Unsafe Speed Ticket for Speeding in a 25 MPH Zone, VC 22350(A)

My question involves traffic court in the State of: California

A little over two weeks ago someone I know was issued a traffic ticket for "22350(a) V.C. - Unsafe Speed" Infraction. The ticket states a "Speed Approx" of "35", a "P.F./Max Speed" (where P.F. is circled) of "25" and a "Safe" of "25". The box that contains "Radar" and "Laser" check boxes are both not checked, however "Unit #" is checked and a four digit number (perhaps one or more letters?) is written in this box following "Unit #". In the "Comments" section "C,D, L" is stated.

The accused individual was traveling in a 25 MPH zone at a safe speed under the speed limit approaching a four-way intersection where the road the individual was traveling on is not required to stop, whereas the intersecting street from both sides has a stop sign. Immediately following that intersection, the road the individual was traveling on turns into a 35 MPH zone.

A County Sheriff's Deputy was parked on the side of the road about 30 ft back from one the stop sign on the aforementioned cross street. Due to buildings, the deputy's line of sight would have at most allowed for 135 feet of visual on the individual in question while traveling in the 25 MPH zone before entering the 35 MPH zone - most likely much less if any significant portion of the few seconds the individual was traveling in the 25 MPH zone was prior to the deputy's start of observation.

Once the individual was well into the 35 MPH zone (and again still traveling at a safe speed under the speed limit), the deputy pulled behind, presumably pacing, calling in license plate, etc. A block later, the lights come on and the traffic stop commences.

The individual inquired with the deputy as to why s/he was being stopped and the deputy stated that the individual was going 40 MPH. The individual asked how the deputy knew this, whether s/he had been clocked at that speed with radar or similar and the deputy stated that s/he knew from pacing. The deputy said s/he was only going to write the ticket for 35 in a 25, however, instead of a 40 in a 25.

Considering pacing appears to be the means for attaining the alleged speed violation here and that this pacing occurred fully within the 35 MPH zone, this seems like it ought to be an easy ticket to beat. However, the individual cannot afford a lawyer and would probably not do well representing his/herself in court. What are your recommendations for beating this ticket either by written declaration or otherwise? Start with requesting an extension? Should / how regarding discovery request? Etc. Court date scheduled for mid-July, no action has been take yet.

Thank you in advance.

Pacing and visual observation by a trained and experienced deputy are usually accepted by the court as proof of speed. Count with me – 1, 2, 3 – that’s how long it takes to pace another vehicle.

It would be in your best interest to first request informal discovery. To do so you need to write a letter to the office the issuing deputy works out of. Mark the front of the envelope ATTN CUSTODIAN OF RECORDS.

Inside attach a copy of your citation, state you are seeking informal discovery and at a minimum ask for the following:

1. A copy of the deputy’s copy of the citation, including the back side containing any notes he may have made in connection with this enforcement contact.
2. A copy of all other reports, notes and other paperwork prepared in connection with this enforcement contact.
3. A copy of the calibration records for all speed measuring devices used in connection with this enforcement contact.
4. A copy of all relevant speed surveys related to this enforcement contact.
5. A copy of all sheriff’s department audio and video recordings made in connection with this enforcement contact.
6. A copy of all personal recordings the deputy may have made in connection with this enforcement contact.

1 & 2 will give you an idea as to what the deputy is prepared to testify to. 3 will tell you the status of his speed measuring devices. 4. Is relevant if you were cited under circumstances where a speed survey is first required. 5 & 6 are particularly important because when stopped, many drivers apologize to the deputy and admit the violation, which is then recorded. When the driver later goes in court and denies breaking the law, those recordings admitting guilt are played to rebut their testimony. With this in mind, one needs to know what they may have admitted to before they proclaim their innocence to the court.

Hi L-1,

Thank you for the response. I have some follow-up questions...

1) When you say 'Pacing and visual observation by a trained and experienced deputy are usually accepted by the court as proof of speed' do you mean that the combination of pacing and visual observation? I ask because, again, the pacing was not accomplished in the speed zone in which the alleged violation supposedly occurred. There would have been zero possible seconds of pacing while in the 25 MPH zone and a few blocks of pacing within the 35 MPH zone.

2) With respect to visual observation if we assume a speed of 25 MPH, the maximum possible time the deputy would have had for visual observation of the accused's vehicle within the 25 MPH zone would have been 3.68 sec (2.62 sec if we assume the speed the ticket was issued for of 35 MPH) these being based on the maximum possible distance per the available line of sight considering the deputies position and building obstructing the view at the intersection in question. Realistically, the time available for visual observation would have been something less (time of first observation of vehicle, reaction time, etc.). I read somewhere that visual observation, by itself, has been questioned when the time of observation is less than 4 seconds or so...?

3) Is there a formal discovery vs the informal you are suggesting? If so, what is the difference? What would be the reason for an informal vs a formal? Does the discovery need to also be filed with the DA?

4) Probably a dumb question: And how do I know what the office of the issuing deputy is?

Thanks again for the input it is greatly appreciated.

Definitely hoping to hear from others with input on this ticket.

Thanks!!

1. Pacing or visual observation. The courts accept either one.

2. I'm not going to play the numbers game and try to parse seconds with you regarding determining observes speed. The deputy will testify that he is trained at visually estimating speed within (usually) 2 MPH. The courts accept that. The burden of disproving his ability rests with you. Good luck.

3. District attorneys have removed themselves from the process of prosecuting traffic tickets and citations are filed directly with the court by the law enforcement agency. If you file for formal discovery, the DA will tell you he has no discovery items because he is not involved in the matter and will refer you back to the citing agency. If you don't know the station the deputy works out of, just mail it to Sheriff's headquarters.

Forgive me but I have to ask - In your two posts you attribute a tremendous amount of information as to what the officer did and did not see, how he formulated opinions, accomplished certain investigative tasks and arrived at specific conclusions necessary to take his enforcement action. This information would only come from possessing direct knowledge, such as having personally interviewed the deputy at great length as to what he observed, what he was thinking, etc.

How do you know all of your assertions to be true? Did you interview the deputy at great length? Were you able to read his mind?

One last hint. Traffic court is nothing like what you see on television. There are no Perry Masons. There's no fancy maneuvering. If an i isn't dotted or a t isn't crossed, the deputy doesn't get disciplined, you don't get sent home with the apologies of the court and you don't get a couple thousand bucks settlement for your inconvenience. All the hearing officer cares about is whether you committed the violation or not.

Thanks for the additional responses, L-1.

Is there a legal requirement for the office of the issuing deputy to respond to informal discovery requests? What if they do not respond? What if they respond only in part? Can this be used as grounds for case dismissal, for example?

I am basing the assertions I have put forward here off what has been communicated to me by the accused. I assume these assertions to be true to the extent that what the accused has communicated to me is true. I have not interviewed the deputy and of course cannot read minds. The accused did ask some questions during the traffic stop and some of the assertions made are based of the deputy's responses thereto (e.g. speed determined by pacing and not by radar/lidar). Regarding the line of sight and associated and relevant distance and time variables with respect to possible visual estimation of speed my assertions here are based off of the deputy's position as communicated by the accused and a thorough review of satellite imagery, in person visual review and photography and corresponding distance and geometry measurements. I recognize that these assertions may not be true for one or more reasons.

The accused believes fully that they are not guilty of this traffic offense, I am trying the help the accused determine a means, preferably through TBD, for justice to be served. I would like to hear from you or others more on the ability of an officer/deputy to prove an unsafe speed above the posted speed limit via visual estimation only - especially considering a very limited distance / time for such visual estimation.

Can others please provide some thoughts on this case as well? I'd like to hear input from across the spectrum :)

I appreciate everyone's time in providing information on my questions - thank you.

If the officer told the defendant that he used pacing to determine the speed, then that is what he will testify. Cops will always use pacing, radar, lidar or some other method in addition to their "trained observation." Your friend needs to determine if the posted limit is indeed 35mph for the entire length of highway that the office was pacing him. If yes, he has a great case.

To make sure the deputy's testimony will be compatible with his intended defense, he should also request discovery of his notes the deputy made about the incident. Send the request to his station, and to the D.A. make someone else (you) mail the notes, and sign a proof of service form. Do this at least 20 days, better a month, before the trial (the actual trial, not arraignment). Usually they do send the response. If they don’t, and the office attempts consulting any notes during the trial, your friend should object. He can request case dismissal on the grounds of being denied discovery, but at least he should get the cop to turn over the notes. Then he can request continuance to prepare his defense based on the obtained notes. At that time, you should post here again.

Hi kokobill,

Thanks for the response. Your comments seem to disagree with what L-1 stated previously that it is possible for officer/deputy/court to use visual observation only as proof of speeding. Others care to weigh in? What have your observations been on this? Regarding the pacing, I am certain - based on what the accused has communicate to me - that the entire length of highway that the officer was pacing the accused was within the 35 MPH zone.

Regarding discovery request, I have read mixed suggestions on this matter on this and similar forums. Is it possible that the a discovery request can hurt one's case? Keep in mind we are hoping to get a not guilty verdict with a TBWD here as the accused would probably not do well on their own in court (and can't afford a lawyer). Also, I'd like to ask again - is there a legal requirement for the office of the issuing deputy to respond to informal discovery requests? What if they do not respond? What if they respond only in part? Can this be used as grounds for case dismissal via TBWD, for example?

Thank you kindly.

Disovery request cannot hurt your case, period. There is no penalty per se if the officer does not provide it, but I already mentioned above how you use that to your advantage. You cannot use it in TBWD. You can try TBWD and still request a new "regular" trial if you're found guilty.

Or you can just listen to L-1 and pay the fine.

Hi kokbill - thanks again.

Sounds like discovery request is the first step then. Considering the particulars of this case - including I forgot to mention initially that the 25 MPH zone in question is in a business district of an incorporated city - what, exactly should be requested in the discovery request, if anything, in addition to the deputy's notes? L-1 suggested a number of items above, but I am having a hard time in searching and reading other forum posts determining if a speed survey is relevant and needs to be requested or not. For a visual / pacing and business district 25 MPH zone case is a speed survey relevant?

I don't recall L-1 suggesting or even alluding to paying the fine, and the accused and myself are not interested in such.

Speed survey (i.e., traffic and engineering study) is only relevant if a radar (or lidar) was used. It doesn't apply to pacing. So I think you only need the officer's notes.

Please excuse my snide comment about L1. He indeed did not literally tell you to pay the fine, but if you're going to accept that an officer can simply "observe" your speed and that is enough to convict you, you may as well save your time and energy and pay up.

In addition to "electric means" being used, the road must also not be classified as a local road or be in a school zone.

Hi Kokobill and flyinron - thanks for the inputs.

I am not thinking about the possible relevance of the speed survey with respect to any potential speed trap defense as indeed, pacing was stated by the deputy as the speed estimation method (his notes may reveal the possibility of visual estimation as well, I suspect). Rather, I was thinking about the possible relevance of the speed survey as it might pertain to the whole 22350 vs 22351/2 charging statute debate (people v behjat, people v huffman). This would only become important if the lack of pacing / very limited distance and time for visual estimation of speed argument were to fail.

Is this road:

Carpinteria Ave (in Carpinteria, CA) westbound as it approaches intersection with Holly Ave.

https://www.google.com/maps/@34.4003.../data=!3m1!1e3

http://www.dot.ca.gov/hq/tsip/hseb/crs_map/10u35.pdf

http://www.carpinteria.ca.us/PDFs/cd_zoning%20map.pdf

...considered a local road? A "highway other than a state highway, in any business or residence district" (22352)?

Thank you.

The decision in Behjat is not necessarily clearly binding. The notes in Huffman indicate the dicotomy. Even if you believe Behjat is binding, the officer is likely not to make the same errors in that the officer in that case did. They do teach these dogs new tricks.
It's fairly clear that if there is a justifiable prima facie limit, it is up to the defense to rebut the presumption that the higher speed was not justified for the situation.

The local road or not issue is moot if you're not using the speed trap rule (pacing is not covered by that).

So given the details previously omitted, you can go to court and argue that your speed in excess of the posted (or speed survey speed) was justified for the road conditions. Note that there isn't much requirement for time to pace. All he needs to do is identify he is not travelling faster than you and look at his speedometer. Visual estimation is typically done in car lengths.

You can try this defense, but it's a tough slog to convince a judge that speeding was justified.

Hi flyingron - thanks for the further weigh-in.

Ok - understood on the justifiable prima facie limit on the 25 MPH in the business district.

If you read some of my earlier posts on this thread you will see that pacing is believed to have not occurred within the 25 MPH zone as it would not have been possible based on position of the deputy's vehicle upon first visual by accused. However, the deputy stated when asked during the stop that pacing was used to ascertain the accused's alleged unlawful speed. If no electronic means were used to measure speed int he 25 MPH zone - the only evidence available to the deputy would have to be visual observation...

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http://i58.tinypic.com/hts4cx.jpg

This is not a local road. That is a great picture/diagram. Use that in TBD and later in court, if convicted in TBD.

So the ticket is for 35 in 25, right? Your testimony is that you drove 25mph to the intersection of Carpinteria and Holly, then you proceeded at 35, or less,westbound, in the speed limit of 35. You will further point point put where the cop was parked, and that he then pulled out and started following you. You will note that the speed limit on Carpinteria westbound of the cop's original location is 35. I would enclose Google street view photos documenting this for the entire length you were paced. Or some other method to prove that the speed limit is 35.

The cop's notes will hopefully confirm that he paced you for this same stretch of the road. If not, we'll figure something else out.

Given all this, you really should be acquitted in TBD, because it is impossible for the cop to correctly gauge your speed by watching you approach and pass by him for 135 feet. Any reasonable person knows that. And if he somehow could do that, why would he then bother pacing you? But this being the traffic court, where drivers' rights are trampled on ruthlessly, you may well be found guilty nonetheless.

Yes, the ticket was for a 35 in a 25.

We completed first step now and obtained a 30 day extension. Court appearance date is now mid-August.

Plan to request informal discovery material next - from County Sheriff's office - to include (per L-1's suggestions):

1. A copy of the deputy’s copy of the citation, including the back side containing any notes he may have made in connection with this enforcement contact.
2. A copy of all other reports, notes and other paperwork prepared in connection with this enforcement contact.
3. A copy of the calibration records for all speed measuring devices used in connection with this enforcement contact.
4. A copy of all relevant speed surveys related to this enforcement contact.
5. A copy of all sheriff’s department audio and video recordings made in connection with this enforcement contact.
6. A copy of all personal recordings the deputy may have made in connection with this enforcement contact.

Is there anything else to explicitly ask for in the informal discovery? Or is some of this unneeded in my case and/or barking up the wrong tree?

Here's what I will be sending (via certified mail with return receipt) today for the defendant (will also fill out proof of service form):

[Address here]

Attn: Custodian of Records
Santa Barbara County Sheriff's Department
P.O. Box 6427
4434 Calle Real
Santa Barbara, CA 93160-6427

July 15th, 2015

Dear Custodian of Records / to whom it may concern,

I am writing to request informal discovery for a traffic citation (copy attached), S123456, from the Santa Barbara County Sheriff’s Department on [Month Date], 2015.

Pursuant to California Penal Code sections 1054 and 1054.1, and California Government Code section 26500, the defendant in the above entitled matter does hereby request under informal discovery the following:

1. A copy of the deputy’s copy of the citation, including the back side containing any notes made in connection with this enforcement contact;
2. A copy of the deputy’s sworn statement for this enforcement contact;
3. A copy of all other reports, notes and other paperwork prepared in connection with this enforcement contact;
4. A copy of all records regarding the maintenance and calibration of the speedometer used in connection with this enforcement contact;
5. A copy of the calibration records for all speed measuring devices used in connection with this enforcement contact;
6. A copy of all relevant speed surveys related to this enforcement contact;
7. A copy of all sheriff’s department audio and video recordings made in connection with this enforcement contact;
8. A copy of all personal recordings the deputy may have made in connection with this enforcement contact.

Thank you in advance.

Sincerely,




[Name here]
Defendant in Pro Per


Attached: copy of traffic citation S123456

CC: The Hon. Joyce E. Dudley, District Attorney

The same will also go to the DA via same means (again with POS).

Comments?

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Quoting krt222

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Here's what I will be sending (via certified mail with return receipt) today for the defendant (will also fill out proof of service form)

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I don't understand why "you" are sending this. According to your first post, someone else received the citation and not you. Unless you are an attorney, you cannot represent this person.

Generally speaking, sworn written statements are not prepared in traffic enforcement matters. Testimony under oath takes place in court.

My understanding is that the defendant cannot send the informal discovery request themselves if proof of service is desired:

http://www.expertlaw.com/forums/showthread.php?t=141496

This is why I am sending this for the defendant (who will of course sign the request letter).

I guess we should expect we may not get a sworn statement back then. I had read on a few threads here that sworn statements were received in response to discovery requests...

Return receipts have been received on both accounts (letters recv'd on 7/18).

Where, exactly, does the proof of service get sent? I know if goes 'to the court', but there are numerous courts in Santa Barbara County...and to whom? The clerk?

Or, can one wait on sending the proof of service to the court until if and when it becomes relevant - if both the D.A. and the Sheriff's Dept. fail to provide discovery?

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Quoting krt222

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1. A copy of the deputy’s copy of the citation, including the back side containing any notes made in connection with this enforcement contact;

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That ought to be no problem.

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2. A copy of the deputy’s sworn statement for this enforcement contact;
3. A copy of all other reports, notes and other paperwork prepared in connection with this enforcement contact;

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More than likely nothing more than what is on the back of the citation.

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4. A copy of all records regarding the maintenance and calibration of the speedometer used in connection with this enforcement contact;
5. A copy of the calibration records for all speed measuring devices used in connection with this enforcement contact;

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Shouldn't be a problem, though, unless the vehicle was paced, I doubt that the speedo calibration records would be relevant. Keep in mind that visual estimation is also valid and won't require calibration, testing, or maintenance reports.

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6. A copy of all relevant speed surveys related to this enforcement contact;

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This may be on record at the court. It depends on how that is done there.

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7. A copy of all sheriff’s department audio and video recordings made in connection with this enforcement contact;

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You may not be permitted to have this for a number of reasons. However, if these exist (and they may not), you may be invited to view them at the agency. Copies can be a sticky wicket as they may also contain personal identifying information of subjects that are NOT a party to this stop.

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8. A copy of all personal recordings the deputy may have made in connection with this enforcement contact.

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It would appear you already asked for that in #7.

At least you are serving both the DA and the Sheriff's Department. Keep in mind that a refusal to provide some or all of these items will not necessarily allow for an automatic dismissal, but it may allow for an objection to evidence being presented that was not provided as requested. In general, before you can obtain sanctions for a failure to provide discovery, the defendant will have to ask the court to compel discovery from the involved agency.

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Quoting krt222

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Return receipts have been received on both accounts (letters recv'd on 7/18).

Where, exactly, does the proof of service get sent? I know if goes 'to the court', but there are numerous courts in Santa Barbara County...and to whom? The clerk?

Or, can one wait on sending the proof of service to the court until if and when it becomes relevant - if both the D.A. and the Sheriff's Dept. fail to provide discovery?

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You should simply save the proof of service should it be an issue.

Anyone else concur or dissent? Proof of service can just be saved (i.e. need to not be filled, at this point at least, with the court or otherwise)?

Let's talk more about speed quantification by visual estimation only, as in this case it appears to be all the deputy could possibly have as proof of the accused unlawful act (we will know more on this if/when discovery is provided). Considering the info on positions, distances, speeds, etc. of accused and deputy provided above in this thread (see graphic, etc.) is visual only estimation likely to be sufficient evidence for the 'prosecution' to prove its case / convince the 'judge'.?

Proof of service of what?

Talk about what with visual estimation? Visual estimation is surely sufficient though it's likely rebuttable. What makes you think that it is the only evidence against you? There's not likely to be any "prosecution" in this case. Just the witness (the officer).

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Quoting krt222

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Let's talk more about speed quantification by visual estimation only, as in this case it appears to be all the deputy could possibly have as proof of the accused unlawful act (we will know more on this if/when discovery is provided). Considering the info on positions, distances, speeds, etc. of accused and deputy provided above in this thread (see graphic, etc.) is visual only estimation likely to be sufficient evidence for the 'prosecution' to prove its case / convince the 'judge'.?

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Until you have discovery you have no idea how your speed was determined, so don't focus on attacking visual estimation alone.

Trained experienced officers can visually estimate speed within a 2 to 3 MPH margin. Because they are experts, the courts usually accept their testimony alone as proof of speed. It is not hard to do once you develop the skill and it only takes about 3 seconds to do establish someone's speed visually. It is insufficient to challenge their testimony simply because you, as the untrained recipient of a citation, are skeptical of their ability to visually estimate speed. Unless you are an expert on the subject you will look like someone who is desperately grasping at straws.

FWIW, I think you will find traffic court is not like court on television where everyone seems focused on making sure all the i's are dotted and the t's are crossed in order for the case to proceed (much as you are doing here). In real traffic court I think you will find all the hearing officer is concerned with is whether or not you were speeding.

flyingron - see above in this thread - proof of service of discovery requests. Regarding visual estimation, the question, restated, is: if we assume that visual estimation is all the deputy has, is that likely to be sufficient evidence for the 'prosecution' to prove its case? I realize that until discovery is obtained, this is an assumption with respect to visual only estimation of speed. Nevertheless, as stated previously, this assumption is based off the deputy's comments during the traffic stop (e.g. pacing was used) and the particulars of the sequence of events (locations of cars, change in speed limit along road, etc. - which negate the possibility of pacing in the zone where the supposed speeding occurred). I also am aware that there will not likely be any prosecution in this case (hence the use of the quotation marks around the word).

L-1 - again, I realize that until discovery is obtained, this is an assumption with respect to visual only estimation of speed - but I do think that this is where the case will be headed. Your comments regarding trained individuals being able to estimate within a 2-3 MPH margin is exactly the kind of discussion I am hoping we can have here. I would ask in response - under what conditions? At what speeds and distances? At what orientations? Using VASCAR or otherwise (I think VASCAR is illegal in CA?)? You also comment that it only takes 3 seconds to establish someone's speed visually. However, in this case the estimated maximum distance for visual observation based on line of site (per deputy's location, accused's, road, buildings, etc. - see picture provided previously) is 135 feet which would equate to 2.6 seconds assuming the 35 MPH speed the deputy claims the defendant to have been traveling. Furthermore, according to a "Federally commissioned study of VASCAR recommends that to obtain accurate VASCAR readings, officers measure speeds over elapsed times of at least four seconds for stationary police units" (http://www.nolo.com/legal-encycloped...hapter6-1.html). So, I ask again - in the particulars of this case if visual estimation only viable (from "prosecution's" prospective - and, yes I know there will likely not be any prosecution, per se). And please know it is not that I am categorically skeptical of any ability to visually estimate speed, but rather that I don't believe that in this case that the conditions were such that a reliable visual speed estimate was possible.

And again, I am not the recipient of this citation - someone I know was :)

FWIW I am a mechanical engineer, statistician and math guy. Numbers and accuracy matter very much to me - in my every day life and in the case at hand. I am not expecting this to go down anything like what is seen on TV. I have been to traffic court before, albeit in another state and a log time ago, for my own ticket. I am, however, hoping to help the defendant beat this ticket (hopefully in TBWD) as they claim to be innocent (and I believe them) and to me the facts and numbers cast reasonable doubt on the accused have broken the law in question.

I was reading the thread, you weren't making any sense. You don't need "proof of service" on the informal discovery requests. What would the proof do for you if you had it? You're not getting the charge dismissed or evidence suppressed in traffic court because it didn't come back to you.

You appear to be further confused. Pacing is NOT the same as visual estimation. Most of what you seem to be fishing for is not going to be discoverable. Discovery only requires the agency to disclose documents they have. Pacing is way more than sufficient especially backed up with visual estimation. Visual estimation by itself, is possibly rebuttable.

What the hell does VASCAR have to do with things? VASCAR is a glorified stopwatch. The time to record things with it are limited by the officer's reaction time. VASCAR is not barred in California though it is rarely used other than with aircraft.

All the officer needs do on pacing is to assure himself that he is not gaining on you and read his speedometer. Does NOT take four seconds.

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Quoting krt222

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L-1 - again, I realize that until discovery is obtained, this is an assumption with respect to visual only estimation of speed - but I do think that this is where the case will be headed. Your comments regarding trained individuals being able to estimate within a 2-3 MPH margin is exactly the kind of discussion I am hoping we can have here. I would ask in response - under what conditions? At what speeds and distances? At what orientations? Using VASCAR or otherwise (I think VASCAR is illegal in CA?)? You also comment that it only takes 3 seconds to establish someone's speed visually. However, in this case the estimated maximum distance for visual observation based on line of site (per deputy's location, accused's, road, buildings, etc. - see picture provided previously) is 135 feet which would equate to 2.6 seconds assuming the 35 MPH speed the deputy claims the defendant to have been traveling. Furthermore, according to a "Federally commissioned study of VASCAR recommends that to obtain accurate VASCAR readings, officers measure speeds over elapsed times of at least four seconds for stationary police units" (http://www.nolo.com/legal-encycloped...hapter6-1.html). So, I ask again - in the particulars of this case if visual estimation only viable (from "prosecution's" prospective - and, yes I know there will likely not be any prosecution, per se). And please know it is not that I am categorically skeptical of any ability to visually estimate speed, but rather that I don't believe that in this case that the conditions were such that a reliable visual speed estimate was possible.

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Vascar is illegal in California because the speed of a vehicle is calculated by determining the time it takes to travel the known distance between two fixed points (for example, lamp post to mail box). A specific time measurement is requested to allow the computer to provide a fairly accurate mathematical calculation of average speed based on the time necessary to traverse the distance.

Visual observation is just that, visually observing the vehicle and estimating the speed. I can't speak for all agencies but in many, the officer is required to maintain his expertise by periodic checks. In such cases he will observe several vehicles and estimate their speed, which will be double checked by radar at the same time. His visual estimates will be logged in a book along with the actual radar speeds. As long as his estimates are + or - 2 to 3 MPH of the radar readings he is good to go. When you bear in mind that the enforcement threshold (citation) for speed zones is often 10 MPH over the limit, being off by 2 to 3 MPH is not a big deal and the driver is still going to have clearly committed the violation.

flyingron - the proof of service was intended to be a back up should anything be attempted to be entered into the case record as evidence after having not been provided upon discovery request. I understand this may not be grounds for a dismissal or even suppression of any such evidence, but at least I hope at a minimum it could be used to compel discovery and/or be cause for a reschedule to allow time to review previously unprovided evidence.

Regarding your last comments on pacing vs visual estimation there is indeed some confusion. Perhaps I was not clear with my earlier posts, but I do understand fully the difference. In this particular case, while the deputy stated that pacing was used when the defendant inquired during the stop, the strecth of road that the deputy's car was behind the defendants and could have been pacing was in a 35 MPH zone (after the transition from 25 to 35). The ticket was written for going 35 MPH in a 25 MPH zone, however. As such, the current assumption we are operating under (until discovery confirms or otherwise) is that visual estimation only (and for at most 135 ft along the stretch of 25 MPH zone) is the speeding evidence the deputy will have available to present to the judge. I brought up VASCAR to get a better understanding if that is something we could be up against (as a form of visual estimation of speed) considering the state of the alleged infraction. The points I raised regarding time of observation were, again, not with respect to pacing - they were pertaining to visual estimation.

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L-1 - Thanks for the info on VASCAR. I am guessing we should not expect to be up against that, then. Regarding the visual estimation and periodic checks on expertise, I would question the conditions under which the +/- 2 to 3 MPH accuracy is achieved. Are these accuracy numbers representative of the conditions of this case (distance less than 135 ft, time of less than 4 seconds)? Or are they representative of larger distances and time durations? It seems to me that is VASCAR is not well suited for observations of less than 4 seconds, neither would a basic visual estimation be...

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Quoting krt222

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Regarding the visual estimation and periodic checks on expertise, I would question the conditions under which the +/- 2 to 3 MPH accuracy is achieved.

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People always question the credibility of other witnesses when its convenient to do so. The problem is, it's not important that you be satisfied, it's only important that the court be satisfied.

I've addressed several different posters regarding speed and visual estimations today. I've lost track of who is who and I'm not sure whether I'm saying this for the first time in this thread or if I'm repeating myself. Because this is California, no one is going to be very forthcoming about visual estimation practices as you are asking about a law enforcement procedure and the state's Public Records Act (found in the Government Code) exempts law enforcement procedures from public disclosure.

The officer will testify that he visually estimated the vehicle's speed to be X miles an hour. If pressed, he will testify that he has been an officer for Y number of years, will list his relevant training, will state he is an expert at visually estimating speeds and can do so within an error margin + or - Z miles an hour.

The driver or his attorney are free to cross examine the officer in court as to how he determined speed and his expertise, but if the officer has his act together, his response will only bolster his testimony. The only thing left for the driver to do is to call in his own expert at visually estimating speed and have him offer testimony contradicting that of the officer. But that will be hard to do with any credibility because the expert was not there at the date and time in question, was not where the officer was standing and did not see what the officer saw. In reality, the expert will essentially describe the same procedure the officer did, but charge you $500 to do so - You look at the vehicle and you estimate based on your expertise and training.

In addition, splitting hairs and prolonging a citation hearing over visual estimation techniques, or parsing things down to fractions of a second as you seem to be doing throughout this thread may only serve to alienate the judge. It's like spending the afternoon in court arguing over whether the color purple is really more a shade or lilac, lavender, magenta, plum, violet or pomegranate.

Traffic court is not like the court you see on television. There is no drama, no Perry Masons, no last minute gotchas. Justice is not nuanced on every i being dotted, every t being crossed or everything being lined up in a row and fitting exactly where it should. Unless there has been some flagrant miscarriage of justice, the hearing officer is only going to be concerned with whether or not the driver was speeding. It's that simple.

I offer the same advise here as I have to others. If the violation was not committed, by all means feel free to fight the ticket. But if it was committed, take traffic school, consider this one of life's little lessons and move on. But don't waste the court's time, the officer's time and your time just to play the game.

L1 - thank you for the further input. I would think that in this case the details are such that most reasonable people (not just a defendant for whom this would be convenient) would question the ability of the deputy to visually estimate the defendant's speed with such accuracy...I would hope that the court, a judge, or whomever is within that population of reasonable people. What I seem to be hearing from you is that a deputy can (based on training / certification) visually estimate speed with a 2-3 MPH margin of error in some undisclosed conditions (distance, time range) and that we are to assume that those undisclosed conditions necessarily bound the conditions of this particular case. To me, this is obvious, erroneous logic. Taken to the extreme, can a deputy reliably visually estimate the speed of a vehicle which is only observed for 20 feet? For one second? At any vantage point? Since the answer to that is assuredly no - where, then, is the line to be drawn? I believe a reasonable person would base that line off of the specific conditions under which the deputy's visual speed estimation training were accomplished. If the deputy's training / certification condition included observation times of 5 seconds and greater, for example, I would think this to be sufficient reasonable doubt with respect to a visual estimate only conviction.

I am not sure your purple color analogy is accurate or relevant. I would suggest a revised analogy: whether an observed color had a frequency of at least 668 THz based on an observation of 935 THz obtained with an observation time of 2.5 seconds using a method which has questionable reliability for observation times less than 4 seconds (and decreasing unreliability as observation time decreases) performed by an observer who has been trained in said method for some undisclosed range of observation times which has a corresponding margin of error of 50-80 THz).

If one reads that federal study on visual estimation (with VASCAR) I mentioned previously, they will find:

"When setting up a course for a stationary clock, the officer should choose a course length that will give a time duration of at least ~ 4 seconds for the expected maximum speed. For example, in a 25 mph speed zone, an expected maximum speed might be 45 mph. A car will travel .05 miles (264 ft) in 4 seconds at 45 mph, so we are recommending that the officer use a course length of at least .05 miles. If a motorist goes through the course faster than 4 seconds, the potential speed error will increase, but it will be obvious that the motorist is well above the posted speed limit."

which I think is incredibly relevant here. Doesn't anyone else...?!

VASCAR is ***NOT*** visual estimation. You were not caught via VASCAR or any device like it. You were paced backed up with visual estimation. Your VASCAR arguments are entirely spurious. If you want to make a point in court, it has to have some logical relationship to the evidence. You just can't go in there trying every random thing you've found on the internet expecting it to stick.

Visual estimation is just that - a visual observation of a vehicle and estimating it's speed. As L-1 has stated before, "Count with me ... 1-2-3 ... that's all the time it takes." Training and experience goes a long way there. And it is not all that difficult to estimate excessive speeds (like 40 in a 25). Estimating 5 MPH deviations might be a little dicier, but 10-15 over the limit is not all that difficult.

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Quoting krt222

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L1 - thank you for the further input. I would think that in this case the details are such that most reasonable people (not just a defendant for whom this would be convenient) would question the ability of the deputy to visually estimate the defendant's speed with such accuracy...I would hope that the court, a judge, or whomever is within that population of reasonable people. What I seem to be hearing from you is that a deputy can (based on training / certification) visually estimate speed with a 2-3 MPH margin of error in some undisclosed conditions (distance, time range) and that we are to assume that those undisclosed conditions necessarily bound the conditions of this particular case. To me, this is obvious, erroneous logic. Taken to the extreme, can a deputy reliably visually estimate the speed of a vehicle which is only observed for 20 feet? For one second? At any vantage point? Since the answer to that is assuredly no - where, then, is the line to be drawn? I believe a reasonable person would base that line off of the specific conditions under which the deputy's visual speed estimation training were accomplished. If the deputy's training / certification condition included observation times of 5 seconds and greater, for example, I would think this to be sufficient reasonable doubt with respect to a visual estimate only conviction.

I am not sure your purple color analogy is accurate or relevant. I would suggest a revised analogy: whether an observed color had a frequency of at least 668 THz based on an observation of 935 THz obtained with an observation time of 2.5 seconds using a method which has questionable reliability for observation times less than 4 seconds (and decreasing unreliability as observation time decreases) performed by an observer who has been trained in said method for some undisclosed range of observation times which has a corresponding margin of error of 50-80 THz).

If one reads that federal study on visual estimation (with VASCAR) I mentioned previously, they will find:

"When setting up a course for a stationary clock, the officer should choose a course length that will give a time duration of at least ~ 4 seconds for the expected maximum speed. For example, in a 25 mph speed zone, an expected maximum speed might be 45 mph. A car will travel .05 miles (264 ft) in 4 seconds at 45 mph, so we are recommending that the officer use a course length of at least .05 miles. If a motorist goes through the course faster than 4 seconds, the potential speed error will increase, but it will be obvious that the motorist is well above the posted speed limit."

which I think is incredibly relevant here. Doesn't anyone else...?!

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I've explained it to you to the best of my ability but there is nothing more I can do to help you understand it.

Best of luck in court. Be sure to come back and let us know what happens.

flyingron - I realize that VASCAR is not unaided visual speed estimation. It is visual speed quantification with help of a calculator/computer...distance is pre-input and start and stop observation times are then input. Speed is output. I am sure you know all this. With this in my mind, it seems reasonable that VASCAR ought to be more accurate and repeatable than purely unaided visual estimation. So if VASCAR is not recommended for short times / distances then what would one reasonably surmise regarding visual estimation?

Again, pacing was not accomplished in the speed zone for which the alleged violation occurred - so I don't think pacing has any merit in terms of backing up the visual estimation.

cdwjava - Are you suggesting that deputies are often trained to visually estimate speeds in less than 4 seconds? How can we find out under what conditions this specific deputy was trained / certified for visual estimation? And what his performance levels were under different conditions? For that matter the calibration of the SMD used as part of said training / certification? Are these things that would be discoverable?

L-1 - Will keep you abreast. For starters, received some of the discovery materials requested (back from the DA - which many here thought would not happen). These included front and back of deputy's copy of citation and also the COBAN video/audio recording (which again verifies what has been stated here previously regarding pacing occurring entirely in the 35 MPH zone, use of visual estimation and pacing - no other SMD - stated by deputy during stop).

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Quoting krt222

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flyingron - I realize that VASCAR is not unaided visual speed estimation. It is visual speed quantification with help of a calculator/computer...distance is pre-input and start and stop observation times are then input. Speed is output. I am sure you know all this. With this in my mind, it seems reasonable that VASCAR ought to be more accurate and repeatable than purely unaided visual estimation. So if VASCAR is not recommended for short times / distances then what would one reasonably surmise regarding visual estimation?

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But, since VASCAR is not used in CA, it is irrelevant.

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cdwjava - Are you suggesting that deputies are often trained to visually estimate speeds in less than 4 seconds?

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If they are radar trained, yes. If they are not radar trained, then also, yes. It takes only a matter of moments to view and estimate the speed of a moving vehicle. What makes you think you need longer than three seconds?

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How can we find out under what conditions this specific deputy was trained / certified for visual estimation?

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The defense can ask how he was trained on cross-examination. If he was radar-trained, it'll be a piece of cake. If he was not radar-trained, then his estimation will be based upon experience and for many courts this is entirely sufficient - especially when dealing with a speed of 40+ in a 25. If he were trying to assert an estimate of 28 in a 25, I suspect the court would be wary. But, at 40 MPH even if he were off by a whopping 10 MPH, your friend would still be in violation of the prima facie speed and the defense again reverts to him to prove that his speed was safe for the conditions.

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And what his performance levels were under different conditions? For that matter the calibration of the SMD used as part of said training / certification? Are these things that would be discoverable?

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Whether he was radar-trained or not could be discoverable by requesting his radar training certification. If he was not radar trained, then your friend would not get that info.

Will respond later when more time is avail, but to clarify, as stated above, ticket was issued for 35 in 25.

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Quoting krt222

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Will respond later when more time is avail, but to clarify, as stated above, ticket was issued for 35 in 25.

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Yes, but the officer apparently estimated 40 and wrote it as 35. if he testifies to that, he will appear reasonable and erring on the side of caution.

Your friend has little to lose by fighting the cite (save the possibility of losing a chance for traffic school), but if the officer is radar trained (and if he runs a car with radar, he almost certainly is) your friend had better be prepared to argue that his speed was safe for the conditions as that will likely be his only chance at being acquitted.

cdwjava - thanks for the further input. If we assume that the deputy's visual estimation is accepted, I can see that as then being taken as sufficient evidence that the defendant indeed exceeded the prima facia speed limit (22352(b)(1) - 25 MPH in business district), which would appear to be a violation of 22351(b) unless "the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing". However, the citation is for 22350. Why didn't the deputy write the citation for 22351(b)? Regardless, if the court is going to interpret the 22350 citation effectively as per 22351(b), what, exactly, would be needed to establish by competent evidence that the speed in excess of said limit did not constitute a violation of the basic speed law at the time, place and under the conditions that existed?

22350 is the section used to cite for unsafe speed - including exceeding the posted speed limit. VC 22351(b) offers the defendant the opportunity to argue that his speed did NOT violate the speed "as authorized" by the CVC.

cdwjava - ok, understood. What would be needed to establish by competent evidence that the speed in excess of said limit did not constitute a violation of the basic speed law at the time, place and under the conditions that existed? In this case conditions were clear, dry and light. There were no pedestrians, etc. I have a feeling that by itself is not enough...so what else would be needed?