Speeding in California - VC 22350

[stellar2]

I'm looking for help from the experts in this forum -

Got a VC 22350 ticket driving 47 in 25 zone. On the ticket, the field "radar" has 47 - thus I believe that indicates the radar was used.

Got a response to my Informal Discovery Request -
1) They didn't provide a requested Engineering and Traffic Survey. Their response is that it's not required per 22352 VC.
2) On the back of the ticket, says "passed on right lane. Estimated speed 45, confirmed w/radar at 47. Paced him from X street till Z street, approx. 300 yards, speed constant at 47.
3) His comments - you know why I stopped you - "Speeding". What the speed limit - "No".
4) They didn't provide requested copies of officer's radar certifications.

Questions:
a) Are they allowed to deny providing a copy of the Traffic Survey by referring to VC 22352?
b) In the ticket, traffic conditions are CDH (clear,day,heavy). So, can I argue that in heavy traffic conditions I couldn't possible have kept a constant 47 speed for 300 yards, without running into other cars in the heavy evening traffic?
c) If the front of the ticket has the radar field filled out, but the back has pacing in it - can I still argue "speed trap" defense? Should he have indicated pacing on the front of the ticket?
d) His comments as to my answers are not correct. I told him I didn't know why he stopped me and replied that the speed limit was around 30. Can I do something about this?
e) I frankly don't believe this officer was driving at all. I believe he was stationary and trapping people with radar. 99% I personally wouldn't be silly enough to pass a police car - I always drive slower than them to avoid problems.

[Mr. Knowitall]

Presumably you got a citation under a subsection of VC 22352 other than subsection (2)(a), such that the speed trap defense (VC 40802) is irrelevant. You are free to argue that you couldn't have been driving 47 MPH; I don't expect the court to believe you, but you can argue whatever you want. You are similarly free to argue that you didn't know that you were stopped for speeding and also weren't paying attention to the speed limit.

[That Guy]

Is this the same 47 in 25 citation you asked about here -> Interpreting a California Traffic Survey???

If so, it looks like they can either justify the 25mph speed limit either by citing 22352(a)(2)(A) -Business district/not state hwy- OR they can justify it using the survey you mentioned in the other thread (reduced from the critical/85th percentile of 32.38 to 30mph and further reduced from 30mph to 25mph citing a high accident rate & commercial driveways). Either way, the 25mph limit is justified and a speed trap defense is not a viable option.

As for pace versus Radar, it sounds to me like he will more than likely testify that he used both (as per his notes). So it doesn't matter that he only checked the Radar box on the front of the citation as long as he includes that in his testimony.

Lastly, as far as his Radar certification, you can bet that he will present it if he testifies he used Radar -its part of their scripted testimony under these circumstances-. You can request to see it in court but their failure to provide it as part of discovery will not get you a dismissal. Even if he doesn't present it in court, his pace should be sufficient to secure a conviction with or without Radar training.

[stellar2]

Presumably you got a citation under a subsection of VC 22352 other than subsection (2)(a), such that the speed trap defense (VC 40802) is irrelevant. You are free to argue that you couldn't have been driving 47 MPH; I don't expect the court to believe you, but you can argue whatever you want. You are similarly free to argue that you didn't know that you were stopped for speeding and also weren't paying attention to the speed limit.

Mr. Knowitall,
No, my citation was under VC 22350.

Only in his response to my IDR (discovery request), did the officer cite VC 22352. He drew an arrow from my paragraph requesting a traffic survey and wrote "not required per 22352 VC".

22352 (2)(A) justifies 25mph limit on a highway in any business district. My copy of speed survey indicates that area as commercial - thus I would think that fits the "business district" verbiage.

Can the police officer get out of having to provide a traffic survey by citing the VC 22352?

Is this the same 47 in 25 citation you asked about here -> Interpreting a California Traffic Survey???

If so, it looks like they can either justify the 25mph speed limit either by citing 22352(a)(2)(A) -Business district/not state hwy- OR they can justify it using the survey you mentioned in the other thread (reduced from the critical/85th percentile of 32.38 to 30mph and further reduced from 30mph to 25mph citing a high accident rate & commercial driveways). Either way, the 25mph limit is justified and a speed trap defense is not a viable option.

As for pace versus Radar, it sounds to me like he will more than likely testify that he used both (as per his notes). So it doesn't matter that he only checked the Radar box on the front of the citation as long as he includes that in his testimony.

Lastly, as far as his Radar certification, you can bet that he will present it if he testifies he used Radar -its part of their scripted testimony under these circumstances-. You can request to see it in court but their failure to provide it as part of discovery will not get you a dismissal. Even if he doesn't present it in court, his pace should be sufficient to secure a conviction with or without Radar training.

ThatGuy,
Yes, it's the same citation. I'm doing TBD now and trying to build my defense around the officer refusing to provide the traffic survey to me, thus making it inadmissible later. Since I already chose TBD, the only thing left for me is to fight this ticket. Besides, there's no way I was doing 47 in a heavy traffic (the ticket does say the traffic was heavy).

Yes, he did provide a certificate of accuracy for the radar. However, he didn't provide maintenance and calibration records (daily log, etc.)

Now, about using 22352 as a reason not to provide me with a traffic survey -

VC 40802 (a)(2) specifies that a "speed trap" is
"(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, ...., if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects."

As you can see, VC 40802 does include roads with limits established per 22352, thus, I believe (but I could be wrong) the latter cannot be used to refute 40802.

I will then argue that it was a speed trap since no evidence was provided to prove otherwise. Therefore, citing 40803, I will agrue that all other evidence is inadmissible (e.g. pacing testimony etc.)

What do you think/advise?

[That Guy]

Only in his response to my IDR (discovery request), did the officer cite VC 22352. He drew an arrow from my paragraph requesting a traffic survey and wrote "not required per 22352 VC".

That is what Mr KIA meant by "citation"... The officer cited 22352 as the basis for stating that a speed survey is not required.

22352 (2)(A) justifies 25mph limit on a highway in any business district. My copy of speed survey indicates that area as commercial - thus I would think that fits the "business district" verbiage.

Here's how the vehicle code defines a business district:

CVC 235. A "business district" is that portion of a highway and the property contiguous thereto (a) upon one side of which highway, for a distance of 600 feet, 50 percent or more of the contiguous property fronting thereon is occupied by buildings in use for business, or (b) upon both sides of which highway, collectively, for a distance of 300 feet, 50 percent or more of the contiguous property fronting thereon is so occupied. A business district may be longer than the distances specified in this section if the above ratio of buildings in use for business to the length of the highway exists.

If you disagree with the engineer and feel that this is not a business district, then you're free to make that argument in court or in your TBD.

Can the police officer get out of having to provide a traffic survey by citing the VC 22352?

He can cite anything he wants to cite. If you feel you have a valid argument to make then your recourse will be to file a "motion to compel" requesting that the court order him to provide you with a copy of the survey. You're not going to get a dismissal because he did not initially provide it in response to your initial request.

I'm doing TBD now and trying to build my defense around the officer refusing to provide the traffic survey to me, thus making it inadmissible later.

Again, your first recourse to their failure to provide you with an item from your discovery request (assuming you can make the case that the item is indeed required for you to prepare a viable defense and further assuming that they will or plan on using it in their case against you) would be to motion the court to compel/order the officer to provide that particular item (and the officer will more than likely comply). If he doesn't have it with him then the court can (and more likely will) order a continuance in the case giving the officer more time to provide you a copy of the survey. ONLY if he fails to do so, will the court will consider excluding such evidence... This is how I interpret California Penal Code Section 1054.5. (See subsection (b).)

By you assuming that the court will outright exclude it from evidence against you, you're setting yourself up to be disappointed.

Yes, he did provide a certificate of accuracy for the radar. However, he didn't provide maintenance and calibration records (daily log, etc.)

And yet again, just because he failed to provide an item to you as part of discovery does not necessarily mean that that particular item will be excluded. You request -> they refuse/don't provide-> you make a motion to compel -> they comply... problem solved.

Furthermore, there is not requirement for daily logs in California speeding case... Here is 40802(c)(1)(D):

The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

Also, keep in mind that if he testifies that he paced you as well, Radar Calibration, speed survey, Radar/Laser training... NONE of those documents are required.

Now, about using 22352 as a reason not to provide me with a traffic survey -

VC 40802 (a)(2) specifies that a "speed trap" is
"(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, ...., if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects."

As you can see, VC 40802 does include roads with limits established per 22352, thus, I believe (but I could be wrong) the latter cannot be used to refute 40802.

Let me rephrase what I posted in my last post... The 25mph speed limit IS justified by the speed survey you posted in your other thread. And pursuant to 22352(a)(2)(A), the Prima Facie limit in a business district is 25mph. So the 25mph speed limit is justified by way of a valid speed survey, AND it is justified pursuant to 22352 in that the undelying speed survey justifies a Prima Facie speed limit of 25mph in a business district. Either way, the speed limit IS justified and a speed trap defense will not work.

Here's another way to look at it:

• If the officer testifies that he used Radar (and I quote your first post wherein you referenced his notes as saying "confirmed w/radar at 47"), and assuming he provides the court with a copy of that valid survey (or testifies that "a copy of the valid survey is on file with the court"), then your speed trap argument is NOT going to work.
• If on the other hand he testifies that he paced you, (and I quote your first post wherein you referenced his notes as saying "Paced him from X street till Z street, approx. 300 yards, speed constant at 47"), then the survey is NOT required, the Radar calibration records are NOT required, Radar training certification is NOT required AND the speed trap argument will NOT work.

I will then argue that it was a speed trap since no evidence was provided to prove otherwise.

What if he DOES provide the survey as part of his testimony?

Therefore, citing 40803, I will agrue that all other evidence is inadmissible (e.g. pacing testimony etc.)

Huh

The officer's notes indicate that he used THREE methods to estimate your speed. Visual estimation, Radar, followed by a pace... Collectively, these three methods pretty much lock in the case for the officer. Individually, these three methods offer a separate, exclusive and acceptable method of estimating your speed which, in turn, will provide the court with sufficient evidence for a guilty finding. So even after jumping through hoops to get the survey excluded, then that will NOT deem his pace estimate as invalid nor will it make it inadmissible... Not by any stretch of anyone's imagination. One (Radar use <-> survey requirement), has nothing to do with the other (Pace).

Having said all that, you are free to make whatever argument you feel is worthy of your time and effort.

Good luck!

[EWYLTJ]

I didn't see if you gave an answer to the most important question: Is the highway you were cited on a state highway?? Many roads running through towns are. If it is a state highway, then 22352 is not applicable.

[stellar2]

I didn't see if you gave an answer to the most important question: Is the highway you were cited on a state highway?? Many roads running through towns are. If it is a state highway, then 22352 is not applicable.

EWYLTJ:
Unfortunately, it's a 4-lane street, not a state highway (2 lanes in each direction with a separating median).

ThatGuy:
You do make a very compelling case that I'm screwed. Yes, I should come up with better ways to defend myself other than rely on the lack of traffic survey exclusively.

Possibilities:
1) Pacing includes using a speedometer, which in majority cases has electronic components, thus falls under 40802 definition of "any other electronic device that measures the speed of moving objects". I can argue that a speedometers fall under that description and if legislature wanted to exclude it, it would have done so.
2) Try the 30 questions from http://helpigotaticket.com/speed/30questions.html to establish the speed was safe for the conditions.
3) Motion for continuance until the officer is exhausted and doesn't show up one of the times. Using motion to compel for the traffic survey, then for auto records to show that the speedometer is mechanical vs. electric.

You don't like my proposed defense - and for a good reason, I might add. :-) Can you recommend a better approach? I couldn't find anything else in Nolo book, but I'll keep trying - my TBD deadline is tomorrow, Apr 12th.

[That Guy]

You do make a very compelling case that I'm screwed. Yes, I should come up with better ways to defend myself other than rely on the lack of traffic survey exclusively.

What "lack of traffic survey"??? You have a valid traffic survey right there in front of you... AND it justifies the speed limit!!!

Furthermore, it has been my experience that traffic surveys are usually on file with the court. The officer will then refer to it in his declaration or, if he testifies in court, he merely has to mention it (at which time you can request to review it)... So regardless of how you word your statements, or present your arguments, the chances of a speed trap defense working in this case are slim to none... And Slim has left town a few weeks ago.

1) Pacing includes using a speedometer, which in majority cases has electronic components, thus falls under 40802 definition of "any other electronic device that measures the speed of moving objects". I can argue that a speedometers fall under that description and if legislature wanted to exclude it, it would have done so.

That issue has been debated on this forum and elsewhere numerous times... And it remains dubious and contingent. If you would like to be the one to get it resolved once and for all, then by all means go for it and PLEASE, keep us updated as to the outcome. Just keep in mind that it will not be resolved through a simple TBD. You'd have to lose that, argue the matter again in a Trial-De-Novo, lose that as well and then take it to appeal. But even then, it remains pretty doubtful.

2) Try the 30 questions from http://helpigotaticket.com/speed/30questions.html to establish the speed was safe for the conditions.

In all honesty, and although I have read through and browsed quite a few sites related to California speeding cases, I have NEVER even as much as glanced over the 30 questions that are often mentioned. If you think they present you with a chance at dismissal, then by all means, go for it... Although I am not sure how you're going to question the officer via a TBD!

If you're thinking of taking it to a Trial-De-Novo in case you lose, do you honestly think that the court will give you that much leeway to go though 30 questions in an attempt to justify your contention that your speed was safe and prudent when the irrefutable facts presented in your case show that you were cited for driving at almost TWICE the speed limit??? Seriously!!!

3) Motion for continuance until the officer is exhausted and doesn't show up one of the times. Using motion to compel for the traffic survey, then for auto records to show that the speedometer is mechanical vs. electric.

A continuance in a TBD? For one that is due tomorrow? How?

Skip that thought... Lets assume that you lose your TBD and opt to go to a Trial-De-Novo... How many continuances do you think you can get? (Hint: NONE). And why would those "exhaust" the officer when appearing in court is part of what he does on a regular basis???

You don't like my proposed defense

Pardon the pun... But what defense are you talking about?

Can you recommend a better approach?

Yes, stop spinning your wheels, change your plea and take Traffic School! Assuming you are eligible.

my TBD deadline is tomorrow, Apr 12th.

Good luck!

[stellar2]

ThatGuy,
I appreciate your time and effort. You've laid it on pretty thick, so I'm finally taking the blinders off - my proposed defense is no defense at all. However, that does NOT mean another viable defense does not exist.

About officers not showing up in court (that's considering trial-de-novo option):
That's where I disagree. Practice shows that, on average, they don't show up in court 50% of the time. They also do fail to bring documents to court often. Courts fail to find documents on file during trials if asked to produce them, instead of referring to them.

TBD:
Sometimes, officers fail to respond to the TBD. Probability of that + probability of him not showing up in court do add up to something tangible.

Now about the Traffic school:
Yes, I'm eligible - that's my first ticket in 10 years. However, Nolo mentions that since I chose the TBD, I am no longer eligible for that option. Can I still take that before I submit my TBD?

[stellar2]

In addition to the above post -

Last question:
If I still go the hopeless TBD route, present my case and in the end say "If the court does not find in my favor in this case, I request a fine reduction and a Court assignment to attend traffic school." Based on experience, what are the chances of a judge assigning the traffic school to me in that case?