Yes. The speed trap defense only applies to sections of highway whose speed limit is established by specified Vehicle Code sections which do not include the Senior Center section.Quote:
Quoting tehericka
First, note that the holdings in People v. Goodrich, 33 Cal. App. 4th Supp. 1 is clearly erroneous. They said, "We hold that the rules and procedures governing speed traps and the use of radar are inapplicable to those cases where the state Legislature has mandated a maximum speed of a vehicle — in this case, 25 miles per hour..." But the plain language of the California Vehicle Code is that the state Legislature has not mandated a maximum speed of a vehicle there; it is that the state Legislature has mandated a prima facie speed limit there. A court, no matter how persuasive its arguments, cannot overturn the plain language of a statute.Quote:
Is there another defense I should be using here?
The meaning of "prima facie" in this context is explained by Vehicle Code 22351(b), which says, "The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing."
Since the speed limit established by VC 22353(2)(c) is a prima facie speed limit, and not a maximum speed limit, you can prove your innocence by establishing by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.
The State of California Department of Transportation has published regulations that basically says that if you were traveling no faster than the slowest 85 percent of vehicles under the conditions then existing, then you were driving safely.
This means that if the engineering and traffic survey says the 85th percentile speed was 46 mph or faster, then you ought to be found not guilty.
If the survey says the 85th percentile speed was 45 mph or slower, a possible defense is to conduct your own engineering and traffic survey that shows a faster 85th percentile speed. A common defect in official surveys is "platooning", where the speed of the first vehicle in a "platoon" of e.g. 10 cars is measured and that speed is used for 10 cars. "Platooning" is illegal. The survey is supposed to measure the speed of 100 vehicles that are each going the speed the driver wants. The effect of "platooning" is generally to artificially lower the 85th percentile speed. Your own survey can avoid such a defect.
Some frequent posters here will be aghast at the thought of conducting your own survey. But your own survey can clearly establish legal speeds above a speed limit sign, especially since such a survey is not likely to be contested because no prosecutor will be present. If the only evidence on an issue is self-serving, the court is nevertheless required to take it at face value, even if the court would have ignored it if it had been contested.
On the other hand, traffic court commissioners tend to not think for themselves very much, and might not be persuaded by such an uncommon argument. So to be an effective defense, you should be prepared to appeal, and that means filing your motion to dismiss in writing, with appropriate cites, so as to more clearly establish the record for appeal.
The engineering and traffic survey is a public document. You should be able to pick it up without waiting for any discovery request to be granted.Quote:
I have requested the engineering traffic survey ...
VC 22350 and Senior Center
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04-11-2011, 03:18 AMDavidForthofferRe: VC 22350 and Senior Center
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04-13-2011, 10:01 PMteherickaRe: VC 22350 and Senior Center
my trial has been scheduled for June 6th- I'll let you know. Hoping to hear from Guvnor007 as well.
One more thing-- I've been going through trial tutorials and the part I'm most confused about is cross-examining the officer after his initial testimony. Is this necessary since I'll be moving for dismissal based on the speed survey? If it is necessary, what type of questions should I ask? -
04-14-2011, 10:43 AMDavidForthofferRe: VC 22350 and Senior CenterIt may be a plausible defense (in that it might work), but it is certainly not an excellent defense (in that it is legally sufficient).Quote:
Quoting tehericka
Despite what That Guy says, a speed trap cannot occur on a section of highway whose speed limit is set by statutes other than mentioned in the definition of "speed trap" (VC 40802). Since the 25 mph speed limit is set under authority of VC 22352(a)(2)(C), that area is not a speed trap.
I still think conducting your own engineering and traffic survey is a route to a good defense. -
06-08-2011, 11:57 AMteherickaRe: VC 22350 and Senior Center
Not sure if anyone's still following this thread, but as my court date approaches I have some interesting notes:
I'm scheduled for trial this Friday morning, so in the interest of being well-prepared I sat in on a few cases today. After running through the present cases (all of which were unsuccessful) and dismissing everyone, the judge stopped me on my way out to ask why I was there. I told him I'm a journalism student researching the court system and that I'm particularly interested in speed trap laws. We spoke for a few moments and I merely mentioned "senior center" and he instantly brought up College Ave, saying "that's a tough case to beat." He seemed certain that speed trap laws do not apply in senior zones. I raised a few of the points made on the first page of this thread and he waffled a bit. He cited 22352 and 40802, and I asked if he could point out to me the language that specifically outlines this particular issue. He looked through the VC for a moment and then seemed to stop to lecture me instead on the safety of pedestrians.
I kept trying to nail down something specific in the text but he continued to bring it back to "seniors at risk" and I didn't get anywhere. Ultimately I'm left feeling frustrated and a little discouraged, since he seemed dead-set on a position of "It's a senior center, so the speed survey doesn't matter" but wouldn't point back to anything specific in the code.
Naturally I'll be hoping for a different judge on Friday morning, but I expect this issue to come up again regardless. Any tips on how to argue the vague verbiage here? I've read 22352 and 40802 over and over and I'm just not understanding how the need for a speed survey is negated by these two codes. -
06-08-2011, 12:45 PMThat GuyRe: VC 22350 and Senior CenterI'm still here... And frankly, after rereading the thread, I maybe second guessing some of the points I made (I'll have to dig around a little more and I'll post if I come up with anything). Don't fret though, make your case as planned and hope for the best. Who knows, maybe someone else will chime in with another view.Quote:
Quoting tehericka
Oh, and a "journalism student"... :D
Do you think he got excited thinking he might get his name in print somewhere? And what are you going to say/do (about not being a journalism student) if the same judge happens to be there Friday morning?
I must say though that he must be a nice guy if he sat there and chit chatted with you! I've only come across one down to earth judge who would be inclined to do that... Unfortunately, he has recently retired! -
06-08-2011, 12:57 PMteherickaRe: VC 22350 and Senior CenterThanks That Guy! Everyone I talk to about this case seems to raise an eyebrow and say "good luck!" so we'll see how it goes haha.Quote:
Quoting That Guy
And actually, I AM a journalism student (just graduated, in fact) which is part of why I've continued to pursue this. Honestly I think I might've given up and just paid if I weren't so damned curious :D
It's funny, public officials always clam up if you say you're a journalist, but if you tack "student" on at the end they'll tell you whatever you want to know in the interest of teaching you something. I wasn't thrilled with this judge's opinion on my case, but it was definitely cool of him to take the time.
Let me know if you come across anything else, I'll be hitting the books until Friday! -
06-08-2011, 07:35 PMbruinPERe: VC 22350 and Senior Center
From an engineer's standpoint, I don't see what you're presenting will be a good defense against your ticket. The prima facie speed limit for the roadway is 35 mph as established by the pre-2009 E&T Survey. The prima facie speed limit for the segment of the roadway with the senior center is 25 mph.
It would not qualify under the speed trap laws. See below and note how the senior center part of the prima facie speed limit is not included in the speed limits that require an E&T Survey. (Senior center is 22352 subdivision (a), paragraph (2), subparagraph (C)).
40802. (a) A "speed trap" is either of the following:
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(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, or established under Section 22354, 22357, 22358, or 22358.3, 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. This paragraph does not apply to a local street, road, or school zone.
22352. (a) The prima facie limits are as follows and shall be applicable unless changed as authorized in this code and, if so changed, only when signs have been erected giving notice thereof:
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(2) Twenty-five miles per hour:
(A) On any highway other than a state highway, in any business or residence district unless a different speed is determined by local authority under procedures set forth in this code.
...
(C) When passing a senior center or other facility primarily used by senior citizens, contiguous to a street other than a state highway and posted with a standard "SENIOR" warning sign. A local authority is not required to erect any sign pursuant to this paragraph until donations from private sources covering those costs are received and the local agency makes a determination that the proposed signing should be implemented. A local authority may, however, utilize any other funds available to it to pay for the erection of those signs. -
06-08-2011, 08:53 PMThat GuyRe: VC 22350 and Senior CenterWhich pretty much brings us back to the way I assessed it at first, along with the appellate decision in People v. Goodrich which was based upon the fact that the 25mph limit here is set by the legislature and (citing Goodrich) "there can be no "artificially low" posted speeds when the Legislature has fixed the maximum at 25 miles per hour". The only reason why I changed my tune was because the survey made no mention whatsoever of the 25mph speed or the senior center... But as I reread the thread again today, didn't feel confident it would fly.Quote:
Quoting bruinPE
tehericka, the reason I was holding off on confirming or denying my change of heart for a while is because I wanted to check and see the details of the 2 amendments that were made to 22352 -one in 1998 and one in 2001 (as you can see at the bottom of the page on the DMV website. I wasn't able to find anything re the 1998 change (no archives that far back), and as it turns out, the references made in that section to senior center pre-existed the 2001 amendment... So no dice on that bit of research.
More importantly, I was hoping bruinPE would see this and post an opinion.
Also, as far as People v. Goulet, 13 Cal. App. 4th Supp. 1 as suggested by Guvnor007, I don't see how that would apply by way of the same analogy as above and considering the fact that the one basis for setting the speed limit to 35mph was that it must be justified by a valid survey; **but the survey presented in the Goiulet case did not justify the limit, and pursuant to speed trap rules, the officer is incompetent as a witness and the case should have been dismissed by the lower court, but it wasn't. Defendant appealed, and the decision was reversed**. In your case, the posted 25mph limit in this case is set by statute and therefore no speed survey is required, and speed trap rules are not applicable.
So you've gotten a layman's opinion, a professional engineer's opinion as well as a hint as to how a judge might rule by way of your visit with your new friend. Hate to pull the rug from under you a few days before trial, but hey, better know now than get disappointed in court. Of course nothing is preventing you from trying that defense and seeing how it goes, though at this point in time, if it were up to me and if I were to get the opportunity for traffic school (typically, it maybe offered immediately before the trial), I'd take that and still be thankful.
Let us know how it goes.
**Edited to correct the Goulet case info** -
06-08-2011, 09:01 PMteherickaRe: VC 22350 and Senior Center
Yikes. at this point I suppose I'm just hoping the officer won't show-- I got the ticket back in November of last year, so fingers crossed.
Was worth a shot at least, and I learned a lot in the process. I think I'll raise the issue of the speed survey at the beginning and if I get knocked out on that one I'll just go with the basic speed defense and simply hope for a reduced fine + traffic school.
Thanks so much to everyone! -
06-08-2011, 09:14 PMThat GuyRe: VC 22350 and Senior CenterThat (along with traffic school) might be your only way to a dismissal.Quote:
Quoting tehericka
Basic speed defense won't be as convincing as you'd hope for. But like I said, you've nothing to lose (except possibly a shot a traffic school in that the judge is under no obligation to grant your request nor is he required to state a reason for his denying your request).Quote:
Quoting tehericka