Will a Ticket Get Thrown Out if the Officer Wrote Down the Wrong Speed Limit

My question involves a traffic ticket from the state of: California
Lil did I know a cop in an unmarked car can site me for a traffic violation, but they can (very common mistake). He can as long it's not his primary duty to enforce traffic laws. Anyways, I was going 77-78 in a 45mph zone that is on the outskirts of my town(medium size, about 125k pop.) where it's a 4 lane, divided by a wide island, road with no houses or sidewalks on either side of the street. The street has a big curve to it and there is nothing in the way of me completely seeing through the whole curve and on down the street once it straightens out. there were just 2 cars on the road besides me.....the undercover cop and 1 other, and they were plenty far enough apart to where I safely changed lanes as I sped by the undercover cop and then changed lanes, then passed up the other car. So he sticks it to me and impounds my car and charges me with reckless driving. Fortunatly 11 days after my car was towed I talked to the main Sargent at the ploice station and explained what all happened in great detail and he released my car 2/3rds early. Cost me $720 instead of $1385. So today I look at the ticket cause the court date is soon and I see that the officer wrote that the posted speed limit is 40....but it's actually 45. He put my speed down as 80+ with it being a visual estimate only. Obviously he isn't trained to do traffic stops cause he is undercover. I know there are certain things that if written down wrong will get the whole thing thrown out. Is the wrong speed limit one of them? They also had to send me a correction in the mail cause he didn't even write me up for the correct violation (which of course is within their legal rights, but shows he barely knows what he is doing in regards to traffic citations). I do know that speding alone isn't enough to get a reckless driving ticket. On top of all that like I said, the Sargent saw the case file and felt I had been punnished enough already and let me have my car back WAY early.

Thx for taking the time to read all that. What kinda feedback do you guys have for me?

motion to suppress the evidence on the ground that the officers' violation of section 40800 rendered the vehicle stop illegal.

As speeding is involved.

People v. Tuck (1977) 75 Cal.App.3d 639 [142 Cal.Rptr. 362]

DYER v. DEPARTMENT OF MOTOR VEHICLES
163 Cal.App.4th 161 (2008)
PAUL DYER, Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
No. C054971.
Court of Appeals of California, Third District.
May 22, 2008.

CVC 40800 applies to "A traffic officer on duty for the exclusive or main purpose of enforcing the provisions of Division 10" of the Vehicle Code. You were told up from that the officer who issued the ticket does not have traffic law enforcement as his primary duty.

If you want to go to court and argue that you were exceeding the speed limit by an even greater margin than the officer believed, it's your right to do so - but that's not going to make the ticket go away.

Reckless driving occurs when "A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving." It's a misdemeanor charge, so you should be considering a lawyer.

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Quoting RHbandit

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What kinda feedback do you guys have for me?

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What section of the vehicle code were you charged with violating? If it was 23103, I would get yourself a lawyer. That violation is a misdemeanor. It can carry a maximum penalty of 90 days in jail, a fine of $1000, a 30 day license suspension, or all three. Since the speed isn't an element of the charged offense, it doesn't matter if the officer wrote the wrong speed limit on your ticket. In order to find you guilty of this offense, the prosecution has to prove that you drove a vehicle on a highway, and that you intentionally drove with wanton disregard for the safety of people or property.

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Quoting lawlessca

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motion to suppress the evidence on the ground that the officers' violation of section 40800 rendered the vehicle stop illegal.

As speeding is involved.

People v. Tuck (1977) 75 Cal.App.3d 639 [142 Cal.Rptr. 362]

DYER v. DEPARTMENT OF MOTOR VEHICLES

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Huh? Did you read those two opinions? In both cases the appellate court concluded that 40800 had no bearing the evidence in either case, and that officers who are not assigned to traffic enforcement can still make arrests for vehicle code violations.

First, Tuck:

Appellant argues that even though Ichikawa and Hernandez were Los Angeles police officers patrolling the streets that evening on specific assignment to concentrate on a heavy burglary occurrence area, they nevertheless attempted to stop the station wagon to enforce Vehicle Code section 22350 and they were out of uniform and using an unmarked vehicle thus section 40800 would apply. But this is not what the statute provides. By its language it applies only to a "traffic officer on duty for the exclusive or main purpose of enforcing the provisions of Division 10 or 11." Moreover section 40800 neither prohibits an officer not in uniform and not in a marked vehicle from detaining and arresting a driver for a speed violation nor makes his actions unlawful. The enforcement provision is found in the prohibition of the use of his testimony in the prosecution of the speeding violation (§ 40804). Section 40800 was not intended to apply in a case in which an officer was on the street for some purpose not connected with vehicle act violations; and it does not forbid him to turn aside from such purpose in order to arrest a driver for a traffic infraction. (People v. Stewart, 107 Cal. App.Supp. 757, 761 [288 P. 57].) Finally, once the officers, even though not in uniform or in a designated patrol car, observed the speeding vehicle in a residential area it was a proper exercise of their authority as peace officers to stop the driver, for they had reasonable cause to believe that the driver of the station wagon had committed a public offense in their presence (§ 836, subd. 1, Pen. Code) "Public offense" includes misdemeanors and traffic infractions as well as felonies.

Next, Dyer:

Regardless of its purpose section 40800, by its plain language, applies only to "traffic officer[s]" whose "exclusive or main purpose" is to enforce traffic laws on the public highways. In his report, Sergeant Phariss states only that he was on "uniformed patrol in an unmarked Placer County Sheriff's Department vehicle." There is no evidence in the administrative record that Sergeant Phariss was a "traffic officer" or that his main duties consisted of traffic enforcement. On the contrary, Phariss appeared to be exercising supervisory duties on the night in question: Rather than make the arrest himself, he requested that Deputy Griggs, "the deputy assigned to the King's Beach area," assist him at the scene; and it was Griggs who conducted the sobriety tests and placed Dyer under formal arrest.

The trial court was not permitted to grant the writ based on speculation or assumptions about the nature and scope of Sergeant Phariss's duties. Without any evidence in the record that Phariss was a traffic officer whose exclusive or primary duty consisted of traffic enforcement, a necessary predicate for the applicability of section 40800 was lacking.

In People v. Dibacco, the court ruled that speeding wasn't a lesser included offense of reckless driving, because the statutory definition of reckless driving allows for the crime to be committed even when somebody is not speeding. That is, it's possible to drive recklessly even if you aren't exceeding the speed limit.

"[A]n offense is necessarily included in the charged offense if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, ... [Citation.]" (People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303; see also People v. Steele (2000) 83 Cal.App.4th 212, 217, 99 Cal.Rptr.2d 458.) Reckless driving is statutorily defined as driving any vehicle in a "willful or wanton disregard for the safety of persons or property...." (Veh.Code § 23103.) Since one can drive recklessly at speeds below 100 miles per hour, the speeding charge is not necessarily included in the reckless driving charge.

You need to disabuse yourself of the notion that only traffic officers can make traffic arrests, because the case law is clear that this isn't true. More than that, reckless driving isn't statutorily based upon the speed of the vehicle, although juries can certainly consider the defendant's speed if it's presented as evidence. The important part of the criminal act is intentionally driving with wanton disregard for people and / or property.

There is possibility that Officer was out of his Jurisdiction. You will need good lawyer to suppress officer's testimony. If Officer gave you ticket out of his Jurisdiction, he need to call local cop to issue you citation.

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Anyways, I was going 77-78 in a 45mph zone

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You just made self-incriminating statement. You don't need to testify against yourself.

40 or 45 doesn't matter anymore. Its minor correctable error.

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Quoting lawlessca

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If Officer gave you ticket out of his Jurisdiction, he need to call local cop to issue you citation.

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Penal Code 830.1 (a)(3) says that if a person is employed as a police officer, and a public offense is committed in his presence, then he has the authority to act as a peace officer. ANY PLACE IN THE STATE.

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Quoting lawlessca

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There is possibility that Officer was out of his Jurisdiction. You will need good lawyer to suppress officer's testimony. If Officer gave you ticket out of his Jurisdiction, he need to call local cop to issue you citation.

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Are you just throwing crap at the wall to see what will stick? Where in the OP is there ANY indication the officer was out of their jurisdiction? Not that it matters anyway according to what TMN posted

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Quoting RHbandit

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So he sticks it to me and impounds my car and charges me with reckless driving.

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What code sections were you cited for?

What code section as used to authorize the tow?

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Fortunatly 11 days after my car was towed I talked to the main Sargent at the ploice station and explained what all happened in great detail and he released my car 2/3rds early.

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Lucky you. But, there are a number of reasons why he might have released it or been compelled to release it, this does not mean that the sergeant disagreed with the tow.

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So today I look at the ticket cause the court date is soon and I see that the officer wrote that the posted speed limit is 40....but it's actually 45. He put my speed down as 80+ with it being a visual estimate only. Obviously he isn't trained to do traffic stops cause he is undercover.

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First, he's not "undercover." If he were, he wouldn't be doing ANY stops. He is apparently assigned to either an investigative or administrative assignment, not patrol.

Second, one promotes to such a position. That means that at one point in time he did regularly conduct traffic enforcement stops and may very well have been trained in the use of radar. Now, while a court might accept any experienced officer's visual estimate of speed, an officer trained in radar also has formal training in the visual estimation of speed. So, the officer that stopped you may very well have experience and formal training in the use of visual estimation.

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I know there are certain things that if written down wrong will get the whole thing thrown out.

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There is very little in the way of clerical errors that can be leveraged to get the citation dismissed. Writing the wrong speed limit is not going to be one of them. What it might do is lower the level of the base fine ... but, the difference between 35 and 40 MPH will not change the fine at all.

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I do know that speding alone isn't enough to get a reckless driving ticket.

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True enough. But, unless you have read the report, you don't know what else he articulated.

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On top of all that like I said, the Sargent saw the case file and felt I had been punnished enough already and let me have my car back WAY early.

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And the sergeant said that? Really?

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Quoting lawlessca

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motion to suppress the evidence on the ground that the officers' violation of section 40800 rendered the vehicle stop illegal.

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If he is operating an unmarked vehicle, he is in an administrative or investigative assignment and thus NOT engaged in traffic enforcement as a main function of his duties ... as articulated by others already. This is a non-starter.

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There is possibility that Officer was out of his Jurisdiction. You will need good lawyer to suppress officer's testimony. If Officer gave you ticket out of his Jurisdiction, he need to call local cop to issue you citation.

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Also as stated, officers have jurisdiction throughout the state of CA for any public offense observed. There are a host of other atters involved including cross-signed letters approving enforcement within a jurisdiction, etc.

I read one appeal last week where officer was out of jurisdiction and case was reversed. I can't locate that case brief. That appeal stated if Officer is out of his jurisdiction, he has to call the local officer to issue citation.

Vague recollections don't help much, and they help even less when the memory is incorrect for the jurisdiction under discussion.