CVC 22350 - Officer Charges Based on "Feelings" Not Facts

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

CVC 22350 "No person shall drive a vehicle at a speed that is greater than is reasonable or prudent and in no event at a speed which endangers the safety of persons or property"

It's a sunny September morning in Southern California, dry roads and unlimited visibility (barring the curviture of the earth). I had just got off the freeway and was first at the light at the top of the exit ramp with a string of cars behind me and to the right. I am in the left lane of two that turn left. As the light goes green I find I have still got some traffic in the intersection and unable to safely make the turn. The very large pickup truck behind me blows his horn several times as if that would make it ok for me to continue. When I do get to move I then hit another red light for the people getting on the freeway.
The Pickup truck is right behind me and all I see in my mirror is his grill and lights. It had obviously been custom raised.

My light went green and I continued. The flow of traffic was about 42 - 45mph and the truck was right on my tail. He was so close that I could still only see the bottom of his windshield. I saw him flashing his headlights at me as if he wanted me to move out of his way and frankly this made me realize I was in a bad situation. I had a raised median to my left, two lanes of cars to my right and a threatening driver behind. I used my turn signal to switch lanes but nobody was letting me over.

I knew that if something happened that would require me to stop rapidly the situation would turn ugly so I determined that the safest thing to do, as I had a clear straight road ahead of me and visibility for about 1000 ft. before the next curve in the road, was to excelerate and move out of the way. As I moved into the lane on my right, still using my turn signal the truck passed me on the left.

As soon as I enterd the lane to my right and a safe enough distance from the vehicle behind me I reduced my speed to the flow of traffic, about 45mph.

I saw the officer at an intersection about 800ft ahead on his motorcycle. I pulled over after the intersection and he drove up behind me. He said I was speeding, traveling 55 in a 40, 881ft from his location (according to his laser). He never at any time mentioned that I had done anything unsafe or spoke at all about safety. I asked him "What about the blue pickup that flew past me"? His answer, "I got you not him". I realized at that point there was no point arguing with him. He claimed i was doing 55 in a 40 and the signs did indeed say 40mph. The Engineering and Traffic survey had set the critical speed to 45 mph 4 months prior to my ticket but the signs were never changed. I entered a plee of not guilty based on CA division 17, chapter 3, Article 1 section 40802, paragraph 2 which describes a speed trap:

(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

Given that the signs said 40 but the survey for this stretch of road stated "Accordingly, any speed limit reduction below the proposed 45 m.p.h speed limit would not be justified." I would have thought it would have bee a clear cut case of Not Guilty.

CVC Division 17, Chapter 3, Article 1 Section 40801
No peace officer or other person shall use a speed trap in arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code

The judges verdict came back as Guilty for my TBD.


Now I am having to go to court on Tuesday for a trial de novo.
This time I am answering the charges with a reply to the officers TBD declaration.
"At 55 Mph the defendant is traveling at 80.85 fps. The stopping distance at that speed is approximately 265 feet. Stopping distance at 40 mph is approximately 164 feet. This would add an additional 101 feet of breaking distance to the defendant's vehicle had he had to break in an emergency. Being that the defendant's vehicle was 15 mph over the posted speed limit and 10-mph over the critical speed (85th percentile speed), I felt that the speed of the defendant's vehicle was not reasonable or prudent and that his speed endangered the safety of other persons and property. For these reasons the defendant was issued a citation for 22350 VC".

Remember the critical speed set for the road by the Engineering and traffic Survey was 45mph and the breaking distance at that speed would be 196 ft. Given I had a clear dry 3 lane road ahead of me with 881ft to any intersection the increased stopping distance of only 69 ft hardly represents a hazard to anyone in front of me and certainly not behind me.

Do you think the obvious attempt to create something of a situation by the officer can be held up in court when he admits it's purely a personal feeling that I was endangering other people and property that came only upon my challenge to the ticket?
He was also parked in a crosswalk blocking a wheelchair ramp and I mentioned that in the TBD. Breaking the law to give me a ticket seems unethical.

The traffic survey for that stretch of road says my side is "undeveloped" but the officer states the area is "residential" per 525 VC. The only thing I see on the web for 525 VC or CVC section 525 is "Right-of-way" is the privilege of the immediate use of the highway." Am I missing some part of the code?

A side note: After contacting the engineers that conducted the traffic survey for information and informing them of my situation, the suprised engineer said that the signs should have been changed by now and that she would look into it. The signs were changed within 2 weeks and the officer that was regularly seen at that intersection is rareley seen. Seems there is no money in enforcing the law within the law.

Thank you in advance for your thoughts,

Below is the officer's view from 881 ft away
http://www.nowsaving.com/PG/imagez/officer_view.jpg

Below is my location at 881ft from the officer.
http://www.nowsaving.com/PG/imagez/Tampa_3lanes.jpg

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Quoting Limey2632

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Remember the critical speed set for the road by the Engineering and traffic Survey was 45mph and the breaking distance at that speed would be 196 ft. Given I had a clear dry 3 lane road ahead of me with 881ft to any intersection the increased stopping distance of only 69 ft hardly represents a hazard to anyone in front of me and certainly not behind me.

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What does your distance from the intersection have anything to do with representing a hazard to anyone in front of you or behind you? Accidents haapen at as well as away from intersections.

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Quoting Limey2632

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The traffic survey for that stretch of road says my side is "undeveloped" but the officer states the area is "residential" per 525 VC. The only thing I see on the web for 525 VC or CVC section 525 is "Right-of-way" is the privilege of the immediate use of the highway." Am I missing some part of the code?

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Its actually CVC 515:

515. A "residence district" is that portion of a highway and the property contiguous thereto, other than a business district, (a) upon one side of which highway, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 13 or more separate dwelling houses or business structures, or (b) upon both sides of which highway, collectively, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 16 or more separate dwelling houses or business structures. A residence district may be longer than one-quarter of a mile if the above ratio of separate dwelling houses or business structures to the length of the highway exists.

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Quoting Limey2632

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He was also parked in a crosswalk blocking a wheelchair ramp and I mentioned that in the TBD. Breaking the law to give me a ticket seems unethical.

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Did you actually include the word "unethical" in your TBD?

Hi TG,
You are taking a part of that sentance and questioning it rather than asking about the complete line.
I said "Given I had a clear dry 3 lane road ahead of me with 881ft to any intersection".

I think it has everything to do with it as the officer mentioned speed and breaking distance as being the reason he issued the citation. Had there been traffic in front of me that might be impacted (no pun inteneded) by my inability to stop by adding an extra 69ft to my overall stopping then I would say there was some validity to the officer's claim. My point is that there was nothing in front of me, no side streets, wide median and perfect driving conditions for the next 881 ft. If you do not believe that this has any baring on speed and safety then you might wish to lobby for reducing speeds on our freeways to 45mph and our single lane country roads twith their dips, valleys and curves that are currently 55mph might drop to 25mph just to be on the safe side.

If I had said it was raining or there was a dust storm then you would have been telling me distance, conditions and visibility were a major consideration.

I aggree accidents can happen anywhere but road characteristics, distance between intersections and past history of accidents on a given stretch of highway are used by the engineers to determine the critical speed.

I hope that answers your question TG.

... and thanks for the Vehicle code TG. That really helps.

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Quoting Limey2632

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Hi TG,
You are taking a part of that sentance and questioning it rather than asking about the complete line.
I said "Given I had a clear dry 3 lane road ahead of me with 881ft to any intersection".

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Sorry...

However, “clear” has nothing to do with stopping distance... As for “dry” and although a wet road might have a lower coefficient of friction than a dry road, the officer's quoted stopping distances (as well as the one you used) were based on the same conditions.

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Quoting Limey2632

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I think it has everything to do with it as the officer mentioned speed and breaking distance as being the reason he issued the citation. Had there been traffic in front of me that might be impacted (no pun inteneded) by my inability to stop by adding an extra 69ft to my overall stopping then I would say there was some validity to the officer's claim.

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And if not based upon braking distance, what do you suggest that speeding citations be based upon?

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Quoting Limey2632

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My point is that there was nothing in front of me, no side streets, wide median and perfect driving conditions for the next 881 ft.

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How wide is the median? Better yet, is it wider or narrower than the difference in stopping distance between your speed and the posted speed limit or even the newly established critical speed? Even better, would your stopping distance be longer or shorter had you had a tire blow out?

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Quoting Limey2632

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If you do not believe that this has any baring on speed and safety then you might wish to lobby for reducing speeds on our freeways to 45mph and our single lane country roads twith their dips, valleys and curves that are currently 55mph might drop to 25mph just to be on the safe side.

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Given that you decided to drive at 15mph above the posted limit; 10mph above the critical speed (which you knew nothing about at the time), you may wish to lobby that speed limits should be abolished and everybody should drive at whatever speed they “feel” is reasonable and safe!!!

Moreover, your decision to increase your speed based upon your own “feeling” that you were in danger from a tailgater does not in anyway justify that your decision was proper, nor does it suggest that the officer's use of the word “feel” in his declaration violated any rules...

Point is, and even after titling your thread “Officer charged based on 'feeling' not facts” you're still arguing by stating what you “feel” was a justified reason for you to drive in excess of the limit.

You want to have even the slightest chance that you'll win your case? Then take all the “feeling” out and present and argue facts. And you have a pretty decent argument in that the posted limit was not justified by the newly conducted survey. But I've had no preview of what your declaration included.

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Quoting Limey2632

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If I had said it was raining or there was a dust storm then you would have been telling me distance, conditions and visibility were a major consideration.

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Then contact the engineer who conducted the survey and suggest to her that they should post a 55mph speed limit except when conditions are rainy and dusty...

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Quoting Limey2632

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I aggree accidents can happen anywhere but road characteristics, distance between intersections and past history of accidents on a given stretch of highway are used by the engineers to determine the critical speed.

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Well, you're the one who has access to the survey... Tell me how many of the accidents that are cited in there happened under which conditions. My feeling is that you won't be able to. Why? Because that is not how accidents are evaluated relative the speed limit.

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Quoting Limey2632

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... and thanks for the Vehicle code TG. That really helps.

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You're welcome... Although I don't see how the difference between “undeveloped” or “residential” has any effect on your case. You might feel otherwise.

Good luck tomorrow... Keep us posted, please!

I agree with you, Guy, that the difference between "residential" and "undeveloped" won't have any affect -- especially since the road does not meet the criteria of a "local street [or] road", per CVC 40802.

I have to disagree about the "feeling" business though. I think tickets should be based on facts and logic conclusions based on "professional opinion" drawn from facts. If it were me, I would argue that had the officer stated, "Therefore, in my professional opinion, the speed of the defendant's vehicle was not reasonable or prudent...." it would be a different matter. However, he stated, "I felt that the speed of the defendant's vehicle was not reasonable or prudent...." Basing a citation upon the EMOTIONAL reaction of the officer is not the same as basing it upon his or her "professional opinion".

Now, all that stated, do I think that argument has any merit? Probably not, but you never know. Added to the other "facts" of the defense, it might. Of course, it might tick off the judge, as well. The judge might just consider it a matter of symantics.

But, you know how much I love arguing with you, St. That Guy.

Barry

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Quoting blewis

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I have to disagree about the "feeling" business though. I think tickets should be based on facts and logic conclusions based on "professional opinion" drawn from facts. If it were me, I would argue that had the officer stated, "Therefore, in my professional opinion, the speed of the defendant's vehicle was not reasonable or prudent...." it would be a different matter. However, he stated, "I felt that the speed of the defendant's vehicle was not reasonable or prudent...." Basing a citation upon the EMOTIONAL reaction of the officer is not the same as basing it upon his or her "professional opinion".

Now, all that stated, do I think that argument has any merit? Probably not, but you never know. Added to the other "facts" of the defense, it might. Of course, it might tick off the judge, as well. The judge might just consider it a matter of symantics.

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OK, the "feeling business".... Would you agree that by virtue of the officer's training, knowledge and presumed field experience, that he is, at least in the court's view an "expert witness"? So his use of the word "felt" versus "opined" or "concluded".... etc, is a matter then never ever crossed the Judges mind. I know we'll both agree that a description of "feelings" will ring differently in the judge's ear when they come out of a defendant's mouth as opposed to an officer's mouth. Is that fair? Probably not but that's the way it is.

With that being said, you have to admit that despite his use of the word "felt", the officer did in fact present an indisputable argument that the OP's speed was ~at minimum~ less than safe for the conditions. He even went as far as presenting it in agreement with the newly conducted T&E survey rather than the unjustified speed limit! Is that legally proper? I don't know.... I'm sure Jim will be along soon to talk about the total cop/judge conspire to convict innocent victims & their total ignorance of and disregard for the law!

With all that being said, I will still stick to my point that if the officer were to use his same argument in court tomorrow (why not? It worked in the TBD) then the OP will not achieve a different result by objecting to the officer's use of the “felt” word.

Also, a Trial De Novo is a NEW trial, what was said in the the TBD is not a point of contention. So what if the officer does use “in my professional” opinion??? What will the OP argue then???

I would also stay away from suggesting or even mentioning that the officer was being “unethical” by “parking in a wheelchair ramp” when he cited him.

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Quoting blewis

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But, you know how much I love arguing with you, St. That Guy.

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And you know how much I appreciate your input and value your opinion (even when you're.... uhm... Less than right... Haha).... You have always managed to present your arguments in as graceful and respectful manner as can be and void of any insults or disrespectful commentary & for that, you have earned my utmost respect as well as the “Sir Barry” title!

All in all, you have a very strong defense against this one as long as you get your ducks in row and get all the supporting evidence.

Your first and probably best line of defense is the fact that the posted speed limit was out of compliance with the vehicle code, and therefore constitutes an illegal speed trap as defined by CVC. If the city forgot to change the signs, that's their loss and your lucky break. If your ticket notes the posted limit as 40mph and the crit speed in the survey introduced by the prosecution is 5 or more mph higher, it means an automatic dismissal 99% of the time. BTW, I believe that the new rules dictate that the speed limit must be set at the closest 5mph increment rather than the lowest as before. I am surprised you lost the TBD under the circumstances, but maybe the judge read the officer's statement of facts and didn't look at the other evidence.

Your other line of defense would be to argue that the speed of 55mph was not in violation of the basic speed law. Mention the provisions of CVC22351(b), which permits exceeding posted limit inside cities if doing so is safe. Another point to attack is the officer's numbers for the braking distances. You can can easily show how those braking figures would be wildly different for every vehicle and almost certainly not applicable to your car (particularly if you drive a small compact car). For that matter, ask the officer if it's possible to have an accident due to insufficient braking distance even while obeying the speed limit. Ask if there were any stopped vehicles or large obstructions directly in your path that would require a panic stop. Ask if it's normal for drivers to continuosly adjust their speed according to conditions. You can get at least half an hour's worth of comedy out of this one if you do your homework beforehand.

Gentlemen,
Thank you both for your input.

Guy, I used the word clear to describe the lack of vehicles or obstructions in my path. Obviously the distance between vehicles has a bearing on safety as the recommended following distance is increased along with speed. I think that we are a little off track here as the citation was issued under the pretence that I was driving in an unsafe manner that might cause halm to other persons or property and in a manner that was not reasonable or prudent. "In my professional opinion" the situation created by the vehicle behind me put not only myself but others in a potentially hazardous position. Yes, I did say professional opinion because I have held a CDL since 1996 and am considered a professional driver (ineligable to take traffic school). If the officer's profecional opinion holds weight, surely it must go both ways?
The officer has the ability to hold a laser gun and place a red dot on a moving object while waiting for a beep and displayed speed. I however have driven accident free across all terrains, through all weather and with many types of vehicles all things from hay to hazardous waste. Average distance travelled yearly when I was going cross country was 120,000 miles per year.

What I think the speeding citations be based on is not at issue here. This is an issue of wether I was conducting myself in a manner that was safe. Was the speed that the officer claims I was traveling at really unsafe to persons or property. There was no accident there was no mention of any safety conserns at the time of the stop. It was purely about the speed displayed on the readout of the laser gun. Not safety or mitigating curcumstances.

The width of the raised medium is I think about 15 feet (if memory serves me well. I don't have the details with me at this time). If I had had a blow out with a pickup about 10ft from my rear bumper, cars to my right and a raised median to my left I can gaurantee there would have been carnage on the road. Was it safer for me to get away from that scenario? I will let you be the judge.

The whole issue about feelings is that the officer never mentioned safety as a reason for citing me. The citation was for a safety related reason based on what the officer "felt". I put it to you that the officer felt no such thing at the time of the citation but rather he based his decision wholey on the reading from the laser gun.

Blewis, I appologise but I am at work and have to get back to my desk now. I will respond to your comments when I get the chance.

Respectfully,
Limey

Yep, Guy, I agree that the officer would have been much better off is he had said, "In my opinion..." And I agree about the groundwork "facts" the officer presented. They were well done. That's probably why the judge will let the "I felt" go as symantics.

HonkingAntelope, you make a good point about the survey. I hope OP brings it up. However, I am curious when you say, "the new rules dictate that the speed limit must be set at the closest 5mph increment rather than the lowest as before." Are you speaking of CA law? Because the MUTCD up until 2003 stated, "When a speed limit is to be posted, it should be the 85th-percentile speed of freeflowing traffic, rounded up to the nearest 10 km/h (5 mph) increment." Since then it simply says, "it should be within 10 km/h or 5 mph of the 85th-percentile speed...." So, at the Federal level, while you used to have to "round up", now you can "round to the nearest". Again, I'm just curious.

Anyway, I think that if OP presents his defense in a respectful and non-emotional manner, he/she's got a fighting chance.

Barry

Here's the rub - it's up to you to prove why you were not in violation of the basic speed law. Traffic law is all about compliance, revenue, and not safety anyway - get used to it. Leave the 'professional opinion' attitude at home. If you have a commercial license and drive a lot, mention that at the beginning of your testimony and don't mention it again. The overall safety of your driving isn't in question here. The only issue on the table here is whether your speed at the date and time of violation was unsafe, unreasonable, and endangered persons/property.

The first argument, and hopefully the last, you should make is that the speed limit was posted illegally, and therefore unenforceable due to the officer operating an illegal speed trap. The law is pretty black and white in that regard, and your case is definitely on the right side of it. You'll have to object to any radar/laser testimony on the grounds that the speed survey doesn't justify the posted limit.

If the judge decides to ignore the law (SoP in quite a few traffic courts), you can still attack the officer's subjective judgement. In particular, find the 0-60 braking distances for your vehicle from a reputable source and then add another 100ft to account for reaction time of an alert driver @ the alleged 55mph. If the total distance is significantly less than the stated 265 by the officer, you'll damage his argument's credibility. Also, quiz him on the presence of any stalled out vehicles, brick walls, pedestrians, cows, and any other obstructions in your direct path of travel that would require an immediate panic stop. If you think that you've made a good argument that your speed was okay for conditions, you can ahead and ask the officer if he observed a large pickup truck tailgating you along with its following distance and buttress your story by stating that it was safer to accelerate slightly than to travel at present speed. Just don't make it the main point of your defense and get into an argument with the cop and the judge. Like i said, leave emotions at home.

All in all, the officer's argument sounds like flimsy boilerplate in order to satisfy the provisions of the VC22350 rather than an objective assessment regarding the accused's safety. You job is to present your side of the story in a logical and concise manner and to cross-examine the officer in a way that draws testimony in support of your argument. Make absolutely sure you write your questions out on a piece of paper before trial (feel free to post them here, too) and bring a voice recorder if possible - get the judge's permission before you turn it on though.

ugh, i thought my previous post got lost when i hit the back button by accident so I rewrote what i was going to say :-\ DOH

Well... first of all, I want to commend you on all of the really good research you have done to this point. I was at work this morning and I had a nice long response that I was almost done with when my boss called me out. Several hours later and I finally get home and realized I never submitted it. However, Honking A did such a fine job, I won't rehash my old post. I will reiterate a couple things.

First.... all the crap about braking distance, opinions, weather, etc... are absolutely irrelevant. Your main defense is a speed trap defense. You should rely on it first. However, presentation is key. You can bring up the cop's statement from the TBWD and ask him about his analysis of braking. You can make the point that he was very conscious and thoughtful in his decision to write the ticket, to which he will no doubt agree. Then you can address the fact that he recognized the speed survey didn't justify the speed limit. At that time, bring out the black letter definition of speed trap. Then you can go through the other sections from 40801-40805 and tell him if he was so conscientious, why did he illegally participate in a speed trap??? Why did he even write the statement when the law considers him incompetent to serve as witness, etc...

As HA said... there are no emotions. You argue what the law DOES say... not what it SHOULD say.

I'm really looking forward to seeing how this all works out for you.

Here is a link to the Engineering and traffic Survey for the road I was on.
Page 4 is the speed zoning diagram and page 9 has the report for Tampa Avenue between Rinaldi street and Devonshire Street.

Note that the legal District zoning of the area is "Undeveloped Frontageper Sec 22349 CVC". It was important enough for the officer to convey to the judge and just another flaw in not only the citation but the reply to TBD.


Below is my Trial by Written declaration (TBD).
I have changed the names and ID numbers of those involved.

STATEMENT OF FACTS

Defendant's Name: Limey
citation No.: #######

I respectfully submit this written declaration to the Court pursuant to CVC 40902. I plead Not Guilty to the charge of violating CVC 22350
The facts of my case are as follows: While driving on Tampa Avenue between Rinaldi and Chatsworth on 09-09-08, I was stopped by an LAPD Officer Robins (I.D.#12345) and was charged with violating CVC 22350. The Officer has alleged that I was driving 55 mph in a 40mph zone based on laser evidence. I contest the validity of his claims.

Officer illegally parked
The officer was parked on the N.W corner of Tampa Avenue in a red zone, in a cross walk blocking a wheel chair access ramp. It is illegal to park in a cross walk and in a red zone. Officer Robins has marked his position on the citation correctly. Officers of the law are to be held accountable to the same laws as they are sworn to uphold. Breaking the law in order to trap and issue tickets to motorists is not justifiable nor is it ethical.

Engineering and Traffic Survey
The street signs displayed on Tampa Avenue are not in accordance to the recommendations of the Engeineering and Traffic Survey Speed Zoning for the City of Los Angeles. The latest survey was made effective as of May 19th 2008 and states:
"Between Rinaldi Street and Devonshire Street, a distance of 1.3 miles, the current speed limit is 40mph. However, 75% of observed critical speeds range between 44 and 45 m.p.h. According to to the requirements for setting speed limits described in the California MUTCD, the speed limit on this segment of Tampa Avenue should be set to 45 m.p.h . The injury accident rate is in the normal range and there are no observed conditions that objectively could be considered as not readily apparent to motorists. Accordingly, any speed limit reduction below the proposed 45 m.p.h speed limit would not be justified.
If the current 40 m.p.h speed limit were to be retained then 48 percent of the motorists would be considered as speed violators. In the absence of other factors, this rate of violators would be unreasonable and would not distinguish occasional violators from the majority of reasonable drivers."

The city has had almost 4 months to change the signs to reflect the current recommendations of the Engineering and Traffic Survey but has not done so. The citation that was written by officer Robins was done so against the recommendations of the City of Los Angeles for speed enforcement along that stretch of road. This constitutes a speed trap. The 40 m.p.h speed limit posted is not justified by the current survey.

Speed Trap
CVC Division 17, Chapter 3, Article 1 Section 40802
40802. (a) A "speed trap" is either of the following:
(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

Speed Trap Prohibition
CVC Division 17, Chapter 3, Article 1 Section 40801
40801. No peace officer or other person shall use a speed trap in arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code

False declaration by Officer
Officer Robins has stated on the citation that the area of occurrence is "developed". This is untrue and is a flaw in the officer's declaration. The West side of Tampa is completely undeveloped along the segment that the citation was issued in. The east side of the road has a wall down its complete length from Nashville St, to Chatsworth St. with no access. The distance from Nashville to Chatsworth streets is 1130 ft. The officer states that I was 881.1 ft away when he took his laser reading. This puts me in an area that is undeveloped and has no side access to Tampa Avenue.
The Engineering and Traffic Survey shows the West side of the road as "undeveloped" and a "raised landscaped medium".
My car is a gold/sand color and not gray as noted by officer Robins on the citation.

In Summary
The segment of road that I have been accused of speeding on is a very wide 6 lane street with 3 lanes going in each direction. The visibility on that segment of road is in excess of 1200ft and the weather was dry and sunny, road conditions were excellent and there was no traffic in front of me because I was the first car at the previous traffic signal. I was traveling south bound with traffic in a safe manner and was safely making a lane change while using my turn signal. I have been accused of violating CVC 22350, “No person shall drive a vehicle at a speed greater than is reasonable or prudent and in no event at a speed which endangers the safety of persons or property”. At no time did I ever drive in such a manner that would violate this vehicle code.
The preponderance of evidence clearly shows the officer's disregard for the law, false declaration and failure of the city to comply with the recommendations put forth by the Engineering and Traffic Survey, creating a speed trap and therefore nullifying any evidence submitted to the court that was secured from that speed trap.
I trust in the Court's fairness and ask that my citation be dismissed in the interest of justice.

If the court does not find in my favor in this case, I herby request that I be granted a trial de novo in accordance with Section 40902(d) of the California Vehicle Code


I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Limey

I think this is about the clearest evidence I have ever seen that TBWD's are rubber stamped "guilty". Your defense is outstanding and the statement in the speed survey is practically bulletproof! I have seen several versions of speed surveys, but that is the most complete, most direct, most clear survey I have ever seen. It makes all of your arguments for you! Wow!!


I was in this situation once before. I presented a speed trap defense in a TBWD and was found guilty. I went to a trial de novo and presented the exact same defense and won! I asked the judge why that was and she simply refused to comment.

I don't usually recommend this, but since you have such a clear case and since the cop stated in his TBWD statement that he knew the survey didn't justify the speed limit (thereby, he KNOWINGLY participated in a speed trap and KNOWINGLY testified as an incompetent witness), after you win, I would make a motion with the court that the cop be held in contempt. Take a look at this for explanation.

Thank you EWYLTJ for your encouraging words.
The positive feedback is great and the input that questions the legitimacy of my case is also very beneficial as i will be expecting similar when I am faced with the prosecution. I must say I was floored and a taken back when the verdict came down as guilty. I can see how defending against allegations of violating the basic speed law may be considered as a judgmental decision but in regards to CVC Division 17, Chapter 3, Article 1 Section 40802 paragraph 2 (a) ...

A "speed trap" is either of the following

2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

... as HonkingAntelope said "The law is pretty black and white".

So is it the concensus of everyone that I should go in with my primary defense as the speed trap which was ruled against already or quote the basic speed law and justify my increase in speed to protect myself, other drivers and property?

Thank you so much to everyone that has commented on my case.

EWYLTJ, I will certainly make the motion to hold the officer in contempt should I be found not guilty of the charge against me. Do you know if that is possible in California?

All the best, Limey

Quote:

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Quoting Limey2632

---

EWYLTJ, I will certainly make the motion to hold the officer in contempt should I be found not guilty of the charge against me. Do you know if that is possible in California?

---

Of course it is possible in CA. Especially with the officer's admission of his knowlege of the survey.

The speed trap should be the primary defense. Don't be floored if the judge overrules you as many traffic court judges ignore the law. However, you should object for the record and even openly clarify the record for the purpose of use in a future appeal.

In a secondary defense, you can refer to Ausen. This case is old, but it essentially says that a traffic control device is not to be considered an absolute rule under all circumstances. That seems to apply with your tailgater.

Good luck...

Thanks EWYLTJ,
I had a whole message written out and when I went to post it I was asked for user name and password. It then told me :

Your submission could not be processed because you have logged in since the previous page was loaded.

Please push the back button and reload the previous window.

Lost it all. What a pain... Ok, so here is the gist of it.

Thanks for the Info EWYLTJ. I certainly believe that given my situation of being trapped between a median (3ft), a car to my right (6ft) and the truck behind (10 ft or so) the question of whether this qualified as
"Any event or occasional combination of circumstances which calls for immediate action or remedy; ... a perplexing contingency or complication of circumstances." should be obvious to any non-biased person.

If a blowout had happened under those conditions the results could have been catastrophic. Even though I am trained to handle blowouts and have experienced front wheel blowouts on a Semi, I would not like to guess the outcome of an event within such a confined position. This clearly constituted an emergency within the meaning of the word.

After safely changing lanes and affording the driver behind me ample stopping distance, I feel that any emergency situation could have been safely dealt with without putting persons or property in any danger.

--------------------

I am not sure how to read Guy's silence recently. I am not sure if he has given up trying to challenge the validity of my defense or if he has perhaps realized there may be substance to it.
Guy, your thought provoking interjections were much appreciated. I must say though, I hope you have to change your tag line to :
I am right 96% of the time...

I am taking the day off work today to write up my defense based on what I have learned from you folks and my own discovery.
Court date is tomorrow afternoon. I will let you know how it goes.

All the best,
Limey

Quote:

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Quoting Limey2632

---

I certainly believe that given my situation of being trapped between a median (3ft), a car to my right (6ft) and the truck behind (10 ft or so) the question of whether this qualified as
"Any event or occasional combination of circumstances which calls for immediate action or remedy; ... a perplexing contingency or complication of circumstances." should be obvious to any non-biased person.

---

Personally, I don't think I'd use that argument. Here's why: You could just as easily (and in some people's minds, more safely) handled the situation by SLOWING. This would mean the car to your right would pull away, allowing you to pull in behind it. Yes, the truck behind you would also have to slow a bit, but that's why most vehicles come with brakes. Besides, then you would have been out of the truck's way and that driver could have sped up -- and gotten the ticket instead of you.

I think your other defenses are WAY better and more likely to have a positive result.

Again, just my $.02,

Barry

Quote:

---

Quoting blewis

---

Personally, I don't think I'd use that argument. Here's why: You could just as easily (and in some people's minds, more safely) handled the situation by SLOWING. This would mean the car to your right would pull away, allowing you to pull in behind it. Yes, the truck behind you would also have to slow a bit, but that's why most vehicles come with brakes. Besides, then you would have been out of the truck's way and that driver could have sped up -- and gotten the ticket instead of you.

I think your other defenses are WAY better and more likely to have a positive result.

Again, just my $.02,

Barry

---

Well... this is a secondary defense. The primary one is the speed trap. However, as the OP described, with this very tall truck right on his bumper and driving very aggressively, it was not unreasonable to assume he wouldn't be able to see your brake lights or that slowing would have been smart under the circumstances. He doesn't have to prove that it was the right thing to do... just that it was reasonable. That's what reasonable doubt is all about.

Quote:

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Quoting Limey2632

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I am not sure how to read Guy's silence recently.

---

Simple... I've been busy at work and at home.

Quote:

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Quoting Limey2632

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I am not sure if he has given up trying to challenge the validity of my defense or if he has perhaps realized there may be substance to it.

---

Actually, it's not for me to “challenge” the validity of your defense. I expressed my “opinion” that you're arguing semantics, feelings and mathematical calculations of stopping distances will not win you this case. I have also stated that your primary challenge to this citation should be based upon a speed trap defense. If you choose to argue other matters, and although I don't see the validity behind them, that is your choice.

Quote:

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Quoting Limey2632

---

Guy, your thought provoking interjections were much appreciated.

---

And if those interjections have somehow helped you put together a better defense then I appreciate your open mindedness in seeing them as you described.

Quote:

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Quoting Limey2632

---

I must say though, I hope you have to change your tag line to :
I am right 96% of the time...

---

See? There you go arguing mathematical calculations again!!! For your sake, I hope I'll have to change my signature as well. Just keep in mind that I gain nothing if you lose and lose nothing if you win!!!

I'll look forward to hearing some good news... Best of luck!

Quote:

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Quoting That Guy

---

Just keep in mind that I gain nothing if you lose and lose nothing if you win!!!

---

Wow... you and I can't seem to agree on much. I disagree with this statement also. I think that everytime someone challenges a wrongful ticket like this and wins, that persuedes the government (just a little bit) to ensure that it is following the law itself before it holds the public accountable. I have seen WAY too many illegal convictions and cops/courts who simply ignore the law to be forgiving of the state.

Therefore, if he wins, we all win.....

I highly doubt that the OP's primary goal here is to reform what you often refer to as a corrupt judicial system. His main intention is to save the $$$ fine amount and keep a point off his record. So from that standpoint, I lose nothing if he wins and gain nothing if he loses!

Quote:

---

Quoting blewis

---

Personally, I don't think I'd use that argument. Here's why: You could just as easily (and in some people's minds, more safely) handled the situation by SLOWING. This would mean the car to your right would pull away, allowing you to pull in behind it. Yes, the truck behind you would also have to slow a bit, but that's why most vehicles come with brakes. Besides, then you would have been out of the truck's way and that driver could have sped up -- and gotten the ticket instead of you.

---

Thanks Barry,
I agree that in a perfect world that is what would have been the better rout to go. Here's the thing. There was a very long line of traffic that had just taken off with me from the stop light and for me to try to get moved over into the right lane between vehicles would have taken not only someone willing to let me over but an act of God at that time of the morning.

Here is the other thing that weighted my decision to handle it the way I did. About 8 months prior to the citation on my way home from work I had merged into a lane on my left to turn. I merged in front of a pickup and he did not have an issue with it or so it appeared. What then happened was that i then was tailgated by a white BMW that I gues was a friend of the Pickup driver. He kept driving up on my bumper and I could not move out of his way because I had oncoming traffic to my left and a line of traffic to my right. We were only going about 20 mph on a four lane road with double yellow lines between each side.
I tried the technique of slowing down, not jamming the brakes on but enough to let him know I was not going to be intimidated and for him to back off. He eventually crossed the double yellows and slowed down in front of me to prevent me going through the traffic signal ahead. The light went red and he stopped with his car at an angle in front of me. He got out of the car and walked towards mine. I opened the window and asked as he walked up "what's your problem?" at which point he reached through the window and struck me in the face twice (quick short punches). He ran back to his car and did a U-turn with the light still red and took off in the opposite direction.
I proceeded to head home stopping off at the Sheriff's department on the way. I told the officer on duty what happened and where it happened (No, I didn't get his licence plate number) but he said that area was out of their juristiction. He advised me that in future do what you have to to just get out of their way instead of slowing down as they most likely will take it as intimidation and be provoked.

So when I did as was recommended by the officer and just prevented further hostility I landed myself with a citation. Seems like sometimes you just can't win!

Limey

Quote:

---

Quoting EWYLTJ

---

Well... this is a secondary defense. The primary one is the speed trap. However, as the OP described, with this very tall truck right on his bumper and driving very aggressively, it was not unreasonable to assume he wouldn't be able to see your brake lights or that slowing would have been smart under the circumstances. He doesn't have to prove that it was the right thing to do... just that it was reasonable. That's what reasonable doubt is all about.

---

That is a great point EWYLTJ, It hadn't crossed my mind that he might not see my stop lights. I do have a light in the rear window but who knows if he could have seen that either. I will indeed re-visit the speed trap as my first approach and hopefully we will not have to adress the issue of what was reasonable.

Thanks,
Limey

Quote:

---

Quoting That Guy

---

I highly doubt that the OP's primary goal here is to reform what you often refer to as a corrupt judicial system. His main intention is to save the $$$ fine amount and keep a point off his record. So from that standpoint, I lose nothing if he wins and gain nothing if he loses!

---

Quite the contrary Guy, this is much more about the satisfaction of beating the corrupt system that is desperately doing all it can to rake in revenues through whatever meanes it can. The ticket was only $159 and that was paid off a long time back. I admit that keeping the points off my licence as I have a CDL is important to me but on the other hand, they should never have been on there in the first place.

I think that if I beat this and more people realize they too can beat the unjustifiable citations handed out by our public servants in blue then we all win. I have placed a lot of information on here and I have more that I will post in a moment.

Coming up is the officer's Trial by Declaration. I had to retype it from the copy given to me by the court but it is exactly the same as the original down to the spelling mistakes and use of her instead of him.

I just hope that this makes a difference and allows people the chance to see what they can expect.

Limey

Trial By Declaration
Defendant: Limey
Citation # 7654321

I am Officer Robbie Robins 12345 LAPD Valley Traffic
Division. I would first like to introduce a certified copy from the
city of Los Angeles, Department of Transportation, an Engineering
and Traffic Survey for the location where this violation occourred.
The Survey is for Tamp Av. The location of the violation is on
page 4 of 7 of the survey. The posted speed limit at this location is
40 mph and the critical speed for the southbound traffic is 45 mph.
I have completed 16 hours of training in laser operators school

on May 24 and May 25, 1999. I have also completed 40 hours of
training in radar operator's school on September 1, 1989. In these
two schools I had an average error rate of 2.3 to 3.1 mph in
estimating vehicle speeds. The laser instrument that I was using on
the date of the violation is # UX004463 and it was last calibrated
on 06-25-08. Before conduction any enforcement activity on
October 21st, 2008, I conducted three tests with that laser
instrument at Valley Traffic Division and all three tests indicated
that the laser instrument was working properly. The laser
instrument I was using is an LTI (Laser Technology Incorporated)
Ultra Lyte 20-20 100LR and it meets the minimal operating
standards set forth by the National Highway Traffic Safety Administration.
Since the completion of the original radar
operators course and the laser operators course I have issued (as of
01-29-2008) exactly 37,516 combined radar and laser citations. I
have also been a police officer with LAPD for 25 years and have
worked traffic enforcement on a police motocycle for more than
16 years.

The location in which the violation occourred (Tampa Av at Chatsworth St)
is a residential area per 525 VC. The East side ofTampa Av
is a residential area while the west side is undeveloped.
There are numerous trees on the west side of Tampa Ave and a
large embankment leading down to Limeklin Canyon (a closed fire
trail). Tampa Av has three northbound and three southbound lanes
separated by a raised cement/grass median. On this median are
trees as well as overhanging light standards. Approximately two
years ago there was a fatality accident directly related to speed on
this median as the vehicle lost control and struck a light standard.
The roadway at this location is 102 feet wide and was dry at the
time of the violation. The intersection of Tampa and Chatsworth is
controlled by upright and overhanging tri-light signals and
pedestrian marked crosswalks and bus benches. The next
intersection north of the location is a t-intersection of Nashville
Street which is controlled by an upright stop sign. The engineering
and traffic survey indicates approximately a dozen traffic accidents
at the intersection of Tampa Av at Chatsworth Street. There was
one bicyclist present in the area at the time of the violation as
indicated on the citation.

On September 9th, 2008 at approximately 10:10 a.m, I was
working Valley Traffic Division on a marked black and white
police motocycle in full uniform. I was within the city and county
of Los Angeles. I was parked at the northwest corner of Tampa Av
at Chatsworth St. I positioned the police motocycle facing in an
eastbound direction with the engine off and I was monitoring
traffic speeds on Tampa Avenue with the assistance of police laser.
I then observed a 2005 Nissan Altima 4 doors, gray in color
southbound on Tampa Av in the number one lane approaching my
location at a high rate of speed. The Nissan moved to the number
two lane. I estimated the speed of the Nissan to be 55 mph. I
placed the red laser dot of the laser instrument directly onto the
front of the Nissan and activated the laser. I immediately heard an
audio confirmation of a locked on vehicle speed at the same time
the digital display of the laser instrument indicated the speed
of the Nissan to be 55 mph. The laser locked on the Nissan's speed
at a distance of 881.1 feet north of my location. (Beam width at
881.1 X .0036 = 3.1 feet wide). I conducted a traffic stop on the
Nissan.

I contacted the driver of the Nissan who identified himself as
defendant Mr. Limey with a valid California driver's
licence. I advised her of the violation and use of the laser. I
completed citation # 7654321 and released the defendant with his
signature upon the citation.
This concluded the contact with the defendant. At 55 mph the
defendant is traveling at 80.85 fps. The stopping distance at that
speed is approximately 265 feet. Stopping distance at 40 mph is
approximately 164 feet. This would add an additional 101 feet of
braking distance to the defendant's vehicle had he had to brake in
the event of an emergency. Being that the defendant's vehicle was
15 mph over the posted speed limit and 10-mph over the critical
speed (85th percentile speed), I felt that the speed of the
defendant's vehicle was not reasonable or prudent and his
speed endangered the safety of persons and property. For these
reasons the defendant was issued a citation for 22350 VC.

Officer Robbie Robins 12345
LAPD Valley Traffic Division


Please note that the main gist of my TBD was to determine the use of a speed trap yet this is totally
ignored in the officer's response. He does not contest that he had violated CVC Division 17, Chapter 3 Article 1 Section 40802
Paragraph 2 . His whole response was based on one thing, whether or not my driving was reasonable and prudent. Without any knowledge of the mitigating circumstances to reach a "reasonable" conclusion he determined that I was in violation of CVC 22350.

Quote:

---

Quoting That Guy

---

I highly doubt that the OP's primary goal here is to reform what you often refer to as a corrupt judicial system. His main intention is to save the $$$ fine amount and keep a point off his record.

---

Lucky for you he can do both at the same time!!

Limey, that cop's statement is absolutely outrgeous!!! He claims to have over 25 years of experience and written over 37,000 speeding tickets, but he is not smart enough to know that he was maintaining a speed trap!?!?! BS!!! He knew exactly what he was doing and he knew that wasn't a justified speed limit. He simply CHOSE to ignore the law!!! I would LOVE to be able to cross-examine this pinhead. I would definitely ask for a contempt charge as this guy is about as blatant a violator of the vehicle code as any defendant that has ever come here looking for advice on a ticket. The state holds people accountable for violating the vehicle code every day.... it's time for this jerk to be held accountable!!

So where is the "you are guilty" crowd at?? Where are all the vultures who love to swoop down and peck at the carcass of an OP who comes here for advice by telling him that he is guilty and has no defense at all?? Why aren't they here talking about how this cop has no defense? Seems that when an OP has a weak case, people stand in line to tell him he has no case and he should just plead guilty. However, when it is obvious that there is a police/state abuse, they vultures sit silently in their trees.

Limey,

thanks for posting his declaration!

When I went to fight my citation (22350) I did a few things right and many wrong, but having lost one just made me more committed to win the next time :)

I know the area pretty well - the same cop stays often on Sherman Way between White Oak and Balboa. I almost got caught a few times :D

Anyways - things that come to my mind:

1. Request discovery.
You most likely will receive some stuff and won't receive other stuff.
If you haven't gotten a copy of the engineering survey - do get it. It's free. In my case it was CalTrans, but you may have to find out in which agency is your location. They'll send you a copy of this either for free or for a few bucks.
READ THE SURVEY! Check if it is signed by an engineer! Check the date when it was conducted. Check if it's more than 5yrs old. The survey should say the exact location of the speed signs - check if they're still there.

2. If you don't get your discovery file a Discovery Motion to dismiss. I did that and poorly argued it - forgot to tell the judge that she's making me waive one right (of discovery) in order to obtain another (fair trial).

3. Be ready to argue court jurisdiction. In order for the court to obtain jurisdiction over you the prosecutor has to sign the complaint (making it a "verified complaint"). I didn't do that and I should've.

4. The legal issues with how your case is handled are more likely to get you dismissed - that's what I learned.

5. When you go to court make sure you demand a court reporter in advance.

6. I did a few good and many bad objections during my trial which sort of annoyed the judge at one point :) But the important one I got was that the cop couldn't use speed from both directions - he was doing a mean arithmetic (it was better for me if it was in my direction only).

I bought some books - the one that was most helpful was "Fight Your Ticket & Win in California" by NoLo. It missed some details, though.

Sorry for the long post. Hopefully I've been helpful :)

Quote:

---

Quoting vs3

---

1. Request discovery.
You most likely will receive some stuff and won't receive other stuff.
If you haven't gotten a copy of the engineering survey - do get it. It's free. In my case it was CalTrans, but you may have to find out in which agency is your location. They'll send you a copy of this either for free or for a few bucks.
READ THE SURVEY! Check if it is signed by an engineer! Check the date when it was conducted. Check if it's more than 5yrs old. The survey should say the exact location of the speed signs - check if they're still there.

---

Vs3, here is the survey I received from the Engineers.
http://www.nowsaving.com/citation/Ta...nia-080519.pdf

Quote:

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Quoting vs3

---

2. If you don't get your discovery file a Discovery Motion to dismiss. I did that and poorly argued it - forgot to tell the judge that she's making me waive one right (of discovery) in order to obtain another (fair trial).

---

I think it's too late to request anything. I go to court on this tomorrow at 1:30pm. I have the officer's statment. About all I don't have is his notes.

Quote:

---

Quoting vs3

---

3. Be ready to argue court jurisdiction. In order for the court to obtain jurisdiction over you the prosecutor has to sign the complaint (making it a "verified complaint"). I didn't do that and I should've.

---

Where would I find the signature? What would the "complaint" be and when and where would I be able to see it?

Quote:

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Quoting vs3

---

4. The legal issues with how your case is handled are more likely to get you dismissed - that's what I learned.

---

I take it you are refering to sticking to the code related defense like what constitutes a speed trap rather than defending against CVC 22350?

Quote:

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Quoting vs3

---

5. When you go to court make sure you demand a court reporter in advance.

---

I will be sure to do that. Thanks.

Quote:

---

Quoting vs3

---

6. I did a few good and many bad objections during my trial which sort of annoyed the judge at one point :) But the important one I got was that the cop couldn't use speed from both directions - he was doing a mean arithmetic (it was better for me if it was in my direction only).

---

I am not familiar with the bi-directional thing but I don't suppose it would apply in my situation as the oficer was shooting laser in one direction.

Quote:

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Quoting vs3

---

And finally - the best source of info for me: http://www.lawyerdude.netfirms.com/
Although the guy passed a few months ago his stuff is still there and it's priceless - actual motions and court documents, etc. Just adapt to your case.

---

Many thanks Vs3

Oh, and yes... That officer is a piece of work.

-------------------------------------------------------

Hey did anyone notice on the officer's TBD that he said:

Quote:

---

Quoting Officer's TBD

---

"The laser instrument that I was using on
the date of the violation is # UX004463 and it was last calibrated
on 06-25-08. Before conduction any enforcement activity on
October 21st, 2008, I conducted three tests with that laser
instrument at Valley Traffic Division and all three tests indicated
that the laser instrument was working properly.

---

The date of my ticket was September 9th 2008. do you suppose he didn't "test" the laser instrument between the last calibration of June 25th and October 21st? What about calibrating the laser on the day of my citation? It seems the officer's powers of concentration are somewhat suspect. Are they not supposed to calibrate or at least test their equipment each time they take it out to ensure that it still is accurate?

Also does anyone see an accident on the median in the location where I was on the Engineering and Traffic Survey? I do not. There are accidents at the intersections but not in the area I was located. He claims there was a fatality on the median about 2 years ago. The survey says for the area "The injury accident rate is in the normal range and there are no obsreved conditions that objectively be considered as not readily apparent to motorists."

I wonder why the officer is trying to use one incident that may or may not have happened 2 years ago to justify his decision? It's possible that the driver of the vehicle was racing as many do down that stretch but whatever the reason for the accident, that was another situation and I can not be judged by another person's poor judgment. I'm sorry that person had to die for his mistake.

Two things: One, the citation will serve as the complaint (CVC 40513 and CA rule of court 4.103) ... and, two, if you want to demand a court reporter or a recording of the proceedings, be prepared to pay for those yourself. If the court does not record the hearing nor provide a court reporter, you will need to ask the court's permission to do either.

- Carl

Is it worth the expense of paying for a court reporter? I am sure it is not going to be cheap. How will it benefit me?


------------------------------------------------------------

Oh... Here is what I hope to be able to present the court upon winning the speed trap defense.

Request to hold Officer Robbie Robins #12345 LAPD
in contempt of court

Reason: I do this as my civic duty to see that people sworn to uphold the law also obey the law.

Officer Robins #12345 of the LAPD knowingly operated a speed trap in violation of CVC 40801
40801. No peace officer or other person shall use a speed trap in arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code.

Not only did he operate the speed trap he did also upon receiving my Trial by Declaration confirm his knowledge of the Engineering and Traffic Survey's approved critical speed recommendation of 45 mph while he wrote citations declaring the speed limit to be 40 mph. Officer Robins has been in traffic enforcement for 16 years and should be capable of being in compliance with the law by knowing the vehicle code for the state of California and therefore held accountable.


I request that the court find the officer in contempt under;


Code of Civil Procedure 1209(a)(3) for violating section 40801 of the Vehicle Code

(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

California Code Of Civil Procedure Section 1209 (a)
3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;

Code of Civil Procedure 1209(a)(4) for appearing as an incompetent witness per Vehicle Code section 40804

California Code Of Civil Procedure Section 1209 (a)
4. Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court;

Code of Civil Procedure 1209(a)(8) for endangering the jurisdiction of the court per Vehicle Code section 40805.

California Code Of Civil Procedure Section 1209 (a)
8. Any other unlawful interference with the process or proceedings of a court;

Limey,

the Civil Code probably doesn't apply in your case - yours is Criminal. I'm not a lawyer but in your case I would try to avoid quoting anything from the Civil Code.

Quote:

---

and, two, if you want to demand a court reporter or a recording of the proceedings, be prepared to pay for those yourself.

---

You have the right to have all proceedings recorded. You pay for it if you need the transcript (for appeal let's say). You can also try to get a fee waiver from the court (lawyerdude had something about this)

This is what you need:
http://books.google.com/books?id=eji...ornia&pg=PA387
(from the book Fight Your Ticket & Win in California)

Quote:

---

I go to court on this tomorrow at 1:30pm

---

Yep, you're abit short on time ... I typed this form and I have it somewhere on the laptop in my office but it would be too late by tomorrow.
Plan B - you can always request in the beginning of the session to have a court reporter, or alternatively to use your own tape recorder. If you have time to type it - either go to the clerk's window and file it before that or make it your very first thing you say to the judge - "Your honor, I don’t see any court reporter. Are we being recorded today. I would prefer to be on the record with a court reporter. Is that possible?" or tell him "I have prepared a request for a court reporter" and give it to the judge.
This is LawyerDude's "What to say in court" page - hopefully it will be of any help:
http://www.circuitlawyer.8m.com/5537.html

Additionally - most "judges" in court are not really judges - they're a "pro tem" or a "commissioner". They would have the right to preside your case but only after obtaining your permission. However failing to object that is an assumption that you agree to it.
You may want to try something like "Your Honor, I object to have my case heard by a commissioner or pro tem. I demand an Article 6 Judge"

Quote:

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http://en.wikipedia.org/wiki/Article...s_Constitution
"...all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

---

You're pretty much demanding your case to be heard by a real judge. I've never tried this, but it is on my list for the next time :)


Given that you don't have much time - this is what comes to my mind:

- make a clear plan in your head of how you want to proceed tomorrow - which questions are you going to ask first, which second, etc. I had most of mine retyped on a few pieces of paper, and yet I got a bit stressed at one moment and forgot to flip the page :)

- In the beginning tell the judge that you're not a lawyer and that you're not familiar with all court rules, details and proceedings.
Haines v Kerner (1972) (1972) 404 U.S. 519 "Pro se litigants must be given some leeway in their pleading papers"

- When the officer presents some piece of paper which is not an original document or a certified copy you can object that. (
Take a look at the first post on this thread:http://www.expertlaw.com/forums/showthread.php?t=77536 - quote about the speed survey:
"Defendant objected as survey was not an original or certified copy as required by People v. Earnest."
You can object this for any document which is not an original or a certified copy.

- Don't be afraid to make a few objections. Most likely you would do "Objection - assumption" or "hearsay" for things he says which are "not in evidence" - for example when he says for example that he calibrated the radar in the morning but he forgot to bring the paper in court. Or in my case the officer said that "by calculating the mean arithmetic speed of the north and south bound it appears the speed limit should be blablabla" - I objectet that it's a hearsay that there is any rule saying that you should do it that way. He didn't know which section of CalTrans' book said so.
But don't overdo it. Judges get annoyed with those.

- One of your most important points would be to argue that he had "no reason for the arrest". Illegal arrest is grounds for dismissal.
You may want to ask him if you were going straight towards him, or parallel to his view and if it's as easy to visually estimate the speed of a vehicle coming against you vs one that goes from left to right in front of you, etc.
Additionally most cops would show on their papers that they were trained and examined to visually estimate speeds at distance of 500ft.
What you're trying to show is that it is quite possible that he could not be certain about your speed in this circumstances, and he relied only on the radar to tell your speed. Thus showing that he had made his mind already to stop you regardless of if you did something wrong or not (thus the illegal arrest)
That's just one idea.

- I didn't have time to study your traffic survey, but check the section where you got stopped and see if it complies to CVC 627:

Quote:

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627. (a) "Engineering and traffic survey," as used in this code,
means a survey of highway and traffic conditions in accordance with
methods determined by the Department of Transportation for use by
state and local authorities.
(b) An engineering and traffic survey shall include, among other
requirements deemed necessary by the department, consideration of all
of the following:
...
(3) Highway, traffic, and roadside conditions not readily apparent
to the driver.

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When he finishes his testimony you may want to say something like "Your Honor, I object to the officer's testimony on the ground that the prosecution failed to establish the absence of a speed trap as they must per CVC 40803. The traffic survey that was presented here is invalid as it does not comply with the requirements of CVC 627 (b)(3)"

Quote:

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40803. (a) No evidence as to the speed of a vehicle upon a highway
shall be admitted in any court upon the trial of any person in any
prosecution under this code upon a charge involving the speed of a
vehicle when the evidence is based upon or obtained from or by the
maintenance or use of a speedtrap.
(b) 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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- Not sure if this would work for you - where Carl wrote about "he citation will serve as the complaint (CVC 40513 and CA rule of court 4.103)"

Quote:

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40513. (a) Whenever written notice to appear has been prepared,
delivered, and filed with the court, an exact and legible duplicate
copy of the notice when filed with the magistrate, in lieu of a
verified complaint, shall constitute a complaint to which the
defendant may plead "guilty" or "nolo contendere."
...
(b) Notwithstanding subdivision (a), whenever the written notice
to appear has been prepared on a form approved by the Judicial
Council, an exact and legible duplicate copy of the notice when filed
with the magistrate shall constitute a complaint to which the
defendant may enter a plea and, if the notice to appear is verified,
upon which a warrant may be issued. If the notice to appear is not
verified, the defendant may, at the time of arraignment, request that
a verified complaint be filed.

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the two things are a) You do have the right to request a verified complaint (but it might be too late now) and 2) Citation could be used as such if it "has been prepared on a form approved by the Judicial Council" - you would find that majority do not conform to that form. The form is very strict about what is a permitted change and what isn't. Most police agencies slightly tweak their forms which renders them to be different from the approved one. This is of course unless that agency has requested and received court approval for their form. Here are the complete requirements and allowed variations (form TR-130)
http://www.courtinfo.ca.gov/forms/documents/trinst.pdf
look for section 5.010 - Permitted Variations.
You may want to print this section of the Vehicle Code and have it with you. In my case the judge made me quote exactly which section and paragraph say what I was arguing, so good thing I had it and was able to quote stuff.
http://www.leginfo.ca.gov/cgi-bin/di...le=40500-40522

Also for the speed survey thing you can print this:
http://www.leginfo.ca.gov/cgi-bin/di...le=40800-40808



I could probably think of even more stuff, but I doubt you'll have time to read and prepare.

Good luck tomorrow!

Tell us how it went please.

Quote:

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Quoting vs3

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You have the right to have all proceedings recorded. You pay for it if you need the transcript (for appeal let's say).

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Interesting ... not sure if the cited case law is still controlling, but I have never heard of it being requested. The courts where I have worked have tended to have audio so there is a record anyway.

- Carl

Quote:

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Quoting vs3

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Additionally - most "judges" in court are not really judges - they're a "pro tem" or a "commissioner". They would have the right to preside your case but only after obtaining your permission. However failing to object that is an assumption that you agree to it.
You may want to try something like "Your Honor, I object to have my case heard by a commissioner or pro tem. I demand an Article 6 Judge"

You're pretty much demanding your case to be heard by a real judge. I've never tried this, but it is on my list for the next time :)

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Usually, there is a stipulation that the defendant is requested to sign thereby allowing a Pro-Tem to hear the case... This is outlined here:

California Rules of Court ~ Rule 2.810
And here:
California Rules of Court ~ Rule 2.816

However, neither a disclosure nor a signed/recorded stipulation is required if and when a commissioner is on the bench.

BTW, if you do excercise your right to requesting that your case be heard by a commissioner of the court (instead of a Pro-Tem) then you're more likely to be transferred from traffic courtroom to a criminal courtroom... Whether that works for you or against you, you decide.

Also, as far a requesting a court reporter, and although I couldn't find anything that supports this, I do remember that such a request must be filed with the clerk 7 days in advance of the trial date.

You can however request permission from the the judge to allow you to use your own recording device, however, such a recording can only be used for your own "personal notes"... It is not to be used as an official record of the proceedings.

Thanks folks.
That is a huge amount of information to absorb at 3:15 in the morning.
I believe that the guy that is hearing my case tomorrow is a commisioner and aparently he's a hard ass. Well he denied my TBD and I thought it was clear cut. The Survey I have was E-mailed to me by the Engineers department that conducted it and is not certified to my knowledge.

In the court papers filed with his TBD the officer has marked that there is an ETS filed with the court. If the judge does not accept mine i will request that they provide a valid copy. The survey was completed and approved about 4 months prior to my citation.

Vs3,I had just found that section 40803 placing the burden of proof on the people to prove that the use of an electronic measuring device did not violate CVC 40801. The ETS clearly states that "any speed limit reduction below the proposed 45 mph speed limit would not be justified."
My citation was written as 55/40 mph zone.
Is there some gray area that I am not seeing where this could be anything other than in violation of CVC 40801?

Limey

I don't think I'd be demanding a court reporter... there just isn't enough benefit and you will pay the expense. I would ask if I can record the procedings.

That's the first time I saw 40513(b). I love that!!! Although it is irrelevant for this case, a future defendant can use that at arraignment to have his case verified by the DA and then there is no excuse that the DA doesn't handle traffic cases. It looks like an excellent way to get the DA to admit to his responsibilities with the case so you can start holding his feet to the fire!!

Jim, I don't think you're reading 40513 correctly. Paragraph (a) states:

Quote:

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Quoting CVC 40513

---

(a) Whenever written notice to appear has been prepared, delivered, and filed with the court, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead "guilty" or "nolo contendere."

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So, paragraph (a) specifically covers "guilty" and "nolo" pleas and clearly does not require the complaint to be on a form approved by the Judicial Council, nor does need to be "verified". Paragraph (b) follows with:

Quote:

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Quoting CVC 40513

---

(b) Notwithstanding subdivision (a), whenever the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed.

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IMHO, the last sentence is ONLY pertainent IF a WARRANT is issued based on the notice to appear. If the notice is NOT verified, the defendant can still enter a plea, but a warrant cannot be issued. So, in a nutshell, in order to issue a warrant, the notice MUST be on an approved form and MUST be verified. At least, that's the way I read it.

Barry

I can see how that could be read both ways. However, I think I still see it as the defendant has the right to insist that a complaint (i.e. the notice to appear) be verified. It certainly is interesting if nothing else.

Again, I think you're misreading the rule. "[T]he defendant may, at the time of arraignment, request that a verified complaint be filed." However, a judge can always DENY your request. IMHO, you do NOT, as you put it, have "the right to insist". Nor, for that matter, is it something the law even allows you to bring up on motion. The law allows you to "request" it. If you were to INSIST, and further claim you have the RIGHT to INSIST, you MIGHT just find yourself in contempt of court.

Again, that's just how I read it. And, I'm not saying you won't find a judge who agrees with you and who will allow your request. I'm just saying that, if I were a judge, I would probably not grant the request unless I planned to issue a warrant.

Barry

You and I aren't really disagreeing. I know that it is only a request... however, refusal of the prosecution to verify the complaint can add to the argument of failure to prosecute should that become an issue down the road.

Ok, so I have had my day in court and I feel like I somehow let you all down with the end result.
Case dismissed due to the officer being on vacation and not showing up in court. Part of me was celebrating but another side was so disapointed as I really wanted to see if all the hard work would have paid off. Plus I didn't get to request the officer be held in contempt.
Funny really because I asked the baliff do I have to show the contempt charge along with any other evidence I was going to produce and he said he had never seen something like this. He said you can't do that because "He was just doing his job". He called me back over behind a glass partition where there was a lawyer and the lawyer looked at the paper I had put together with the request to hold the officer in contempt. He said "where did you get this, did a lawyer write it". I told him, "No, I did" to which he brushed it to the side and said "Well then" as he laughed. I told the guy "No, don't dismiss this as it is my right to request the charge be placed upon the officer and everything in here is according to the Vehicle code.
He started reading through it and trying to pick it to pieces but each time I pointed him to the code that justified it. In the end he was not able to come up with any reason that given the officer's inability to show he did not use a speed trap to secure evidence, why the document was not admissible in court.

The baliff was funny... He said "That's pretty good... you should think about going to law school!".

I will post more of what I had ready including the Contempt document and my list of questions that I feel would have been hard to get around.

I think today was the officer's lucky day! lol

Thank you to everyone that over tle last few days has commented and shared words of wisdom. I hope that all of this will help someone else with their case someday.

It does just go to show though, It's worth going in cos sometimes miracles do happen.

Officer Hmmmm... Robins, enjoy your vacation!

Limey

odds are, he also looked at his notes and realized he could either keep enjoying the break or show and run a serious risk of making an ass of himself in front the of the judge given that he manned an illegal speedtrap AND his justification for the ticket was very flimsy, at best.

Congratulations on the dismissal.

Quote:

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Quoting HonkingAntelope

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odds are, he also looked at his notes and realized he could either keep enjoying the break or show and run a serious risk of making an ass of himself in front the of the judge given that he manned an illegal speedtrap AND his justification for the ticket was very flimsy, at best.

Congratulations on the dismissal.

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I'd be willing to bet a nickel that's exactly what happened!

Anyway, congrats. There is no regret in being prepared.

Congratulations Limey... :)