Re: VC 22350 Ticket in California
Well, there is a difference between a school zone speed limit of 25mph that is set around a "When Children Are Present" qualifier... and a 25mph speed limit zone set because there is a school along with other factors that may dictate a 25mph limit. And while the former would obviously not apply to a weekend, the latter would be a 24/7/365.
Fact is, we do not know what factors have changed and we cannot by any reasonable standard determine what the speed limit should be. Nor would we want to simply because it is not likely to be 55mph (not on that roadway at least) and so it could never justify our case!
Correct. And stick to those facts. In your case, there is no need to establish what conditions existed at the time, or whether you think the speed limit is "artificially low", a term that sounds quite clever the first few times, although when it gets to a point where you're reading it in every TBD and hearing it at every trial, it starts to get quite irritating!
Let me start this part of my reply by saying I don't particularly like reviewing people's declarations simply because it gets to a point where I feel I'm writing it for them. I'm not going to write your defense simply because I don't want the blame if you lose and I certainly can let you have all the glory if you win. So while I will tell you what not to include, I may not be so willing to offer you substitute paragraphs for the ones I suggested you remove.
Additionally, and while keeping in mind that no two cases are alike, and there should not be anything that is described as a “template” in presenting ANY defense, I understand that one might need some guidance every once in a while. With that said, and though I am not suggesting that your declaration should be as long as mine, my last declaration consisted of 34 pages, 14 of which was the survey and related speed count sheets and back up data, 12 pages of case law citations and relevant documentary evidence, and an 8 page declaration. Although my case was much more complicated than “the survey expired, speed limit is invalid, case dismissed”... Point is, don't hesitate if your written declaration doesn't fit in the box provided on form TR-205; you can use attachments!
By “stick to your facts”, I mean the following; (note I have numbered your paragraphs in the order you posted them):
PS: I don't know what the difference is between trhe text you opted to bold and that which you didn't...
Paragraph (1) should be obliterated simply because anyone arguing speed trap, is simply starting with the premise that the speed limit was not validated, therefore there is no speed limit therefore speed is not even a remote contention and as such should never be mentioned or admitted into evidence. So while we are attempting to remind the court that it should not accept any evidence relevant to any speed reading from the prosecution and yet we submit a sworn statement admitting to a higher speed than what we were cited for? I'm not getting it!
Paragraph (3) should not be excluded, again no justified speed limit = no case”; pretty simple!
Paragraph (4) should be edited. Since we don't know if any changes have occurred to the roadway or adjacent property, we don't know what the speed limit should be or whether it is artificially low or naturally high. And we need not speculate when we have an open and shut case. Discuss the law, approach a legal conclusion, supplement that with case law citations and present a closing statement.
Paragraph (6) should be worded to indicate that according to Caltrans, there is no valid survey and so the prosecution does not have the ability to overcome the presumption of a speed trap.
In addition, and also in paragraph (6), and although you make up for this slight error in Paragraph(7), you should replace “I trust the Court will rule the radar evidence inadmissible” with “ I trust the Court will rule all speed related evidence as inadmissible...”. (or you can opt for “any evidence” as stated in 40805) Remember, the officer will testify to both, a visual estimate and a Radar reading. And I have seen/heard of cases where a visual estimate was sufficient for a conviction.
Paragraph (9) should just go. In my view, you're offering the court a compromise when in fact, the laws you just got done citing do not! By you pleading “not guilty” and posting bail equal to the FULL fine amount, you've implicitly agreed to/acknowledged two possibilities: (1) the entire bail amount could be converted to the fine amount, and (2) traffic school becomes a discretionary matter rather than an option that you can accept automatically.
1) Yes. You should also include and attach a few case law citations... You can go to Google Scholar, enter “22350 AND [whatever code section # you're making a point with -for example 40805-]”, read whatever cases come up and cite paragraphs that reaffirm the point you're trying to make. (Or, once you click on a particular case, click on the “How Cited” button (top left corner of page) and you'll see how/where that case was cited). If you follow the above described procedure, you might note that “People v. Goulet”, “People v. Sterritt”, or “People v. Earnest”.... etc, might come up on each and every search that you make. Make sure to include a few citations from Goulet -as it may be the case which offers the most comprehensive interpretation of speed trap laws- but supplement each and every one by citation(s) from other cases.
2) Well, after editing what you have above, hopefully!
3) I would suggest that you contact Caltrans and request that they mail you a hard copy that is stamped and certified to being a true copy but only because often enough, the officer does not present a full copy of the survey, and the only way a court can compare and rule out if the defendant presents a full and complete copy that is certified as such. And they may require you to pay for copying/certifying/mailing fees of a few bucks, but it may make the difference between a speculative evidence and admissible evidence. Their certified stamp would also have a date the document was certified thereby adding a contemporaneous quality to your evidence. As for the emails, and although those can be difficult to authenticate at times, they should be acceptable in their actual format if printed from the server upon which they are stored (meaning if you're using “hotmail” you simply print them out by using the “hotmail print” function).
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Not necessarily true and certainly not all the time. The survey can be an original issued and provided to the court by whichever (hint) governmental (or official) agency conducted it. Under those circumstances the officer's testimony will state that the survey is "on file with the court", and yes, consensus is that the prosecution is obligated to physically present it in court, but that would not affect its authenticity especially if provided to the court by 9let us assume, Caltrans).
Generally, an E&T survey is considered a "writing" made by a public employee and as such is admissible in court without the need or a requirement to have it certified or authenticated.
Evidence Code section 1280
Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
In fact, let me comment further/edit the following response to the OP:
Personally, I would go through the extra step of requesting a hard copy. However, you can actually print the E&T survey and provide the actual email message which it was attached to as evidence of its authenticity. And to further support this methodology, you would cite Evidence Code 1420
Quoting That Guy
Evidence Code section 1420
A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.
I'm sure we'll agree that it is not only rare, it is also unusual and would (or should) be subject to quite a bit of scrutiny if an officer were to participate in conducting a survey. It seems as if it would be like putting the fox in charge of watching the hen house. Of course this is not to suggest that an officer benefits in any way from any citations he might write, but I could see a certain bit of conflict there. So while it has actually been mentioned that an officer in some police department suggested that officers who are on desk duty /modified duty in his department should be allowed to contribute their time to conducting speed surveys, the rules that a survey must be conducted under specifically dictate two conditions that should be followed:
- The intent of the speed measurements is to determine the actual speed of unimpeded traffic. The speed of traffic should not be altered by concentrated law enforcement, or other means, just prior to, or while taking the speed measurements.
- The surveyor and equipment should not affect the traffic speeds. For this reason, an unmarked car is recommended, and the radar speed meter located as inconspicuously as possible.
While those two conditions do not necessarily preclude law enforcement officers, it does in fact explicitly recommend an unmarked car, and similarly, a uniformed officer is not the preference.
I am right 97% of the time... Who cares about the other 4%!