How to Beat a CVC 22349(A) Ticket

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

I'm trying to fight 22349(a) ticket. Citing CHP officer indicated on a ticket that I was driving 86 mph (with 65 mph limit). The officer did use radar to determine my speed.

My court trial on May 8. I prepared more or less standard discovery request letter (requesting any/all notes including those on reversed side of the officer's copy of the ticket, radar maintenance and calibration info, radar related officer's certification; did not include Traffic & Eng. survey related request since this is Max (not Basic) Speed Law case) which I'm going to personally deliver to both CHP and DA some time tomorrow. Will make them to stump my copies, make additional copies, etc.

If CHP does not respond to my discovery request during 21 days, this of course would help me at court. Otherwise, my chances seem very slim. There is a one thing however:

THE CAR OFFICER WAS DRIVING WAS UNMARKED. That is, before stopping me, he was following me for a while by all-white car. The officer was in uniform.

I believe that according to VC 40800 and 40804 (and People v. Tuck, 75 Cal.App.3d 639) citing with unmarked car makes the officer "incompetent witness", so I can try to request judge to exclude officer's testimony. In connection with this, I have three questions:

1. What if the officer simply denies that his car was unmarked? I stupidly didn't make any pictures, and my only witness is my wife (who was in my car).

2. If the officer does not deny his car was unmarked, will it help if I in advance prepare "motion to dismiss" and bring it with me on a trial.

3. At this very stage (preparing discovery request) can I include in a letter any request related the officer's unmarked car?

Thank you very much for your help.

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Quoting zub

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If CHP does not respond to my discovery request during 21 days, this of course would help me at court.

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"Of course"... ???

How would that help you? Can you elaborate?

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Quoting zub

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THE CAR OFFICER WAS DRIVING WAS UNMARKED. That is, before stopping me, he was following me for a while by all-white car. The officer was in uniform.

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Just because it was an all white car does not make it unmarked... Did it have the CHP insignia on the doors? And/or that "HIGHWAY PATROL" words on the rear?

Two relevant California Code of Regulations sections:

1) California Code of Regulations

Title 13. Motor Vehicles

Division 2. Department of the California Highway Patrol

Chapter 5. Special Vehicles

Article 5. Color of Traffic Law Enforcement Vehicles

§ 1140. Scope.

This article shall apply to the color of motor vehicles used by police and traffic officers on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 or 11 of the Vehicle Code, as provided in Section 40800 of the Vehicle Code.

Note: Authority cited: Section 2402, Vehicle Code. Reference: Section 40800, Vehicle Code.

And

2) California Code of Regulations

Title 13. Motor Vehicles

Division 2. Department of the California Highway Patrol

Chapter 5. Special Vehicles

Article 5. Color of Traffic Law Enforcement Vehicles

§ 1141. Color Requirements.

Each motor vehicle shall have a distinctive exterior finish, exclusive of wheels and trim, as follows:

(a) Vehicles Except Motorcycles.

Vehicles, except motorcycles, shall be painted:

(1) Entirely white; or

(2) White, except that an area not less than and including the front door panels shall be black; or

(3) Black, except that an area not less than and including the front door panels shall be white; or

(4) Any other color, with any color front door panels.

(5) The indicia or name of governmental entity operating the vehicle shall be displayed in sharp contrast to the background on the front door panels and shall be of such size, shape, and color as to be readily legible during daylight hours from a distance of 50 feet.

(b) Stripes. Painted or decal stripes may be used provided that the stripe does not interfere with the contrast or legibility of the indicia or name of the governmental entity operating the vehicle.

(c) Motorcycles. Each motorcycle shall have one of the following finishes:

(1) Entirely white; or

(2) The sides of the tank and fenders shall be white or the fenders may be entirely white or entirely black; the remaining portions of the motorcycle, which normally receive a painted or enameled finish, shall be black, white, or a combination of black and white, except that these surfaces may have a sharply contrasting accent color overlaying the predominant black and/or white background; or

(3) Any other color.

(4) The indicia or name of governmental entity operating the motorcycle shall be displayed in sharp contrast to the background on the sides of the fairing or tank and shall be of such size, shape, and color as to be readily recognizable during daylight hours from a distance of 50 feet.

Note: Authority cited: Section 2402, Vehicle Code. Reference: Section 40800, Vehicle Code.

There is no way to direct link those section, but you'll find them, HERE: California Code of Regulations


Obviously, that makes an ALL WHITE VEHICLE pretty legit... Are the other requirements legit? You'll have to tell us! Once we're done qualifying whether the vehicle meets the requirements, we can go back to VC 40800 and to see if it still applies. While you did in fact reference the correct code sections related to these issues, it seems as if you only applied the color of the vehicle but left out all other elements.

When he was "before stopping me, he was following me for a while", how did you know he was a law enforcement? I mean if I am on a freeway, traffic behind and around me and even if it is travelling at or near my speed, is not necessarily "following me"!

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Quoting zub

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1. What if the officer simply denies that his car was unmarked? I stupidly didn't make any pictures, and my only witness is my wife (who was in my car).

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What if...?

Clearly, your wife would be considered quite biased, and her testimony holds just as much weight as yours compared to the officer's. You can request information about the vehicle assigned to the officer for that day. I couldn't tell you what, in particular they will provide... Try it and see!

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Quoting zub

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2. If the officer does not deny his car was unmarked, will it help if I in advance prepare "motion to dismiss" and bring it with me on a trial.

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Whether he denies it or not, your motion will have to be served on the prosecuting attorney and filed in court, -both in a timely manner per California Rules of Court and any local rules your particular court may have. (You can contact the court clerk for all that info).


Creative as this may have been, and to answer your question, citations in violation of 22349 (or any other max speed law) especially with you being 21 mph over the state's maximum limit, are nothing to shake your stick at!

An all white CHP patrol car is FULLY marked when it has the CHP stars on the doors. It does not need trunk lettering either, just the stars.

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Quoting sniper

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An all white CHP patrol car is FULLY marked when it has the CHP stars on the doors. It does not need trunk lettering either, just the stars.

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It sounds to me like its either or...

CCR 1141(a)(5)The indicia or name of governmental entity operating the vehicle shall be displayed in sharp contrast to the background on the front door panels and shall be of such size, shape, and color as to be readily legible during daylight hours from a distance of 50 feet.


Either way, it appears the OP was trying to pull a fast one.... He probably knew full well the vehicle was properly marked, but wanted to explore a Hail Mary on an unbeatable citation!

That Guy and sniper: Thank you vrey much for your replies.

After all, it looks like the officer's car was not unmarked. In addition to the info you provided, my wife now recalls seeing some stars on the right door of police car.

I personally don't remember any stars or other signs: it was just white color. If I saw anything, I would definitely slow down, no matter what my real speed was. I had no idea it was police car and was wandering why the guy was following me like crazy (I frankly don't remember was he right behind me in the same lane or he was in the adjacent lane on the right - in the latter case it could be on purpose because driver from the left can't see signs on the right door)

I've been waiting for discovery materials to arrive by mail but nothing came so far. I requested radar related info, all officer notes, car description (personally delivered request on 4/16). Without this and related info, it now seems difficult to develop a defence strategy having any real chances...

Thay Guy, you wrote:

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Quoting That Guy

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... it seems as if you only applied the color of the vehicle but left out all other elements

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I'm not sure what other elements could be used in this case. What do you think?

Thank you again.

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Quoting zub

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I personally don't remember any stars or other signs.....

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Whether you've seen them or not is not even a remote issue to contend with; of course, you would be within your rights to try and ask him about that, but seriously, do you think he is unaware of that requirement? Fact is, you need not ask him simply because this will be the third or forth statement he will give in his testimony; first he will identify himself by name, then identify the agency he works for and how long he's been there, then he'll mention the date of the violation and state that he was "in full uniform and driving a marked vehicle" on such and such a highway!

Now what???

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Quoting zub

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I frankly don't remember was he right behind me in the same lane or he was in the adjacent lane on the right - in the latter case it could be on purpose because driver from the left can't see signs on the right door).

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It seems there is a lot you don't remember... Selective memory, perhaps? he is under no obligation to drive up next to you, point down to an indicia, a star or the name of his agency, then back off and try and pace or measure your speed! Not that any of it is important... I simply don't expect the officer to testify that he was testing a new method to measure speeds. He either paces you or he used RADAR or LIDAR... All three methods have been considered acceptable and sufficiently accurate for their purpose. Throw in the fact that you were allegedly 21 over, and now you're pretty much done! I've seen cases like this one end in 2 minutes. Literally!

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Quoting zub

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I've been waiting for discovery materials to arrive by mail but nothing came so far. I requested radar related info, all officer notes, car description (personally delivered request on 4/16). Without this and related info, it now seems difficult to develop a defence strategy having any real chances...

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What is it that you're hoping to gleam through discovery? What is it that you
requested that you expect will break this case in your favor?

Give us an idea on what items did you request, and I might be able to give yo some direction as to what the officer will admit into evidence.

Either way, you can be sure that with discovery or without, being able to develop a defense strategy having any real chances will be extremely difficulty but that is only because of the nature of the offense and in most cases the huge margin between the speed limit and the measured speed.

You can browse the forum and you'll see similar response and outcomes to what I'm giving you here. Better yet, yo can go to court a few days before you trial and sit, listen and watch... You'll see first hand how these cases are handled and the relatively perfect conviction rate

SO in answer to your yet to be asked question, no, their not providing you with any discovery will not result in a dismissal. I presume you cited Penal Code Section 1054.5 in your request, well, then i an fairly certain that you read PC 1054.5(c)... YOu could not have missed it.

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Quoting zub

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I'm not sure what other elements could be used in this case. What do you think?

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The "elements" I was speaking of were regarding the marked/unmarked vehicle. You saw a white car and assumed it was unmarked all while it likely had a star on each door, and/or the words HIGHWAY PATROL, somewhere on the doors or the rear.

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Quoting zub

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Thank you again.

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No! Don't thank me yet...

Here is my advice and it is pretty simple... If you are eligible for traffic school, then in the majority of these cases, taking traffic school is the better option than trying to fight an uphill climb and a war you cannot win, only to end up with a point on your record and a possible increase in insurance premium. Of course I have no idea how old you are, your existing driving record or who you're insured with, so I have no idea how your premium will be impacted. What I do know is that most insurers would not hesitate on trying to make a few extra buck off of you for the next three years. And frankly, why should they!

Now you can thank me because that is the only likely advice you will benefit from!

Good luck!

That Guy:

If I was eligible for traffic school, I'd definitely take it. Unfortunately, I'm not (yet).

Now, CHP response to my discovery request finally arrived, with cover letter signed by Captain Commander of the area. Some details:

1. They sent me copies of front and back of ticket, however Officer's notes on the back are impossible to read. Because I was going to carefully review Officer's notes, I specifically requested "legible copies". The only thing I was able to read on the copy of the back was "DISTANCE OBSERVED" - 837.

2. Regarding to lidar unit used by the Officer (I'm sorry for indicating "radar" in my original post). CHP sent me copies of

(a) TRAFFIC LIDAR CERTIFICATION (IACP LIDAR TESTING LAB) dated 12/30/2010
(b) LIDAR CALIBRATION LOG dated 08/08/2011
(c) Officer's Certficate of Attainment dated 02/18/2010

All the above docs are recent enough (ticket was issued on 08/18/2011), however, in calibration log, indicated distance was 175 and 150 and speed was 50.

3. On my request for "Detailed information about the vechicle ... including car color(s) and any visible signs, words, and other marks on a car", cover letter says: "... this will be answered during testimony by Officer and during cross examination by you or your legal representative".

This answer assumes that disclosure doesn't have to be given in advance which seems incorrect both logically (the defendant needs sufficient time to review materials before the trial) and legally (PC 1054.7).

4. The date on cover letter is May 04, 2012. This means that citing agency did not respond to discovery request within 15 days from receiving it (I personally delivered Request on 04/16/2012 and have stamped copy). Per PC 1054.5(b), it was possible to seek a court order. A couple days ago, I was considering this but decided do nothing. After over 15 days of no response I was almost positive that nothing was going to come.

5. Cover letter erroneously said: "Pursuant to your Informal Discovery received via United States Postal Service...". As I said before, I delivered it personally on 4/16/2012.

This is probably all I can say for now. I know, my chances are practically zero. Still, is it possible to try to cook something from the above (like unreadable notes, etc.)? Any possible postponement, delay, etc. would be good. Any advice much appreciated.

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Quoting zub

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If I was eligible for traffic school, I'd definitely take it. Unfortunately, I'm not (yet).

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OK, I'll play along... What do you mean by "yet"?

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Quoting zub

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Now, CHP response to my discovery request finally arrived, with cover letter signed by Captain Commander of the area.

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:encouragement: I wonder if that means s/he typed it up! Hmmmm...

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Quoting zub

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1. They sent me copies of front and back of ticket, however Officer's notes on the back are impossible to read. Because I was going to carefully review Officer's notes, I specifically requested "legible copies". The only thing I was able to read on the copy of the back was "DISTANCE OBSERVED" - 837.

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Write them back telling them you want the officer to take time to re-write his notes so you are able to read them. Maybe type them up for you... Maybe specify a particular font in a particular size. Don't hold your breath waiting for much though. If you can't read his notes, you can have him read them to you at trial!

You obviously were able to determine he used Lidar instead of Radar, and the distance he used it at. What else were you looking for? You're not likely to find a confession that he faked it all... At least not in his notes, you won't!

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Quoting zub

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2. Regarding to lidar unit used by the Officer (I'm sorry for indicating "radar" in my original post). CHP sent me copies of

(a) TRAFFIC LIDAR CERTIFICATION (IACP LIDAR TESTING LAB) dated 12/30/2010
(b) LIDAR CALIBRATION LOG dated 08/08/2011
(c) Officer's Certficate of Attainment dated 02/18/2010

All the above docs are recent enough (ticket was issued on 08/18/2011), however, in calibration log, indicated distance was 175 and 150 and speed was 50.

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And??? Do you expect them to test it at every distance and every speed?

Fact is, there is no legal requirement for daily, weekly monthly or yearly calibrations for speed measuring devices, NOT for maximum speed citations. The requirement for a 3 years calibration and that the unit meet NHTSA standards is under the scope of speed trap cases, and this is not a speed trap case!

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Quoting zub

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3. On my request for "Detailed information about the vechicle ... including car color(s) and any visible signs, words, and other marks on a car", cover letter says: "... this will be answered during testimony by Officer and during cross examination by you or your legal representative".

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See my previous reply... The part just above "Now what?"

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Quoting zub

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This answer assumes that disclosure doesn't have to be given in advance which seems incorrect both logically (the defendant needs sufficient time to review materials before the trial) and legally (PC 1054.7).

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You can complain about their response but lets look at what your request assumes: the question assumes that they are a bunch of idiots who are not aware of the requirement that an officer running speed enforcement must be in full uniform and in a marked vehicle! Do you seriously think that the CHP, a statewide agency responsible primarily for enforcing traffic laws is unaware of the requirements under VC 40800?

But wait... Let us assume that they provided you with a written description now, would that convince you or will you still ask about that in court? Even after the officer testified as I suggested above?

And how much time do you need to decide what to argue if the car was unmarked versus if it was marked? Keep in mind that this is a question that your wife answered for you, could she be making the wrong assumptions to you as well?... And the only reason why it came up is NOT because you looked and didn't see markings. Its because you never looked!

Write them back telling them "THEY" are making "wrong assumptions" that "disclosure doesn't have to be given in advance which seems incorrect both logically (the defendant needs sufficient time to review materials before the trial) and legally (PC 1054.7)"... Just keep in mind that the law enforcement agency has no obligation to provide you with discovery. The prosecuting attorney is. So they did you a favor by responding to your request not because the "have to disclose anything" but simply because they want to... out of courtesy. You can write the prosecuting attorney, and you'll get the same reaction from him that you did for your last response.

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Quoting zub

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The date on cover letter is May 04, 2012. This means that citing agency did not respond to discovery request within 15 days from receiving it (I personally delivered Request on 04/16/2012 and have stamped copy). Per PC 1054.5(b), it was possible to seek a court order. A couple days ago, I was considering this but decided do nothing. After over 15 days of no response I was almost positive that nothing was going to come.

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A court order for what? To compel disclosure? You already received your response so you have no reason to seek remedy from the court.
And what could you have done (but decided to do nothing)? If you thought you had some recourse that would provide you with an edge, and you decided to do nothing.... Sounds to me like you should be getting "nothing"!

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Quoting zub

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Cover letter erroneously said: "Pursuant to your Informal Discovery received via United States Postal Service...". As I said before, I delivered it personally on 4/16/2012.

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And? Sue them!

Sounds to me like the only way you're going to be convinced that NONE of the issues that you're bringing up are anything new that hasn't been tried hundreds of times before, is for you to present each and every one of them to the judge. Normally, I would caution against wasting the court's time that way... But in this case. I think the benefits outweigh the risk so go ahead, make your list, check it twice, go to court and fight each issue tooth and nail especially the petty pathetic ones like the last one you mentioned. And then come back and let us know how it worked out for you!

You really are wasting your time and energy... The only way you're going to beat this citation is if the officer chooses not to appear. And that requires ZERO preparation. All these shenanigans you're trying to pull will get you in more hot water for wasting the court's time than they will benefit you! But as I always say... Your case, your decisions!

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Quoting That Guy

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Fact is, there is no legal requirement for daily, weekly monthly or yearly calibrations for speed measuring devices, NOT for maximum speed citations. The requirement for a 3 years calibration and that the unit meet NHTSA standards is under the scope of speed trap cases, and this is not a speed trap case!

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Yet, in WA there is a legal requirement for certificates to be kept up-to-date regarding LIDAR devices! An outdated certificate results in dismissal! He doesn't know the difference between the certificate and calibration document! And you refrain from telling him, by design!

Let the chickens come home to roost!

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Quoting lostintime

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Yet, in WA there is a legal requirement for certificates to be kept up-to-date regarding LIDAR devices! An outdated certificate results in dismissal!

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Funny how just yesterday, you made an idiot of yourself arguing against that point. Today, you're making a fool of yourself citing it regarding a case in a state where it does not apply!

There is no bottom to that ignorance pit that you live in, is there?

Washington laws don't apply in California and until YOU can offer any reasonable showing that a calibration is required, your comments are the usual drivel you run around and spew all over this forum!

Of course the OP is free to follow your advice and make that point in court. Then he can come back and discuss the consequences of your advising him to do so with YOU!

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Quoting lostintime

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Let the chickens come home to roost!

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Says the dumb-ass from Iowa to the guy in California... Y'all have cows there too or just chickens?