Citation by Non-Uniformed Officer in Unmarked Police Car - CVC 40804?

My question involves a speeding ticket from the State of: CA

I recently got cited for speeding by a non-uniformed police officer in a completely unmarked police car...

The officer is a detective with a city in Santa Clara county, who apparently "paced" me on an Interstate Highway, and the citation is for speeding at 92 in a 65 zone (CVC 22349 a).

This was on a Friday afternoon (clear day) and I overtook a few vehicles in moderate traffic. A black truck was ahead of me in Lane 1 and this unmarked car behind me. As soon as I moved back to Lane 2, the driver of the car behind me followed and turned down his visors - which blinked blue and red LEDs - so I pulled over. I am pretty sure that I was not driving at 92 and was driving with the traffic, but of course didn't argue with the officer who seemed to be doing his job to collect revenue for his city...

I do not have any recent citations and my record is fairly good (3 minor moving violations in 30 years of driving). I would like to contest and plead not guilty since I am sure that I was not driving at 92 - and that my speed in Lane 1 was determined by the vehicle ahead and behind me (which was the unmarked police car).

I would sincerely appreciate any advice from the experts on this forum, specifically:

1. Does CVC 40804 apply in the above case, to make a case for dismissing this citation?

2. Whether/how can a case can be effectively made via a Trial by Declaration? What evidence do I need? Is the fact that the officer is a detective - who normally is not uniformed and drives an unmarked unit - sufficient, or should I be making an informal discovery request?

Thank you in advance for responding to this post.

I am confused.

How does the fact that the officer wasn't in a marked car and wasn't in uniform make your actions less a crime?

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Quoting cyjeff

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I am confused.

How does the fact that the officer wasn't in a marked car and wasn't in uniform make your actions less a crime?

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Simple.....

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40804(b) An officer arresting, or participating or assisting in the
arrest of, a person so charged while on duty for the exclusive or
main purpose of enforcing the provisions of Divisions 10 (commencing
with Section 20000) and 11 (commencing with Section 21000) is
incompetent as a witness if at the time of that arrest he was not
wearing a distinctive uniform, or was using a motor vehicle not
painted the distinctive color specified by the commissioner.

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So, the question of whether or not you can beat this in court is not an issue. The question is, should you ask the court to hold this officer in contempt? After all, should he appear and testify, he would have:

-testified as an incompetent witness - 40804
-introduced illegal evidence - 40803
-jeopardized the jurisdiction of the court - 40805

then he probably wont show up for court ?

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Quoting EWYLTJ

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Simple.....

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Who was arrested? How do you know this police detective was "on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 and 11"? On what basis are you claiming there was a speedtrap?

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Quoting THEAMAZINGCHAN

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then he probably wont show up for court ?

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you are probably right.

My sincere thanks to everyone for your prompt and helpful responses!

Mr. EWYLTJ has confirmed what I seemed to have come across in my layman's understanding of the specific CVC provision and some cases cited on the internet, including http://www.helpigotaticket.com/speed/speedtrap0.html.

However, Mr. Aaron has raised some key questions:

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Quoting aaron

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Who was arrested? How do you know this police detective was "on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 and 11"? On what basis are you claiming there was a speedtrap?

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In response to the first question from Mr Aaron, it seems to me that the act of stopping for serving the citation is the arrest, bail for which is to be posted by me. Would that satisfy the legal definition of "arrested"?

The second question by Mr Aaron will perhaps be raised by a traffic judge, or has this been unequivocally resolved in the past cases in California?

It appears to me that when the detective issued a citation for speeding, he was mainly/exclusively discharging duties for enforcement of CVC Divisions 10 and 11... Isn't that true? From my interpretation, even a recent appellate court case (5/22/08), Dyer vs DMV, supports this position for any speeding offenses: http://www.thenewspaper.com/rlc/docs...ca-dyerdui.pdf

It appears from the above and verbiage of CVC 40804(b) that the officer is not a competent witness for any speed related offence - even if a speed trap is not expressly claimed. See the last para on page 12 of Dyer vs DMV.

I request Mr EWYLTJ, Mr Aaron and other experts to provide feedback on the above. It will be invaluable for me, as well as for a lot other folks who will be looking at this thread in the future.

Thank you again, for taking the time to review the above and for sharing your expertise, from a judge's, prosecutor's or defence's perspective!

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Quoting aaron

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Who was arrested? How do you know this police detective was "on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 and 11"? On what basis are you claiming there was a speedtrap?

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The gravamen is not probelematical here, as you note Aaron, the poster said nothing about being arrested, and presumably either issued a promise to appear and or a citation.

Assuming arguendo he was arrested, the posters point is the detective was NOT on duty for the exclusive duty of enforcing the motor vehicle laws.

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Quoting drvc

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In response to the first question from Mr Aaron, it seems to me that the act of stopping for serving the citation is the arrest, bail for which is to be posted by me. Would that satisfy the legal definition of "arrested"?

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You will find the case law does not support the defintion of arrest, as the word here is crucial, as a citation, but a full custodial transport to a stationhouse to be booked.

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Thank you again, for taking the time to review the above and for sharing your expertise, from a judge's, prosecutor's or defence's perspective!

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I am not unfamiliar with this area of law, as my state has a similar provision for such, the incompetency of an officer being a witness.

First, you need to answer the direct question of were issued a suumons/citation, notice to appear OR were you subject to arrest as in being transported to another location/jail/detention center, etc., and "booked".

IF you were ordered to another location, whether fingerprinted, phtographed or not, then this may, yes, conform to a "traditional arrest". You mention "bail"? What do you mean by this??


Let's look at (a) also instead of just (b):

40804. (a) In any prosecution under this code upon a charge
involving the speed of a vehicle, an officer or other person shall be
incompetent as a witness if the testimony is based upon or obtained
from or by the maintenance or use of a speed trap.
(b) An officer arresting, or participating or assisting in the
arrest of, a person so charged while on duty for the exclusive or
main purpose of enforcing the provisions of Divisions 10 (commencing
with Section 20000) and 11 (commencing with Section 21000) is
incompetent as a witness if at the time of that arrest he was not
wearing a distinctive uniform, or was using a motor vehicle not
painted the distinctive color specified by the commissioner.

(a) does not involve arrest, but it also requires that a speed trap was the basis of the stop and inclued ANY prosecution, not just arrest.

My state has ruled that a police officer in a marked car and in uniform, while on duty IS there for the exclusive purpose of enforcing the laws. Prevention and investigation of the "criminal" laws, is secondary and is NOT there main purpose/duty. I read this many years ago in the case law.

So, for your argument to have weight, either there must have been a speed trap OR you had to have been arrested.

Thank you, Sr Member BOR, for sharing your thoughts. (BTW, if you could let us know which state are you from, it may be of particular use to folks who read this thread down the road...)

In California, the case law may support my position - the recent Dyer vs DMV case cited by me earlier (http://www.thenewspaper.com/rlc/docs...ca-dyerdui.pdf), states that:

In any prosecution of a person charged with an offense involving the "speed of a vehicle,” the testimony of the arresting officer is inadmissible unless that officer was in uniform and driving a marked patrol car. The Legislature has thus created a specific and limited remedy for a violation of section 40800--the exclusion of the noncomplying officer’s testimony in a prosecution for speed-related offenses. These sanctions further the chief goal of speed trap legislation, i.e., to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel.

If you have legal or law enforcement experience in California regarding the above, your response/opinion regarding the above will be very valuable and sincerely appreciated!