Basic Speed Ticket 22350 In Orange County

I received a ticket in December and have requested an extension for a new trial date of April 7, 2008.

I was cited for going 39 in a 25 mph zone by radar. This was a wide residential street.

On the citation the officer wrote under location of incident: Street A North to Street B. The problem with is is that Street B does not intersect with Street A.

I plan on preparing a Trial by Written Declaration and including multiple defenses such as I cannot be guilty due the fact that the location does not exist.

I will also include that I was not driving at a speed which endangers the safety of persons or property.

I have been doing some research and I think that since the officer used radar, he will have to include the traffic survey in his declaration. Is that correct? Will there be a traffic survey on a local residential road?

Also, I did not have my proof of insurance with me so the officer cited me for 16028(a). I went to the court clerk yesterday to show proof of my insurance and everything was going great until I asked a question about Trial by Written Declaration and that I was thinking about doing it and she would not take care of my proof of insurance. It is my understanding that she should have charged me the $10 and taken my proof of insurance. She said that it has to be done all at once. The officer also checked the no box for correctable violation for each. Is that right? From what I can tell from my insurance, the proof of financial responsibility is correctable. Am I incorrect?

Any advice or information you can give me would be greatly appreciated.

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Quoting cadriver38

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I will also include that I was not driving at a speed which endangers the safety of persons or property.

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22350 is also the section used for the basic speed law - for violating the posted limit. So traveling at an otherwise "unsafe" speed is not necessary as an element.

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I have been doing some research and I think that since the officer used radar, he will have to include the traffic survey in his declaration. Is that correct? Will there be a traffic survey on a local residential road?

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Depending on the size of the road, no survey may be necessary.

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The officer also checked the no box for correctable violation for each. Is that right? From what I can tell from my insurance, the proof of financial responsibility is correctable. Am I incorrect?

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This box can only be checked in another officer or DMV employee can correct the violation. 16028(a) can NOT be corrected by anyone but the clerk of the court or the court.


- Carl

Thank you for the information, what about the defense that the address does not exist? Do you think that will matter?

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Quoting cadriver38

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Thank you for the information, what about the defense that the address does not exist? Do you think that will matter?

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Yes, it will matter. Unless properly amended prior to trial or the TBWD, the location will likely cause a ruling in your favor as the location of the offense cannot be adequately determined. However, if this street is only one or two blocks long, then the court might decide that the intersection is irrelevant as the size and speed limit would be the same ... doubtful, but anything can be possible in a traffic court.

I'd run with the street info as part of the defense. It can't hurt.

- Carl

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Quoting cdwjava

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22350 is also the section used for the basic speed law - for violating the posted limit. So traveling at an otherwise "unsafe" speed is not necessary as an element.


Depending on the size of the road, no survey may be necessary.


This box can only be checked in another officer or DMV employee can correct the violation. 16028(a) can NOT be corrected by anyone but the clerk of the court or the court.


- Carl

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That is true, but it is still correctable and on the back of the ticket under correctable violations it gives the procedure for correcting violation of Vehicle Code Section 16028 (automobile liability insurance). It is written under What to Do 1.c.

As a side note, I went to the clerk of the court, showed her my proof of insurance and when I mentioned that I was considering doing the TBWD she gave me back my proof of insurance and would not accept it.

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Quoting cadriver38

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As a side note, I went to the clerk of the court, showed her my proof of insurance and when I mentioned that I was considering doing the TBWD she gave me back my proof of insurance and would not accept it.

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Not sure why ... it might be that they handle the whole matter as one unit and not piecemeal. I don't know why they would have to do that because these partial "fix it" violation happen all the time. It may be a court policy, or a misunderstanding on the part of the clerk. Just be sure to provide that information to the court when you submit your TBWD or go to trial.

- Carl

What is the best, easiest way to find out the width of a road? Do I go to the City Planning Department to get a map?

I may go back to the clerk and try to submit the proof of insurance and not mention the TBDW and just keep my mouth shut and see if she will accept it.

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Quoting cadriver38

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What is the best, easiest way to find out the width of a road? Do I go to the City Planning Department to get a map?

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They should have that information or know what agency in the city does.

- Carl

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Quoting cadriver38

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I may go back to the clerk and try to submit the proof of insurance and not mention the TBDW and just keep my mouth shut and see if she will accept it.

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Well, they just might ask for your payment for the entire offense at that time. Be careful, because you might find yourself accidentally pleading guilty to the whole kit and kaboodle.

- Carl

I will just say that I want to correct the insurance violation. If they let me, they let me. I should only have to pay $10 and will walk away like I did the first time if that doesn't work and include that in my TBWD also. At least this time I have the resources to know that they should accept it, i.e., the court's own website and the vehicle code.

Good luck.

Oh, and in the future, please watch your speed! Residential streets often have kids that live in and around them who are not too aware of cars or that they would lose upon impact with one. Slowing down will help prevent a tragedy ... I've seen too many of those over the years.

- Carl

Thank you for all of your help!

Oh, if I include pictures of where I was located that shows that it was not at the two streets written, would I be incriminating myself or establishing location?

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Quoting cadriver38

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Oh, if I include pictures of where I was located that shows that it was not at the two streets written, would I be incriminating myself or establishing location?

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It it were me, I'd go with a copy of a map showing the street you were on, and one showing the street that supposedly crossed it - that would demonstrate that the streets don't cross. Taking a picture of "I was right here when he stopped me" MIGHT give a 'pro tem' cause to amend the cite (likely improperly).

- Carl

Yes, that was what I was thinking! I don't want to risk it!

Oh, btw, wish I could send you a double mocha ... and a croissant for your trouble!

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Quoting cadriver38

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Oh, btw, wish I could send you a double mocha ... and a croissant for your trouble!

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Well, Starbucks DOES sell gift cards! :D

Good luck, watch your speed, and drive safe.

- Carl

lol...yes, they sure do! But, I would have no idea where to send it to! lol....

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Quoting cadriver38

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lol...yes, they sure do! But, I would have no idea where to send it to! lol....

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That's okay ... I need to cut back on my cholesterol anyway.

- Carl

lol..okay! Anyways, thanks for the help!

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Quoting cadriver38

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What is the best, easiest way to find out the width of a road? Do I go to the City Planning Department to get a map?

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You don't HAVE to get that information (but it doesn't hurt). The prosecution has the burden to provide that as per 40803(b)

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In any prosecution under this code of a charge involving the
speed of a vehicle, where enforcement involves the use of radar or
other electronic devices which measure the speed of moving objects,
the prosecution shall establish, as part of its prima facie case,
that the evidence or testimony presented is not based upon a
speedtrap as defined in paragraph (2) of subdivision (a) of Section
40802.

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However, be aware that many courts will simply ignore the law in a TBWD. Even if you quote 40803, the judge will likely just find you guilty anyway.

Also, 22351 makes it illegal to exceed the posted limit unless you can show that you did not violate persons or property. In other words, if you were over the limit, you are ASSUMED to have violated 22350 unless you can show by competent evidence that you didn't.

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Quoting EWYLTJ

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You don't HAVE to get that information (but it doesn't hurt). The prosecution has the burden to provide that as per 40803(b)

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Unless it is not required.


- Carl

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Quoting cdwjava

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Unless it is not required.


- Carl

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What part of "in ANY prosecution...." is difficult to understand?

I went to the planning department yesterday and they emailed an aerial view and a regular street map which shows that the street is actually 72 feet! So, that means that a survey needed to be done, right? What else does it mean to help my case?

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Quoting cadriver38

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I went to the planning department yesterday and they emailed an aerial view and a regular street map which shows that the street is actually 72 feet! So, that means that a survey needed to be done, right? What else does it mean to help my case?

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It means they will have to present a valid survey at trial. If they do not, then you can move to have the case dismissed as the state had not established that the zone was not a "speed trap" pursuant to 40803.

- Carl

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Quoting cdwjava

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It means they will have to present a valid survey at trial. If they do not, then you can move to have the case dismissed as the state had not established that the zone was not a "speed trap" pursuant to 40803.

- Carl

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Okay, now I am going to ask for your professional opinion, do you think this case might be dismissed?

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Quoting cadriver38

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Okay, now I am going to ask for your professional opinion, do you think this case might be dismissed?

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That's a tough one even under the best of circumstances. If I knew the judge/commissioner/'pro tem' that would be hearing the case, I might be able to tell you. But, I don't know that and I can't honestly say.

I'd say you have a couple of different shots - the best for the TBWD would seem to be the streets. You can show that they do not intersect without admitting to your specific location or speed. The judge reviewing the declaration may decide to dismiss there.

If not, and you have to go to trial, then you have the speed survey angle, and a long shot of asking for a dismissal based on no discovery if the DA's office does not respond. And, of course, the officer might not show up for trial.

Keep in mind that going to trial might keep you from traffic school if convicted. While the court cannot legally refuse to consider that as an option, it is still discretionary and the practice of many CA courts - Orange County having been one of them as recently as 7 years ago - to not permit traffic school after taking the stand. I'd say maybe one if six of those who were eligible or requested it were given traffic school after convictions (this is based solely on those that I witnessed in San Diego, mind you). Usually these were folks who had clean driving records, and purported themselves politely and respectfully at trial.

Good luck.

- Carl

Okay, I don't really want to go to traffic school, that is why I am taking the extra effort to get all of the information that I can. I am going to lay out all of my cards on the table in my TBWD and hope for the best. If I have to go to trial, then I will hope that the officer does not appear and that a judge may look at it differently than the one looking at the TBWD. Do you know if it will be the same judge or is there a chance of two different judges?

Another question, how can I get a copy of the traffic survey or find out if one was done? Would a traffic survey be done if the street appears to be a residential street, it is just a very wide street!

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Quoting cadriver38

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Do you know if it will be the same judge or is there a chance of two different judges?

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I honestly don't know. I suspect it would be two different judges, but it might depend on the specific court.

- Carl

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Quoting cadriver38

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Another question, how can I get a copy of the traffic survey or find out if one was done? Would a traffic survey be done if the street appears to be a residential street, it is just a very wide street!

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Typically, the state would have to present that at trial. Since in the past in Orange County these were kept in a binder at the traffic court, it is generally always present and the officer simply refers the court to the survey binder. If the state does no present the survey, you can motion to dismiss. The judge may or may not grant the motion.

It IS possible that no speed survey was done unless requested by the agency. In my jurisdiction, we have to provide specific blocks for the speed surveys to be conducted as they are not typically done unless the city is looking to change the speed limit or my agency is looking to enforce speed and no current survey is in effect. In my city, it is the COUNTY roads department that conducts these surveys and holds these records. My officers have to bring our (certified) copies of these surveys with them when they attend court. In Orange County that did not used to be the case - at least where I was familiar with. But, that was a lot of years ago.

- Carl

Is it considered a school zone if there is a preschool on the corner? And, if yes, what is the best thing for me to do in the terms of the radar issue and the street being 72 feet wide. Should I even mention it? What I am concerned about is putting anything in the declaration that states my whereabouts since my first defense is that the location of the offense does not exist and then the judge could just amend the location.

Should I just say that the road I was on was 72 feet and then the officer will have to prove that it was not a speed trap?

by the way, the preschool was about 766 feet from where the cop was sitting...and my car was definitely further than that when he must have seen me.

Oh and I read somewhere that to get an accurate radar reading it should be a flat straight road. Is that true? This particular road is neither flat nor is it straight, again, do I want to mention that in the TBWD if it matters?

I am sorry, another question, will the court give the officer a copy of the TBWD?

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Quoting cadriver38

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Is it considered a school zone if there is a preschool on the corner? And, if yes, what is the best thing for me to do in the terms of the radar issue and the street being 72 feet wide. Should I even mention it? What I am concerned about is putting anything in the declaration that states my whereabouts since my first defense is that the location of the offense does not exist and then the judge could just amend the location.

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The judge should not be in the business of amending the citation. He might, but he shouldn't. If the officer does not make the amendment prior to trial, then I suspect that no such amendment will be made.

However, I HAVE seen (rightly or wrongly) the court allow an officer to amend a citation AT court and then the court grant an extension fo time for the defendant to prepare a defense. I suspect there are all sorts of problems with that, but that does not prevent the court from doing this from time to time.

CVC 40802(b)(2) defines a school zone:

(2) For purposes of this section "school zone" means that area
approaching or passing a school building or the grounds thereof that
is contiguous to a highway and on which is posted a standard "SCHOOL"
warning sign, while children are going to or leaving the school
either during school hours or during the noon recess period. "School
zone" also includes the area approaching or passing any school
grounds that are not separated from the highway by a fence, gate, or
other physical barrier while the grounds are in use by children if
that highway is posted with a standard "SCHOOL" warning sign.

You would have to look and see if the appropriate signs are posted, and it will also depend on the time of day.

- Carl

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Should I just say that the road I was on was 72 feet and then the officer will have to prove that it was not a speed trap?

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Sure. If the road is 72 feet wide along an extended stretch, I would indicate that. Or, however wide it was along the majority of the length of roadway ...

- Carl

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Quoting cadriver38

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Oh and I read somewhere that to get an accurate radar reading it should be a flat straight road. Is that true? This particular road is neither flat nor is it straight, again, do I want to mention that in the TBWD if it matters?

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Well, maybe ... but, you might not benefit yourself by pointing out where the officer was sitting when you saw him ... kinda potentially destroys the argument regarding location.

- Carl

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Quoting cadriver38

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I am sorry, another question, will the court give the officer a copy of the TBWD?

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No, the officer will not get your statement.

Rather, I have never known that to occur. If it has occurred, it is a rarity or I have never once heard about it.

- Carl