Appealing a Speeding Ticket Conviction

[Kwang]

Hello,
Speeding ticket dated back in 6/09.
Did the TBWD and was found guilty.
Went to trial recently and was found guilty. (Judge was a Pro Tem).
Original thread: http://www.expertlaw.com/forums/showthread.php?t=82440

I had a conversation with EWYLTJ about appealing and I figured I post it onto a new thread in case it may help others and vice versa.

EWYLTJ
1. Did the cop submit the same surveys you had in your thread?

2. If so, did you object or state that they did not justify the speed limit of 40mph?

3. If so, what justification did the court give for saying there was NOT a speed trap?

4. Did the cop use radar?

5. was there any other documents submitted other than the survey?

6. Did you check to see if all the documents submitted were certified true copies?

Provide ALL the details you can remember of the trial. From what you showed online, that ticket should have been dismissed.

Me
1. His survey was in a 2-3 inch thick binder. I noticed that the page he turned to was dedicated to the Harbor and Townsend section. Apparently, I was missing that page.

2. The officer even stated that the 85th% was at 43.3 mph in his testimony. When I testified, I reiterated what he said and stated that according to the "requirements for setting speed limits described in California's Manual on Traffic Control Devices, the speed limit on this segment of First Street should be set to the closest 5 mph increment rounding on surveys dated after May 20, 2004. With that in mind, the most recent survey that the city of Santa Ana has conducted was dated Sept of 2006. Furthermore, the engineer's justification (consistency) of the reduction to 40 mph did not fit with the requirement that reductions be based upon accident history or other damages that would not be apparent to a driver. Therefore, the speed limit of this segment of First Street should be set to 45 mph, and any speed limit reduction below 45 mph would not be justified."

3. The judge's final statement was "even if the speed limit was to be posted at 45 mph, you were speeding at 54 mph, so I find you guilty."

4. The officer did use radar.

5. The officer submitted his certificates to operate the radar and the radar's calibration.

6. I did not scrutinize the survey to see if it was certified. It looked quite legit since it was in a huge binder and the judge even looked at it. I had copies of the officer's TBWD and he included the certificates for the radar. However, he did not submit the survey for the TBWD... I even stated in my TBWD that if the prosecution does not submit the survey, then I request for a dismissal. I guess the judge didn't even care.

The officer testified the situation during that day -- where he parked (he took photos from google earth, but he parked in a different spot from what he stated), direction he was facing, direction I was heading toward, his use of the radar, and every other minute details.
He then showed the survey and it's 85th% speed. He also showed his certificate of the radar.

After the officer testified, I asked him that he cited me for VC 22350, he replied, "correct." Then I asked him to read the section aloud to the court. (He looked puzzled, then looked at the judge and the judge said "please go ahead if you don't mind). He read the section. I think this was what made him a bit bitter lol... Maybe I should have read it myself.
I then proceeded with questions to set my defense of the basic speed law. His replies were mostly positive to my defense, but at times would add, "you were speeding at an unsafe speed, sir."
I then asked him questions about the survey:
"Do you have a certified copy with you..." He replied "yes, as you can see."
"What was the posted speed limit?"
"What was the 85th% speed?"
His answers were all positive for my position.

I testified that per the officer's answers and the facts of the case present (weather, visibility, pedestrians, traffic, road conditions), I did not violate VC 22350. I continued with the statement with the California's Manual on Traffic Control Devices I mentioned above.

I ended my testimony.

The officer then added that within the survey, the engineer noted that the section had a high rate of accidents, hence the 40 mph.
I added that the engineer only noted "Consistency" rather than what the officer said.

Then the judge found me guilty.

EWYLTJ
The answer that you are looking for is that your Pro Tem was full of crap. Once you established that a speed trap existed (i.e. the speed limit was not justified and the cop used radar), your speed became irrelevant. You could have been driving 54 or 94mph!!! No evidence of speed should have been admitted. The cop was incompetent to serve as witness. The court was without jursidiction to render a finding of guilty. See this in VC section 40803 -40805.

This is a slam dunk appeal... especially because of the stupid statement made by the court in item 3 of your post. However, you MUST be careful that you file your appeal correctly. You have 30 days to file your intent to appeal. Go to helpigotaticket.com for a good tutorial on how to do it all. If you would like to post your proposed statement, I'm sure you can get a lot of good advice on how to improve it.

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I know that I have 30 days to file a Notice of Appeal.
So, going to round up my resources in the meantime.
Has anyone appealed before and how was your experience?

Any input/advice would be greatly appreciated!

[EWYLTJ]

The best advice is to ensure that you follow the rules and meet all time requirements. Serve everyone you are supposed to serve and have proofs of service. Write down everything you remember about the trial now (including the name of the judge) so you don't forget before your proposed statement or your briefs.

[That Guy]

The judge's final statement was "even if the speed limit was to be posted at 45 mph, you were speeding at 54 mph, so I find you guilty."

I'm just curious.... You say that was the judge's "final statement"... Did he say anything before than? or was that his "full statement" with which he justified his ruling?

[Kwang]

I'm just curious.... You say that was the judge's "final statement"... Did he say anything before than? or was that his "full statement" with which he justified his ruling?

That's all he said basically after listening to me and the officer.

[Kwang]

Any advices on if I should attend the Oral Arguments down the line of appealing or should I waive it?

I am also reading on past cases and the appellate court reversed the lower court's decision based on the fact that there are not enough substantial evidence to prove that the defendant/appellant violated VC 22350 in regards to endangering persons or property.
So, would I mention the weather, visibility, traffic, pedestrians, road conditions in my statement?

Or do I just state that "not enough substantial evidence was provided to prove my violation of VC 22350"?

Also, do I need to submit a copy of the citation or will the appellate court have them already?

[EWYLTJ]

Any advices on if I should attend the Oral Arguments down the line of appealing or should I waive it?

I am also reading on past cases and the appellate court reversed the lower court's decision based on the fact that there are not enough substantial evidence to prove that the defendant/appellant violated VC 22350 in regards to endangering persons or property.
So, would I mention the weather, visibility, traffic, pedestrians, road conditions in my statement?

Or do I just state that "not enough substantial evidence was provided to prove my violation of VC 22350"?

Also, do I need to submit a copy of the citation or will the appellate court have them already?

The court file will have a copy of your ticket.

Have you even filed your proposed statement yet? If not, then you are premature to talk about oral arguments.

You should use primarily the speed trap defense. You should claim that the court did not rule that prosecution did not meet the prima facie requirements of 40803(b) rahter the judge erred in his application of VC 40801 - 40805.

As for the 22350 thing, you should state that you showed by competent evidence (the officer's testimony) that you did not violate the basic speed law. You can't claim that there was not enough evidence because, as per 22351, all he has to do is show that you exceeded the posted speed limit and you are presumed to have violated the basic speed law. However, you met your burden in showing that your speed did not create a danger to persons and property.

If you haven't submitted your proposed statement yet, post it here for specific advice rather than generic advice.

[h8dlapd]

Kwang,

I've notice one glaring issue with your appeal...there may be other issues (whether they are helpful or detrimental to your case), but right now, I noticed that you don't mention your objection to the officer's testimony. You'll have to go through your Transcripts of Proceedings to determine if you have appeallable issues. Otherwise, you've had your chance. For instance, unless you objected to the officer's testimony, it'll be considered part of the record. Based on his testimony and the judge's reliance on his testimony, there's substantial evidence that you violated whatever vehicle code section. Best advice, go through the transcript of proceedings and see if there's anything you objected to. That's your starting point. One other thing you can consider and I'm not sure if you made an objection, but it seems like you gave your testimony and then the officer gave his rebuttal...then the judge gave his ruling. I'm not sure if, in between the officer's rebuttal and the judge's ruling, you tried to make a closing argument, but if you did and he didn't allow you to make a closing argument, you might have an issue you can appeal. What's unfortunate with this process is that you have to have your objection documented in the transcripts. Otherwise, you really have no argument. Anyhow, hope you prevail. Best of luck.

[Kwang]

Kwang,

I've notice one glaring issue with your appeal...there may be other issues (whether they are helpful or detrimental to your case), but right now, I noticed that you don't mention your objection to the officer's testimony. You'll have to go through your Transcripts of Proceedings to determine if you have appeallable issues. Otherwise, you've had your chance. For instance, unless you objected to the officer's testimony, it'll be considered part of the record. Based on his testimony and the judge's reliance on his testimony, there's substantial evidence that you violated whatever vehicle code section. Best advice, go through the transcript of proceedings and see if there's anything you objected to. That's your starting point. One other thing you can consider and I'm not sure if you made an objection, but it seems like you gave your testimony and then the officer gave his rebuttal...then the judge gave his ruling. I'm not sure if, in between the officer's rebuttal and the judge's ruling, you tried to make a closing argument, but if you did and he didn't allow you to make a closing argument, you might have an issue you can appeal. What's unfortunate with this process is that you have to have your objection documented in the transcripts. Otherwise, you really have no argument. Anyhow, hope you prevail. Best of luck.

Is the Transcripts of Proceedings the same as the Docket Report? If not, I am a bit lost since I don't know what that is.
Well, the officer stated that the 85th% speed was at 43.3 mph based upon the survey during his testimony. When I testified, I brought up that issue again and how it makes the posted speed limit unjustified. Would that count as an objection? Or are you talking about if I was to jump in during his testimony and yell "Objection, your honor!"?

After the officer made his rebuttal, I made mine and then the judge made his decision.

I am doing the Statement On Appeal as the trial was not recorded. (My mistake, I should have prepared a recorder myself... =[ )

[h8dlapd]

The Transcripts of Proceeding is the recording/subsequent transcribing of the court proceedings. I do not believe it's the same as the Docket Report. It should include everything that was said from the beginning to the end of your court hearing. Check with court; they may have an electronic recording of the proceedings. You'll have to pay approx. $50 for the transcripts (usually two copies). Anyhow, this is essential in identifying any potential errors made during your trial. Without it, the odds are stacked against you. As far as objections go, yes, you'll need proof that you explicitly made an objection. There are more technical issues around objecting in court, which I've neglected to go into detail about, but they're essential in developing your case. As far as the closing argument goes, it seems like you had a chance to make a final argument after the officer. Doesn't seem like you have much of an argument for denial of closing argument. Usually, the witness/officer will testify. You'll cross examine his testimony. He may be permitted to provide a rebuttal...you then be permitted to cross examine issues mentioned only in his rebuttal. Afterwards, you are given an opportunity to give a closing argument. That's not a good technical outline of the court proceedings, but what is essential is the closing argument...if you try to make one and the judge denies you the right to do so, you may have an appeallable error. You need to do some additional research regarding the appeals process and what you can appeal, before you decide to appeal. The facts of the case was heard by the judge in your case, the appellate division will not consider the facts when reviewing an appeal. If your appeal is based on the officer's statement regarding the engineering and traffic survey (regardless of what your cross examination proved), it won't succeed in an appeal. Honestly, it seems like it'll be a waste of your time. Anyhow, best of luck.