.

What's not clear to me is what impact or consequences accrue if the survey is invalid. Also, what constitutes an invalid survey.

a)
I have asked and continue to ask what the consequences/ramifications are for an invalid survey in a pacing case. For purposes of this discussion, let's assume a survey that set a prima facie speed limit CAN BE shown in court to be invalid.

Does that mean the burden of proof shifts back to the prosecution? I would think so, but in practice this wouldn't mean much. The officers testimony still stands.

Does that mean a ticket that relied on an invalid prima facie speed limit would be automatically invalidated? I doubt it.

A quote from the Huffman case here:


Although this case was a radar case, the wording above outlines the issue of valid prima facie speeding limits BEFORE it ever mentions radar issues on the last line. This sounds to me like Huffman is saying there are definite consequences to an invalid survey in a "prima facie pacing" case.

b)
So, how can one invalidate a speed survey?

Is the law similar to speed trap cases except for two MAJOR factors: the prosecution bears no burden to prove the surveys validity (as it does in speed trap cases) and if it is invalidated, underlying data (such as speed distributions) are still allowed as evidence/testimony?

By "similar to speed trap cases" I mean does one invalidate a speed survey in a "prima facie pacing case" the same way you would in a speed trap case: 5, 7, 10 year "expirations" on the survey, showing invalid reasons for reducing speed zones, etc....

In my case the survey is over 5 years old and has an invalid reduction of the speed limit (IMO) and other problems I won't get into now.

If these defects in the survey are indeed problematic, what is the best way to raise the issue in court?

Lastly, could it be that the survey is invalid (too old, say) but the speed distributions can still be used to convict?


Thanks all for the input,

Larry

[themadnorwegian]

TMN... My comments there were not to dismiss what you posted, but simply to provide an alternative which I felt should be explored simply as attempt to get through to the OP and clarify how off the presumption that a private survey will make the slightest bit of difference. And yes, admitting facts into evidence would much easier via an expert (and much ore costly), but fact still remains, the judge is under no obligation to take that into consideration when deciding the case. He has the official survey to review, and good bad, justified or not, his decision in this case should follow the same standard and be judged against the same criteria he used in the previous several citations issued on this same road, as well as the same standard and criteria he will use until this particular survey expires.

Sorry, I'm not trying to suggest that you dismissed my previous post. I was only trying to clarify, too. It sounds like we're in agreement here. I just wanted to make sure that I drew a distinction between what the Evidence Code requires in order for evidence to even be considered, and what conclusions the fact finder was likely to draw from that evidence should it be admitted. I'm with you that the judge is at liberty to decide that the defense's expert witness is a stooge, and disregard the testimony.

Here's where I'm getting stuck with this. Assuming that the defendant's self-ETS and the city's ETS were equal (we both agree they're not) why would the city's ETS be competent enough to prove that speed above X mph are unsafe, but not the defendant's ETS be competent enough to prove that speed under Y is not be safe?

Not sure I'm answering the right question; apologies if not. The city's ETS is admissible under the Official Records hearsay exception (Evid C. 1280 and 1530). The defendant's survey would require the expert to authenticate the document before it would be admissible. Once the documents are admitted, it's up to the fact finder to determine whether they were prepared in accordance with the CA-MUTCD, and also whether the conclusions are credible. Does this help clarify?