Getting a Dismissal of a California VC 22349(B) Speeding Ticket
My question involves a California speeding ticket citing 22349(b) "70+ in a 55". My trial is at the end of this week.
Question 1
Assuming that no prosecuting attorney is present at my trial (which is probable), I will argue that (before the officer testifies), "Prosecution of this case is an executive act as per Esteybar v Municipal Court (one that the judiciary cannot perform) and that officer _________ who has appeared is a witness, nothing more, nothing less as per People v Marcroft and therefore he cannot perform an act of prosecution."
I plan to move for dismissal based on the fact that the prosecution has not met the burden of VC40803.
For some reason, my instinct tells me it isn't this easy, and the judge will just get angry at this.
I've also heard that this can be skirted by the court if the violation is an infraction and if the judge remains impartial "doesn't coach the witness".
Do you have some advice on this approach?
and then one more...
Question 2
At my arraignment, the no-nonsense judge added that CA 22349(b) did not require a survey and that the violation would be upheld if I was driving one MPH over 55, 58 or any other speed - it's the same violation.
This was a particularly dismal edict since my last line of defense was a graph printout of actual vehicle speed that day (my truck carries a OBDII speed recording system). At the time of violation, (and before and after) it shows the vehicle never exceeded 63 MPH.
The judge seemed pretty confident, and almost seemed to be expecting my defense.
Is my only remaining defense to simply request an original radar training certificate?
Much thanks,
Jack
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
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JackA
Assuming that no prosecuting attorney is present at my trial (which is probable), I will argue that (before the officer testifies), "Prosecution of this case is an executive act as per Esteybar v Municipal Court (one that the judiciary cannot perform) and that officer _________ who has appeared is a witness, nothing more, nothing less as per People v Marcroft and therefore he cannot perform an act of prosecution."
The officer is not performing an act of prosecution... He's merely there "to testify as a witness". The officer is well aware of his role in the courtroom, and so is the judge.
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JackA
I plan to move for dismissal based on the fact that the prosecution has not met the burden of VC40803.
And your motion for a dismissal will be denied quicker that you can say "your honor".
You were cited for violating the maximum statutory 55mph speed limit on a two lane undivided highway. If those elements are present, there is no requirement for the prosecution to present a valid E&T survey (pursuant to VC 40802) justifying the speed limit...
Had you been cited for VC 22350, then it would be a completely different story. But you were not!
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JackA
I've also heard that this can be skirted by the court if the violation is an infraction and if the judge remains impartial "doesn't coach the witness".
Not sure what you're trying to say!
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JackA
At my arraignment, the no-nonsense judge added that CA 22349(b) did not require a survey and that the violation would be upheld if I was driving one MPH over 55, 58 or any other speed - it's the same violation.
Pretty accurate assessment.
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JackA
This was a particularly dismal edict since my last line of defense was a graph printout of actual vehicle speed that day (my truck carries a OBDII speed recording system). At the time of violation, (and before and after) it shows the vehicle never exceeded 63 MPH.
And by doing so, you're admitting to driving in excess of the maximum limit... Heck you're making an easy task of proving your guilt, much easier.
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JackA
Is my only remaining defense to simply request an original radar training certificate?
You certainly can request it. But expect to receive it. But you can also expect the officer to testify that he also visually estimated your speed prior to/in conjunction with using Radar... and with a speed estimate of 15 mph over the limit, it is pretty much a slam dunk!
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JackA
Do you have some advice on this approach?
Well, not necessarily on any approach you've suggested, but here is my advice. If the officer happens to appear in court for the trial, see if you can take the traffic school option. Assuming you are eligible, that maybe your only saving grace!
Good luck!
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
You should object to the foundation to allow any RADAR documentation being introduced...its likely that the officer cannot introduce it as a business record. Object under Melendez-Diaz / Crawford too .... just to keep it in the record. If he does not state that he followed any suggested testing method when getting your measurement, pound this lack of information during your motion to acquit after the state rests.
Unfortunately, you have not done everything you could have in your case ... do you know the RADR make/model ~ when it was brought into the marketplace. If the cop says he was trained 10 yrs ago but the model is only 5 yrs old ... then you can say "during your trianing, were you trained on the specific insturment model that you measured the defendant with on DATE"
Focus on cross examination ? (write them down prior to trial~you can use this at trial). Ask backround ? of officer ... education, ever written articles about RADAR etc..get him to admit he is not an expert basically.
Has the specific model gone through a Frye examination? I always object to SMD because of this ~ make them state a case and put it on the record ,, you can ask for a short recess to examine the case (may be denied) being cited ... simply say "I am familar with this case but I don't recall it being on this specific model so the case cited is distinguishable from the case at bar your Honor" .... then a recess will be had ... so the judge will comb through every case looking for the model ... but the way opinions are written, its hard to find.
Do not ask questions of the cop that will hurt you ... if he has a vague answer to an important question see if its best to leave it as he said; keep notes during trial.
A judge should not get angry ruling on objections ~ he should actually like to do this, its his job. Never seen a judge get angry until the party keeps on arguing wit the judge. You can argue against the prosecution's claims of the law.
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
Now that is very useful -- thank you!
Simply out of curiosity now...
VC40803(b):
In any prosecution under this code of a charge involving the speed of a vehicle, where enforcement involves the use of radar or other electronic devices which measure the speed of moving objects, the prosecution shall establish, as part of its prima facie case, that the evidence or testimony presented is not based upon a speed trap as defined in paragraph (2) of subdivision (a) of Section 40802.
Is the prosecution for 22349(B) required to prove "not a speed trap" ?
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
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JackA
This was a particularly dismal edict since my last line of defense was a graph printout of actual vehicle speed that day (my truck carries a OBDII speed recording system). At the time of violation, (and before and after) it shows the vehicle never exceeded 63 MPH.
Think about that for a while..."Your honor, on the date and time in question, I have proof that I was only speeding by 8 MPH. The officer who said I was speeding is obviously lying."
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Is my only remaining defense to simply request an original radar training certificate?
You will never get an original submitted as evidence, you will at best, get a certified copy of the original.
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JackA
In any prosecution under this code of a charge involving the speed of a vehicle, where enforcement involves the use of radar or other electronic devices which measure the speed of moving objects, the prosecution shall establish, as part of its prima facie case, that the evidence or testimony presented is not based upon a speed trap as defined in paragraph (2) of subdivision (a) of Section 40802.
Is the prosecution for 22349(B) required to prove "not a speed trap" ?
22349(b) VC is not a Prima facie violation, it is a maximum speed violation. No speed survey is required. Speed surveys are required for 22350 VC cases where the cited speed limit is the posted speed (to make the speed limit legitimate). A speed trap does not exist unless the speed limit is lowered without justification from the maximum speed limits (in terms of this violation).
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
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JackA
Is the prosecution for 22349(B) required to prove "not a speed trap" ?
Nope......
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
Really nice to have knowledgeable answers. Thank you for this.
Let me see if I understand now:
Since I was cited for 22349, the provisions in VC 40802 (surveys, radar certification) don't apply at all.
Since I was cited for 22349, the provisions in VC 40803 don't apply, and a prosecutor is not required to be present or follow the following code -- even though radar was used:
"In any prosecution under this code of a charge involving the speed of a vehicle, where enforcement involves the use of radar or other electronic devices which measure the speed of moving objects, the prosecution shall establish, as part of its prima facie case, that the evidence or testimony presented is not based upon a speed trap as defined in paragraph (2) of subdivision (a) of Section 40802. "
22349 is binary. It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case. Providing evidence that he measured/estimated an incorrect number is immaterial.
Even the radar use doesn't matter if the officer testifies that the visual estimate of speed was any substantial amount over 55.
Thus, the officer needn't recall from independent recollection and bringing into question his memory of the incident, (typical questions of 'did my truck have a white camper shell? What was I wearing? ) or questions of proper radar use (Was audio Doppler off or on? do you believe your unit can give a false reading? .. etc) don't matter and will only piss off the judge.
I think it's time to swallow bitter and take my losses.
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
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22349 is binary. It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case. Providing evidence that he measured/estimated an incorrect number is immaterial.
Yep, 56mph is just as guilty as 99mph, with the fine amount being the only difference. VC22349a/b cases are extremely hard to beat on merits, but it doesn't change the fact that a sizable number still get chucked out when the officer doesn't show up for court or submit the TBD (and, unlike court, the officers don't get paid extra to fill out TBDs).
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
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JackA
Since I was cited for 22349, the provisions in VC 40802 (surveys, radar certification) don't apply at all.
No, it does not...
40802(a)(1) applies to "a particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance". (inapplicable if Radar is used).
And 40802(a)(2) applies to "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...." (inapplicable because the 55mph speed limit on a 2 lane undivided hwy is established pursuant to VC 22349(b) which is not mentioned above).
Either way, 40802, and speed trap laws in general, are not applicable in this case.
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JackA
Since I was cited for 22349, the provisions in VC 40803 don't apply, and a prosecutor is not required to be present or follow the following code -- even though radar was used:
"In any prosecution under this code of a charge involving the speed of a vehicle, where enforcement involves the use of radar or other electronic devices which measure the speed of moving objects, the prosecution shall establish, as part of its prima facie case, that the evidence or testimony presented is not based upon a speed trap as defined in paragraph (2) of subdivision (a) of Section 40802. "
Again, no... Since 40802 is not applicable, then 40803 is not applicable either.
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JackA
22349 is binary.
pretty much.. As long as the officer can establish that you were driving "upon a two-lane, undivided highway at a speed greater than 55 miles per hour" (and unless it is posted for a higher limit) then he has satisfied the burden of proving you were in violation of 22349(b).
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JackA
It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case.
Same as above...
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JackA
Providing evidence that he measured/estimated an incorrect number is immaterial.
If that evidence can show that your speed was less than 55mph, then you're golden. Yet if it shows that you were in excess of the 55mph limit, then you are still in violation. Now, in light of the fact that speeding fines are set up in a graduated scale based on how many miles in excess of the limit (1mph to 15mph over, 16mph to 25mph over and 26mph+ over), the actual speed reading (or the "estimate" I should say) does indeed make a difference as to the fine amount, but not when it comes to guilt or innocence.
The fact that he indicated the 70+mph on the citation, could possibly mean that he may have measured you at (as an example) 73mph which puts you at 18mph over the limit (the second/higher fine bracket) -though he will likely testify to the actual speed he measured-... But he indicated 70+, possibly, as a way to give you a break with the fine amount.
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JackA
Even the radar use doesn't matter if the officer testifies that the visual estimate of speed was any substantial amount over 55.
It does matter in that it narrows down the known +/-5mph margin of error for a visual versus the +/-1 or 2mph for RADAR... But again, as long as it is as you stated, a substantially in excess of 55, then you're not likely to win on an accuracy argument.
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JackA
Thus, the officer needn't recall from independent recollection and bringing into question his memory of the incident, (typical questions of 'did my truck have a white camper shell? What was I wearing?
The officer identified you at the time of the stop by asking for your driver's license, he cited you using that number... You subsequently appeared in court and are currently defending yourself... So what you were wearing, the color of the camper on your truck... etc, are not elements of the violation which you were cited for and as such, they are not material to your defense or the prosecution's case. Most officer's will make an effort to write their own notes on the back of their copy of the citation but more often than not, those notes are a brief description of the driver's actions (or lack thereof) that led to the initial stop and the issuing of the citation, not of what he/she was wearing or what color camper.
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JackA
or questions of proper radar use (Was audio Doppler off or on? do you believe your unit can give a false reading? .. etc) don't matter and will only piss off the judge.
The requirement is that the officer be P.O.S.T. trained and certified in the "use" of radar... Not necessarily how it was made or the scientific basis behind it. Moreover, California courts have taken "judicial notice" of the use, validity and accuracy of radar devices as a scientific method of measuring speed. So while you can pose some questions as to how he operated the unit on that particular day, you're not going to get much leeway if you were to question the technology behind its use.
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JackA
I think it's time to swallow bitter and take my losses.
I think you might be better off spitting bitter instead.
Good luck!
Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?
Thank you for the detailed and clear explanation.
Of course I'm not thrilled, but this'll save a lot of frustration and time in the court room. Perhaps even make the judge more amenable to traffic school since I didn't spout off a bunch of unapplicable attempts at dismissal.
Let's just hope the officer doesn't show or that he somehow misplaced his certificate.
With gratitude,
-Jack