Speeding Tickets from Unmarked California Highway Patrol Vehicle

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

Has anybody had success fighting a SPEEDING ticket in the state of california based on VC 40800, 40804, 40805 which states

40800. (a) A traffic officer on duty for the exclusive or main purpose of enforcing the provisions of Division 10 (commencing with Section 20000) or 11 (commencing with Section 21000) shall wear a full distinctive uniform, and if the officer while on duty uses a motor vehicle, it must be painted a distinctive color specified by the commissioner.

(b) This section does not apply to an officer assigned exclusively to the duty of investigating and securing evidence in reference to the theft of a vehicle or failure of a person to stop in the event of an accident or violation of Section 23109 or 23109.1 or in reference to a felony charge, or to an officer engaged in serving a warrant when the officer is not engaged in patrolling the highways for the purpose of enforcing the traffic laws.

40804. (a) In any prosecution under this code upon a charge involving the speed of a vehicle, an officer or other person shall be incompetent as a witness if the testimony is based upon or obtained from or by the maintenance or use of a speed trap.

(b) An officer arresting, or participating or assisting in the arrest of, a person so charged while on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 (commencing with Section 20000) and 11 (commencing with Section 21000) is incompetent as a witness if at the time of that arrest he was not wearing a distinctive uniform, or was using a motor vehicle not painted the distinctive color specified by the commissioner.

(c) This section does not apply to an officer assigned exclusively to the duty of investigating and securing evidence in reference to the theft of a vehicle or failure of a person to stop in the event of an accident or violation of Section 23109 or 23109.1 or in reference to a felony charge or to an officer engaged in serving a warrant when the officer is not engaged in patrolling the highways for the purpose of enforcing the traffic laws.

A court case from 2008 in the california appelate court ruled on this issue regarding DUI, but then also stated:

"The import of these sections is unmistakable. In any prosecution of a person charged with an offense “involving the speed of a vehicle,” the testimony of the arresting officer is inadmissible unless that officer was in uniform and driving a marked patrol car. The Legislature has thus created a specific and limited remedy for a violation of section 40800--the exclusion of the noncomplying officer’s testimony in a prosecution for speed-related offenses. These sanctions further the chief goal of speed trap legislation, i.e., to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel. "

http://www.thenewspaper.com/rlc/docs...ca-dyerdui.pdf (see bottom of page 12)

So my question is, has anybody had success arguing that even though they got a ticket from a non-traffic officer, the ticket was for SPEEDING, and thus invalid from an unmarked vehicle?

THanks!

Note the key portion of section 40800(a) that states, "A traffic officer on duty for the exclusive or main purpose of enforcing the provisions of Division 10". This refers to officers of the CHP ("traffic officer") and any officer whose "exclusive or main purpose" is the enforcement of the traffic laws (reference CVC 625).

So, officers whose assignments are primarily something other than traffic (detectives, gang units, and others who tend to drive unmarked vehicles) can still lawfully make a traffic stop and write someone for speed. Now, if you have a detective and a radar unit, the agency might have a problem.

Yes i understand that, however, how about the part in the appellate ruling that states: In any prosecution of a person charged with an offense “involving the speed of a vehicle,” the testimony of the arresting officer is inadmissible unless that officer was in uniform and driving a marked patrol car.

(emphasis added is mine)

Seems the appelate court thinks an undercover cop shouldn't be pulling speeders over.

has anybody out there seen this defense used successfully or unsuccessfully? specifically citing the dyer appellate court ruling?

I read the case and it seems to support the case for the officer making the stop. There is ample discussion of the matter and why the sergeant making the stop was NOT a traffic officer for purposes of the section and was, instead, exercising his duty as a supervisor.

I think you need to look further for a defense to whatever your case might be. Perhaps address the speed issue itself as this is a well-established matter in CA.

I agree with Carl here... You can read "People v. Tuck, 75 Cal. App. 3d 639 - Cal: Court of Appeals, 2nd Appellate Dist., 1st Div. 1977 and you'll see that the appellants argument was rejected based upon the analogies that Carl has made here.

And I quote:

Quote:

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Quoting People v. Tuck

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Appellant argues that even though Ichikawa and Hernandez were Los Angeles police officers patrolling the streets that evening on specific assignment to concentrate on a heavy burglary occurrence area, they nevertheless attempted to stop the station wagon to enforce Vehicle Code section 22350 and they were out of uniform and using an unmarked vehicle thus section 40800 would apply. But this is not what the statute provides. By its language it applies only to a "traffic officer on duty for the exclusive or main purpose of enforcing the provisions of Division 10 or 11." Moreover section 40800 neither prohibits an officer not in uniform and not in a marked vehicle from detaining and arresting a driver for a speed violation nor makes his actions unlawful. The enforcement provision is found in the prohibition of the use of his testimony in the prosecution of the speeding violation (§ 40804). Section 40800 was not intended to apply in a case in which an officer was on the street for some purpose not connected with vehicle act violations; and it does not forbid him to turn aside from such purpose in order to arrest a driver for a traffic infraction. (People v. Stewart, 107 Cal. App.Supp. 757, 761 [288 P. 57].)

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Also from the same case you cited: Dyer v. Department of Motor Vehicles, 163 Cal. App. 4th 161 - Cal: Court of Appeals, 3rd Appellate Dist. 2008

Quote:

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Quoting Dyer v. Department of Motor Vehicles

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Regardless of its purpose section 40800, by its plain language, applies only to "traffic officer[s]" whose "exclusive or main purpose" is to enforce traffic laws on the public highways. In his report, Sergeant Phariss states only that he was on "uniformed patrol in an unmarked Placer County Sheriff's Department vehicle." There is no evidence in the administrative record that Sergeant Phariss was a "traffic officer" or that his main duties consisted of traffic enforcement. On the contrary, Phariss appeared to be exercising supervisory duties on the night in question: Rather than make the arrest himself, he requested that Deputy Griggs, "the deputy assigned to the King's Beach area," assist him at the scene; and it was Griggs who conducted the sobriety tests and placed Dyer under formal arrest.

The trial court was not permitted to grant the writ based on speculation or assumptions about the nature and scope of Sergeant Phariss's duties. Without any evidence in the record that Phariss was a traffic officer whose exclusive or primary duty consisted of traffic enforcement, a necessary predicate for the applicability of section 40800 was lacking.

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Furthermore, the Dyer case was reversed but not based on the legality (or lackthereof) of the initial stop (the alleged 40800 violation). It was reversed and remanded because:

Quote:

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Quoting Dyer v. Department of Motor Vehicles

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Owing to its erroneous legal conclusion that the arrest of Dyer was unlawful, the trial court failed to decide whether the weight of the evidence supported the administrative hearing officer's finding that Dyer drove with a BAC in excess of the legal limit. Because the trial court failed to perform this essential function, it is impossible to review its determination for substantial evidence and the matter must be remanded for a new hearing. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660 [53 Cal.Rptr.2d 4].) "A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85 [87 Cal.Rptr.2d 754].) Where the trial court decides the case by employing an incorrect legal analysis, reversal is required regardless of whether substantial evidence supports the judgment. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436 [97 Cal.Rptr.2d 179, 2 P.3d 27].)

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I also agree that you should mainly concentrate on the speed element the citation... rather than making this (40800) your main point of contention.

I'd like to hear the circumstances of the OP's citation.... radar? pace? visual?

Do they actually maintain calibration records for unmarked cars?

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Quoting adam_

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I'd like to hear the circumstances of the OP's citation.... radar? pace? visual?

Do they actually maintain calibration records for unmarked cars?

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They do ... it may not be as frequent, but they often do.

I doubt it was radar. It would be very hard to argue that the vehicle was not primarily engaged in traffic enforcement if the driver was operating radar. So, I assume a pace or visual estimation was used.

I agree with your second part and your inital post hinted at this ("Now, if you have a detective and a radar unit, the agency might have a problem."), so I was asking the OP to clarify the circumstances of his particular cite.

And if the officer paced the OP with an uncalibrated speedo, that would be good to know as well...

It was 5:30am. I was on my way to work at the hospital. Road was slightly damp, but not raining and not blatantly wet. Very few cars on the road... i broke out of a clump and accelerated down the hill. passed a crown vic and saw it wasn't a marked police vehicle so kept going. As soon as i saw him accelerate I slowed down considerably, as soon as i Slowed, he pulled me over. I'm pretty sure he neither radared me nor paced me. He might claim to have paced me but I doubt he actually did. He just saw me pass him and sped up to get me. He made me exit the freeway and pull into a shopping center where he then lectured me on "wreckless driving" and how he could impound my vehicle. (I'm assuming he thinks 90 with a damp road is wreckless, but in my car, with my training, it is not). Anyway, he said "you were going 90." Then he took my info and wrote me a ticket. When he came back to me and asked me to sign the ticket i asked, "what did you cite me for?" and he said, "how fast were you going?" and i answered, "i'm not going to answer that question." He said, "yeah, well there you go. I wrote you up for 90." But he has no clue what i was doing.

If you passed him, that would give him an excellent base line to make an estimate.

Now, the title of this thread implies this was a CHP supervisor or investigator. They tend to operate very, very, very few entirely unmarked cars (the last one I saw was driven by a Commander in Sacramento) . But, if it was a CHP officer, the bad news for you is that he has had radar training and that includes extensive training and experience in visual estimation.

You lose nothing by taking it to court to challenge the speed, but if this was the CHP the odds may not be as good as you might hope.