Speeding Ticket Appeal

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

Hi, I hope someone can help me. I've got a very strong appeal case, but no idea how to proceed. The short version of the story is this: halfway through my questioning of the officer in a School Zone case (40 in a 25), the Commissioner (acting as judge) called a recess to consider my motion to dismiss based on the ticket being improperly cited as a VC22350 as opposed to VC22352. The Commissioner told me that she would render a decision on the motion within two weeks and that I would be contacted. I heard nothing for two months, then yesterday got a notice in the mail that I had been found guilty of VC22350 and fined $177.

This seems grossly unfair as I never had a chance to question the officer on his use of radar, or challenge the admission of the radar evidence. The officer also failed to produce a speed survey (required for vc22350 but not for vc22352).

My question is how do I proceed in challenging this verdict? I'd at the least like the opportunity to mount my defense, which was never granted. Thanks in advance. I'm happy to provide any further details.

-Sam

You cannot be cited for CVC22352, it just establishes what the PF speed limits are.

I was under the impression that cvc22352 was the charging statute for school zone infraction. Either way that is immaterial. The acting judge called a recess to consider my motion. She never called court back in order to allow me to finish my defense. She simply found me guilty in absentia. What do I do?

You can find the infraction appeal process at the California Courts website and you can find local rules of court at your local law library or online. If what you've said so far is true, it seems like you'd have a good case for appeal. Keep in mind that you need to focus on errors the judge made in law. You generally can't ask the Appellate Court to reconsider evidence and come to a different conclusion than the trial judge did or introduce new evidence and testimony. Ordinarily, it's not a big deal for the trial court to allow a correction to the charging document before trial begins but I don't know whether the court can allow that after trial begins. Certainly, it's improper for the court to change the charge in your absence and then not allow you to defend yourself against the new charge. Is there a Due Process problem in your courts? That, or maybe a real money shortage.

OP was charged with the proper code section for the alleged offense, they just felt the wrong charge was used. The issue is the court not reconvening after considering his motion, in order to conclude the trial. OP can certainly appeal based on that. The only thing I can think happened is that the court thought he was done presenting his case for some reason but we weren't there so who knows.

I think I read the initial post incorrectly in that case. I'm guessing that if there was not adequate opportunity for defense the appeal might just result in a new trial although the defendant could ask for dismissal in the interest of justice, having to miss work twice, etc. There could also be a speedy trial issue depending on whether that right was waived earlier.

Aside from your denied motion, what other defense did you have? Is chasing this really worth it? At best you are going to get a remand to try the case again from the appeals court.

If a speed trap defense would work, and I don't know whether it would, then yes, it would be worth doing in my view, depending on how much it costs the individual to attend court again. If you're pointing out that the judges's screw-up (and assuming what OP says in true, the judge did screw-up) then maybe you're agreeing that the Appellate Division should dismiss in the interest of justice. I mean, if the Court Clerk was to assign a different court date by mistake to a defendant and they were convicted because they didn't show up, would you want them to come back again? Maybe we could make a new rule for California Courts where the defendant just needs to come back to court when the officer doesn't show up?

Thank you for the helpful replies. I did indeed have further defense. The officer did not come prepared to justify the use of radar (i.e. he did not have a speed survey). Here is what happened, and why I think I have a good case:

When the officer stopped me I asked him if he knew the 80th percentile speed for this stretch of road. He said at the time that the 80th percentile didn't matter as it was a School Zone (it's actually probably not a true school zone because the school is separated from the street by a fence).

At trial I asked the officer to produce the speed survey. He again stated that he wasn't required to because I was charged with driving over 25mph in a school zone. I pointed out that my ticket didn't say that, but rather was a standard VC22350 Unsafe Speed for Conditions. At that point I motioned for a dismissal due to lack of foundational evidence. The judge asked the officer why he hadn't charged me with a School Zone violation, and the officer said this was the way he was taught to write tickets. The judge then called a recess, informed me that she would render a decision in "two weeks" and I never heard another thing about it until I got a letter from the court finding me guilty (2 months later).

I will endeavor to Appeal, and then ask for dismissal in the interest of justice if my appeal is granted. Seems like a pretty clear case of a judicial error. In the event of a retrial I do have a defense against the school zone infraction, as I do not believe this stretch of road meets the criteria for a school zone.

Any further advice would be greatly appreciated, and certainly anyone who can help advise me on writing the appeal, as well as the whether I should get the full transcript or use a statement on appeal. Thanks again.

It's the 85th percentile actually. And he is right that the speed survey doesn't apply in a school zone and a fence doesn't invalidate the school zone if you're actually abreast of the school building or property. All that talk of fences applies only to the "approach or passing" (that is, it's area marked as a School Zone that's beyond the school property itself). Where exactly did he observe you speeding? What time of day?

Judicial error isn't going to get you aquitted, just back for another trial.