Trial by Declaration for Speeding, CVC 22349(B)

My question involves a traffic ticket from the state of: violating CVC 22349(b).
Here is my rough draft of my trial by written declaration. Please if you can read it over and give me some tips on what I should change, add, eliminate, etc. I was found not guilty for a speeding ticket CVC 22350 in April of 2012. This is a rough draft so it isn't too great and I'd like to add a little more to the end. Thank you :)


"I respectfully submit this written declaration to the Sonoma County Superior Court pursuant to the CVC 40902. I hereby plead not guilty to the charge of violating CVC 22349(b).

Here are the facts of my case: While driving Southbound behind two other cars on Stony Point Road South of Jewett Road in Petaluma, CA on the date of January 22, 2013, I was stopped by California Highway Patrol officer Alan Zang (I.D. #*****). I was charged with CVC 22349(b). Officer Zang was traveling Northbound behind two other cars. As I passed his patrol vehicle, Officer Zang made a dangerous U-turn across the double yellow boundary to stop my vehicle. Officer Zang stated I was traveling 70 MPH in a 55 MPH maximum speed zone but refused to present any proof after I asked on multiple occasions. This can lead to a result that the detected speed came from another vehicle traveling in front of me; as radar can be very inaccurate while traveling with the flow of traffic in the other direction. At the time of my stop, the present weather conditions were sunny and clear. Visibility conditions were also clear. The traffic conditions were moderate.

Furthermore, I believe that the officer's detected speed from his radar device came from another vehicle after I made a discovery request for the officer's notes, radar calibration logs, and radar evidence of my speed following my traffic ticket. On March 15th, I mailed a discovery request. The certified mail receipt indicates that the letter was delivered March 18th."

If I was the judge I'd find you guilty because I'd believe the officer over the thousands of drivers who every day say they didn't do it and blame the officer for being in the wrong.

So, unless you have a witness who can give unbiased testimony that you weren't exceeding the speed limit, you're toast.

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Quoting anthonyo1995

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Officer Zang stated I was traveling 70 MPH in a 55 MPH maximum speed zone but refused to present any proof after I asked on multiple occasions.

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where do you get the idea that he's obligated to show you ANY sort of proof?

His obligation is to cite you, appear in court and testify to the court of what/how/when and where it all happened.

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Quoting anthonyo1995

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Furthermore, I believe that the officer's detected speed from his radar device came from another vehicle after I made a discovery request for the officer's notes, radar calibration logs, and radar evidence of my speed following my traffic ticket. On March 15th, I mailed a discovery request. The certified mail receipt indicates that the letter was delivered March 18th."

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What does discovery have to do with proving that the reading came from another car... besides, if you knew anything about Radar or how its used, you'd know why the officer cited you and not the other car.

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Quoting adjusterjack

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If I was the judge I'd find you guilty....

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If I was the judge, I'd increase his fine for wasting my time making me read that nonsense....

All right no need to be rude about it, I just wanted someone to proof read it. And no he isn't legally obligated to present proof of my speed, but why wouldn't he? It means he has something to hide.

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Quoting anthonyo1995

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All right no need to be rude about it, I just wanted someone to proof read it. And no he isn't legally obligated to present proof of my speed, but why wouldn't he? It means he has something to hide.

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No, no it doesn't.

Yes it does, him showing me his detected radar speed of my car would not potentially harm his or my safety. And I specifically remember going 62 MPH on that road because I always set it at cruise control on that road I travel which is every day. How could a radar detect me going 70 MPH when I was going 62 MPH?

How fast were you going? 62 Guilty, pay the fine on the way out and please drive safely!

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Quoting anthonyo1995

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Yes it does, him showing me his detected radar speed of my car would not potentially harm his or my safety. And I specifically remember going 62 MPH on that road because I always set it at cruise control on that road I travel which is every day. How could a radar detect me going 70 MPH when I was going 62 MPH?

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No. It does NOT mean he's hiding something. Come on now.

Why would I plead guilty and just give into the CHP? They have ticket quotas I hope you know which is illegal and against the constitution. I could have just pleaded guilty with my first ticket but I didn't and won. I am a high school student with no job and no money, I can't afford a speeding ticket. And there's still the chance he won't even file his statement which means I would win. I just want some help on how to word my Trial by Dec. that is all.

A 22349(b) is very different from a 22350. For 22349(b) all the prosecution must prove is that: (1) you were the driver of a vehicle on the roadway and (2) you drove faster than 55mph. So, the obvious defenses would be to refute one or more of the two things that the prosecution must prove to find you guilty. Were you driving the car? Were you going faster than 55mph? Were the cars in front of you going faster than 55mph? Were you going faster, slower, or the same speed as the cars in front of you? Unfortunately, the judge has probably heard all of the radar defenses before.

If so, you're stuck with a difficult affirmative defense: using scientific evidence to show that you're both incompetent to stand trial, and are not guilty by reason of insanity. Everybody knows that teenage brains are underdeveloped. Researchers in psychology and neuroscience have published many articles on this topic over the past few years. California uses a modified version of the M'Naghten rule for insanity:

In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.

The fundamental difference between the not guilty by insanity plea and the competency argument is that the former is about your mental state at the time you committed the crime. The latter is about your current mental state and your ability to comprehend the proceedings commenced against you. Of course, if the court finds you incompetent to stand trial, it must make arrangements for you to be restored to competency which could result in your commitment to a state mental hospital or other facility. Since this is your teenage brain we're talking about, you might not get out until your thirties. There's also a nasty Catch-22 with this defense. If you're lucid enough to articulate the scientific research and cogently argue how that detracts from teenagers' reasoning abilities, you're certainly competent to stand trial. If you serve as effective counsel for yourself, that also doesn't look very convincing if you're going to argue insanity. All of this means you'd have to hire a lawyer just to get you locked away in an institution. That's a lot more money than just paying the ticket.

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Quoting anthonyo1995

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All right no need to be rude about it, I just wanted someone to proof read it. And no he isn't legally obligated to present proof of my speed, but why wouldn't he? It means he has something to hide.

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What PROOF do you think he could provide?

It's not wise to bring you back to the car to show you the radar - IF he used radar. Why? because if he gets you out of the car and you get hurt or injured, he adopts liability for that. Plus, if he shows you the number locked in to the radar, it could just as easily be from a car he locked in earlier and not of YOUR car, so showing you the reading really doesn't do anything to change the situation.

Understand that officers trained in radar are trained first to make a visual estimate of your speed and then to confirm it with radar. Plus, if he hist the whole group cars with the radar and they are all going the same speed, then you're all guilty and he gets you. If you were moving faster than the group, then either you were doing the speed he clocked you at or exceeding it. if you were slower, then why did he pull YOU over and not the faster ones? And it likely was not significantly slowed to put you at the speed limit if you were cloeked at 70.

Here is the section:

22349. (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.

It is possible that the road you were cited on does not apply to this section and you might be able to prevail on that argument. Do you have a Google map link to the spot where you were cited?

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Quoting anthonyo1995

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Yes it does, him showing me his detected radar speed of my car would not potentially harm his or my safety.

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Oh yes it could! Such a thing is discouraged for reasons of officer and public safety.

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And I specifically remember going 62 MPH on that road because I always set it at cruise control on that road I travel which is every day. How could a radar detect me going 70 MPH when I was going 62 MPH?

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Going 62 MPH in a 55 is the same fine as doing 70 MPH. That sort of indicates to me that you are guilty. And if he estimated 70 he was either dropping it to keep you in the first fine band, or, he was utilizing a visual estimate and not a radar. Most officers will estimate in multiples of 5 while a radar reading of that multiple is rare (or, at least it occurs in only 20% of instances).

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Quoting anthonyo1995

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Why would I plead guilty and just give into the CHP?

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Yes, you can fight it. But, if you do not want the insurance hit and you know you are guilty (doing 62 in a 55) then you might want to go for the guaranteed traffic school if offered before trial. AFTER trial, that offer may not exist.

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They have ticket quotas I hope you know which is illegal and against the constitution.

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They do? That would come as some surprise to the Commissioner and to all the Area Commanders. Do you have any proof of this?

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I could have just pleaded guilty with my first ticket but I didn't and won.

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Good for you. Lucky, too.

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I am a high school student with no job and no money, I can't afford a speeding ticket.

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Then set the cruise control for 55.

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And there's still the chance he won't even file his statement which means I would win. I just want some help on how to word my Trial by Dec. that is all.

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As you have it worded so far, you will lose. Forget HOW he crossed the road to get to you, argue his observation or ability for radar to get a good reading on you, or - since you are relying on him not providing a statement - do not argue anything at all! Simply state that you were not guilty and hope he doesn't turn one in ... this is unlikely, but, maybe ...

Your insurance rates are already very high. If you do not get traffic school, they will skyrocket! And, at least in the areas I have worked, being contrite and apologetic in court comes off much better than cocky and defiant. And, if you are really lucky, the matter will be held in a juvenile court if you are under 18 where the same penalties may not be applied.

Here is the link of the approximate location where the officer pulled me over for speeding.

https://maps.google.com/maps?q=Stony...47.66,,0,13.82

And yes the traffic violator school option will still exist (People vs. Wozniak 1987) and if I am found guilty then it will be my first traffic offense. And no, him getting out of his car did not jeopardize his safety whatsoever. Now my question is, how should I word my Trial by Dec. so I don't admit guilt?

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Quoting anthonyo1995

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Here is the link of the approximate location where the officer pulled me over for speeding.

https://maps.google.com/maps?q=Stony...47.66,,0,13.82

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the location where he pulled you over matters not. It is where he clocked you that matters but even then, if it is a two lane undivided highway then the 55 mph limit applies...

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Quoting anthonyo1995

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And yes the traffic violator school option will still exist (People vs. Wozniak 1987) and if I am found guilty then it will be my first traffic offense.

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So you're saying the court cannot arbitrarily deny you the traffic school request by setting certain criteria as to why you do or do not qualify and yet, you say you qualify because you meet the criteria of it being your first offense.

Here is a case that even with citing Wozniak, it clearly states that the court has discretion to allow or deny traffic school and is under no obligation to disclose the reasons why.

People v. Schindler, 20 Cal. App. 4th 431 - Cal: Court of Appeal, 2nd Appellate Dist., 4th Div

Under section 42005, the court may order traffic school. Although the court may not arbitrarily refuse to entertain a request for traffic school merely because a defendant elects to plead not guilty (People v. Wozniak (1987) 197 Cal. App.3d Supp. 43 [243 Cal. Rptr. 686]; People v. Enochs (1976) 62 Cal. App.3d Supp. 42 [133 Cal. Rptr. 363]), the court otherwise has discretion to grant or not grant traffic school for a traffic violation. (People v. Levinson (1984) 155 Cal. App.3d Supp. 13, 21 [203 Cal. Rptr. 426].)[2]

Nothing in section 42005 requires the court to state its reasons for granting or rejecting traffic school.

So if the judge doesn't like the font you used in your declaration, he/she is not obligated to grant you the traffic school option. (And most judges will deny your request and call the next case before you can blink).

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Quoting anthonyo1995

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And no, him getting out of his car did not jeopardize his safety whatsoever.

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You really are a dim-wit.... Him getting out of his car did jeopardize his safety, but that's part of his duty. Its part of his job. It does not mean he should take on the added burden of you getting out of your car only to then have to assume the responsibility for your safety, only so that he can prove something that he does not have to prove to you anyways! Even without it being a safety issue, its a waste of his time! You have an issue with his speed reading, then make that argument in your declaration or in court.

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Quoting anthonyo1995

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Now my question is, how should I word my Trial by Dec. so I don't admit guilt?

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Can you at least say "please"?

Sure I will say please can you help me? But can you not call me a dim wit? I'm attending UC Davis in the fall so I can't be that stupid. And I have a suspicion that a judge will grant me traffic school if it is only my first offense and it wasn't an excessive speed.

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Quoting anthonyo1995

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Sure I will say please can you help me? But can you not call me a dim wit? I'm attending UC Davis in the fall so I can't be that stupid.

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You will say it but you haven't yet... and while you're at it, lose the attitude, and the entitlement... And apologize for acting like a punk earlier!

And I didn't call you stupid, I called you a dim-wit. that doesn't rise to the level of stupidity, only that it implies that you say things that don't make sense sometimes, example:

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Quoting anthonyo1995

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it wasn't an excessive speed.

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Speed in EXCESS of the maximum limit is EXCESSIVE speed!

Simple logic...

As for:

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Quoting anthonyo1995

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And I have a suspicion that a judge will grant me traffic school if it is only my first offense

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First offense is still an offense that you should not have made. And by the way,this is your SECOND citation, not your first. And for someone who's complaining about the fine amount, counting on a "suspicion" to save the day for you... Let me add this...

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Quoting anthonyo1995

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Why would I plead guilty and just give into the CHP? They have ticket quotas I hope you know which is illegal and against the constitution. I could have just pleaded guilty with my first ticket but I didn't and won. I am a high school student with no job and no money, I can't afford a speeding ticket. And there's still the chance he won't even file his statement which means I would win. I just want some help on how to word my Trial by Dec. that is all.

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One reason why you would plead guilty is simply because you have no legitimate defense. So you want to gamble and play odds of him not submitting a declaration. What you're not realizing though is that while typically, odds of the officer not submitting a declaration are approximately 5%... or 1 in 20... In your case though, you have to reduce those by a good chunk simply because, in theory, and as far as odds go, you will have to wait for 19 more citations before you can expect decent odds of winning by default again. That, in addition to the possibility that after (again) paying a fine that you yourself stated you couldn't afford (you already know that the court will more than likely require you to post basil before you're allowed a TBD), you will also be hit with a higher insurance premium once convicted, especially since most courts and when you make as clear a showing as you have done here that you have no defense and are only wasting the court's time hoping the officer won't submit a declaration or fail to appear, they aren't apt to feel sorry for you thereby allowing you the traffic school option after a TBD or trial.

And by the way, if you'll allow me to clarify one more thing for you... While you are bragging about being:

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Quoting anthonyo1995

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... found not guilty for a speeding ticket CVC 22350 in April of 2012.

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For one, getting cited when you were still (I'm guessing) 16 to 17 1/2 (or were you 17 & 3/4 yet) is nothing to brag about. Getting cited again a year later for speeding only to sit there whining about being a poor student who can't afford a speeding ticket all while you've already admitted that you were in fact breaking the law by driving at 62 mph in a 55 mph zone, isn't the smart thing to do... Even worse, to sit there blaming an officer of the law and accusing him of committing a criminal act and you want to tell us about the constitution? And the other guess I will take is that you did not "win", you were not found "not guilty'... Chances are, the officer didn't submit a declaration and and your case was dismissed. BIG DIFFERENCE!

First of all, it is very unnecessary to nitpick and criticize every little thing I say. And yes it is a second citation but the first citation was found not guilty so the court should not hold any biased against my second citation (at least that's what an ex-cop of 23 years told me). I will apologize for my behavior earlier as long as you don't argue and continue to insult me. I am not whining about being a poor high school student so please do not say that. When I meant "excessive speed" I meant 16-25 MPH over the speed limit which increases the fine and eliminates eligibility for traffic school. As I have asked many times before, what do you suggest I do with my trial by declaration? I still have a hunch that the officer will forget to file his statement considering the citation was made on January 22nd and the due date is May 8th for the declaration. I appreciate your help and suggestions and I did not want to sound entitled or arrogant to other users on this website.

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A "not guilty" decision in my opinion is just as good as a "win". So if the officer didn't submit a declaration in my first citation, why are you so certain that I will be found guilty that the officer will submit a declaration in this instance? This citation was issued in January and the declaration is due in May. I'm guessing the average CHP officer has cited more than 19 drivers during that time period.

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Quoting anthonyo1995

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First of all, it is very unnecessary to nitpick and criticize every little thing I say. And yes it is a second citation but the first citation was found not guilty so the court should not hold any biased against my second citation (at least that's what an ex-cop of 23 years told me).

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You still don't get it. If it seems I am nitpicking, its because almost everything you've posted either doesn't apply, isn't true or simply makes no sense (example, see the * below), so while I'm here trying to save you from appearing foolish, you are looking at it as if I am being critical. Also, while it maybe true that your record of citations, violations and/or convictions should not impact your guilt or innocence, it often is taken into consideration as part of your sentence. In fact, you yourself, and by suggesting that "this is my first violation and so I'm entitled to this and the other" are admitting that it does impact the outcome of your case.

Your meaning of excessive speed is invalid simply because there is a category under the law that makes your speed of 70 mph (or 62 if you want to pretend again) a violation of driving in excess of the max speed. I'm not making it up, its there for all to see and the only reason why you're here is simply because it does exist! Of course you're free to deny it!

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Quoting anthonyo1995

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When I meant "excessive speed" I meant 16-25 MPH over the speed limit which increases the fine and * eliminates eligibility for traffic school.

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Misleading, no foundation, irrelevant, contradicts public policy, and pretentious. Oh, and flat out WRONG! You would still be eligible for traffic school even if your speed is 35mph over... Only anything above 30mph in excess you would have to ask the judge if s/he would allow it.

The officer is not likely to forget on the basis you described, and whether you request a TBD from the court the month after he cites you or eight months later, he still gets the same reminder in the form of a blank declaration to complete and return. So he refers back to this citation, see that "Oh, yes, this is the kid that was arguing about wanting to see the Radar"... That alone should motivate him to respond! Besides, his job is traffic enforcement which includes citing people, writing declarations and appearing in court for traffic trials. But again, you're free to take your gamble.

And last but not least, I am not insulting you nor am I "arguing" I am stating FACTS... And frankly, I am not sure how you expect me to offer you a defense ARGUEment, if I cannot ARGUE! See, you keep saying "I will apologize... I will apologize" and yet you haven't! Only thing you've done is act pushy, demanding and restrictive. And I simply cannot work under such conditions!

Ok I DO APOLOGIZE. Are you happy? And I'm not making up that I was going 62 MPH because I actually was. Sure that's speeding, excessive speed, or whatever you want to call it. My main goal here is to have a dismissed or not guilty case. Can you help me make a good defense argument for me? Thank you.

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Quoting anthonyo1995

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Ok I DO APOLOGIZE. Are you happy?

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I am actually, but not because of anything you did or didn't do. Thanks for asking though!

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Quoting anthonyo1995

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And I'm not making up that I was going 62 MPH because I actually was. Sure that's speeding, excessive speed, or whatever you want to call it.

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Ughhhh.... Just for that, you don't get the "Top Notch Plan"... You're going to get the step down from that... It is still a pretty good strategy. And no, sorry "no exchanges or substitutions are allowed".

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Quoting anthonyo1995

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My main goal here is to have a dismissed or not guilty case.

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Since you are convinced that "not guilty" and "dismissed for lack of evidence" ( as in a no-show for the cop), then you might agree that having the conviction get concealed will accomplish the same result and the odds that you will accomplish that are pretty close to 95%.

So you appear for you arraignment, politely and respectfully ask the judge for a fine reduction, pay your fine and request traffic school. And then take a few hours online to complete the traffic school, program. Pass the online test and ensure that the certificate is filed in a timely manner with the court. And you're done!

Oh... And good luck at Cal State, by the way!

Cal State? A Cal State is not a UC. I'm going to UC Davis. And while I respect your strategy, I have already been to my arraignment where I pleaded not guilty and used a trial by declaration. So that is why I want a pretty good strategy for my trial of written declaration. I would like to request your "Top Notch Plan" if that is ok. So it is already too late to practice your strategy.

Sometimes the radar detector is mounted in the dash, and cannot be moved.

The problem is, no matter how good your case is, the courts aren't exactly fair when it comes to speeding citations. If you lose the trial by written declaration, you will get a chance in a real courtroom. Give it a try - no other state offers it.

If the fine for going 70 is the same as 62 in 55, it's probably best to just pay it and move on.

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Quoting anthonyo1995

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And yes the traffic violator school option will still exist (People vs. Wozniak 1987)

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READ the case ... it says that the court must only consider the option, not that they MUST make it available. And since the court is NOT required to explain why it decides not to allow it.

As a matter of real life application, traffic school is not always available after a conviction at trial. as such, this should be a consideration in your deliberations.

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and if I am found guilty then it will be my first traffic offense.

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Okay.

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And no, him getting out of his car did not jeopardize his safety whatsoever.

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As a point of fact, you exiting your car to come to his IS an officer safety issue and would have done nothing to PROVE your speed since - as I mentioned - the speed locked into the radar could be some other vehicle's and not yours. As a matter of practicality, officer and public safety, and the big "L" word - Liability, it is a BAD idea to have a driver come back to the patrol car to look at the radar reading. As there is probably no specific policy prohibiting it with any department, an individual officer could do it. But, I know of no officers that do this and I would not permit any of my officers to do this, either.

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Now my question is, how should I word my Trial by Dec. so I don't admit guilt?

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Don't mention your speed.

The state (through the officer's testimony - which will carry a great deal of weight) has to show that you were speeding in excess of the 55 MPH limit AND that the roadway conformed with the description in (b). You don't have to prove that you were not.

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Quoting lostintime

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If the fine for going 70 is the same as 62 in 55, it's probably best to just pay it and move on.

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It is. And that was my point, exactly.

The big thing about the officer showing my speed from his police patrol car was that my dad once got pulled over from a CHP lieutenant at night one time for speeding and got to see the officer's dashboard radar. And the cop I know who was an officer for 23 years told me he always showed speeders their radar/lidar speed no matter what the situation was. And my next question is, is it grounds for a case to be dismissed if the officer does NOT submit my radar log within the declaration as evidence?

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Quoting anthonyo1995

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The big thing about the officer showing my speed from his police patrol car was that my dad once got pulled over from a CHP lieutenant at night one time for speeding and got to see the officer's dashboard radar.

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Good for him. Not a smart move on the CHP officer's part, but then, they tend to get attacked and killed quite a bit - maybe that laxness towards safety is one of the reasons why.

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And the cop I know who was an officer for 23 years told me he always showed speeders their radar/lidar speed no matter what the situation was.

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Very unwise. But, as I said, I know of no policy in agency that would prohibit it. But, as a supervisor and administrator, and as a safety conscious cop of nearly 22 years, I would discourage my people from doing this to the point of telling them not to do it. Fortunately, none of them do so it's not an issue. As I said, it really proves nothing and exposes the officer and the driver to increased risk so it's often a lose-lose proposition. At most, it MIGHT diffuse an argument from someone inclined to admit guilt if they were presented with proof of guilt. However, in this case it would have done nothing because you ADMIT you were doing 62 MPH in violation of VC 22349(b) so even if you had seen a radar reading of 70 MPH you would still be here. So, the added risk and liability to the officer would have been pointless.

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And my next question is, is it grounds for a case to be dismissed if the officer does NOT submit my radar log within the declaration as evidence?

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No.

If you want to argue a failure to comply with discovery, that's a whole different ballgame and there are others here that can better explain this process than I.

Why wouldn't submitting radar evidence of my speed within a trial by declaration be grounds for dismissal of the case? That would mean there's no proof of my speed. What are the grounds for dismissal within a trial by declaration for my specific citation of CVC22349 (b)?

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Quoting anthonyo1995

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Why wouldn't submitting radar evidence of my speed within a trial by declaration be grounds for dismissal of the case?

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What "radar evidence" do you expect him to produce? You said "logs" ... failure to present a "log" would NOT be grounds for anything.

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That would mean there's no proof of my speed. What are the grounds for dismissal within a trial by declaration for my specific citation of CVC22349 (b)?

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He can also testify as to visual estimation as well as the reading on his device. Chances are he will present both his training certification and some evidence that the radar met NHTSA standards as this is part of the standard "template" that most radar officers use in such matters. But, as the speed trap defense does not apply here, there appears to be no REQUIREMENT that these two things be shown in order to testify as to your speed. However, a court will likely want to see the officer establish both his training and the compliance of the device in order to weigh the value of the testimony.

I was found not guilty!! I won!! So F you all!!