Re: Speed Survey Ladot Issues
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condenado
If I had an opinion of him the resolution of your own case would not change it. It would make me think you have very fine legal skills to be found innocent.
There is a HUGE difference between innocent and not guilty!
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condenado
isnt that what a good lawyer does? It worked out ok for OJ Simpson.
Well, if the OJ Simpson case is your gauge for jurisprudence, I don't think we have much to talk about!
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quirkyquark
I missed that distinction earlier, sorry. I agree, broadly, it has to be the former, but at the same time, it can't be just speculative.
You say it can't be speculative; I say it need not be factual... Come on Quirky, don't tell me (AGAIN FOR THE 187369th TIME) that you have to almost collide with something or run over someone before a conviction can be sustained by ANY court!
If that is the case and I am wrong, then enlighten me as to why this odd requirement would only come in AFTER the survey gets older!
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quirkyquark
The latter was meant as "laymanspeak"
You say it's "laymanspeak", I say you were laying out the exact points for the OP to argue before the judge!
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quirkyquark
...but I see how it can be misread.
Yeah, me too... Especially that the OP came back from court repeating that same sentence!
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quirkyquark
Let us assume that 22351 otherwise applies: so long as the speed is above the PF limit, there's no need to prove the elements of 22350.
22351 applies, in every prosecution involving a PF case.
The defendant will always have to prove 22351 in every 22350 case where the measured speed is in excess of the valid and properly justified and posted speed limit!
The age of the survey has no effect on that, nor does any other provision in the vehicle code!
I agree that for older (7+ year old) surveys, the prosecution has the added burden of providing the court with reasons why the defendant's speed was unsafe/unreasonable. But that has ZERO effect on the applicability of 22351.
Meaning after the officer is done testifying, the eyes of the judge will turn to the defendant waiting for that 22351 discussion!
If you can show me otherwise, I'll concede by publication in the Los Angeles times and whatever major newspaper is a daily publication wherever your South Central Cali happens to be!
Let me stop here simply because unless we agree on these main points, then the rest of the discussion is futile!
Re: Speed Survey Ladot Issues
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Well, if the OJ Simpson case is your gauge for jurisprudence, I don't think we have much to talk about!
I didnt say it was my gauge. Clever one, arent you?
Re: Speed Survey Ladot Issues
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That Guy
Come on Quirky, don't tell me (AGAIN FOR THE 187369th TIME) that you have to almost collide with something or run over someone before a conviction can be sustained by ANY court!
I have never said such a thing. As explained earlier, I believe the Ellis-Behjat standard is appropriate. If your opinion is that the Behjat court was wrong, well, we'll just have to wait for precedent to convince you otherwise. Until that comes around, I'll continue to recommend people pursue this as a 22350 ground of appeal if there is even the hint of an appearance that the Ellis-Behjat standard was not met.
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That Guy
then enlighten me as to why this odd requirement would only come in AFTER the survey gets older!
Why do ALL of these "odd" requirements come in after the 5 year point? Even the ones that, IMO, are more important, like the radar/lidar being calibrated, maintained properly, and the officer properly trained? As you yourself pointed out, there is no such statutory requirement otherwise, right?
If 22351 is to be construed your way, I actually think that this is the only requirement which makes sense for older surveys; it's an added check/burden should the speed survey now be invalid simply because the traffic, land use, etc. are now different!
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That Guy
You say it's "laymanspeak", I say you were laying out the exact points for the OP to argue before the judge!
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Yeah, me too... Especially that the OP came back from court repeating that same sentence!
I have no problem with someone using that "laymanspeak" to "argue" this issue before a trial judge. Hell, they could even argue "If I didn't hit, you must acquit!" Because it. does. not. matter. at. trial. All this is, is a last-ditch attempt to convince a legally recalcitrant judge to reconsider, so that the effort of appealing may be avoided. No objection is necessary, no matter how old the survey. All that matters is the "substantial evidence" argument upon appeal.
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That Guy
I agree that for older (7+ year old) surveys, the prosecution has the added burden of providing the court with reasons why the defendant's speed was unsafe/unreasonable. But that has ZERO effect on the applicability of 22351.
Meaning after the officer is done testifying, the eyes of the judge will turn to the defendant waiting for that 22351 discussion!
First of all, the requirement is for 5+ year old surveys. Second, you forget that it isn't any old element, it is part of rebutting the speed trap presumption in this case. If the prosecution does not satisfy the 40802(c)(1)(C)(ii) burden, the court is without jurisdiction to convict the defendant.
You do realize what effect without jurisdiction has, right? NO LAW IS APPLICABLE as to that charge, including 22351. Let's qualify your claim then:
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That Guy
22351 applies, in every prosecution involving a PF case once the speed trap presumption has been rebutted.
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That Guy
Let me stop here simply because unless we agree on these main points, then the rest of the discussion is futile!
Shorter TG: I'm gonna take my ball and go home! :p :D
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That Guy
There is a HUGE difference between innocent and not guilty!
Morally, ethically, socially .... sure. But LEGALLY? And "HUGE" at that? Pray tell...
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That Guy
Well, if the OJ Simpson case is your gauge for jurisprudence...
Didn't you mean "jury's-prudence?" Surely "jurisprudence", as in "[j]udicial precedents considered collectively" or "caselaw" (Black's 9th. ed, 2009), has no relevance to the OJ Simpson case since, AFAIK, there was no legal precedent set?
Perhaps you mean jurisprudence as in "[a] system, body, or division of law", with respect to the OJ case. Maybe "justice" is a better word, then? Just because you believe the outcome there was the wrong one, doesn't mean jurisprudence is implicated. Unless, of course, you believe that any precedents the judge may have followed in making his decisions, or in issuing the jury instructions, or otherwise "administering" the trial were incorrect and had a 'prejudicial' effect on your preferred outcome. In which case, do share.
Re: Speed Survey Ladot Issues
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All that matters is the "substantial evidence" argument upon appeal
Quirky,
A question about the evidence code. When I challenged the validity of the survey signatures on the traffic survey and if in fact any of them were registered engineers, doesnt that shift the burden of proof to the prosecution to prove otherwise? There was no attempt in my case to do so. ( code 607) ..." the defendant need only raise a reasonable doubt as to the existence of the presumed fact."
I am not sure if I raised the issue of the survey/signatures/registered engineer at the moment the cop offered it into evidence but I know I did when I itemized my 1118 objections. Nothing was made of it. Same with the certificates and those I did object to during testimony. The trial just rolled on like I had said nothing. Shouldnt the judge at least have had a look at the documents or questioned them a bit?
Re: Speed Survey Ladot Issues
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Send a request like this to the LAPD asking for a copy of the lidar certificate in your case.
Quirky,
Re the request sent to the LAPD in your you supply the number of the lidar unit. I dont have that number for this case..is it necessary and if so how would I get it?
Re: Speed Survey Ladot Issues
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condenado
A question about the evidence code. When I challenged the validity of the survey signatures on the traffic survey and if in fact any of them were registered engineers, doesnt that shift the burden of proof to the prosecution to prove otherwise? There was no attempt in my case to do so. ( code 607) ..." the defendant need only raise a reasonable doubt as to the existence of the presumed fact."
I like that section of the evidence code; 667 is my favorite.
It looks like your survey was done in 2001, which means that it was subject to the regulations in the CalTrans Traffic Manual, 1996 edition. The regulations were changed in 2010 to require that a registered civil or traffic engineer approve any justifications for lowering the posted speed by 5 mph. (See California MUTCD 2010, page 2B-7). You can certainly try to argue that the survey wasn't approved by the right people, but there's no regulatory requirement for approval by a certified engineer in the 1996 CalTrans Traffic Manual. Official documents are often allowed by an exception to the hearsay rule. See Evidence Code 1280 for all the details on that one.
Edit: I realized that you might also be referring to Vehicle Code 40802 (b)(2)(B)(i)(II). In that case, yes there's a statutory requirement that a registered engineer re-evaluate the conditions. However, there are additional presumptions for official writings. Evidence code 1453 states that signatures are presumed to be genuine and authorized, if they're from a public employee of any public entity in the US. It will be hard to argue that the signature is invalid, but you might be able to argue that there's no evidence to support that the individual is a certified engineer. (See Quirky's post about Business and Professions Code 6735(a)).
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That Guy
22351 applies, in every prosecution involving a PF case.
The defendant will always have to prove 22351 in every 22350 case where the measured speed is in excess of the valid and properly justified and posted speed limit!
After reading People v. Huffman, that seems to square with my understanding too.
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Quoting People v. Huffman (2000)88 Cal.App.4th Supp. 1, 106 Cal.Rptr.2d 820
No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude that the defendant drove at a speed that either endangered people or property or was unreasonable for the driving conditions. (People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [discussing statutory elements of basic speed law violation].) If the section 22350 charge rests on an allegation that defendant exceeded a posted or prima facie speed limit, the People must introduce into evidence or permanently lodge with the court a certified copy of a traffic and engineering survey, made within the past five years, justifying that speed limit. (People v. DiFiore (1987) 197 Cal.App.3d Supp. 26, 28-29.) If the court finds the survey does justify the speed limit, then the burden shifts to the defendant to prove his speed was nevertheless safe under the circumstances. (Veh. Code, § 22351, subd.(b).) On the other hand, if a survey is required but not introduced, the officer is incompetent to testify as to the defendant's speed. (Veh. Code, §§ 40802 40804.)
Huffman and Bejhat indicate that to cover the elements of the offense charged under 22350, the prosecution must introduce evidence about either the weather, visibility, the traffic on, and the surface and width of, the highway; or that the safety of persons or property was endangered. In the case where radar/laser was used, the prosecution also must prove that a speed trap wasn't present by introducing a valid speed survey into evidence.
The evidence necessary to sustain the conviction is different from the burden of proof. What is sufficient to indicate a lack of due regard for weather, visibility, traffic, etc. in the case where radar was used? Does it suffice for the officer to testify that the weather was clear, the roadway was dry, and traffic was moderate? Or does the prosecution actually have to prove that the defendant disregarded the conditions, and endangered people or property? 22351 has two subsections: one for a violation when the driver was below the posted limit, and the other for driving in excess of the posted speed. If you're charged with driving in excess of the PF speed, the prosecution must mention the elements of the charged offense, but the burden is on the defendant to show that his driving was safe for the conditions. If you were cited for 22350, but were driving at a speed below the posted limit, the prosecution prove that you were doing something dangerous based upon the elements of the charged offense. For radar cases, with a valid and justified survey, it sounds like this falls squarely into 22351(b), where the burden is on the defendant to show that they were driving safely for the conditions, assuming their speed was in excess of the limit.
That's how I read all of this, but I'm certainly interested in other interpretations, especially those favorable to the defendant.
Re: Speed Survey Ladot Issues
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condenado
I didnt say it was my gauge.
And yet it was the only "gauge" you offered us here!
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condenado
Clever one, arent you?
Am I going to fast for you? (No "speeding" pun intended).
Re: Speed Survey Ladot Issues
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quirkyquark
"If I didn't fit, you must acquit!"
That has got to be my favorite legal quotation of all times!
You can even amend it and utilize the same format for our use:
If it (the survey) doesn't justify, he (the cop) shouldn't testify!
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quirkyquark
Shorter TG: I'm gonna take my ball and go home! :p :D
Nah, you're a big boy... You can handle the pressure, I am sure!
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quirkyquark
Morally, ethically, socially .... sure. But LEGALLY? And "HUGE" at that? Pray tell...
Seriously? No, honestly... You don't know the difference?
Would you like me to include a definition of "beyond a reasonable doubt" while I explain the difference or do you understand that part?
* See example below.
And since I have to point it out, I meant:
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quirkyquark
jurisprudence as in "[a] system...
So as far as:
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quirkyquark
Maybe "justice" is a better word, then?
Maybe... But then I would have had to follow that up with the word "system"... And by my count both terms amount to 13 characters only your suggestion would have required an extra tap to enter a "space"... So I chose jurisprudence instead!
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quirkyquark
Just because you believe the outcome there was the wrong one, doesn't mean jurisprudence is implicated.
Which part of what I said implied to you that I thought that the OJ Simpson decision was the "wrong one"?
What if I thought that it was the right decision? What If I though, instead of the OP suggestion (that a defense attorney having a set of very fine legal skills resulted in him being found innocent*), that it was the prosecution that failed to meet the burden to find him guilty beyond a reasonable doubt?
That does not "implicate" jurisprudence, quite the contrary, it proves that it works EXACTLY as designed!
* BTW, as an example, and just to keep it simple for all involved, I'll use the OP's example... OJ Simpson was not found "innocent" of the 2 PC 187 charges brought against him, instead, he was found "not guilty"!
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quirkyquark
Unless, of course, you believe that any precedents the judge may have followed in making his decisions, or in issuing the jury instructions, or otherwise "administering" the trial were incorrect and had a 'prejudicial' effect on your preferred outcome. In which case, do share.
In the words of a not so frequent forum visitor, What's your point Quirky? Is the OJ Simpson case that fascinating to you that you couldn't wait to discuss all those aspects of it or are you feeling the squeeze on the 22351 argument and this is your attempt to distract me :D
Re: Speed Survey Ladot Issues
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And yet it was the only "gauge" you offered us here!
Ah..the royal "we"...I should have recognized you from your difuse, unfocused responses, IGB.
Hows things on the other list?
Re: Speed Survey Ladot Issues
Ooooh, great discovery there! As if it was a secret.
And as far as "Unfocused responses", I guess I am going too fast for you, and we've gone back full circle to your issues with reading and comprehension that I alluded to earlier!
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condenado
Hows things on the other list?
Seems you have an issue with writing as well... :D
Re: Speed Survey LADOT Issues
Quirky,
I have the traffic survey now and can link to it just need a bit of time to post it.
Still dont have copies of the officers certificates but Ive sent a letter to obtain them.