Unsafe Speed on Ice in Texas

My question involves a speeding ticket from the State of: TEXAS

My husband got cited for an unsafe speed while driving 30 mph in a 70 mph on the GB Turnpike. The officer was also going 30 mph. The average speed of 23 other cars passing by was 40 mph. There is a mandatory policy by TX DPS troopers that they must cite every accident that they investigate for unsafe speed regardless of speed.

My husband hit a patch of black ice and spun out hitting the concrete wall. Very little damage to his truck and no injuries or other vehicles involved. It is not against the law to have an accident.

Is it true that hte prosecutor has to prove that the defendant broke every element of the violation. Here is the defense that I have prepared for my husband.

Defense for Unsafe Speed Ticket


1. It is not against the law to have an accident. There is no violation code for an accident or a crash.
2. The Department of Public Safety State Troopers have a mandatory policy of giving all accidents that they investigate a citation for unsafe speed regardless of the speed. According to Sgt. Benia as long as the vehicle is moving, a citation will be issued. Based on this information, speed is not the issue but rather the accident. Again it is not against the law to have an accident.
3. I have a tape recording of Officer Rhodes stating that there is not a speed at which he would not have issued the ticket. Again this proves that the ticket was issued for the accident and not unsafe speed.
4. Using the accident as Prima Facie evidence to prove that the driver was going an unsafe speed is not valid in all cases. Prima Facie evidence is evidence that will sustain a fact unless contradictory evidence is produced. We will examine the contradictory evidence in a moment, but first let’s look at the law to see if I am guilty of the unsafe speed violation which is Sec. 545.351 (c).

Transportation Code
Chapter 545 Operation and Movement of Vehicles
Subchapter H Speed Restrictions

Sec. 545.351 Maximum Speed Requirements (a) An operator may not drive at a speed that is greater than is reasonable and prudent under the circumstances then existing.

I was driving 30 mph in a 70 mph speed zone. This is 40 miles below the posted speed limit – a reasonable and prudent speed given the weather conditions and my vehicle type.

Sec. 545.351 (b) An operator: (1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having a regard for actual and potential hazards then existing; and (2) shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.

(1) Mark drove at a reasonable and prudent speed given the freezing rain and potential ice hazards. Freezing rain is considered a changing hazard condition because it can form ice and slick spots without warning especially in the dark. Drivers cannot be expected to be able to predict where every ice patch or slick spot will be on the road. Listed below are the speeds of 23 other cars that passed by this same stretch of road between 5 and 6 am. As you can see each driver was going below the posted speed limit to account for the freezing rain and potential ice hazards. Also notice that I was among the three slowest, yet I am the one who got cited for unsafe speed merely because I had an accident. Again it is not against the law to have an accident. I only got a citation due to the DPS mandatory policy.
Here are the speeds of the 23 other vehicles:

1 car at 54 mph 3 cars at 36 mph
1 car at 51 mph 1 car at 33 mph
5 cars at 45 mph 1 car at 28 mph
6 cars at 40 mph 1 car at 27 mph
4 cars at 39 mph

(2) Mark did not collide with another person or vehicle nor did he drive in excess of the limits established by subsection (b) or under another provision of this subchapter. He drove at an appropriately reduced speed given the freezing rain and potential ice hazards.

Sec. 545.351 (c) An operator shall, consistent with subsections (a) and (b), drive at an appropriate reduced speed if:

Sec. 545.351 (c) (5) A special hazard exists with regard to traffic, including pedestrians, or weather or highway conditions.

Mark drove at an appropriately reduced speed given the freezing rain and potential ice hazards.

In order to be found guilty of a law, the state must prove that I violated each element or clause of the law. As you can see, I did not violate even one element of the law. Therefore, this violation must be dismissed on the basis of the law.


Contradictory Evidence:

1. The ticket states the speed as 40 mph in a 70 mph zone. The actual speed is 30 mph based on the tollbooth time and time of accident. Officer Rhodes stated that he was driving 30 mph on the videotape that was recorded when he issued the ticket. If Officer Rhodes was driving 30 mph then this must be a reasonable and prudent speed for existing conditions.

2. I have the speed of 23 other cars of which 21 were traveling faster than 30 mph. Why didn’t officer Rhodes pull any of these cars over and issue unsafe speed tickets to them? He didn’t because they did not hit a patch of black ice and have an accident. I only got a ticket because I had an accident and it is not against the law to have an accident. I received a ticket because of the DPS mandatory policy.

3. Officer Rhodes listed the weather as clear/cloudy on the citation. He did this in order to create prima facie (at first glance) evidence that unsafe speed was the cause of the accident. On the formal complaint he listed the weather as raining – not freezing rain – just raining. Again giving the appearance that speed was the main factor for the accident. This puts burden of proof on the defendant.

4. Any objective person who reads the law as related to unsafe speed would agree that driving 30 mph in a 70 mph speed zone is both reasonable and prudent given the conditions of freezing rain and potential ice hazards. Cars traveling on the road together also have to adjust their speeds for each other and I was going within the range of speeds of the other cars on the road at the time.

5. This ticket is bogus and the result of the mandatory DPS policy and not a true unsafe speed violation. This ticket must be dismissed on the basis of law. The mission of the DA’s office is to vigorously and effectively represent the State of Texas as administrators of justice and as advocates for the rule of the law. Based on the rule of the law, the State of Texas does not have a case against me because I have not broken the law – it is not against the law to have an accident.


Please let me know what you think about all of this. Thanks!

The fact that others were driving as fast or faster in not relevant directly to the case.

The law does state "regard" ie meaning intent?....so just saying that the driver was driving too fast for conditions is not suffcient - they must also prove intent (the fact that others were driving faster IS relevant to this aspect); Do not mention any specific speed, just state they were passing me and going faster (you really have no evidence of the other vehicle's actual speed) -- better yet, get the cop to testify to this (or to the fact that you wee not passing anyone, just as important) during cross. In reality, if you need to testify, you lost your case.


Also, sound like he has no evidence of the actual speed you were going (he did not pace you not used a speed measuring device); you should object at trial when the cop mentions anything at all about speed.

Ask the cop questions during cross to establish what you want to establish, your testimony will mean zip to the judge - the officer's testimony will be taken well by the judge.

Ask the cop exactly what happened .. he'll say he hit some black ice ... you can ask him if he saw the black ice, is an expert on black ice (and unless he holds a degree, published papers etc. he is not an expert), etc. Your goal is to have the cop say: a) I really dont know what his exact speed was b) I dont really know what caused the accident c) I dont know if the defendant intended on driving too fast for conditions d) I'm an idiot, can I get off the stand now?

Your goal should be to get your facts set out during the prosecution's case presentation & then motion for a summary judgment after they rest their case & before you have to even present a case .... so you get the facts (or lack of knowledge of the facts which is just as good or better) during the prosecution's case presentation through objections and cross examination.

The speed you were driving obviously was too fast - you skidded off the road, duh! But if the state cannot prove your speed, what actually made you skid off the road, your intent then you will win.

Post some of your questions you intend on asking the cop .. you should do this in any event to be prepared even if not posted here. Do not ask questions that HELP the other party.

I have driven on black ice and 30 MPH can be an issue depending on the vehicle and road surface. In my PU truck, 15 MPH was the max speed.

Where have I seen this before?

As I recall it was a very hotly debated topic, with most of the know-it-all typed proclaiming 'the accident is the proof'.

I agree that your responsibility is to drive at a 'reasonable and prudent speed, given the actual and potential conditions'...

I believe it is incorrect to have a policy that states 'having an accident is proof the speed was unsafe'.

But I am not a lawyer nor judge.

Where was this hotly debated? I would like to read all of the comments on this topic.

I believe the law is on our side becasue the prosecution cannot prosecute someone for a law that they did not violate.

I believe that this mandatory policy needs to be exposed becasue it hinders the law and puts the burden of proof on the citizen which they do not always have.

Thanks for your comment and your common sense. Most people don't have common sense. If they step back and look at the situation they could see that the state is trying to profit off accidents.

Quote:

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Quoting Patty621

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Where was this hotly debated? .

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Uh, on YOUR thread over on Freeadvice:

http://forum.freeadvice.com/speeding...as-525436.html

Adam - I was looking for new information and besides those guys were probably in law enforcement.

I saw another thread where I believe two attorneys were discussing the issue and one stated that he could not see how the unsafe speed charge could stand in a one car accident becasue the law states that the person must "control their vehicle as necessary as not to collide with another vehicle or person."

The other attorney stated that DPS has a policy to write the tickets but the tickets involving a one car accident are routinely dismissed unless there is significant damage to property.

I have pitched this story to an investigative reporter because I do not believe it is lawful for the DPS to write unsafe speed tickets when the driver is going a resonable and prudent speed as stated in the law.

Maybe, but I'll bet the responses here will be similar...we'll see:D

I agree that the singular issue of "had an accident?" seems inappropriate as definitive proof that the speed was reasonable and prudent.

had someone whizzed by at 70, and didn't, by a miracle, have an accident- but got cited, would they say "didn't have an accident, you cannot say I was going too fast"?

(Yes, it is not a logical truth, but just saying...)

Had he not had an accident, then the officer would not have cited him. If this is true, then the fact that he had an accident shouldn't invalidate the officer's judgment immediately before he lost it. How can Mark have driven at a 'reasonable and prudent speed' for several miles after the toll both, only to then have that speed become unreasonable and imprudent- not by any act of his own, but by an unforeseen condition (that was already factored into his speed by virtue of his speed and behavior up to the point of the accident)

My 2 cents...

A

Freezing rain is considered a changing condition and can form ice and slick spots without notice. A stretch of road that was clear and safe could be slick and icy within a matter of minutes in the freezing rain.

Don't you find it interesting that the officer put clear/cloudy on the ticket and did not mention ice? He did this to give the DA prima facie evidence. It is a big scam to get money for the state. The law is there to protect citizens as much as it is there to curb criminal activity. The DPS policy and the DA's office are working together to collect revenues and in situations like this it is obvious.

There is another post on this site where a woman got a ticket in the mail four weeks after she had a single car accident at 4:15 am on ice. There were no witnesses but the accident totaled her car. The state got wind of it and sent her a citation for unsafe speed and get this there was no speed mentioned on the ticket. At least on her ticket ice was mentioned. This just proves that the state is issuing tickets for accidents and it is not against the law to have an accident.

I have submitted my information to an attorney for a free consultation - it will be interesting to see how he responds.