Cited for the Wrong Speeding Section

My question involves a traffic ticket from the state of: California

I was cited for 22349, but was driving on a 4 lane divided highway. I believe I can only be cited for 22350. I was cited for going 43 in a 30. Thd officer had radar or laser.

V C Section 22349 Maximum Speed Limit
(a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.
(b) Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following apply:
(1) A two-lane, undivided highway is a highway with not more than one through lane of travel in each direction.
(2) Passing lanes may not be considered when determining the number of through lanes.
(c) It is the intent of the Legislature that there be reasonable signing on affected two-lane, undivided highways described in subdivision (b) in continuing the 55 miles-per-hour speed limit, including placing signs at county boundaries to the extent possible, and at other appropriate locations.

V C Section 22350 Basic Speed Law. 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

Post a copy of the ticket (redact personal info first) on Imageshack, etc. If its really for 22349(a) for going 43 in a 30, it should be an easy dismissal in a trial by declaration.

In this case, and with a speed limit as indicated on the citation being below the 55mph in 22349(b) and below the 65mph limit in 22349(a), there is always a chance that the citation may be rejected by the court when it is submitted for filing, at which time it would have to be amended by the officer before it is refiled in court. If that happens, you should receive notice of the correction from the officer.



ndttnt11 you can ignore this part as it has no legal basis whatsoever. This is only a question for Quirky and HonkingAntelope?

Why would be an easy dismissal? Couldn't the judge, by way of "judicial discretion", dismiss the 22349 citation and reissue it under 22350?

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Quoting That Guy

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Why would be an easy dismissal? Couldn't the judge, by way of "judicial discretion", dismiss the 22349 citation and reissue it under 22350?

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You're missing the elephant in the room. The kind of "discretion" Comm'r Porter--as well as all judges giving CDL drivers no-pointers--exercise is essentially prosecutorial discretion by proxy, because what they're doing is offering straight-up plea bargains! If Porter found someone guilty after a trial of 21453(a/c), and at the end said "No big deal, buddy -- I'll amend it now to 21453(b) to give you a break".....THAT is willful misconduct.

Apart from the prosecutor's implied consent, remember plea bargains must ALWAYS have the defendant's consent. Is your hypothetical situation possible? Sure, but no knowledgeable defendant is going to agree to such an amendment! Maybe some very upstanding but paranoid international grad student....but then again, the "bargain" is in the eyes of the beholder. :D

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Quoting quirkyquark

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You're missing the elephant in the room.

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Didn't even know the circus was in town... :p

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Quoting quirkyquark

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The kind of "discretion" Comm'r Porter--as well as all judges giving CDL drivers no-pointers--exercise is essentially prosecutorial discretion by proxy, because what they're doing is offering straight-up plea bargains!

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I really don't think the CDL example applies here... In those cases, I assume that the officer has also agreed to the amendment. And in those cases, if it must be done right, then the officer can wait until the case is called, he can simply request that the citation be dismissed in the interest of justice, OR the judge can do the same thing, after which the officer can then reissue the non-mover, defendant pleads guilty to the non-mover, pays the fine, everybody is happy. But in the interest of saving time and resources, the judge simply takes care of the amendment the easy way.

You can cal it "discretion" all you want... In this case, (it sounds like) Porter is doing all this finagling at the arraignment... the officer has no clue, the issuing agency thinks nobody has contested the citation, and the DA isn't even aware there was a red light ticket!

Plus, although I have never seen it happen in court (my experience is with a few judges who not only denied it, but chewed out the defendant for even asking), but isn't the CDL holde also paying a higher fine (and if not higher then the same as the original violation)?

In this case, its better than an after-Christmas sale... Discount on top of discount on top of discount... and then we wonder where do people get their entitlement!!!
I don't really think that there is such a thing as "prosecutorial discretion by proxy" or "prosecutorial implied consent"... If those terms were descriptive of anything that happens in court, then the indirect result there will mean that "judicial discretion" also gives a judicial office to act as a prosecutor... Not going to happen!

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Quoting quirkyquark

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If Porter found someone guilty after a trial of 21453(a/c), and at the end said "No big deal, buddy -- I'll amend it now to 21453(b) to give you a break".....THAT is willful misconduct.

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The willful part is unquestionable... He is willfully and wantonly acting above and beyond the ability given him by his position, and that makes matters even worse. But wait, back to the misconduct part.... If you are considering that act described there as misconduct, then I suggest that Porter's actions are much worse, watch:
He is dismissing a citation on a whim, simply because it says "right turn on red" (or words to that effect) without hearing "the evidence" (judicial discretion does not extend to a judge having the power to prevent the people from presenting their case). This is all on a citation that, more likely than not, is one the defendant will lose (otherwise, if defendant has a defense then the whole exercise is unneeded).
Then he is issuing a citation for a subsection that doesn't even apply to the actual violation... Subsection 21453(b) does not cover a "rolling right turn on red", that is (correctly) covered under subsection(a)...
And as if that is not enough, he is then convicting a defendant of a violation that not only was not committed, a violation that has no connection to the elements of the offense committed. (Wouldn't it be funny if a defendant actually appealed one of Porter's cases after having Porter give him a break)!!!
Wait,he's not done yet... He then does the extra mile and reduces the fine even further... Now that is service!!!

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Quoting quirkyquark

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Apart from the prosecutor's implied consent, remember plea bargains must ALWAYS have the defendant's consent.

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Well, hell... Discounting a ticket from $480 down to $110? That is a 77% discount... And what defendant would no consent!

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Quoting quirkyquark

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Is your hypothetical situation possible? Sure, but no knowledgeable defendant is going to agree to such an amendment!

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Who ever said that the judge has to consult with the defendant before he/she makes a decision?

Defendant can appeal if he wants... And the judge will eventually get caught and reprimanded... Which is the part that is perplexing to me about Porter... I wonder if the DA, presiding judge in that court, county treasurer... etc are aware of what this... (hmmm).... tool is doing!

You know we can settle this matter very easily, we can anonymously send copies of that article to the presiding judge, the city council (if they have red light cameras), county supervisors... etc. Then we can sit back and wait... See who gets fired first, Porter or the lady judge!!!

What do you think?

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Quoting quirkyquark

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Maybe some very upstanding but paranoid international grad student....

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Poor guy, gotta feel for him though (not because of his tickets, he deserved those) but simply because court is a scary issue for citizens... I could only imagine how it would feel to appear in court in England, for example!!!

I imagine it would be something like this:
http://uk.visitor-attractions.com/us...images/235.jpg

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Quoting quirkyquark

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....but then again, the "bargain" is in the eyes of the beholder. :D

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Still not a plea bargain... The people (and the prosecuting attorney would ALSO have to agree to a plea bargain... In this case, they were never consulted!

OH, AND MY SINCEREST APOLOGIES TO "ndttnt11" FOR HIJACKING HIS/HER THREAD!!!!

(But heck... Since we are already past the point where it is questionable, might as well add this...

I am still trying to post that thread... And I swear, I must have started it 15 to 20 times already, only to get to a point where I feel, nahhh, this is too much or I cannot say that.... Quite a few details and yet, I don't want to sound like the people I am always chastising... Hopefully by tomorrow afternoon).