Unsafe Speed Ticket While Driving in a Construction Zone, VC 22350

I have read all the strings on this subject but would like an opinion on this particular situation.

I was traveling south on 178 two lane black top (65mph) and came to a section, which was ground up for resurfacing. There were road signs for 35, which I thought at the time were advisory (like speeds for bends). The road was completely deserted (one car in 60 miles) and the night visibility was excellent. So I stayed at speed.

Half way through the section, there was a cop about thirty feet off the road without lights on. He pulled me over and wrote me up for 22350 vl Unsafe Speed.

He seemed angry “Said I blew his doors off.” I did dust his vehicle. He made a big point of saying he was doing an accident investigation (at 7.30 at night) and wasn’t waiting for speeders. He wrote me for 65 in a 35 but said I was going faster (I guess I was polite to him).

There may well be a “speed survey” because the road was chunked up, but who knows.

The outcome I want most is to do traffic school, which is not an option at 30mph over.

Am I better of fighting it. Or throwing myself on the mercy of the court and asking if they will let me do school? The outcome can't be worse than it is now, unless the judge gets mad that I'm fighting it and increases the fine.

An advisory sign is yellow.

The judge won't increase the fine. The judge might suspend your license in some cases, especially if you're disrespectful in court or if your driving record warrants it. The cop probably knows of officers who've been killed by drivers like you. I guess if you're a doctor, maybe he'd have a better chance. He may well have been investigating an accident that had just been cleaned up. In this case, he might not have seen your car approaching or actually measured your speed. Your speed/proximity to his car caught his attention and then he visually estimated your speed going away. This could still support a conviction.

Trial by Written Declaration should be your first step, followed by Trial de Novo. You might have a defense in that the signs might have been intended for construction periods which are not likely 7:30 at night. Under 22350, your violation might be upheld, regardless of the posted speed if the officer testifies that the road condition made your speed unsafe. At TBWD, a generic statement that you're pleading not guilty is probably better than a protestation of your innocence or a statement that the officer was absolutely wrong in issuing the citation. At TDN, disqualify any judge Pro Tem and any other judge, one time only with a PC 170.6 motion, assuming the officer shows up. Maybe, these tactics will result in the officer missing a court date but probably not. (These suggestions assume that your primary goal is to avoid responsibility for your improper driving.)

The 35 mph speed limit sign is not applicable (assuming it was placed in a construction zone) unless there were construction workers present. VC 22362 allows for a lower construction zone speed limit only if the following conditions are met:
1. The speed limit is placed within 400 feet of each end of the zone.
2. The sign displays the limit and the purpose of the limit
3. Employees or agents are so close to the roadway as to be endangered by passing traffic

I’m assuming that there were no construction workers present… so that’s out. The officer was present, but unless he was there with a shovel in his hand doing construction work, or unless the sign said 35mph: cop investigating an accident zone, then that’s out. Basically, as far as the law is concerned, this is NOT a construction zone.

I think you implied that the speed limit was 65 and he wrote you for 65. This means that the cop will have to prove that your speed was greater than reasonable or prudent or that you endangered the safety of persons or property. The burden is on the prosecution to prove this as per VC 22351(a). You are not burdened to prove that you did not.

I believe I’d follow the donzoh path of TBD, TDN and hope the cop doesn’t show. But if he does, you aren’t finished. If he only testifies that you exceeded the posted 35mph speed limit, then you can question him enough only to establish that there were no construction workers present. You can also ask him where the speed limit signs were placed (to establish the 400’ rule). Basically, you want to negate the validity of the construction zone speed limit. Then you can move for dismissal because the officer was simply relying on the construction zone limit sign and he did NOT offer any evidence to prove that you violated the basic speed law as required by VC 22351(a).

Personally, I’d give this about a 20% probability for success if the cop shows up. Even if your case goes perfectly and the cop fails to prove anything other than you exceeded the construction zone limit, most traffic court judges are willing to ignore the law in favor of just assuming that you must be guilty if the cop wrote you a ticket.

Signs were lime green, hadn't seen before.

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(These suggestions assume that your primary goal is to avoid responsibility for your improper driving.)[/QUOTE]


The lesson is acknowledged. Primary goal is to do traffic school but prevent financial insurance hemorrhaging. What is the best way to petition the court? How do you get to talk to the judge without pleading not guilty?

Lime-Green is supposed to be an advisory sign. I would fight the ticket.

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Quoting Disagreeable

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Lime-Green is supposed to be an advisory sign. I would fight the ticket.

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Yes, but, road conditions may have created a situation where the safe speed was much lower. VC 22350 is not simply about violating a posted speed limit, or even an advisory one.

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Quoting cdwjava

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Yes, but, road conditions may have created a situation where the safe speed was much lower. VC 22350 is not simply about violating a posted speed limit, or even an advisory one.

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Carl is absolutely correct. Road conditions could have created a situation where the safe speed was much lower. However, as I pointed out earlier, the burden will be on the prosecution to PROVE that your speed was unsafe. So, let’s look at that:

22350. No person shall drive a vehicle upon a highway at a speed
greater than is reasonable or prudent having due regard for weather,
visibility, the traffic on, and the surface and width of, the
highway, and in no event at a speed which endangers the safety of
persons or property.

This statute is divided into two parts. The first says that you cannot drive faster than is reasonable or prudent given current conditions. I don’t think that it would take a very smart person to cross examine the cop and reveal that his interpretation of this is arbitrary. I’m betting that the cop is not an engineer, nor is he a road surface expert. So, if one were to ask him, “what was the safe speed?” He would likely reply with something obviously random or just parrot back the 35mph construction speed zone. A person could ask the cop, “what study or data do you have that supports your assertion of XXmph being the safe speed?” I doubt he would produce a reasonable answer.

The second part of 22350 says you can’t drive at a speed which ENGANGERS persons or property. Note that the statute doesn’t use the adjective “dangerous”. It uses the verb “endanger” which is to bring into peril. Endanger is an action verb. So, if you endangered someone or something, the cop should be required to specify what was endangered… specifically. Again, this wouldn’t be difficult to cross examine any response the cop may make. You would simply need to ask him how your ALLEGED speed of 65mph brought XXXX into peril, but a speed of 35mph would not have imperiled XXXX. Again, since the cop is showing clear and distinct lines between effects of different speeds, you would ask for data or something (other than his random judgment) to support his theory.

You would want to object to the cop’s testimony concerning “safe speeds” claiming that the officer has NOT been established as an expert witness. As such, it is improper for him to provide expert testimony that is based on nothing more than judgment. The cop is merely a witness and he is allowed only to testify to that which he saw. He is not allowed to testify to a “gut feeling”. In order to establish the officer as an expert, the court would either have to have taken judicial notice of that specific cop (which won’t be the case), or the prosecution would have to argue his credentials which qualifies him as an expert. Since there will be no prosecutor to argue for his credentials, and since you will have no opportunity to refute these credentials, the cop cannot be established as an expert in matters of safe speeds of vehicles. ***Note*** if the judge begins asking him questions about his credentials, you would object immediately claiming that the judge is crossing the line between judiciary and prosecution.

All this theory aside, I would bet a nickel that the cop will simply rely on the construction zone speed limit sign that was posted. As I said in my previous post, this sign has no effect unless there are construction crews present. Also, the cop likely would not be able to testify definitely to the signs being placed within 400’ of the beginning AND the end of the zone.

With all due respect, your intention in court should be to defend yourself… regardless of what you did on the highway. It is the state’s burden to prosecute… not yours. The state will not assist you with your defense, nor should they. Likewise, you have no legal, moral or ethical responsibility to participate in your prosecution… nor should you. The very foundation of our judicial system is that it is an adversarial system where both parties argue zealously for their side and the truth will rise to the top. Regardless of what others may think, from what you have told us, I say you have NOT violated the law. And you should defend yourself vigorously. And, if you were convicted, you were certainly NOT driving 30mph over the limit (since the construction zone speed limit did not apply). Therefore, traffic school should be a viable option for you.

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Quoting cdwjava

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Yes, but, road conditions may have created a situation where the safe speed was much lower. VC 22350 is not simply about violating a posted speed limit, or even an advisory one.

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The ticket is written as 65 in a 35, but if the 35 is an advisory can he say I am really 30 over. I'm just trying to get the ticket to a traffic school status.

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Quoting VC 22350.

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No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

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He can take the position that your speed was unsafe, while noting that you were driving at a speed 30 MPH over the advisory limit.