Fighting a CVC 22350 Ticket

[Capn John]

My question involves a speeding ticket from the State of: California, in the County of Los Angeles.

I just received a Speeding Ticket for violating CVC 22350 Basic Speed Law.

The ticket appears to be based on the officer recording me driving at 51mph in a 35mph zone, however, CVC 22350 makes no mention of exceeding a posted speed limit so I'm going to fight my ticket on these grounds.

Given the weather, road and traffic conditions at the time made for what I believe were excellent driving conditions (beautiful sunny day, extremely light traffic, 4-lane highway), I do not feel my speed was greater than reasonable or prudent, nor do I believe it was at a speed which endangered the safety of any persons or property.

According to information on my ticket I can only contest the ticket in one of two ways, either by Court Trial, or TBD, but in either case it specifies that the request must be made in writing. If I read CVC 40519 correctly, by making this request in writing I automatically waive my right to be tried within the statutory period (CVC 40519(b)) even if I don't sign anything to that effect.

40519(a) however, appears to grant me the right to appear in person and plead Not Guilty, but according to this section the case shall be set for arraignment and trial on the same date, I assume being the date printed on my ticket. Is that correct?

Am I not able to appear in person and request a Court Trial? Or if I do, will my Court Trial be set for the same date & time as printed on my ticket? It seems strange that I must request a Court Trial in writing, and am not allowed to do this in person.

From what I've read up on fighting tickets it seems my best chance of getting the ticket dismissed is to contest it via TBD, and if I lose to then request a Trial de Novo, which gives me my second day in court, this time in person.

I think I know what I have to do to give me the best chance of beating my ticket. I just hope it works.

Thank you in advance to anyone who can offer additional advice.

* note - this thread appeared earlier in the Traffic Court forum and I was advised to repost it here *

[cdwjava]

Note that exceeding a properly posted speed limit is prima facie evidence of a violation of 22350 CVC.

From the CA Attorney General in the CA Peace Officers Legal Sourcebook):

Speed Law Violations - Procedural (Veh. Code, § 22351)

The speed of any vehicle upon a highway not in excess of the limits specified in section 22352 (prima facie speed limits) or established as authorized in the Vehicle Code is lawful unless clearly proved to be in violation of the basic speed law (reasonable or prudent).

The speed of any vehicle upon a highway in excess of the prima facie speed limits in section 22352 or established in the Vehicle 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 (Veh. Code, § 22350) at the time, place and under the conditions then existing.

In cases where the driver was not exceeding a posted speed limit, the arresting officer must prove both the speed and that it was a speed greater than was reasonable or prudent under the conditions.

In cases where the driver was exceeding the posted speed limit, the arresting officer must only prove the speed. The burden of proof then shifts to the defendant who must prove that the speed was safe at the time, place, and under the conditions existing. You should be prepared to overcome this defense by your notes containing the number of cars passed, intersections traversed, lane changes, pedestrians, other hazards and conditions.

The defendant has no such defense in cases involving maximum (absolute) speed limits.

- Carl

[Capn John]

Carl, it sounds like you're saying that when I file my TBD I need to provide evidence and statements as to why I believe I was driving at a prudent or reasonable, irrespective of the ticketing officer's statement. Is that correct?

I had a long explanation drawn up, citing road conditions, weather, traffic, etc, but felt it was too long and provided the ticketing officer with too much information regarding my situation (on the chance he'd forgotten the details of my case), so I abbreviated my TBD statement to three short paragraphs.

I saved my original narrative to keep in reserve if I needed to file for Trial de Novo, but it sounds like what you're saying is that I need to provide as much information with my TBD as possible, or I'll be requesting a Trial de Novo for sure. Is that correct?

[Capn John]

I'm wondering if I should be fighting this via TBD or if I should show up to my arraignment and plead Not Guilty and request a trial. Has anyone had any experience with the El Monte court system?

Apparently I'm entitled to a Fair & Speedy Trial which must occur within 45 days of my infraction. My Infraction occurred on June 25 and my Arraignment is set for Wednesday, August 6. 45 days from the date of my Infraction is Saturday, August 9.

If I appear in person and do not sign the form agreeing to waive my right to a speedy trial and I plead Not Guilty at my arraignment, what are the chances the Court can schedule my Trial that same afternoon or within the next two days? Pretty darn good? Or slim to none?

If they schedule my Trial outside the 45-day time limit, do I let that limit slide then request my case be dismissed? Or do I notify the Judge that my Trial needs to be held within the next two days, and if they can't do that then he needs to dismiss my charges?

I've been in this country for 10 years and this is my first ticket and I'm really looking forward to the fight, but I want to make sure I go in there armed with as much information as possible.

They say a little information is a dangerous thing. I don't want to dangerous, I want to be victorious!

Thanks again for any advice/information.

*EDIT* I found California Penal Code 1382(a)(3) which states that in most conditions the Court must schedule the Trial within 30 days of my Arraignment. Looks like the TBD is still my best bet.

[cdwjava]

Carl, it sounds like you're saying that when I file my TBD I need to provide evidence and statements as to why I believe I was driving at a prudent or reasonable, irrespective of the ticketing officer's statement. Is that correct?

Essentially, yes. You have to show that your driving was not unsafe under the circumstances, but, if properly posted and supported by survey (if necessary), then the presumption is that exceeding the limit is unsafe. So, your argument will have to go a long way to persuade the court otherwise.


- Carl

[EWYLTJ]

Essentially, yes. You have to show that your driving was not unsafe under the circumstances, but, if properly posted and supported by survey (if necessary), then the presumption is that exceeding the limit is unsafe. So, your argument will have to go a long way to persuade the court otherwise.


- Carl

You can use the officer as competent authority to show that your speed did not violate the basic speed law. I think we discussed this on another site. However, keep in mind... before you have the burden to do that, the prosecution has the burden to show that a speed trap did not exist. That means the officer will have to produce the ORIGINAL or CERTIFIED TRUE COPY of the speed survey which justifies the speed limit. Given that it is a 35mph limit and a 4 lane highway, I'd bet anything that it is not justified. Assuming radar was used, that would mean a speed trap did exist and you are essentially off the hook.

You can try to do this in a TBWD, but my experience has been that most judges just rubber stamp them guilty. It is shamefull, but true.

Get a copy of the survey ahead of time to verify so you can be prepared in court. Just don't provide it in court... that is the obligation of the prosecution.

[jhayes106]

Get a copy of the survey ahead of time to verify so you can be prepared in court. Just don't provide it in court... that is the obligation of the prosecution.

I am in a similar situation, and thus I am trying to find out how to go about getting such a survey. Because I don't want to go through informal discovery (if I don't have to) since I'm sure it will encourage the Court and/or Officer to obtain and review "official" records of any such documentation.

So what is the specific department I should try to contact in order to request a survey for an unincorporated city of San Diego California like Spring Valley?!?!

I appreciate your time, as well as any and all assistance you can give me in building my defense for a CVC 22350 Violation.

[cdwjava]

Start with County Department of Public Works. They can probably give you direction to the proper office that might hold the appropriate surveys.

- Carl

[EWYLTJ]

Carl is right... either there or CALTRANS depending on the type of highway.

I'm not sure why you wouldn't want to do a discovery request. Worst case scenario is they have their ducks in a row. However, if they ignore your request (as they often do), you can argue that no evidence is admissable in trial that was requested in discovery. It's probably not a big deal, but there is just no sense in leaving food on the table!

[cdwjava]

To add to Jim's comment, typically the discovery request (if for "the usual" items) doesn't spur the DA or the police into any kind of super prosecution mode. First, most DA's offices do not handle traffic matters, and, second, most officers will never be made aware that the administration ever received a discovery request. Even if the officer IS made aware, it is unlikely to change the officer's approach. If he is slipshod and fails to lay the foundation for the case at hand, then he'll lose. While it is possible that some officer might become more attentive, usually a discovery request does not signal any real change in the presentation at trial.

Now, if the discovery request includes some bizarre or unusual items, then it might raise eyebrows.

- Carl