-
What Can I Expect After Getting a Speeding Ticket
My question involves a traffic ticket from the state of: California (Norcal)
I just got hit with a CVC 22350 for excessive speed, 61 in a 35.
I got a 22350 a few years ago for 80 in a 45 which I fought via trial by declaration and won, although initial fine was around $500. Does anyone have any idea how much I should expect to pay now? Quick google search showed around $100-$200 which seems pretty low. And this is usually one point correct?
For the last 22350 I fought, I basically used a template I found online and filled in my relevant data and fought it, but the cop didn't use a radar then. With this new ticket, the ticket has radar checked off, so it may be tougher to fight.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
I just got hit with a CVC 22350 for excessive speed, 61 in a 35. Quick google search showed around $100-$200 which seems pretty low. And this is usually one point correct?
Fines are typically 4-5x the "base" amount, which is $100 in your case. It should be approx. $480. And yes, one point.
Quote:
For the last 22350 I fought, I basically used a template I found online and filled in my relevant data and fought it, but the cop didn't use a radar then. With this new ticket, the ticket has radar checked off, so it may be tougher to fight.
Radar actually may make it easier. 22350 is possibly the VC violation with the largest number of possible defenses. First, depending on if it was a city or state road, contact the local transportation dept. or local Caltrans office to get a "speed survey" ASAP. If it's not right in any number of ways, you have a very good defense. If it turns out to be perfect, we can look at more defenses.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Fines are typically 4-5x the "base" amount, which is $100 in your case. It should be approx. $480. And yes, one point.
Radar actually may make it easier. 22350 is possibly the VC violation with the largest number of possible defenses. First, depending on if it was a city or state road, contact the local transportation dept. or local Caltrans office to get a "speed survey" ASAP. If it's not right in any number of ways, you have a very good defense. If it turns out to be perfect, we can look at more defenses.
Ok, $500 is pretty steep. I'm not too worried about price, mostly worried about my insurance since I was just about to transfer for my parents plan to my own cause I started working and living alone now. I was also looking into getting my own car soon so the timing is terrible.
I can try getting a Speed Survey on Monday as I don't believe they will be open tomorrow (Sunday). I think it is a city road, as it was a standard main road in my city, and not a California freeway. The cop was also a local city cop.
I was thinking of using the following template, it is from the same site where I got the template for the last ticket I fought (although that was being paced, not using Radar).
Quote:
I respectfully submit this written declaration to the Court pursuant to CVC 40902. I plead Not Guilty to the charge of violating CVC 22350.
The facts of my case are as follows: While driving west bound on Meade at 0855 on 3-17-99, I was stopped by SDPD Officer Ffrengig (I.D.#1234) and was charged with violating CVC 22350. Officer Ffrengig has alleged that I was driving approximately 33mph in a 25mph zone based on RADAR evidence. I know that I was traveling a Safe and Reasonable speed for conditions at the time of my stop, and was therefore not in violation of the Basic Speed Law.
The Basic Speed Law, CVC 22350, states: "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of the highway, and in no event at a speed which endangers the safety of persons or property."
On my citation, the officer fails to note any of these relevant conditions except for traffic, which he correctly notes as "Medium." I can attest that the road was dry with clear visibility at the time of my stop. Officer Ffrengig also fails to note the Safe Speed for Meade in the appropriate space on my Notice to Appear. I know that I was traveling a Safe and Reasonable speed for conditions on Meade when I was stopped.
My assertion that my speed was Safe and Reasonable for conditions is supported by the most recent Traffic and Engineering survey for Meade which gives the Safe Speed (85th percentile speed) as 32 mph, which is just 1mph different than the "approximate" speed Officer Ffrengig noted on my citation. Based on this evidence, I know that I was not in violation of the Basic Speed Law at the time and place of my citation and, pursuant to the common sense spirit of CVC 22350, contest that my speed at the time of my traffic stop was therefore not per se unlawful.
Further, I believe that the officer's radar may have been tracking one of several cars other than mine. There were cars driving in front of me and also passing me as I proceeded down Meade; the presence of these vehicles was properly attested to on my citation by Officer Ffrengig as "Medium" traffic. The typical beam angle (spread) of police radar is 12-16 degrees, resulting in a beam width of 1 foot for every 4 feet of travel of the beam from the antennae. Therefore at 160 feet from its source, a police radar beam is typically 40 feet (four lanes) wide.
The officer noted on my citation that my radar-determined speed was 33mph from 150 feet away, a distance at which any of several cars then traveling through the officer's two-lane wide radar beam might have caused the speed indicated on the officer's unit. Due to the officer's indication of "medium" traffic and his notation that my alleged speed was determined at a 150' distance, it is clear that there is reasonable doubt as to which car's speed his radar unit was indicating.
Due to this reasonable doubt, and the fact that the Traffic and Engineering Survey for Meade has determined the Safe Speed to be 32mph, approximately the speed the officer claims I was traveling, I ask the Court to dismiss my citation in the interest of justice.
If the court does not find in my favor in this case, I request a Trial de Novo.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
All data in template is artificial.
-
Re: What Can I Expect from This Speeding Ticket
You probably won the previous one because the officer didn't submit his declaration (or was VERY late in doing so). The template you have throws everything at the wall in case something sticks -- I doubt it will work if the officer this time does submit his.
Get the survey -- you may need to request it by mail or via a form -- and you may have an absolute defense that will let you beat this ticket.
-
Re: What Can I Expect from This Speeding Ticket
Thanks for the quick reply. I'll try getting the "speed survey" ASAP then. I'm not sure exactly who to contact though. I did a search on google and didn't find anything under "My City Transportation Department".
-
Re: What Can I Expect from This Speeding Ticket
Post the darned city, and the location (intersection, etc.) if you don't mind. You can ask your local city hall, transportation is often lumped under public works dept.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Post the darned city, and the location (intersection, etc.) if you don't mind. You can ask your local city hall, transportation is often lumped under public works dept.
No problem. Atherton, California. El-Comino Ave in Atherton (one of the larger streets here, I actually thought the speed limit was 45 or 50).
-
Re: What Can I Expect from This Speeding Ticket
As a note, the fine and fees for this should be in the neighborhood of $479 per the state's 2011 recommended bail and fine schedule.
-
Re: What Can I Expect from This Speeding Ticket
El Camino Real (right?) in Atherton is State Route 82. San Mateo is under Caltrans District 4, and you must submit a public records request for the survey. Here's their "start page" for such requests which guides you through everything.
In the request, you MUST specify the cross-streets, e.g. "El Camino Real in the city of Atherton between e.g. Santa Cruz Ave and Selby Ln" Expect about two weeks before you get a copy in the mail - a small copying fee (less than $5) may be involved.
If you NEED a faster response, contact them via phone (see FAQ) to arrange a visit to their HQ in Oakland to view and copy.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
El Camino Real (right?) in Atherton is State Route 82. San Mateo is under Caltrans District 4, and you must submit a public records request for the survey. Here's their
"start page" for such requests which guides you through everything.
In the request, you MUST specify the cross-streets, e.g. "El Camino Real in the city of Atherton between e.g. Santa Cruz Ave and Selby Ln" Expect about two weeks before you get a copy in the mail - a small copying fee (less than $5) may be involved.
If you NEED a faster response, contact them via phone (see
FAQ) to arrange a visit to their HQ in Oakland to view and copy.
Thanks!
I'm going to try to head over sometime this week if I get time, otherwise I'll try getting it mailed. If I go in person, what exactly should I look for? Or should I just copy everything they give me and post it here?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
I'm going to try to head over sometime this week if I get time, otherwise I'll try getting it mailed. If I go in person, what exactly should I look for? Or should I just copy everything they give me and post it here?
Submit the request electronically now. If you go in person after setting up an appointment, request the latest survey for the location and have them copy everything and post it here. Here's an example PDF of two sheets the survey should contain -- it should also contain reports, sheets showing the actual collection of data, etc. Get everything.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Submit the request electronically now. If you go in person after setting up an appointment, request the latest survey for the location and have them copy everything and post it here. Here's an
example PDF of two sheets the survey should contain -- it should also contain reports, sheets showing the actual collection of data, etc. Get everything.
Perfect, I'm filling out the e-request right now. Is this sufficient? "I want copies of the Speed Survey for El Camino Real (street) in the city of Atherton between Atherton Ave and Valparaiso Ave."
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Perfect, I'm filling out the e-request right now. Is this sufficient? "I want copies of the Speed Survey for El Camino Real (street) in the city of Atherton between Atherton Ave and Valparaiso Ave."
Edited:
I'm requesting copies of the Speed Survey for SR-82/El Camino Real (street) in the city of Atherton, specifically including the segment between Atherton Ave and Valparaiso Ave. Please include everything, e.g. reports, memos, data collection sheets, etc.
-
Re: What Can I Expect from This Speeding Ticket
Hi guys,
So I just received the traffic survey via email. I am attaching it here: http://www.box.net/shared/static/cjd...xsgsxk36hn.pdf. Please let me know what you think. Thanks!
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Thanks. The survey looks solid :(. You may find a small chink or two from either the data sheets (not included) or by arguing that the "average" critical speed was incorrectly calculated from the northbound and southbound critical speeds, but there's a better option.
The survey is more than five years old, which means all the onerous VC 40802 requirements come into play. The prosecution has to prove all of these or the officer cannot testify and the case is thrown out:
- The officer successfully completed a 24 hour training course in radar
- and the course was POST-certified
- The radar unit met at least the NHTSA standards
- and (this was by) being calibrated within the last three years by an independent, certified facility.
- and the officer knew that the radar unit was this accurate BEFORE he took your speed
- Your speed was unsafe for the conditions at that time (i.e., your speed is presumed safe unless the prosecution proves otherwise)
You will probably lose the TBD if the officer submits his side, but all of the above make a win at trial pretty easy since the officer may not correctly testify to and check everything off in the list. The common errors are:
- Physical copy of survey not introduced at trial; if it is, it's not certified as a true copy
- Officer does not bring certificate of training; if he does, it's not the original or certified as a true copy.
- Calibration certificate not introduced; if it is, not the original or not within 3 years of violation. If not the original, must be a certified true copy only if it is from a public testing facility -- the only ones in existence are UC San Diego and U. of Florida. If it's a private testing facility and it's a copy, it cannot be introduced at all (unless an employee of the facility is in attendance or, in some cases, submits an original signed affidavit).
- Officer may not testify that he checked accuracy before shooting your vehicle. The usual standard is before and after his shift, and you should demand a written log to back that up. Even if he does, this is susceptible to cross-examination if the manufacturer's procedures were used (usually this means tuning forks for radar).
- Finally, officer may not satisfactorily prove (if at all) that your speed was unsafe for the given conditions.
Ask Caltrans for the remaining parts of the survey. I think you're better off NOT asking for discovery here if you are prepared to be nimble on your feet at the trial de novo.You will get a chance to examine any documents the officer has just before the trial. Simply let the officer finish his testimony, confirm with the judge that the "prosecution's" testimony is over, and make a verbal "eleven-eighteen" motion to dismiss your case for lack of evidence. Be prepared to point out which of the above errors/omissions are involved. The judge cannot prompt the officer to supply the missing points at this time. The judge MAY find you guilty anyway, but you will win on appeal. To better predict your odds, let us know which courthouse you'll be going to and you may want to sit in on a trial or two to see how things go with others.
-
Re: What Can I Expect from This Speeding Ticket
Thanks quirkyquark. So are you saying to go forward with the TBD and if I lose, then do a trial de novo?
Also, is there a particular reason I should not be asking questions here?
Also,
This is what the email said, am I not allowed to use this document as evidence for this trial?
Quote:
In response to your request for records related to the Highway Safety Improvement Program (HSIP), the California Department of Transportation (Department) pursuant to the California Public Records Act (CPRA; Government Code Sections 6250-6276), has provided the following enclosed records:
· Engineering and Traffic Survey for 4-SM-82-PM1.06/1.89 (between Valparaiso Ave and Atherton Ave, Atherton.)
The records you have requested from the HSIP are privileged in accordance with Title 23 of United States Code, Section 409 (23 USC 409) and cannot be disclosed for purposes related to claims or litigation against or involving the Department. It is our understanding that your request is not related to a claim or litigation against or involving the Department and is intended solely for the purposes of conducting research on collisions. The disclosure of these records does not constitute a waiver of the privilege granted under 23 USC 409 should these records be offered into evidence in future litigation against the Department.
The Department believes this to be the full and complete response to your request and it comprises all documentation that can be produced at this time. Please contact me if you need any further assistance or have questions regarding your request.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Thanks quirkyquark. So are you saying to go forward with the TBD and if I lose, then do a trial de novo?
You're quite welcome, and yes.
Quote:
Also, is there a particular reason I should not be asking questions here?
The reasoning is that discovery requests for traffic tickets are not common, and usually land on the desk of someone higher up the chain of command than the officer who cited you. The officer WILL be made aware of the request, and if they dig up all the documents, there's very little chance the officer will then not bother bringing them to the trial.
Quote:
This is what the email said, am I not allowed to use this document as evidence for this trial?
If you read carefully, it is only an issue if you are suing Caltrans, not in any other litigation. In any case, you cannot use the emailed PDF at trial (I don't see why you would need to since it's not favorable to you). If you want to, you have to request a "certified true copy" from them which would come in the mail. They MAY charge you a nominal fee for the certification and the copying/mailing.
-
Re: What Can I Expect from This Speeding Ticket
Thanks. I'm confused as to what you mean by discovery requests. Are you saying I shouldn't ask questions on this website? Or what I shouldn't have asked for the traffic survey from Caltrans?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Thanks. I'm confused as to what you mean by discovery requests. Are you saying I shouldn't ask questions on this website? Or what I shouldn't have asked for the traffic survey from Caltrans?
Relax :D. I meant neither. Discovery involves "informally" asking the county DA and the citing agency (was it CHP or local PD) via a formal letter for copies of officer's notes, radar calibration certificates, logs, training certificates, etc.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Relax :D. I meant neither. Discovery involves "informally" asking the county DA and the citing agency (was it CHP or local PD) via a formal letter for copies of officer's notes, radar calibration certificates, logs, training certificates, etc.
Oh ok, that makes sense now. I was panicking for a minute. So if the best route is to go by TBD then TDN if it doesn't work, ill do that.
As for the TBD, you mentioned these 3 things:
Quote:
- The officer successfully completed a 24 hour training course in radar
- and the course was POST-certified
- The radar unit met at least the NHTSA standards
- and (this was by) being calibrated within the last three years by an independent, certified facility.
- and the officer knew that the radar unit was this accurate BEFORE he took your speed
- Your speed was unsafe for the conditions at that time (i.e., your speed is presumed safe unless the prosecution proves otherwise)
The first 2 are either a hit or miss, if the offer responds, he will most likely prove he has those, otherwise he won't respond and I'll win. But for the 3rd one, can I use something similar to the example I posted on page 1 of this thread?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
The first 2 are either a hit or miss, if the offer responds, he will most likely prove he has those, otherwise he won't respond and I'll win. But for the 3rd one, can I use something similar to the example I posted on page 1 of this thread?
Some on this forum may disagree, but others' (and my own) opinion is that if the officer submit his side, no matter what you say, you will be found guilty in a case such as this [the chances are better if it's the kind of violation where you can attach tons of photos, etc. to prove your point].
The usual recommendation is to simply say "I respectfully plead not guilty." and leave it at that. Besides the above, the other reason is that although a judge cannot legally consider what you said in your TBD at your TDN, the documents will be in his file and I have personally seen the judge (not commissioner) who does trials at the giant LA Metro courthouse question defendants about contradictions between their testimony and what they said in their TBD.
If you are found guilty, the big advantage is you can get a copy of the cop's declaration and any supporting evidence he submitted from the clerk. From those, you pretty much know what he's going to say at trial and what he will probably bring in -- it's a great help in preparing your defense.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Some on this forum may disagree, but others' (and my own) opinion is that if the officer submit his side, no matter what you say, you will be found guilty in a case such as this [the chances are better if it's the kind of violation where you can attach tons of photos, etc. to prove your point].
The usual recommendation is to simply say "I respectfully plead not guilty." and leave it at that. Besides the above, the other reason is that although a judge cannot legally consider what you said in your TBD at your TDN, the documents will be in his file and I have personally seen the judge (not commissioner) who does trials at the giant LA Metro courthouse question defendants about contradictions between their testimony and what they said in their TBD.
If you are found guilty, the big advantage is you can get a copy of the cop's declaration and any supporting evidence he submitted from the clerk. From those, you pretty much know what he's going to say at trial and what he will probably bring in -- it's a great help in preparing your defense.
Ok that makes sense then. So I think I will just go with 'I respectfully plead not guilty" then and see what happens. Do you think its likely that I will still be allowed to do traffic school if I am found guilty at TDN?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Do you think its likely that I will still be allowed to do traffic school if I am found guilty at TDN?
It depends on the judge. They CANNOT automatically deny you just because you fought the ticket. If you ask for it once found guilty, they MUST consider it within the context of your circumstances. If they then deny it, they don't have to give a reason though.
With your record I think you stand a very good chance. The only way to know for sure, again, is to attend one or two sessions with "your" judge before the trial and see what his/her usual practice is.
BTW: did CHP cite you or local PD? The reason I ask is that CHP is usually quite particular about the calibration certificates and records, training certificates, written log for daily testing, etc. Whether the officer brings in and testifies as to all the correct stuff is hit-or-miss, but CHP discipline in general is way better than local PDs.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
It depends on the judge. They CANNOT automatically deny you just because you fought the ticket. If you ask for it once found guilty, they MUST consider it within the context of your circumstances. If they then deny it, they don't have to give a reason though.
With your record I think you stand a very good chance. The only way to know for sure, again, is to attend one or two sessions with "your" judge before the trial and see what his/her usual practice is.
Ok perfect. So I will try to post the rest of the survey if they send it to me. And I'll wait for the ticket in the mail to see which court/judge I will have to attend. Ill update you when I get this info. Thanks.
-
Re: What Can I Expect from This Speeding Ticket
I asked for the data section of the survey and got this response:
Quote:
The documents that I sent were those we had on file for that segment of roadway. If you have any questions or seek additional information about the E&TS, please feel free to contact NAME, Speed Survey Section, at PHONE & EMAIL.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
I asked for the data section of the survey and got this response:
What are you waiting for? :)
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Your speed was unsafe for the conditions at that time (i.e., your speed is presumed safe unless the prosecution proves otherwise)
While I will agree that VC 40802 requires the prosecution "to prove the speed of the accused was unsafe for the conditions present at the time of alleged violation" (VC40802(c)(1)(C)(ii)) if and when the speed survey is 5+ years old, this can be easily accomplished by the officer merely stating "In my opinion, the defendant's speed was unsafe under the conditions" and then (for example) pick and choose one of the conditions utilized/cited to reduce the speed limit (if any) as the basis for his opinion... Now, this burden only needs to be proven and only as part of the requirement that the prosecution must prove that a speed trap did not exist.
And it does obviously carry some weight as far as ultimate outcome of the case. But at this point, the prosecution is resting its case (off course this is assuming that the officer testified to measuring the speed + visual estimate + the chase, the stop, the ID and finally the citation. But most of that is scripted and systematic).
So defendant can now make his 1118 motion, if warranted, and if not, or if he thinks its warranted and yet it is denied, he is still obligated to put on some sort of case, simply because (1) the officer testified that the measured speed was 61 in 35, i.e. in excess of the PF limit, his speed 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.
So he still has to cross examine, or testify or both... And with 61 in 35, I really am not sure what he can cross on or testify to that would get him close to competently establishing that the element of safety was not violated... What could he say? "I though the limit was 45 or 50 so I decided to hit 60+"!!!
Quote:
Quoting
quirkyquark
[*]Physical copy of survey not introduced at trial; if it is, it's not certified as a true copy
Of course there is an alternative to this as well... That the survey is "on file with the court" at which point in time the officer can simply testify to its existence and content by reference, and in addition, it becomes the defendant's burden to make a verbal request if he wants to inspect it. Meaning, an objection "to it not being presented in open court" isn't likely to get you a look at the survey nor would you be preserving anything for appeal. (The judge may not be so inclined so as to guide you on how to word your objection).
Additionally, and as far as certification, authentication, affidavits, or lack thereof, I can only assume will "judicial notice" will take care of part or all of that!
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
That Guy
this can be easily accomplished by the officer merely stating "In my opinion, the defendant's speed was unsafe under the conditions" and then (for example) pick and choose one of the conditions utilized/cited to reduce the speed limit (if any) as the basis for his opinion...
Sure, but the officer has to testify that one of those conditions (or whatever) was IN EXISTENCE at that time (not just "possible"). Since the prima facie burden is on the prosecution here (no matter the alleged speed), his testimony has to be (which mirrors this language in 22351(b) you cited: 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.)
Quote:
Quoting VC 40802(c)(1)(C)(ii)
...proved the speed of the accused was unsafe for the conditions present at the time of alleged violation...
Quote:
Quoting
That Guy
So he still has to cross examine, or testify or both... And with 61 in 35, I really am not sure what he can cross on or testify to that would get him close to competently establishing that the element of safety was not violated...
As one of the elements of the charge, I believe the issue is preserved for appeal by simply making a 1118 motion without needing any further testimony or cross examination. Since the issue is the interpretation of a statute, it is entitled to de novo review upon appeal.
That said, I agree that ideally the officer should be cross-examined, e.g. using the relevant portion of the "30 Questions". It should be as a last resort though (if all the earlier conditions, survey, etc. were fulfilled and this is the last, best hope). The reasons are (a) that it may be difficult to do this unless you've got some experience and (b) you run the risk of the officer proving, by his answers to your questions, that the speed was unsafe in the format required by law. If (b) happens, the appellate division WILL NOT reweigh the evidence and will probably consider that point proven.
Quote:
Quoting
That Guy
Of course there is an alternative to this as well... That the survey is "on file with the court" at which point in time the officer can simply testify to its existence and content by reference, and in addition, it becomes the defendant's burden to make a verbal request if he wants to inspect it.
Not so! Case after case has held that the survey MUST be physically produced in court; it may THEN be taken into evidence via judicial notice instead of making the actual document an exhibit. Here's a pertinent summary:
Quote:
Quoting People v. Ellis (1995) 33 Cal. App. 4th Supp. 25 [40 Cal.Rptr.2d 111
]
If People v. Peterson, supra, 181 Cal. App. 3d Supp. 7, is seen as shifting to the defendant the burden of ensuring that an engineering and traffic survey is available for review by either the defendant or the court, it is contrary to every other appellate department opinion on the issue since People v. Halopoff, supra, 60 Cal. App. 3d Supp. 1, which requires the People to produce, in the courtroom, either the original engineering and traffic survey or a certified copy of the survey.
If Peterson is seen only as allowing a court to take judicial notice of the contents of an engineering and traffic survey -in lieu of receiving a possibly voluminous document into evidence-after that document has been physically produced in the courtroom, it is consistent with those opinions.
Quote:
Quoting
That Guy
Meaning, an objection "to it not being presented in open court" isn't likely to get you a look at the survey nor would you be preserving anything for appeal.
Nope (see above). If the record shows the lack of a physical survey being produced OR somehow not being entered into evidence, it's a pretty solid guarantee of a reversal upon appeal. Again, posing the simple question in the appellate opening brief: "Does VC 40802...require that the survey be physically produced in the courtroom?" is all you need for de novo review; no objections necessary.
Quote:
Quoting
That Guy
(The judge may not be so inclined so as to guide you on how to word your objection)
CA courts have always held, from way back, that the language of an objection is immaterial so long as it is understood as such (i.e., no legalese needed). Here are some cites by way of example:
Quote:
- “In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented.” (People v. Abbott, 47 Cal.2d 362, 372-373, 303 P.2d 730 (1956) )
- an objection will be deemed sufficient so long as it “fairly apprises the trial court of the issue it is being called upon to decide." ( People v. Scott (1978) 21 Cal.3d 284, 29)
- issue preserved for appeal “[e]ven if, ... the objection was not properly phrased, and even if it was not stated in the most precise terms....” (People v. Briggs (1962) 58 Cal.2d 385, 410)
Quote:
Quoting
That Guy
Additionally, and as far as certification, authentication, affidavits, or lack thereof, I can only assume will "judicial notice" will take care of part or all of that!
With all due respect, you assume wrong. Judicial notice can only be taken of in very specific situations (See Evid. Code Sections 450-460). As long as objected to in some fashion, all judicial notice taken will be subject to an "abuse of discretion"-standard review upon appeal.
Since all of the issues we discussed above involve (collateral) elements of the charge and revoke jurisdiction if not proven, there is no need to show prejudice upon appeal -- it's automatically assumed.
-
Re: What Can I Expect from This Speeding Ticket
Wow this stuff seems really complicated. I keep hearing good things about http://www.ticketassassin.com/ (what I posted on page 1) and they seem to be much easier. I don't think I know enough about the laws, etc in order to have a chance at court? What do you guys think?
Also, I got 2 calls today from the guy I asked for the speed survey and he wants to know why I want them. Should I just be straightforward?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
Also, I got 2 calls today from the guy I asked for the speed survey and he wants to know why I want them. Should I just be straightforward?
Yes, tell him what it is for if it will get you a copy. You don't have to identify the case or anything, and it isn't likely to get back to the prosecutor. It isn't like they can just make one up on the spot or something.
-
Re: What Can I Expect from This Speeding Ticket
I got the courtesy notice in the mail. Amount due is $480.
Can I just select traffic school and do that? There is an option at the bottom, but it says its not acceptable for speeds 25 over limit. I was 26?
I also found a ticket clinic law firm thing that charges $250 to try to fight the ticket. What do you guys think?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
I got the courtesy notice in the mail. Amount due is $480.
Can I just select traffic school and do that? There is an option at the bottom, but it says its not acceptable for speeds 25 over limit. I was 26?
Having been cited for over 25mph over the limit simply means that the traffic court clerk is not authorized to process a traffic school request without the judge's approval. You can appear in court on the date of your arraignment and request traffic school from the judge to see what he/she says. No guarantee it'll be granted but its worth the try...
Quote:
Quoting
CityOfAngels
I also found a ticket clinic law firm thing that charges $250 to try to fight the ticket. What do you guys think?
Without a link or more information about the type of service they provide, I'm not going to guess if its legit/worth it or not!
Quote:
Quoting
quirkyquark
Sure, but the officer has to testify that one of those conditions (or whatever) was
IN EXISTENCE at that time (not just "possible"). Since the prima facie burden is on the prosecution here (no matter the alleged speed), his testimony has to be (which mirrors this language in 22351(b) you cited:
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.)
As one of the elements of the charge, I believe the issue is preserved for appeal by simply making a 1118 motion without needing any further testimony or cross examination. Since the issue is the interpretation of a statute, it is entitled to de novo review upon appeal.
That said, I agree that
ideally the officer should be cross-examined, e.g. using the relevant portion of the
"30 Questions". It should be as a last resort though (if all the earlier conditions, survey, etc. were fulfilled and this is the last, best hope). The reasons are (a) that it may be difficult to do this unless you've got some experience and (b) you run the risk of the officer proving, by his answers to your questions, that the speed was unsafe in the format required by law. If (b) happens, the appellate division WILL NOT reweigh the evidence and will probably consider that point proven.
Not so! Case after case has held that the survey MUST be physically produced in court; it may THEN be taken into evidence via judicial notice instead of making the actual document an exhibit. Here's a pertinent summary:
Nope (see above). If the record shows the lack of a physical survey being produced OR somehow not being entered into evidence, it's a pretty solid guarantee of a reversal upon appeal. Again, posing the simple question in the appellate opening brief: "Does VC 40802...require that the survey be physically produced in the courtroom?" is all you need for de novo review; no objections necessary.
CA courts have always held, from way back, that the language of an objection is immaterial so long as it is understood as such (i.e., no legalese needed). Here are some cites by way of example:
With all due respect, you assume wrong. Judicial notice can only be taken of in very specific situations (See
Evid. Code Sections 450-460). As long as objected to in some fashion, all judicial notice taken will be subject to an "abuse of discretion"-standard review upon appeal.
Since all of the issues we discussed above involve (collateral) elements of the charge and revoke jurisdiction if not proven, there is no need to show prejudice upon appeal -- it's automatically assumed.
I must have missed this post... I will work on a reply and maybe we can discuss some of these issues further.
I should mention though that, unfortunately, the E&T survey in this case is no longer available via the link provided by the OP. So my response with regards to whether I believe your arguments are applicable will be more in general terms and are not necessarily related to this particular case!
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
That Guy
Having been cited for over 25mph over the limit simply means that the traffic court clerk is not authorized to process a traffic school request without the judge's approval. You can appear in court on the date of your arraignment and request traffic school from the judge to see what he/she says. No guarantee it'll be granted but its worth the try...
Without a link or more information about the type of service they provide, I'm not going to guess if its legit/worth it or not!
Here is a link to the firm's YELP along with their website.
http://www.yelp.com/biz/david-k-uthm...NEY%20AT%20LAW
-
Re: What Can I Expect from This Speeding Ticket
I will say this in general, based on my observations of attorneys appearing in traffic courts for simple infractions. If the officer is present, the best you can get is a plea deal where the offense is changed to a non-mover with the same (or sometimes greater) fine; if the officer doesn't show, the case gets dismissed just as if you had appeared yourself. Either way, you still owe he attorney his fee plus any fines.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
The survey looks solid :(.
SAY WHAT???
BTW, I was actually able to see the survey... Where do you see the justification for the speed reduction Quirky?
================================================== =================
Quote:
Quoting
quirkyquark
I will say this in general, based on my observations of attorneys appearing in traffic courts for simple infractions. If the officer is present, the best you can get is a plea deal where the offense is changed to a non-mover with the same (or sometimes greater) fine; if the officer doesn't show, the case gets dismissed just as if you had appeared yourself. Either way, you still owe he attorney his fee plus any fines.
Right on point, Quirky.... For once you are right about something! Hahahaaa J/K
Here's what the guy's website says:
Quote:
In some jurisdictions like San Francisco in particular situations we can resolve your case and obtain a dismissal at the first court date. Otherwise we will set your case for trial. On the trial date, if the officer does not appear we will motion the court to dismiss the case. If the officer is present, we typically will attempt to negotiate a resolution with the officer which would involve amending the charge to a non-point violation. If we are unable to achieve a plea bargain resolution and you are not traffic school eligible, we will do the trial. Using all of these strategies, over 90% of our clinic cases result in sparing our clients from receiving a DMV “point”.
Reading the few reviews this guy has... I'm not so sure I'm that impressed. In fact, the good ones sound fake!
Keep in mind that your halfway decent attorney, is not going to take a traffic case... There simply isn't any money in it! If you're willing to pay a good chunk, you might convince a criminal law attorney to pick up a misdemeanor here and there.
We do have one exception in So Cal (and I'll leave his name out)... But for a case similar to yours, he will ask for a minimum $1000 up front. And that will take you to trial if you choose that route. And yes, he'll even appeal for you but at that point, pucker up because by then, he's by the hour! And yes, he's experienced... Been doing this for years, and posts daily updates to his "win list"...
2 problems though:
(1) For the average case, he'll send one of his "associates"... 2nd, 3rd year graduates; and
(2) His "win list" shows the cases he's won... But how many has he taken on, and how many has he lost? No one knows!!!
My philosophy on attorneys and traffic infractions is: if you're facing a license suspension (too many points), cannot take traffic school and your paycheck depends on you driving, heck yeah... In a heart beat. Otherwise, a six month "habitual offender" suspension isn't really that bad...
At least that's what I hear!
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
That Guy
SAY WHAT???
Quote:
Quoting
quirkyquark
Thanks. The survey looks solid :(. You may find a small chink or two from either the data sheets (not included) or by arguing that the "average" critical speed was incorrectly calculated from the northbound and southbound critical speeds, but there's a better option.
BTW, I was actually able to see the survey... Where do you see the justification for the speed reduction Quirky?
It's been a while since that post, but judging from the underlined part above, I think I based it on the mistaken belief that the old "round-down" to 5 mph rule applied at that time (4/2005). In fact, the 2003 MUTCD (pp. 51-53) was in force and rounding to the nearest 5 mph rule applies.
You're right, in that I don't see anything justifying the downward reduction. But, I believe that, in general, any arguments about how a "prima facie"-valid survey isn't justified will be difficult to...argue in your typical traffic court. Here are the two reasons supporting that belief:
- The 2003 MUTCD includes a very wishy-washy statement on the 5 mph reduction (compared to the later versions) -- just a bullet point stuck in the middle of the guidance section which says:
Quote:
Quoting CA MUTCD 2003, p. 2B-51
The speed limit should be established at the nearest 10 km/h (5 mph) increment to the 85th percentile speed. However, in matching existing conditions with the traffic safety needs of the community, engineering judgement may indicate the need for a further reduction of 10 km/h (5 mph).
- The survey does show a significant (but lower than average) rate of accidents, which can be used to justify the vague standard above.
Compare the 2010 MUTCD:
Quote:
Quoting CA MUTCD 2010, p. 2B-7
Standard:
When a speed limit is to be posted, it shall be established at the nearest 10 km/h (5 mph) increment of the 85th-percentile speed of free-flowing traffic, except as shown in the Option below.
Option:
The posted speed may be reduced by 10 km/h (5 mph) from the nearest 10 km/h (5 mph) increment of the 85th percentile speed, in compliance with CVC Sections 627 and 22358.5.
Standard:
If the speed limit to be posted has had the 10 km/h (5 mph) reduction applied, then an E&TS shall document in writing the conditions and justification for the lower speed limit and be approved by a registered Civil or Traffic Engineer. The reasons for the lower speed limit shall be in compliance with CVC Sections 627 and
22358.5.
Thus, without the immediate strength an explicit MUTCD rule would lend, the OP is reduced to using case law in support of his argument. That may not go down well in traffic court. I'm not saying the survey shouldn't be brought up (if only to preserve the issue for appeal), but the other 5+ year arguments my post mentioned have a somewhat higher chance of success since you can cite bright-line VC sections in support.
Anyway, I recommend our OP try making the survey argument in his TBD. Considering that his appetite for a fight is low, he should also throw in the POST, calibration, etc. requirements and demand that the judge require documentary proof be shown (it's hearsay otherwise) -- the caveat there is that the judge will probably just accept the officer's checkboxes (because he is "under oath") and you don't get anywhere.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
That Guy
SAY WHAT???
BTW, I was actually able to see the survey... Where do you see the justification for the speed reduction Quirky?
================================================== =================
Right on point, Quirky.... For once you are right about something! Hahahaaa J/K
Here's what the guy's website says:
Reading the few reviews this guy has... I'm not so sure I'm that impressed. In fact, the good ones sound fake!
Keep in mind that your halfway decent attorney, is not going to take a traffic case... There simply isn't any money in it! If you're willing to pay a good chunk, you might convince a criminal law attorney to pick up a misdemeanor here and there.
We do have one exception in So Cal (and I'll leave his name out)... But for a case similar to yours, he will ask for a minimum $1000 up front. And that will take you to trial if you choose that route. And yes, he'll even appeal for you but at that point, pucker up because by then, he's by the hour! And yes, he's experienced... Been doing this for years, and posts daily updates to his "win list"...
2 problems though:
(1) For the average case, he'll send one of his "associates"... 2nd, 3rd year graduates; and
(2) His "win list" shows the cases he's won... But how many has he taken on, and how many has he lost? No one knows!!!
My philosophy on attorneys and traffic infractions is: if you're facing a license suspension (too many points), cannot take traffic school and your paycheck depends on you driving, heck yeah... In a heart beat. Otherwise, a six month "habitual offender" suspension isn't really that bad...
At least that's what I hear!
Ok, thanks.
So is my best bet just to do a TBD saying "not guilty, etc" and see what happens. Then read officer's reply if he submitted one and figure out trial de novo stuff from there? Can I still request traffic school at the trial de novo?
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
CityOfAngels
So is my best bet just to do a TBD saying "not guilty, etc" and see what happens. Then read officer's reply if he submitted one and figure out trial de novo stuff from there? Can I still request traffic school at the trial de novo?
Re traffic school, yes, but no guarantees (up to judge). Re "best bet", see answer below. If you'll simply end up asking for traffic school in the TDN, put it all in the TBD.
Quote:
Quoting
quirkyquark
Anyway, I recommend our OP try making the survey argument in his TBD. Considering that his appetite for a fight is low, he should also throw in the POST, calibration, etc. requirements and demand that the judge require documentary proof be shown (it's hearsay otherwise) -- the caveat there is that the judge will probably just accept the officer's checkboxes (because he is "under oath") and you don't get anywhere.
-
Re: What Can I Expect from This Speeding Ticket
Quote:
Quoting
quirkyquark
Re traffic school, yes, but no guarantees (up to judge). Re "best bet", see answer below. If you'll simply end up asking for traffic school in the TDN, put it all in the TBD.
Thanks, so I'll be doing the TBD and attaching the bail check this week. My options are either to simply write "Not Guilty", or to follow the template I posted on page 1. Final thoughts?
I'm leaning towards using the template because many people have had luck with ticket assasins, myself included.
-
Re: What Can I Expect from This Speeding Ticket
Ideally, you would submit a fact-specific TBD which may stand a good chance of winning since survey is 5+ years old. Have you requested the TBD forms yet (i.e. submit bail and a "request for TBD")?