Speeding in a Construction Zone, No Workers Present, CVC 22350

Hi there,

I've been reading a ton of stuff here and elsewhere and I'm having trouble finding any question that meets the exact criteria of this ticket ... I'll try to keep this brief, while being fully informational.


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Ticket Information

CA State Patrol -- 4/15/10, 14:00 -- everything is correct in the header

The exact wording in the meat of the ticket as written by the officer:

{Code/Section and Description are written precisely as follows}
22350 VC. EXCEEDING POSTED
SPEED LIMIT (CONST. ZONE)
{blank space}
{figure here -- it's probably an L with a circle around it} - UX015710@ 592.8'

{Speed Aprrox.} 78 {P.F./Max Spd.} 55 {Veh. Lmt., Safe, and Special all blank}

{Location} I-680 S/B S/OF N. MISSION BL. U/C

{beat and area are filled in, perm. area is blank}
{Radar/Lidar Unit} UX015710 {patrol vehicle number is filled in}

{other stuff filled in as appropriate}

{date to appear} 06/03/10 9:00 AM

{My translation: This is I-680 southbound in Alameda county, just before the Mission Boulevard exit. I'm being written for a LIDAR ticket at 78mph, recorded at about 600 feet, in a 55mph posted construction zone. I'm pretty sure I understand everything listed above except the "U/C."}
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The traffic/pull-over

Before the cop appears, there's a heavy weaver between the 3 & 4 lanes, driving about 35. I get my cell to call 911, but there's no signal. I move out to the Number 1 lane and am driving 62 mph (my cruise control is super-accurate both up and down hills, my GPS verifies the speed).

Two cars snap behind me in line and tailgate because I'm going too slow (call them A & B}. I don't speed up.

We go up a small rise and down the other side.

Car A falls back -- going less than 62.

Before I can move over car B punches it and goes around me in Lane 2, then back to Lane 1. I'd say car B is going something like 10-15mph faster than I am.

I get ready to move over, but can't because a cream colored Ford Taurus (car C) flies by in Lane 2. I'd guess he's 30mph faster.

I begin to move over and car B jams on his brakes hard enough to squeal and puff smoke from his tires. I check the lane to see if there's anything there (highway junk or a deer) and notice there's a cop at the right shoulder of the road that's been shooting a speed gun.

I don't brake. I don't slow down. Even though car B has jammed its brakes, I don't catch up to him and he continues to pull away.

I'm not sure why the cop's pulling me over, but I thought it might be as a witness/something to do with the weaver.

No opening questions of any kind (no, "Do you know how fast you were going?, etc.} He immediately walks up and asks for my license, reg. and insurance. I give it all to him. He comes back and hands me the ticket board. "I clocked you at 88, but I'm writing you for 78."

I was shocked and said, "Really!?" in true surprise and dismay. I did not challenge the charge in any way, shape or form.

I thank him for the break, tell him I've never had a speeding ticket and ask him a couple of questions like "Will this make my insurance increase?" "What do I have to do next?" He explains the CA concept of traffic school at one point.

I apologized for inconveniencing him and said, "There was a weaving car back there -- I guess that threw things off for me."

And my last question from having read A Speeder's Guide to Avoiding Tickets 100 times, "Can I plead guilty to this by mail?"

He's very pleasant and accommodating. To borrow from Dorothy in The Wizard of Oz, I'm very small and meek.
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Miscellaneous Stuff

My driving record is absolutely dead clean.

The road was posted as a construction zone, but there were no workers on the highway until after the cop had already turned on his lights. I had to pass a long row of highway cones to safely pull over on the shoulder. These too only showed up after the cop pursued. There was no construction of any type happening on the lanes of the highway, nor on the immediate shoulder or median -- what little there was was on the very far edge of the shoulder -- again, only after the cop started to pull me over.

I don't know what lane I was in when shot. I suspect it was probably between lanes 1 & 2 as car B slammed his brakes.

The weather is very bright and sunny. Dry. No water or dampness. Breezy. Maximum visibility. Wide road. Well maintained in that choppy concrete Northern CA Interstate kind of way.

After some Internet searching, the serial number above corresponds to a LIDAR gun made by (someone with a name like) Laser Technologies International.
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My Situation and Case

I'm certain I wasn't driving 78 as ticketed and definitely not the 88 the officer stated (which is a clue here, I believe). My car's a (turbo) convertible -- the engine whine, wind noise and the behavior of the car at higher speed (very darty) are noticeable. None of that.

I've driven 33 years and 500,000 miles on 3 continents in my life, without being stopped for any moving infractions (let alone speeding tickets). They've got the wrong guy. My problem is everyone says that.

Something's gone wrong here, I'm not sure what. I'm truly not guilty. I plan to fight.

By Thursday of last week I had not received my Courtesy Notice, so I followed the notice on the back of my ticket to the letter, "...blah, blah, blah or come to the court on or before the appearance date to request a trial by written declaration." I went down to the clerk with a filled-out TBD form 205 in hand at 14:00 on Friday. I figured filing it, in person, late on a Friday before a 3-day weekend would improve my chances of something going bizarrely wrong, or the cop missing his 30-day window.

In a nutshell my argument was this:

I'm not guilty. Either the cop got the wrong car or something went haywire with the gun (I argued a light and hand shake defense based on the 'net information of LTI). The weather was good. The highway was good. I didn't mention my speed. I didn't mention construction. I didn't say anything irrelevant like "why the hell didn't you pull over the faster guys?"

Honestly, I don't give a damn about the TBD because as near as I can tell no one in the history of CA has ever won one by argument, only by default.

If the cop responds, I'm in TDN.

What's interesting is when I handed it in, three things happened in fairly rapid succession.

1. It was clear the clerk had never filed a TBD in person before. He was getting coached by one of his superiors behind. He, honestly, didn't know what to do.

2. He REALLY wasn't ready to take in a form from a person that they hadn't heard from at all. Supervisor: "Give him the forms." Little guy, "He's already filled one out." Supervisor: "Tell him he can ... he WHAT? Let me see those! Did you give him these?"

3. When I wrote my check for $332, I put the docket number on it and wrote "Not Guilty" next to that. The clerk waves my papers, "Do you have a copy?" "At home on my computer." He strongly admonishes me for not having a copy he could stamp. Nowhere does it mention this -- not any Web site I've read, not on the ticket, not on the Alameda County Website, nor the D. Brown book. I ask if they can copy it ... I don't even get done with the question, "No!" I ask if I can bring a copy in and he says "No! Only at the same time." He hands me a receipt that has my check amount and docket number on it and says:

COURT DATE (IF APPLICABLE): 06/28/10 DEPT HOURS: 7:00 AM
MODE: CK
CLERK: FEC

I said, "There's no indication I gave you a document here. Only a cash receipt." He waves the paper at me, clearly frustrated and jabs his finger at the place he's just stamped -- "It's filed. Okay? Filed!"

I asked the clerk his name, it's Felix. I get the hell out.

When I look at the ticket online now the Alameda County Website says something like "This ticket has already been paid." (I can't get exact wording because the site is down right now.)

I'm assuming my receipt indicates that the 30 day window is now open and 6/28 is the judicial laydown of a decision of the TBD.

Of course for all I know, everything could be exploding. I'm going to call on Wednesday and talk to a clerk. If something's awry, that's still a day before I'm due according to my ticket.

There's also a potential future complication in that my address is changing as of 6/15 and there's really not a good way to do that on the form. I typed in

(Mailing Address as of 6/15/10) My Address; Las Vegas, NV

under the Current Address line and pointed it out to the clerk. He didn't even turn the page to look at what I described -- even though I tried to cajole him into it twice. I could have said, "Prokofiev is my favorite classical composer" and it would have done just as much good.

I go home, open my mailbox and I have the Courtesy Notice, six weeks and one day after my ticket. Three business days before my appearance date on the front of my ticket. The violation listed is 22350 (no change). I'm eligible for traffic school.
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FINALLY MY FRICKEN QUESTIONS

I'm writing because I want as long a possible start as I can get to beat this damn thing. I'm not afraid to hire an attorney, but I think I can do just as well representing myself, in this situation. I'm a strong, forceful, speaker, without being over-bearing. I have a lot of confidence talking in front of a group. I'm good at staying focused and reigning people in.

I strongly believe that even if I'm found guilty at a TDN, I can probably coerce traffic school -- my general demeanor is very congenial and far from threatening. I'm a good pleader.

I know I got lucky ... This ticket is for 22350 and not a construction zone violation (22362 w/ a 2x fine), nor a MAX speed violation (22349, 22406, etc.). But my questions are these:

1. If I get to a TDN does getting the Traffic Surveys matter? I get the impression that on Interstates they do not.

2. How/where can I get information on that LIDAR gun that is admissible?

3. How could this have gone wrong (me getting a ticket when I wasn't speeding)? To your eyes what am I missing, or what should I investigate?

I'll fight this to win in any way I can. I'm going to play the speedy trial side of the coin, not the draw it out one.

I've got Brown's book for CA and have fairly fully digested it. I've read many of the excellent posts here. I'm familiar with the 30 questions to ask for a 22350 (let me know if there's any there that don't apply).

Lay it on me.

Thank you all, so much.

Wow... that's a lot to digest.

First of all, if there were no workers present, 22362 does not apply. However, There is an interesting question here. I don't believe that 22362 is a "charging statute" just like 22351 is not used to charge violators. However, I have never seen ANYHING in statutory law or case law that excludes construction zones from speed trap laws. Therefore, the officer would be required to produce a speed survey that justifies the 55 mph PF speed limit since you were charged with 22350.

I'd love to hear other people's responses (especially those who are willing to base a response on what the law IS rather than what they think it SHOULD be). I'd also love to see this defense presented in court.

thanks.

just to be clear, here. i originally titled this something like "22350 on the Interstate (now with construction zone flavoring)" and an admin changed the title over (i have no problem with that, i love the fact that persons/people admin -- they do me a great service) ... i'm very interested in the construction zone aspect of it, yes, but if you ignore that part, i haven't seen anything or anyone else talk about speed limit 65 and violations of 22350.

in his book mr. brown says {with my emphasis added to show my point}:

Quote:

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for basic speed law violations (except in 15 mph, two-lane roads, 55 mph, 65-70 mph, and 15 and 20 mph school zones, 25 mph "senior" zones, and on "local streets and roads"), the officer may not properly testify about the use of radar or laser, or even about his visual estimate of your speed if he was using radar or laser, until he has introduced into evidence a certified copy of an engineering and traffic survey justifying the speed limit when you were nabbed (see chapter 4)."

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so i'm not sure what happens in the exceptions, but it makes it sound like the cop can talk about LIDAR without the presence of an engineering and traffic survey.

[side info for anyone not wanting to dig -- regardless of the applicability in this particular case, here's CVC 22362 (a):

Quote:

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22362. It is prima facie a violation of the basic speed law for any
person to operate a vehicle in excess of the posted speed limit upon
any portion of a highway where officers or employees of the agency
having jurisdiction of the same, or any contractor of the agency or
his employees, are at work on the roadway or within the right-of-way
so close thereto as to be endangered by passing traffic. This
section applies only when appropriate signs, indicating the limits of
the restricted zone, and the speed limit applicable therein, are
placed by such agency within 400 feet of each end of such zone. The
signs shall display the figures indicating the applicable limit,
which shall not be less than 25 miles per hour, and shall indicate
the purpose of the speed restriction. Nothing in this section shall
be deemed to relieve any operator of a vehicle from complying with
the basic speed law.

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and yes, my case, the signs were posted.]

Quote:

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Quoting b1-66er

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{figure here -- it's probably an L with a circle around it} - UX015710@ 592.8'

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At 592.8' it is very easy to realize what vehicle your red dot is on. This part seems hard to say, "It's the other guy and not me".

At 1000', the beam width of the LTI is 2.5'. You can do the math to figure out at 592' the beam is much smaller. If the officer testifies he preformed the confidence check of the unit prior to using it (which includes a sight alignment test) then you are sunk in the single aspect you were not driving anything other than 88. If the distance is measured correctly, then the speed is measured correctly.

The thing I find worthy to attack is the 55 mph limit. Is it normally 65 mph and it was lowered to 55 for the construction? If so, are they orange and black signs or black and white? Either way, a speed survey is needed on a freeway where the speed is not 65 or 70. There is a copy of the speed surveys retained at the court level, at the office level, and at Cal-trans.

thanks for your response -- i was just reading an old(er) response of yours in another forum thinking, "man, i'd love for this guy to see my thread."

one thing i didn't mention above is my car is 2-tone -- blue body, cream colored top -- the top's pretty close to the ford taurus top.

Quote:

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The thing I find worthy to attack is the 55 mph limit. Is it normally 65 mph and it was lowered to 55 for the construction?

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yes. it's normally 65.

Quote:

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If so, are they orange and black signs or black and white?

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the 65 signs are normal highway black and white. the 55 signs were black and orange.

let me see if i have this wrinkle right ... if the highway is posted at 65, a speed survey is not required; but since they have it posted at 55, a speed survey is?

also, a side question ... i've never seen a LIDAR at closer than, oh, say, 600'. a couple of questions:

how does that thing operate -- or more specifically, does it hold an old speed until you clear it?

what's your familiarity with lens flare/reflection and LIDAR giving a wrong reading? the LTI website makes reference to it, but i don't know anything more than that.

when you look through the view-finder are you looking through a magnifier? if so, what's the magnification?

also, when you've used them (or your colleagues have), what's the most common way for them to go wrong and/or be erroneous?

how do i get my hands on a copy of the operations or training manual?

thank you. of all the people's jobs in america, i think yours has the highest
(admiration) / (jobs that i would hate)
ratio in my mind.

Personally, I wouldn't go after the lidar. If you were to win, you would have to call into question the technical validity of lidar. The judge just isn't gonna want to do that.

I think the issue of the prima facie speed limit requiring a speed survey is a much better defense... and it is very interesting. You can bet that there will be no survey for an orange speed limit sign. As Sniper said, the prosecution would need a speed survey for the 55mph limit. Without it, he cannot meet the requirements of 40803b. Look it up.

Quote:

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Personally, I wouldn't go after the lidar. If you were to win, you would have to call into question the technical validity of lidar. The judge just isn't gonna want to do that.

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okay, thanks. the reason i'm here is to get opinions. i appreciate it. (in my mind i'm still really really curious as to what the hell happened. because i wasn't going 88 -- for sure.)

Quote:

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I think the issue of the prima facie speed limit requiring a speed survey is a much better defense... and it is very interesting. You can bet that there will be no survey for an orange speed limit sign. As Sniper said, the prosecution would need a speed survey for the 55mph limit. Without it, he cannot meet the requirements of 40803b. Look it up.

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i will. thank you. as an aside, how does all this work if there is *not* a 55 sign? are speed surveys still needed / required in a trial if that is the case?

the following is from geo. mccalip ... he runs the superb helpigotaticket.com ... i'm putting his answer here to keep compiling bits for this case.

(EWYLTJ, you'll love this response.)

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B1-66er,

You won't get a survey because CalTrans does not survey to justify maximum limits. If there were a survey I doubt it would even justify the 65, much less a 55. This is a speed trap. Per CVC 22362 the 55 limit is a prima facie limit. There are NO exceptions for construction zone limits in 40802(a)(2), although there is an exception for school zones.

I have yet to see a radar/laser/lidar case in a construction zone that was not a speed trap.

Also, if you read 22363 you see it only applies when there are workers present.

The officer who wrote this ticket obviously does not know the basic speed law.

I think Geo. and I think a lot alike. I'd love to see a response from Carl or Sniper. Carl is pretty knowlegable and he will help out someone if it is limited to an individual case. But, if there are larger implications (i.e. speed traps in construction zones, discovery, etc.), he usually puts on his "defender of the state" hat.

Quote:

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Quoting b1-66er

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the following is from geo. mccalip ... he runs the superb helpigotaticket.com ... i'm putting his answer here to keep compiling bits for this case.

(EWYLTJ, you'll love this response.)

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B1-66er,

You won't get a survey because CalTrans does not survey to justify maximum limits. If there were a survey I doubt it would even justify the 65, much less a 55. This is a speed trap. Per CVC 22362 the 55 limit is a prima facie limit. There are NO exceptions for construction zone limits in 40802(a)(2), although there is an exception for school zones.

I have yet to see a radar/laser/lidar case in a construction zone that was not a speed trap.

Also, if you read 22363 you see it only applies when there are workers present.

The officer who wrote this ticket obviously does not know the basic speed law.

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So although there is no Vehicle Code/legal requirement to conduct a speed survey for a construction zone, and in spite of the FACT that speed trap laws do NOT apply in construction zones, it is still, in Geo's opinion, a speed trap!!

Makes sense! :rolleyes:

Here's what the CA Supplement to the Federal MUTCD states in regards to Construction Speed Zones (Page 6C-1):

Construction Speed Zones
Support:

Construction speed zones are established on roads under construction where reduced speed is necessary to limit the risk of an accident to workers and the traveling public during all hours of the day and night.
Protection of workers during working hours is provided for under CVC Section 22362.

Guidance:

Construction speed zones should be avoided if traffic can be controlled by other means. Speed restrictions should be imposed on the public only when necessary for worker or public safety.

Standard:

Where traffic obstructions exist only during the hours of construction, the speed zone signs shall be covered during non-working hours.

Guidance:

The traveled way should be signed and delineated to communicate physical conditions to the motorists such as curvature, narrow roadways, detours, rough roads, dips or humps, etc.

Option:

The Advisory Speed Plaque (W13-1) may be used in combination with various warning type signs to decrease speed at a particular location.

Guidance:

To preserve the effectiveness of the W13-1 sign, it should not be used unless the condition to which it applies is immediate and will be experienced by all motorists.

Option:

Reduced speed limits in construction zones may be established by an engineering analysis, which may include a traffic and engineering survey.

Guidance:

The speed limit should not be lowered more than 15 km/h (10 mph) below the posted or maximum speed.

Option:

If the project falls within an established 105 km/h (65 mph) zone, and a 70 km/h (45 mph) speed limit is considered necessary, it may be posted only if the approaching speed limits are lowered in two stages (i.e., first to a 90 km/h (55 mph) speed limit followed by a reduction to the desired 70 km/h (45 mph).

So it does state that an E&T Survey MAY be conducted (as an "OPTION")... and even then, we all know that (1) "MAY" is not a requirement and (2) the MUTCD is NOT the Vehicle Code!

Also note that the MUTCD states that the "GUIDANCE" (with/without an E&T Survey) IS 10mph reduction... (i.e. a 65mph limit reduced to a 55mph limit)...

In other words, a speed zone survey to justify a speed zone reduction MAY be conducted but it is not required... And whether one is conducted or not, the reduction should not exceed 10mph.

No one can successfully argue against a speed reduction in a construction zone (although I'm sure some will try)... And a 10mph reduction from the Max/Prima Facie limit is reasonable enough not to interfere with the flow of traffic and yet it ensures an added level of worker safety as well as.

Furthermore, California's speed trap laws were last amended in 2001 (long after 22362 was last enacted (22362 was last amended in 1970)... And we can safely assume that IF the legislature had any intent on requiring a speed survey for a construction zone, that they would have since made such a change...

Lastly, and as far as Geo's comment that "The officer who wrote this ticket obviously does not know the basic speed law", I respectfully disagree. I wonder what section, in Geo's opinion, the officer should have cited under!!! He could not cite under 22349(a)/22349(b)/22356 or any other speed related section... And unless someone wants to suggest that the officer should look the other way when witnessing a speed violation in a construction zone, then 22350 fits the bill... Of course, the defendant if free to argue otherwise in court!