Convicted of Violating Basic Speed Law

[thesheikh]

Hey guys, so I went to court in Stockton, Ca on May 8th for a speeding ticket I received a few months back from the CHP. As you could probably figure out, I lost. I got a ticket for 22350, the "Basic Speed Law".

Too sum up the trial in a few words: It was BullS**t. Judge was a complete jerk. CHP officer was no different.
Anyways the trial went on, the officer did his part. He didn't remember giving me the ticket at all. He said that he caught me on radar, but he didn't. He really just paced me, but when he was pacing me I was not speeding. They issued me the ticket for going 52 in a 35, but I really think it was for being an 18 year old driving a new mercedes. Anyways, all he did was read off his papers. Said he had "copies" of all his certifications. Judge didn't even ask to see them. His radar was last checked in 2009. I asked him the "30 questions", made him look like he didn't know his right from his left. Judge just thought I was wasting time. Found me guilty in a heart beat.
I have received a few tickets in my past, of which I knew I was honestly guilty for and I plead no contest. This however, I felt I was just profiled and I will not let this go without a fight. Hence my appeal, and I need a little help. After about a million attempts I got threw the STUPID automated phone system, and got a hold of somebody at the courthouse that actually knew what they were talking about. She referred me to the CR-141 info document regarding appeal procedures.

So far, I have filed my Cr-142 form, and I basically need help with everything else (i.e. the proposed statement).

So any and all help would be greatly and sincerely appreciated! Thank you guys!

[themadnorwegian]

Was there an electronic recording of your trial, or a court reporter present? I'm not certain, but it sounds like you're saying that you're attempting to transmit the record of the proceedings to the appellate court as a settled statement on appeal? Is that correct?

Parenthetically, if you really believe that your civil rights were violated you should talk to a real lawyer.

[thesheikh]

Im not sure if there was or was not. I do not recall. Im just trying to follow the CR141. Honestly, I just do not want the point on my record, especially since I was not actually violating the law. And I can not really afford the fine right now, mainly because tuition cost so much right now. Although I DO believe the motives for the issued citation were based on immoral grounds, I do not have the time nor the money to pursue anything. I just want it to go away.

[That Guy]

I'm going to start with this part...

I really think it was for being an 18 year old driving a new mercedes.

And I can not really afford the fine right now, mainly because tuition cost so much right now.

You know how to brag about being an 18 year old driving a new mercedes but you can't afford a $360 fine you were supposed to pay prior to going to trial?

GTFO!

Clearly, you didn't pay for that new mercedes, so why isn't Daddy paying for the fine as well?

His radar was last checked in 2009.

What date were you cited? And what date in 2009 was the Radar calibration? (I'm waiting for an "I don't know answer).

But wait, before we even get into any of that... You were under the impression that he paced you (meaning no speed trap laws apply) and yet you STILL contested it? And then you went to court, and he claimed he used Radar and you still lost it?

I asked him the "30 questions", made him look like he didn't know his right from his left.

Hey TMN, apparently, the 30 questions DO work!!! Whatayaknow!

Judge just thought I was wasting time. Found me guilty in a heart beat.

Oops, never mind... They don't work!


Actually, before I go far from this point, you know about the 30 questions, but you don't know about the Engineering and Traffic survey? How come you never mentioned that in your post? No reference to the speed limit, the 85th percentile, whether the limit is justified... etc!

I need a little help....

....
So far, I have filed my Cr-142 form, and I basically need help with everything else (i.e. the proposed statement).

You don't ask for much, do you!

I have received a few tickets in my past, of which I knew I was honestly guilty for and I plead no contest.

Dude, seriously... You're only 18 -or so you claim- so this "past" of yours... How far back does it take you, and how many tickets have you received and pled no contest to? And over how long of a period of time?

After about a million attempts I got threw the STUPID automated phone system, and got a hold of somebody at the courthouse that actually knew what they were talking about. She referred me to the CR-141 info document regarding appeal procedures.

Well, you could have done it the easy way... Gone online and done some research... Starting with the TRAFFIC link under Self Help, from there the Traffic Infraction Appeal Link is clear as day. And one paragraph into that page, you'll see the CR-141 link.

Although I DO believe the motives for the issued citation were based on immoral grounds

Like what, really? -With the exception of him doing his job AND/OR you speeding (Or BOTH)- what possible motivation could the officer have for citing you???

Even if it was issued on immoral grounds, that is not grounds for an appeal.

Honestly, I just do not want the point on my record...

You know traffic school would have taken care of that point easily and painlessly! I know, I know... hindsight is 20:20!

...especially since I was not actually violating the law.

By who's standards? The judge (the only standard that matters in this case) decided you were in violation!
Again, you are only 18 years old, how much experience do you have to be able to determine what is or isn't safe when in fact the majority of drivers most of whom are likely to match your experience by multiples, decided 35 was safe for that stretch of roadway and yet you come along, and raise the bar by 48+% and expect the judge to buy it?

I do not have the time nor the money to pursue anything.

Well, here is some news for you... Appeals are a huge drain on time and effort. Additionally, filing an appeal is not a way to avoid or put off paying the fine but you did state that you have a CR-141 and I can only assume that you've read #10 on page 2. That tells you that unless the trial court issues a stay of your judgement, you're required to pay it in a timely manner.

Appeals are reviewed based on an actual and accurate reporting of the record of the trial. And frankly, more often than not, if the trial was not recorded, you're not likely to succeed on appeal simply because you're not likely to be able to get the judge to sign off on your proposed statement in its half biased half "I don't remember" state.

I just want it to go away.

Wrong forum! Really, no one here has that magic stick to make it all go away. Actually, I know I don't... If I did, I wouldn't be here posting this!

You could have asked the judge for an extension to pay. You can still try to get a hold of the court or you can go to the traffic window if need be to see what can be done about getting you an extension at this point. Simply because that last thing you'd want to do is to fail to pay in a timely manner. That will more than double the fine and it creates other problems that you would want to avoid regardless of the additional cost!

I think that from a "time spent - benefit gained" standpoint, you're better off investing your time in getting an extension as opposed to appealing.

[themadnorwegian]

Im not sure if there was or was not. I do not recall. Im just trying to follow the CR141. Honestly, I just do not want the point on my record, especially since I was not actually violating the law. And I can not really afford the fine right now, mainly because tuition cost so much right now. Although I DO believe the motives for the issued citation were based on immoral grounds, I do not have the time nor the money to pursue anything. I just want it to go away.

Sigh. The reason I'm asking about the transcript is that it is, as TG said, difficult to work with a judge who thinks that you're guilty and wasting his time. If there's a transcript, then you don't have to go through this process. Which do you have more of: time or money? If you have more money than time and just want this to go away, you should consider talking to a lawyer. He might know the judge, and if there's no recording or transcript, he might be able to convince the judge to craft a settled statement that makes an appeal possible. On the other hand, if you have a lot of time and can spend months writing and researching your appeal and filing papers, it's certainly your right to do so.

But wait, before we even get into any of that... You were under the impression that he paced you (meaning no speed trap laws apply) and yet you STILL contested it? And then you went to court, and he claimed he used Radar and you still lost it?

This one hurt my head too. OP, did you do any research beyond the 30 questions when preparing for your trial?

Hey TMN, apparently, the 30 questions DO work!!! Whatayaknow!
Oops, never mind... They don't work!

They certainly didn't work in this case, and they're definitely not perfect. The 30 questions was one source from which I cribbed my questions when preparing for my trial. However, I had to remove or re-work a bunch of them because they introduced evidence that the prosecution hadn't originally testified about. I'm tempted to say that it's only an unskilled craftsman who blames his tools, but I have to wonder if the judge had already made up his mind before the defense opened its case. Based upon the OP's description, it the judge thought the questioning was a waste of time. Perhaps that judge has been hearing too many traffic cases, because the defense is allowed to confront and question the prosecution's witnesses. While I realize that the OP has his own biased view of what happened at the trial, the judge shouldn't be hostile to the defendant's procedural due process.

[thesheikh]

wow f**k my life. i replied to everything you said. maybe spent the past 2 hours doing it. had the smart ass replies. the whole stroy was laid out. spell checked and grammer checked the whole thing. and i hit submit. and it made me log in again. then page didnt load. so i hit refresh and everything was gone.
"Your submission could not be processed because you have logged in since the previous page was loaded."


fml.

[Mr. Knowitall]

Your post likely autosaved, but you didn't use the recovery feature ("restore auto-saved content") so it may be too late.

If you don't uncheck the "remember me" button, absent something along the lines of your clearing your cookies or a browser crash, your session won't time out.

[That Guy]

They certainly didn't work in this case, and they're definitely not perfect. The 30 questions was one source from which I cribbed my questions when preparing for my trial. However, I had to remove or re-work a bunch of them because they introduced evidence that the prosecution hadn't originally testified about. I'm tempted to say that it's only an unskilled craftsman who blames his tools, but I have to wonder if the judge had already made up his mind before the defense opened its case. Based upon the OP's description, it the judge thought the questioning was a waste of time. Perhaps that judge has been hearing too many traffic cases, because the defense is allowed to confront and question the prosecution's witnesses. While I realize that the OP has his own biased view of what happened at the trial, the judge shouldn't be hostile to the defendant's procedural due process.

Well, it is possible that the judge had made up his mind, it is possible he had heard too many traffic cases,but it is also possible that thew officer covered most if not all the material that would be covered under the 30 questions; which when they are read as a script, one after the other, where the officer is not given the opportunity to one question before the next one starts, example:

18. Could you please read this part of Section 22351(b) for the court?

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...

19. That sounds like I am guilty, but could you please read the rest of it -- the underlined part?

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.

So you're supposed to interrupt him when he gets to "unlawful" so you could throw in your quip of "that sounds like I'm guilty"?

Let's go through them though... The way I see it, if you have to ask 1 through 14, then you either weren't listening or you are simply intent on irritating the judge simply because the officer is required to state those elements as part of his case. If he failed to mention one, or two of those items, why are you asking him and by doing so, adding to the "evidence that is before the judge", evidence that he can now review and determine that the officer did indeed cover ALL of the elements of the offence! Congratulations... You just helped reiterate all the required elements and dug yourself in a hole!

Sorry if this is too blunt but, 15 and 16 are just plain old stupid!

17.... Hey wait a minute, there is actually ONE question that is of value here!

18 and 19 I covered above!

q 20 would require the defendant (who is asking the question) to understand the difference between "competent evidence" as in irrefutable unquestionable proof of a something which is the burden that the defendant carries; whereas a "competent witness" and as long as he/she does not fit the definitions in Evidence Code 701(a), he's good to go...

701. (a) A person is disqualified to be a witness if he or she is:

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or
(2) Incapable of understanding the duty of a witness to tell the truth.

So in other words, just because you can get a witness to state that "yes, he is a competent witness" does not automatically mean that his testimony rises to the level of competent evidence. But wait, let us assume that it does, and now the testimony that the officer offered is to be considered as competent evidence... Well, didn't he just testify that he cited you in violation of the basic speed law because he though your speed was unsafe for conditions?

Is the judge supposed to forget that? Aren't you in court for that one reason alone? Because you were cited for a basic speed law violation????

So how much of an impact do questions 20 through 27 have?

And do you ask all of them or would you have to be careful not to ask the ones where the officer answered "yes, it was inherently unsafe.....etc"?

Also, what if the officer answers one by saying "no, I didn't testify to that, in fact, now that you mention it, you were in danger of such and such"... There you just helped him seal the deal! But skip that...

Q 28 about what property, how about state property if officer was in a CHP vehicle or county property or city property....

Q 29 is "the set up", to attempt to tie in what I warned against under Q20 above.... Because Q30, goes as follows:

Given your competent testimony as evidence of my speed as it relates to the conditions at the time and place of this alleged violation (not the average conditions covered in the survey, but the exact conditions you testified to – i.e., the conditions specified in 22351(b)), where is your case, Officer?

As far as conditions in the survey versus conditions at the time, we've discussed this before and hope we still agree that the survey must be conducted under what can be described as perfect conditions, otherwise, its validity would be subject to dispute. So you shouldn't go there either.
As for the conditions under 22351(b), i.e. "the conditions thereupon at the time you were cited, well, at best, they could be as perfect as they were when the survey was conducted and if that is the case, 85% of drivers determined that XX speed (presumably the posted speed) is the highest yet safest speed they would drive through that road. Defendant comes along and decides that adding 15 mph over the XX limit, should still be considered safe because at 18 years of age, his experience supersedes that of any of those people who were surveyed!

The author (would rather not refer to him by name) closes this chapter with the following:

If you make it through question 14 without the officer bringing up anything negative, you have pretty much won your case. Once you get past question 20 the officer may try to change his or her testimony, in which case you challenge the officer's memory of the case and his or her competency as a witness for the prosecution.

I say you should probably skip questions 1 through 14. Explained why above. And if you make it to 20 then you either have an extremely patient judge or he simply fell asleep on the bench! As for the officer changing his answers and and you challenging his competency, isn't this whole entire exercise is to prove him competent so you could tie that into your burden for providing competent evidence, (a flawed concept) but now you would challenge his competency unless he gave you the answers you want?

Tell me then Mr defendant... If the officer isn't competent because his answers weren't competent, then were is your competent evidence and in turn... Where is your case, Defendant?

---

had the smart ass replies.

I'll look forward to those because thus far, you've only provided the dumb-ass replies!


In the meantime, understand that you're still missing several points...

You made it clear that you cannot pay the fine. I don't know how you made it to trial without posting bail then again, some court will allow that... But you've also made it clear that there is a good possibility (for the simple fact that you never mentioned a survey) that you lack the understanding to determine whether you have any grounds for appeal.
You're also asking us to help you with your "proposed statement"... But we weren't there at your trial, you've provided us with no transcript and no recording of the trial. How can we help you with matters we have no idea about?
Or maybe you're expecting us to craft statements that would add potential to a potential-less appeal?
Lastly, you've made it clear that you have no intent or desire, no time or money to pursue anything right now! If that includes an appeal, then why are you here pretending you want to appeal when in fact, you're not going to pursue it! All of that on top of you making it clear that you're appealing because (1) you don't like the verdict and the reason you don't like the verdict is (2) because you don't have the money to pay the fine.

Well, your fine is due and payable unless you were given an extension and or stay by the court!

If you don't believe that there is a huge amount of time and effort spent on an appeal, with no guarantee of a posiytive outcome even if you have a well documented case (which you don't) then read this thread: How to Make and File an Effective Appeal

[themadnorwegian]

So in other words, just because you can get a witness to state that "yes, he is a competent witness" does not automatically mean that his testimony rises to the level of competent evidence. But wait, let us assume that it does, and now the testimony that the officer offered is to be considered as competent evidence... Well, didn't he just testify that he cited you in violation of the basic speed law because he though your speed was unsafe for conditions?

Is the judge supposed to forget that? Aren't you in court for that one reason alone? Because you were cited for a basic speed law violation????

I'm tempted to concede the 30 questions argument, because I agree with most of what you're saying. A lot of the content is redundant, introduces evidence that would favor the prosecution, or is irrelevant. That said, I think the spirit of the questions is useful. Though, you have to re-cast most of these questions to be practical in court. I also agree that it's up to the fact finder to determine whether the witnesses are believable. The officer is a generally more believable witness than the defendant, which is why you'd like him to testify that you weren't in danger of hitting anything or losing control of your vehicle. Yes, it's absolutely true that you wouldn't be there unless the officer had thought some part of your driving was unsafe, but if he cannot articulate what was unsafe, is he competent witness? I think we're back to the question I raised when we last had the 22351 discussion. In your opinion, is there any evidence that can be presented, assuming the survey is valid and conducted under ideal conditions, that would demonstrate that the accused's speed was nevertheless safe for the conditions? Also, what about situations where the prosecution isn't required to introduce a survey or fails to simply introduces one by reference. In that situation, if the presumption is that the defense's conduct was prima facie unlawful, wouldn't eliciting testimony about conditions favorable to the defense be helpful? (Unless you're trying for a PC 1118 because the officer didn't testify to the elements of 22350.)

[That Guy]

I'm tempted to concede the 30 questions argument...

DO IT, TMN... JUST DO IT!!!

Dare to be different!

Seriously though, while I will agree that one should at least review the questions while preparing a defense, I would suggest a MAXimum limit of 3... If any at all! Mainly because there is no way that you can control the officer's answers!

That said, I think the spirit of the questions is useful.

I'll agree... But I'll also suggest that what it giveth, it taketh away... Simply because it does in fact get the point across to the defendant that it is his burden to establish that his speed in excess of the PF limit was not unsafe otherwise he loses. That is what it giveth...

It taketh all of it back simply only providing questions and no "preferred answers. I alluded to that in the beginning of my post, people are in a hurry to get all the questions in, they don't care about the answers (well, the officer could have disagreed with every suggestion they made, they'll still come out thinking by implying that you can get the officer to recant his testimony... Case in point:

" I asked him the "30 questions", made him look like he didn't know his right from his left."

Not even a hint of what the answers were, only that "the questions were asked"... Yet the officer looked like he didn't know his left from his right...

Is it possible that he was saying "what the heck are you talking about, of course your speed endangered pedestrians, of course I saw other cars close to you... etc, etc, etc..."

No one knows, but the questions were asked!

The officer is a generally more believable witness than the defendant, which is why you'd like him to testify that you weren't in danger of hitting anything or losing control of your vehicle.

And with you asking 5 or six questions that are similar in nature, you're giving him five or six opportunities to supplement his earlier testimony with an "Actually, you came pretty darn close to the 3 pedestrians at X Y street"... Five or six opportunities to blow up one question and sink your entire case!

Yes, it's absolutely true that you wouldn't be there unless the officer had thought some part of your driving was unsafe, but if he cannot articulate what was unsafe, is he competent witness?

Two points. First, I think we still disagree about the basic principle that the officer must articulate an actual unsafe element that he witnessed in each and every 22350 case. I disagree with that, I think his simply stating that the element of safety was compromised by the driver's speed is sufficient for cases the the E%TS is less than 5 yrs old. There is nothing in 22350 that requires him to be specific. There is nothing under 40802 that requires him to be specific for surveys that are less than 5 yrs old. Only for cases where the E&TS is older than 5 yrs.

Point # 2: "if he cannot articulate what was unsafe, is he competent witness?"

I think the "cannot" is out of place... If an officer cannot (i.e. is unable to) articulate his thoughts, I would question his having a side arm and a badge is a questionable decision by his superior!

So can we say does or does not?

If yes, whether he does or does not articulate a certain element that is needed for a conviction would have zero effect on his competency as a witness. It would certainly affect his being an effective witness but not whether he is of sound mind, not whether he can express himself and certainly not whether he recognizes duty a witness has to tell the truth. the different between the truth and . But that says nothing about whether he is competent or not!

I think we're back to the question I raised when we last had the 22351 discussion. In your opinion, is there any evidence that can be presented, assuming the survey is valid and conducted under ideal conditions, that would demonstrate that the accused's speed was nevertheless safe for the conditions?

That is a question that I do not feel can be answered without a particular set of circumstances in place. IN the least, I would have to ask what the 85th percentile speed is, and what speed was the defendant driving at. Obviously one can justify a 5mph over much easier than 27 over.

But how about you try and answer it... Give us an example of what evidence YOU think would justify 15mph over the PF limit...

Also, what about situations where the prosecution isn't required to introduce a survey or fails to simply introduces one by reference. In that situation, if the presumption is that the defense's conduct was prima facie unlawful, wouldn't eliciting testimony about conditions favorable to the defense be helpful? (Unless you're trying for a PC 1118 because the officer didn't testify to the elements of 22350.)

Well, even if the survey isn't required (in the case of a pace, for example) that PF limit was set how? Unless it is a statutory P F limit (example 25mph in a school zone) then it too was set by survey, correct?

In fact, here...

41100. In any action involving the question of unlawful speed of a vehicle upon a highway which has been signposted with speed restriction signs of a type complying with the requirements of this code, it shall be presumed that existing facts authorize the erection of the signs and that the prima facie speed limit on the highway is the limit stated on the signs. This presumption may be rebutted.

So you can try and rebut the presumption that the speed limit is invalid simply because of a flawed survey... That, I assume, should work as a defense.

If on the other hand, that limit is justified, or if you choose to assume it is, and you were in fact driving in excess of such limit, then 22351 would still apply where your speed is PF unlawful unless you can somehow establish -by competent evidence- that it was safe...


As for the hypothetical that the prosecution fails to introduce the survey, I think the fact that you can use their failure as a defense should do the job where you really need not battle with having to prove anything...

Simply call survey shenanigans and that should wake the judge up and hopefully dismiss!

(Unless you're trying for a PC 1118 because the officer didn't testify to the elements of 22350.)

You just can't let that one go, TMN... Can you? Gotta keep it alive and well, huh!