Speeding 25 MPH Over the Speed Limit, Traffic School Denied

I got a 22349(a) in Santa Clara county in California for driving 75 on the 17 Highway (divided with multiple lanes), which has a posted speed of 50. Ticket stated 25mph over the PF limit of 50. This was a speed trap with a radar gun.

I just got the court notice and was surprised to see that I was denied traffic school. I have not had any infractions since 2006, and I thought that as long as you were under 26 mph over the speed limit you were allowed traffic school.

Also, the fee was stated as $367, but on the SC superior court website the total amt for 16-25mph over is $287.

http://www.scscourt.org/documents/traffic_bail.pdf

I am wondering if I am missing something? Thanks so much in advance for your reply.

The rules of court will allow the judge to grant traffic school but AT or above 25 MPH, the clerk of the court cannot automatically permit you to take traffic school. So, you can go to court and ask for TS if you are otherwise eligible.

As for the higher penalty and fine you have to pay than indicated, I can't say. Was there another violation? Was this a construction zone?

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Quoting laughingsquirrel

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This was a speed trap with a radar gun.

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How do you know it was a speed trap?

California speed traps are defined under VC 40802. And so until you get a current E&T survey you don't know if its a speed trap or not.

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Quoting laughingsquirrel

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Also, the fee was stated as $367, but on the SC superior court website the total amt for 16-25mph over is $287.

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That Bail Schedule Speed Chart is incorrect. If you go back to the bottom of page IX, under "ADDITIONAL PENALTIES AND SURCHARGEs" you'll see two items listed, next page (page X) you'll see several additional items listed... For this violation (16-25mph over) the base fine is $70. So add the separate entries up except when you get to the DNA fee (and this is only one error they made), they've left out the portion I posted in red font. So add all the amounts:

• Base Fine is $70
  
• Pursuant to PC 1464 a State penalty of $10.00 per each $10.00 of fine or forfeiture, or a fraction thereof. So that's an additional $70
• Pursuant to PC 1465.7 a 20% criminal surcharge is assessed for each fine or forfeiture. That's an additional $14
• Pursuant to PC 1465.8(a)(1) a $40 Operations Assessment fee is assessed for each convicted violation. That's an additional $40
• Pursuant to GC 70372(a) a Court Construction penalty of $5.00 per each $10.00 of fine or forfeiture. That's an additional $35
• Pursuant to GC 70373(a) a $35 per infraction and or a $30 per misdemeanor charge will be imposed on every conviction for a criminal or traffic offense. That's an additional $35
• Pursuant to GC 76000(e) a County penalty of $7.00 per each $10.00 of fine or forfeiture, or a fraction thereof. That's an additional $49
• Pursuant to GC 76000.5 an Emergency Medical Service penalty assessment of $2.00 for each $10.00 of a fine or forfeiture, or a fraction thereof. That's an additional $14
• Pursuant to GC 76000.10(c)(1), a penalty of $4 for emergency medical air transportation (EMAT) is imposed for every conviction of the vehicle code, or a local ordinance adopted under the vehicle code. That's an additional $4
• Pursuant to GC 76104.6 and 76104.7 a county and state DNA Identification Fund penalty of $5 for each $10.00 of a fine or forfeiture, or a fraction thereof amended effective June 27, 2012. That's an additional $35
• Pursuant to VC 40611 a $25 dismissal fee for each corrected violation dismissed by the court. This doesn't apply.
• Pursuant to VC 42007.1(a) a $49 fee for monitoring traffic violator schools and a TAP fee under Vehicle Code section 11205.2(c) are to be added to the “total bail” of the offense eligible for traffic violator school. And this isn't included.
  
• So add up: $70 + $70 + $14 + $40 + $35 + $35 + $49 +$14 + $4 + $35 = $366
  
• And then under "Night Court Assessment (VC 42006) shall be levied as follows", you'll see a $1 charge.
  
• $366 + $1 = $367

So they basically miscalculated all the statutory amounts AND they misquoted GC 76104.6 and 76104.7 regarding the county and state DNA Identification Fund penalty.

Accordingly the Bail Amount for a 1-15mph over the limit is = $238 NOT $158
For thhe 16-25mph over the limit it is as shown above = $367 NOT $287
For 26+ over the limit, it is $490 NOT $410

The corrected amounts are in line with the Uniform Bail Schedule published by the California Judicial Council (which you can also find a link for under the same page as that local bail schedule under Related Links under "State Criminal Law Uniform Penalty & Bail Schedule" to the bottom right of the page). And while it is true that every county can submit for approval of its own fine schedule, they are way off on their speed chart and as far as the other fines, they only list the Base Fine Amounts... Which could confuse a lot of people.

However, and even after all that, a 22349(a) charge is in essence a violation of the state's maximum statutory speed limit which is 65mph.

So while you were cited for a 22349(a) that defaults to the 65mph limit and technically you are only 10 over. Yet the officer listed the limit as 50mph; if he wanted to cite you against the 50mph limit, he should have cited you for VC 22350.

So if this remains unchanged by the date you appear for arraignment (you may otherwise receive a Form TR-100 correcting/amending the citation), you could argue that you were only 10mph over the statutory limit specified in the code section listed on your citation (22349(a)) and so your bail should follow the *1 to 15mph over the limit* bail amount which is $238, not $367.

Whether the judge will decide to correct the matter right then and there or whether he will opt to wait until the officer is there is you choose to go to trial, I don't know...

Lastly, I also don't know why they're telling you you're ineligible for traffic school. Check with the court clerk to see if it an error or if its part of the local court rules for that county court.

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Quoting That Guy

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How do you know it was a speed trap?

California speed traps are defined under VC 40802. And so until you get a current E&T survey you don't know if its a speed trap or not.

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Expanding upon this a bit: Speed trap laws only apply to prima facie limits (i.e. limits that are not statutory maximums). So, while your ticket specifies 25 mph over the PF limit of 50mph, the fact that you were cited for 22349(a) implies that the officer was basing your citation off of the statutory max speed of 65mph, which means that the speed trap defense is most likely not available to you (since you aren't being charged with violating a PF limit), and the Engineering survey is most likely irrelevant. As TG says, if the officer was basing your speed off of the PF limit, he would have cited you for 22350. Still, I suppose there's no harm in obtaining the survey (from Caltrans most likely, since this is a state highway).

My guess is either the survey does not exist, it is outdated (both of which are highly unlikely with it being Caltrans), or it has issues that deem it questionable. It still is a legitimate citation with 10 over the MAX but not with 25 over PF.

No, that doesn't make it subject to a dismissal or a demurrer simply because it can be corrected.

Penal Code section 1002.

The only pleading on the part of the defendant is either a demurrer or a plea.

Penal Code section 1004.

The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if any information or complaint that the court has no jurisdiction of the offense charged therein;

2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information;

3. That more than one offense is charged, except as provided in Section 954;

4. That the facts stated do not constitute a public offense;

5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

Penal Code section 1007.

Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer to an indictment or information is overruled, the court must permit the defendant, at the defendant's election, to plead, which the defendant must do forthwith, unless the court extends the time. If the demurrer is sustained, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer to a complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court.

Wow, thank you both so much for all that information. You are so knowledgeable!

It's a bit funny to me that those bail amount posted on the SC website are so wrong.

I didn't mean to imply speedtrap in a legal sense of the word - in layman's terms that what I call it when a cop is hiding behind the bushes with a radar gun :).

He got me fair and square though so I'm not complaining. I'll check with the court though and let them know about the bail schedule, and the 10mph vs 25 and traffic school. I'll post what the outcome is.

Thanks again so much.

I’ve seen this before, but I haven’t seen anyone take the obvious defense. This is something the OP may wish to consider.

If you listen to many of the regular posters on here… the “prosecution” is NOT the District Attorney. And clearly the cop isn’t the “prosecution”. Rather, the “prosecution” is simply the nebulous team of non-attorneys who work for the state. I believe they are wrong… but there seems to be a popular consensus. So, let’s go with it for a minute.

The cop wrote you for 22349(a), which is exceeding maximum speed limit of 65mph by 10mph. Keep in mind that the cop himself is NOT the prosecution… rather he is simply a witness. However, it seems that the “prosecuting team” decided to pursue this as 25mph over the prima facie speed limit of 50mph. This could NOT be done under a 22349(a) charge. It can only be done under a 22350 charge. So, given this revelation, the “prosecution” would be obligated to prove that a speed trap did not exist under VC 40802. This means the cop would have to show up at trial with a speed survey… which likely will not happen.

This is one of the tricks that the state plays. A ticket is issued for exceeding the statutory maximum speed limit under 22349 which gives the state an exemption from speed trap laws… yet they set their fines and they deny traffic school based on the prima facie speed limit. There is a goose and gander thing going on here. The state should NOT be allowed to have its cake and eat it too. If the OP is going to be fined based on 22350, then he should be prosecuted under the rules of 22350. I say the actions of the state (setting the fine and denying traffic school based on the prima facie speed limit) constitutes a constructive change of the charge from 22349 to 22350.

I know some will say that it was a simple clerical error. They will say that the purpose of the court is to provide an avenue of redress when such errors occur. I say that is bunk. If you scan the threads on this site alone, there are dozens of cases just like this one. This is NOT a clerical error. This is a systematic process. There should be accountability for the state. I am personally frustrated by those who scream loudly to demand accountability for individuals, yet they are silent as a church mouse when the issue of accountability for the state is raised. The only way this unfair and possibly illegal practice will be stopped will be if courts begin holding the “prosecuting teams” accountable and dismissing these tickets for lack of evidence supporting a 22350 charge.

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Quoting HomeAgain123

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I’ve seen this before, but I haven’t seen anyone take the obvious defense. This is something the OP may wish to consider.

If you listen to many of the regular posters on here… the “prosecution” is NOT the District Attorney. And clearly the cop isn’t the “prosecution”. Rather, the “prosecution” is simply the nebulous team of non-attorneys who work for the state. I believe they are wrong… but there seems to be a popular consensus. So, let’s go with it for a minute.

The cop wrote you for 22349(a), which is exceeding maximum speed limit of 65mph by 10mph. Keep in mind that the cop himself is NOT the prosecution… rather he is simply a witness. However, it seems that the “prosecuting team” decided to pursue this as 25mph over the prima facie speed limit of 50mph. This could NOT be done under a 22349(a) charge. It can only be done under a 22350 charge. So, given this revelation, the “prosecution” would be obligated to prove that a speed trap did not exist under VC 40802. This means the cop would have to show up at trial with a speed survey… which likely will not happen.

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You're spending more time whining about other members on this forum that you are giving reasonable legal advice. You haven't posed anything that the OP could use in a brief, and frankly, you're wrong about the forum members and you're wrong about the requirements around 22349.

TG and I have argued about this on numerous occasions, and we don't agree with one another. The last time I discussed this with him was in this thread.

Since the OP isn't in Orange, Los Angeles, or San Joaquin county, there's no binding precedent on point for this for his court. That means that he's got to convince a judge that his legal argument has merit. If he's going to go this route, that he should carefully read People v. DiFiore and People v. Singh. Both of these cases hold that in a 22349(b), it's the testimony that the officer gives that determines whether the speed trap presumptions are invoked. In both DiFiore and Singh the court held that if the officer testified about the posted speed limit, then the prosecution was required to prove that a speed trap didn't exist. If, however, the officer testifies that he clocked the OP driving 75mph, on a roadway with more than two lanes, then there is no speed trap since the officer isn't relying on the posted speed limit in his testimony.

TMN,

First, I find it ironic that you are whining by stating that I am whining. Please, sir… get over yourself. Such ad hominems are unnecessary and counterproductive.

Oddly, I disagree with your perspectives. While you are correct that in Difore speed trap laws do apply if the officer testified about the posted speed limit. However, that is separate from the point that I made. I believe that the “prosecution” is pursuing this case based on the posted speed limit as is reflected by the fine and by the denial of traffic school. Just because the cop didn’t write 22350 on the ticket doesn’t mean that the “prosecution” cannot amend the charge. I say that the actions of the “prosecution” should be viewed as a constructive change of the charge from 22349 to 22350. Therefore, the speed trap laws should apply.

So, combining the fruits of both our perspectives, it seems that the OP should pay close attention to the officer’s testimony. If the cop references the posted speed limit, then the OP should cite DiFore and Singh and ask for a dismissal based upon speed trap rules (assuming the cop doesn’t come in with a speed survey). But, assuming that the cop doesn’t reference the posted speed limit, after the cop testifies (and the OP cross examines him), the OP should ask for dismissal based upon speed trap laws. He should state that despite the fact that the cop wrote 22349 on the ticket, the incident is being prosecuted as a 22350 and it is relying on the posted speed limit (citing the fine and the denial of traffic school to support this). This provides the OP with a series of defenses that can be used.

Whatever, dude. You cry ad hominem any time anybody says something factual about your behavior that's unflattering. If you were serious about having a discussion of the legal merits of the case, you'd skip trying to bait other members of the forum. But you continue, so it's obvious that you're not.

Back you your lack of supportable legal points. Where are your authorities for your belief that the OP can't be charged for a 22349? Got anything that he could use in a demurrer or a brief? Any case law references, or references to the law?

If the OP driving over the maximum speed limit, a 22349(a) is a simple charge. The prosecution must prove each element of the charge in order for the OP to be found guilty. In the case of 22349(a) the law reads:

Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

The OP has already told us that the PF limit here was 50mph, so 22356 doesn't apply. All the prosecution needs to show is that a) the OP was the driver of a vehicle on the highway, and b) that the vehicle's speed was greater than 65mph. If they prove both of these things, it's a conviction. The only way this gets interesting is if the officer testifies about the PF speed. At that point, the OP should object. However, if the OP intends to take this strategy, he should actually get a copy of the survey beforehand since it won't do him any good if the officer has the survey and the survey justifies the limit.