How to Create and Present Your Own Speed Survey

[lbk]

TMN:

Let's say I wanted to challenge the EXISTING survey and/or show how the existing survey, if done on Saturday would show much higher prevailing speeds and a correspondingly higher 85th (Obviously, we lose the compelling quantitative element here). What are some of the issues you see?

The city's ETS is not only admissible, but is afforded a presumption of validity as long as it is certified by the traffic engineer, right? So, the defense has the obligation to disprove it, and the prosecution
has no burden to affirmatively establish its validity?

And the survey's validity could only be effectively challenged by (unlikely to happen) cross-examining the surveyor and/or the traffic-engineer, or perhaps getting field notes or standards/instructions about how surveys are to be done in this city.

A simple count of the number of cars in a 10-minute period at both the survey time-of-day and Saturday morning shows that Saturday morning traffic is 30% of weekday traffic. Do the evidentiary problems you've raised with regard to self-surveys also apply to these car-counts? In other words, the consensus on this thread suggest a self-survey is inadmissible. Would it also be inadmissible, in your opinion, to offer a quantitative comparison of the traffic levels at the city-survey-time (weekday mid-morning) and the citation-time (weekend-early-morning)?

Thanks

[California student]

TMN:

Let's say I wanted to challenge the EXISTING survey and/or show how the existing survey, if done on Saturday would show much higher prevailing speeds and a correspondingly higher 85th (Obviously, we lose the compelling quantitative element here). What are some of the issues you see?

The fact that it doesn't comply with the California MUTCD is one.

Guidance:
26 The E&TS should contain sufficient information to document that the required three items of CVC Section 627 are
provided and that other conditions not readily apparent to a driver are properly identified.
27 Prevailing speeds are determined by a speed zone survey. A speed zone survey should include:
...
E. Speed measurements should be taken during off-peak hours between peak traffic periods on weekdays. If there is
difficulty in obtaining the desired quantity, speed measurements may be taken during any period with free flowing
traffic.

http://www.dot.ca.gov/hq/traffops/si...12/Part2AB.pdf
PDF page 38.

The city's ETS is not only admissible, but is afforded a presumption of validity as long as it is certified by the traffic engineer, right? So, the defense has the obligation to disprove it, and the prosecution
has no burden to affirmatively establish its validity?

Yes.

And the survey's validity could only be effectively challenged by (unlikely to happen) cross-examining the surveyor and/or the traffic-engineer, or perhaps getting field notes or standards/instructions about how surveys are to be done in this city.

Good luck getting any of those to show up.

[themadnorwegian]

I'd really appreciate it if you would post some actual details about your citation. As it stands, we don't know what the posted speed limit was, how fast you were going when you were cited, what the officer used to measure your speed, or the contents of the city's engineering survey.

Let's say I wanted to challenge the EXISTING survey and/or show how the existing survey, if done on Saturday would show much higher prevailing speeds and a correspondingly higher 85th (Obviously, we lose the compelling quantitative element here). What are some of the issues you see?

It's hard for me to point out problems with the existing survey, since I haven't seen it myself. Since you're acting as your own attorney, you have a pretty wide latitude to argue whatever you want. The constraints are that you can only admit evidence in accordance with the rules in the Code of Evidence. Once evidence is admitted, it's up to the fact finder to weigh the evidence, and determine whether you've proven the facts that you were trying to prove. In an infraction trial there's no jury, so the fact finder is going to be the judge.

The city's ETS is not only admissible, but is afforded a presumption of validity as long as it is certified by the traffic engineer, right? So, the defense has the obligation to disprove it, and the prosecution has no burden to affirmatively establish its validity?

In order for the survey to be admissible, it must be relevant (Evid C 350). Since the survey is in the custody of a public employee, it usually qualifies for the hearsay exception for official records. (Evid C 1280). This doesn't automatically make the evidence admissible; the judge still has to ensure that the document is authenticated. However, for official records, there are additional evidence code exceptions that aid in authentication. (Evid C 1452-1453, 1530).

In a 22350 case that involves a speed trap under 40802, the prosecution absolutely has the burden of showing that the survey is authentic, trustworthy, and justifies the speed limit. This is because the vehicle code assigns this burden to the prosecution in situations where Radar or Laser are used to enforce prima facie speed limits. However, in your case, you're asserting that your speed was not measured using Radar or Laser and you haven't posted enough details for us to determine what rules set the speed limit on the street where you got the ticket. Because of your defense necessitates showing that the speed limit is invalid, the burden is shifted to the defendant in this situation. The law says that the prosecution can prove that you're guilty if the officer testifies that he paced your car going faster than the posted speed, and identifies you as the driver, assuming that you don't rebut any of the other presumptions about the speed limit and posted signs with competent evidence. (Vehicle C 22351, 41100-41101; Evid C 500).

And the survey's validity could only be effectively challenged by (unlikely to happen) cross-examining the surveyor and/or the traffic-engineer, or perhaps getting field notes or standards/instructions about how surveys are to be done in this city.

A simple count of the number of cars in a 10-minute period at both the survey time-of-day and Saturday morning shows that Saturday morning traffic is 30% of weekday traffic. Do the evidentiary problems you've raised with regard to self-surveys also apply to these car-counts? In other words, the consensus on this thread suggest a self-survey is inadmissible. Would it also be inadmissible, in your opinion, to offer a quantitative comparison of the traffic levels at the city-survey-time (weekday mid-morning) and the citation-time (weekend-early-morning)?

You can rebut the prosecution's case with any relevant and admissible evidence. You're allowed to testify and provide an opinion about topics that are rationally based upon things that you can perceive. (Evid C 800). However, to offer an expert opinion on topics beyond what an average person could perceive you have to qualify as an expert witness under Evid C 720. You can testify that you counted X cars at time T, but that doesn't really prove very much. You might get a sympathetic judge, but you might not.

Keep in mind, however, that if you decide to testify you give up your right to not answer questions. The prosecution can cross-examine you about anything in your direct testimony, and impeach your credibility using a variety of methods (Evid C 780-791). If you slip up and broach a subject that could be incriminating you may end up having to answer questions about topics you didn't want to discuss.

[lbk]

Redacted survey and raw data at: http://i.imgur.com/SFPEA.png

The best case is obviously if the survey is invalid on its face or without additional documentation from the city. Reducing the speed limit to match the other direction is inappropriate under the "readily apparent" standard and that is the cited reason for reducing the speed limited.

Goulet was a speed trap case, but it is nevertheless relevant:

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.

and also from Goulet:

However, the stated condition fails to justify the speed for another reason. The survey does not state the sight distance or the location of the driveways, or explain how the condition affects the safe speed. This is not a mere technical nicety. In this case, two licensed traffic engineers testified there are no driveways that affect safety for traffic traveling in the direction of appellant.

The next best case would be if it would be invalid without actual testimony from the city's traffic engineer. Perhaps he/she has a justification for the speed reduction, but the document alone is not sufficient to allow the judge to conclude that some condition justifies the lowering of the speed limit.

Note that the accident rate is quite low and the CA-MUTCD-2012 says:

Generally, the most decisive evidence of conditions not apparent to the motorist surface in accident histories.

and footnote 20 from Goulet is also helpful (bullets 3, 4 and 5 apply):

Some speed limits may appear to be unjustified or questionable because:

1. The speed limit is set 10 or more mph under the 85th percentile speed;

2. The speed limit makes violators of a large percentage of drivers;

3. "Conditions" listed are not hidden hazards, that is, they are readily apparent to a driver;

4. There is no explanation how the conditions listed require the speed limit set; or

5. The accident rate is not higher than would be expected statistically.

At any rate, jump in.

Larry

[themadnorwegian]

Redacted survey and raw data at: http://i.imgur.com/SFPEA.png

Thanks, but that doesn't really help. The survey is for a place, not a person. There's nothing in its content that's personally identifying. By redacting the survey, you've made it impossible for me to look at any accident data or google maps in order to challenge assertions made in the survey.

Can you instead post a copy of your ticket with your name, address, driver's license, vehicle license, and birthdate redacted? Also, please post a pristine unmodified copy of the speed survey. Without the ticket, we can't tell if Radar/Laser was used. If it wasn't, then that rules a lot of stuff out too.

[lbk]

Thanks, TMN; I'd like to hear from others as well on the facial validity of the survey. As I've noted before this is a pacing case.

I hadn't considered this before, but the survey doesn't seem properly signed either. The lone signature on the survey is:



Note that:
1) The signature has no date
2) There is no assertion or certification that the person approving
the survey is an engineer or that engineering practices were followed.


CVC 627 says:

"Engineering and traffic survey," as used in this code, means a survey of highway and traffic conditions in accordance with
methods determined by the Department of Transportation for use by state and local authorities.

Now, what are the practical implications of an invalid survey in a pacing case?

I suspect the judge would normally consider the underlying speed distribution data still valid if it's the mere justification for downward speedzoning that's invalid. But if there's no testimony that the DOT "methods" were used maybe it's different. If they can't produce a survey that has been properly "engineer-certified" (I don't know the technically correct term here) is that sufficient to exclude
any use of the survey to determine a "safe speed"? After all, this is somewhat analagous to the criticisms of lay-speed-surveys not being done by licensed traffic engineers.

The only basis for the ticket was pure speed (barring any surprises from the officer). If the officer can't use the Prima Facie Speed Limit or the underlying survey data to argue unsafe speed that SEEMS
inadequate to sustain a conviction. I suspect the officer would testify if asked that the speed limit was part of his basis for determining that I drove unsafely.

For you Rules of Evidence gurus: can an engineer testify NOW that he signed the document 6 years ago and that his undated signature 6 years ago meant the survey was conducted according to the requirements of 627?

Here's a page from an Agoura Hills traffic surveys that shows the type of signature/certification that I consider more normal for an engineering document likely to be used in legal proceedings: http://i.imgur.com/5s5j0.jpg

Thanks,

Larry

[themadnorwegian]

Thanks, TMN; I'd like to hear from others as well on the facial validity of the survey. As I've noted before this is a pacing case.

I'm not trying to get you to divulge personal information. However, I really can't provide you with any useful feedback based upon the information that you've posted. At a minimum, I need you to be able to tell me the following things:

1. The posted speed limit on the street where you were cited
2. The speed that the officer alleges that you were traveling
3. The street(s) were the officer alleges that the violation occurred.

If this is indeed a pacing case, the the validity of the survey is irrelevant. The cases that you've cited apply to speed traps, which is covered under VC 40802. However, since you apparently don't meet those conditions, then it doesn't much matter. Just to be clear: for a speed trap case the survey is foundational -- it must be valid and admitted before the officer can testify about your speed. But for a pacing case, all the officer must do is testify to the posted speed limit and the speed of your vehicle. Once he has established that you were driving faster than the posted speed limit, it's up to you to prove that your speed was nevertheless safe for the conditions.

I can't help you with the "safe for the conditions" part of this, because you haven't provided any information that would allow us to determine what the conditions were at the time that you were cited. Moreover, if you want to use the survey to support your case, there's no point in you poking holes in its validity.

I hadn't considered this before, but the survey doesn't seem properly signed either.

Statutory and/or regulatory non-compliance doesn't automatically render evidence inadmissible. I did some research on this, and posted about it here. The short version is that unless the statute specifically excludes the evidence, you'll have a hard time arguing that it should be invalid simply because not all regulations were followed. This is why the speed trap defense is so powerful: the law requires that the evidence become inadmissible. In other cases, the rule is that all relevant evidence is admissible.

The only basis for the ticket was pure speed (barring any surprises from the officer). If the officer can't use the Prima Facie Speed Limit or the underlying survey data to argue unsafe speed that SEEMS inadequate to sustain a conviction. I suspect the officer would testify if asked that the speed limit was part of his basis for determining that I drove unsafely.

Come again? Look at 22351. All the officer has to do is testify that you were driving faster than the posted speed limit, and then the burden is on you to show that your speed was safe for the conditions. This whole argument about the speed being illegally established is interesting, but you're doing the wrong research. The presence of an actual survey is one part of a prima facie case that the municipality set the speed limit legally. You need to decide which argument you're making, because the evidence that you're trying to introduce is contradictory: if you introduce the survey to show your speed was safe for the conditions, this makes it look like the city followed the rules and it will be hard to show that the speed wasn't established by law. If you don't introduce the survey, you need to find other documentation that proves that the city didn't follow the law when establishing the speed limit -- itself a very intricate task.

For you Rules of Evidence gurus: can an engineer testify NOW that he signed the document 6 years ago and that his undated signature 6 years ago meant the survey was conducted according to the requirements of 627?

The short answer is that the engineer's testimony probably isn't required here. See Evidence Code 640 and 1453.

[lbk]

Thanks TMN: very useful information.

The part I wasn't getting was this:

If this is indeed a pacing case, then the validity of the survey is irrelevant. [..... F]or a pacing case, all the officer must do is testify to the posted speed limit and the speed of your vehicle. Once he has established that you were driving faster than the posted speed limit, it's up to you to prove that your speed was nevertheless safe for the conditions.

Your statement here seems to be a sort-of consensus on this board, but you expressed it clearly. It strikes me as strange that the officer can give me a ticket based on an illegal speed limit and once he's done that the legality of that speed limit is no longer relevant. But, if that's the way it is that's the way it is.

I've seen others ask this same question so here FWIW is the apparently ERRONEOUS thinking that I (and others) have:
- the speed trap case REQUIRES the prosecution to proactively establish speed limit legality
- pacing cases do NOT require the prosecution to establish the speed limit legality, but the
defendant can DISCOVER the speed survey info himself and show its invalidity if he thinks
the speed limit or the speed survey is incorrect.
- the practical reason why noone challenges PF speed limits is that the underlying speed data
is still valid even if the limit is a product of improper downward speedzoning.

Is there a case that shows the reasoning you use above or is it more of a "this is how it works in the courts" type of situation?

I am indeed stuck between two seemingly contradictory positions:
- The survey is invalid and seems to not justify the speed limit set
- The survey also provides evidence that the safe speed is much higher than the limit.

Thanks for the link and the pointer to Evidence code 640 and 1453.

Again, whether you know it or not you've been a great help.

[themadnorwegian]

Your statement here seems to be a sort-of consensus on this board, but you expressed it clearly. It strikes me as strange that the officer can give me a ticket based on an illegal speed limit and once he's done that the legality of that speed limit is no longer relevant. But, if that's the way it is that's the way it is.

I just re-phrased the content of 22351. I'm not trying to give a consensus opinion; rather, I'm trying to explain what the vehicle code says the law is. I'm also not saying that the police are allowed to give you a ticket using an illegal speed limit. I'm saying that the court decides whether the speed limit is legal or not. Based upon the way the evidence code is written, the burden of proof is on the defendant for claims that are essential to his defense. This means that you have to prove the speed limit is illegal if you want the court side with you.

I've seen others ask this same question so here FWIW is the apparently ERRONEOUS thinking that I (and others) have:
- the speed trap case REQUIRES the prosecution to proactively establish speed limit legality

Yes.

- pacing cases do NOT require the prosecution to establish the speed limit legality, but the
defendant can DISCOVER the speed survey info himself and show its invalidity if he thinks
the speed limit or the speed survey is incorrect.
- the practical reason why noone challenges PF speed limits is that the underlying speed data
is still valid even if the limit has been downsized.

That's not what I'm saying. I'm saying that you either have to prove that the speed limit was illegally established, or that your driving was safe for the conditions at the time and place where you were cited. In order to prove that the speed limit was established illegally, you have to show that the city failed to comply with 22352 or other relevant portions of the vehicle code. Just saying that the survey doesn't justify the limit doesn't get you off the hook, because the legal requirement that the survey justify the speed limit only applies to speed traps. If you use google to search through the entire California Vehicle code, the only places where the word justified appears in relation to speed limits is 40802 and 22358.4. The reason nobody challenges the speed limits for pacing cases is because there's no legal requirement that the survey justify the speed limit, unless radar or laser is used.

Is there a case that shows the reasoning you use above or is it more of a "this is how it works in the courts" type of situation?

The best case I can quote is People v. Huffman, which deals with speed traps. However, the court in that case is quite clear that if the survey is valid, then the burden is shifted to the defendant. Since there's no such requirement when you're paced, and you were driving faster than posted limit, then you're in the latter case by default:

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) 243 Cal.Rptr. 359, 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.)

Also, it would be worth it to read People v. Behjat. That case deals with exactly what the prosecution needs to provide to convict somebody under 22350. If the officer omits certain details, you can move for dismissal arguing that the prosecution hasn't proved its case.

I am indeed stuck between two seemingly contradictory positions:
- The survey is invalid and seems to not justify the speed limit set
- The survey also provides evidence that the safe speed is much higher than the limit.

I'd instead focus on what you would need to prove to show that the speed limit was illegally established, or that your speed was safe for the conditions at the time. I'd take a look at VC 22350, 22352, 22357, and 22358, and then decide what you'll have the best shot at being able to prove.

[lbk]

More great stuff, TMN:

The MUTCD 2003 CA supplement (which was controlling at the time of the speed survey in my case) says, at 2B.116:

Standard:
Prima facie speed limits are specific limits and shall apply unless changed based upon an
engineering and traffic survey and signs are posted that display the new speed limit.

This tells me that the validity of the speed limit in my case is gauged by the same T&ES standards as in speed trap cases. Of course, in my case I have to proactively challenge it which is alot harder.