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  1. #1
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    Really nice to have knowledgeable answers. Thank you for this.

    Let me see if I understand now:

    Since I was cited for 22349, the provisions in VC 40802 (surveys, radar certification) don't apply at all.

    Since I was cited for 22349, the provisions in VC 40803 don't apply, and a prosecutor is not required to be present or follow the following code -- even though radar was used:

    "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 speed trap as defined in paragraph (2) of subdivision (a) of Section 40802. "

    22349 is binary. It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case. Providing evidence that he measured/estimated an incorrect number is immaterial.

    Even the radar use doesn't matter if the officer testifies that the visual estimate of speed was any substantial amount over 55.

    Thus, the officer needn't recall from independent recollection and bringing into question his memory of the incident, (typical questions of 'did my truck have a white camper shell? What was I wearing? ) or questions of proper radar use (Was audio Doppler off or on? do you believe your unit can give a false reading? .. etc) don't matter and will only piss off the judge.

    I think it's time to swallow bitter and take my losses.

  2. #2
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    22349 is binary. It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case. Providing evidence that he measured/estimated an incorrect number is immaterial.
    Yep, 56mph is just as guilty as 99mph, with the fine amount being the only difference. VC22349a/b cases are extremely hard to beat on merits, but it doesn't change the fact that a sizable number still get chucked out when the officer doesn't show up for court or submit the TBD (and, unlike court, the officers don't get paid extra to fill out TBDs).

  3. #3
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    Quote Quoting JackA
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    Since I was cited for 22349, the provisions in VC 40802 (surveys, radar certification) don't apply at all.
    No, it does not...

    40802(a)(1) applies to "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". (inapplicable if Radar is used).

    And 40802(a)(2) applies to "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...." (inapplicable because the 55mph speed limit on a 2 lane undivided hwy is established pursuant to VC 22349(b) which is not mentioned above).

    Either way, 40802, and speed trap laws in general, are not applicable in this case.

    Quote Quoting JackA
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    Since I was cited for 22349, the provisions in VC 40803 don't apply, and a prosecutor is not required to be present or follow the following code -- even though radar was used:

    "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 speed trap as defined in paragraph (2) of subdivision (a) of Section 40802. "
    Again, no... Since 40802 is not applicable, then 40803 is not applicable either.

    Quote Quoting JackA
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    22349 is binary.
    pretty much.. As long as the officer can establish that you were driving "upon a two-lane, undivided highway at a speed greater than 55 miles per hour" (and unless it is posted for a higher limit) then he has satisfied the burden of proving you were in violation of 22349(b).

    Quote Quoting JackA
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    It really doesn't matter what the officer wrote on the citation for the approximate vehicle speed. If there is any evidence the speed was over 55, the conviction is upheld. Or said another way, the technicality that the officer inaccurately wrote speed of 70+ has no bearing on this case.
    Same as above...

    Quote Quoting JackA
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    Providing evidence that he measured/estimated an incorrect number is immaterial.
    If that evidence can show that your speed was less than 55mph, then you're golden. Yet if it shows that you were in excess of the 55mph limit, then you are still in violation. Now, in light of the fact that speeding fines are set up in a graduated scale based on how many miles in excess of the limit (1mph to 15mph over, 16mph to 25mph over and 26mph+ over), the actual speed reading (or the "estimate" I should say) does indeed make a difference as to the fine amount, but not when it comes to guilt or innocence.

    The fact that he indicated the 70+mph on the citation, could possibly mean that he may have measured you at (as an example) 73mph which puts you at 18mph over the limit (the second/higher fine bracket) -though he will likely testify to the actual speed he measured-... But he indicated 70+, possibly, as a way to give you a break with the fine amount.

    Quote Quoting JackA
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    Even the radar use doesn't matter if the officer testifies that the visual estimate of speed was any substantial amount over 55.
    It does matter in that it narrows down the known +/-5mph margin of error for a visual versus the +/-1 or 2mph for RADAR... But again, as long as it is as you stated, a substantially in excess of 55, then you're not likely to win on an accuracy argument.

    Quote Quoting JackA
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    Thus, the officer needn't recall from independent recollection and bringing into question his memory of the incident, (typical questions of 'did my truck have a white camper shell? What was I wearing?
    The officer identified you at the time of the stop by asking for your driver's license, he cited you using that number... You subsequently appeared in court and are currently defending yourself... So what you were wearing, the color of the camper on your truck... etc, are not elements of the violation which you were cited for and as such, they are not material to your defense or the prosecution's case. Most officer's will make an effort to write their own notes on the back of their copy of the citation but more often than not, those notes are a brief description of the driver's actions (or lack thereof) that led to the initial stop and the issuing of the citation, not of what he/she was wearing or what color camper.

    Quote Quoting JackA
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    or questions of proper radar use (Was audio Doppler off or on? do you believe your unit can give a false reading? .. etc) don't matter and will only piss off the judge.
    The requirement is that the officer be P.O.S.T. trained and certified in the "use" of radar... Not necessarily how it was made or the scientific basis behind it. Moreover, California courts have taken "judicial notice" of the use, validity and accuracy of radar devices as a scientific method of measuring speed. So while you can pose some questions as to how he operated the unit on that particular day, you're not going to get much leeway if you were to question the technology behind its use.

    Quote Quoting JackA
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    I think it's time to swallow bitter and take my losses.
    I think you might be better off spitting bitter instead.

    Good luck!

  4. #4
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    Thank you for the detailed and clear explanation.

    Of course I'm not thrilled, but this'll save a lot of frustration and time in the court room. Perhaps even make the judge more amenable to traffic school since I didn't spout off a bunch of unapplicable attempts at dismissal.

    Let's just hope the officer doesn't show or that he somehow misplaced his certificate.

    With gratitude,

    -Jack

  5. #5
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    OK, one last death rattle long shot hope...

    I just returned to the scene and photographed the highway from the last speed limit sign (55 mph) leaving town, to the site of the citation. There is a total of 7.3 contiguous miles, plenty of entry roads, and not one speed limit sign headed North (my direction of travel). There really are none -- even for some ways after the citation site as well.

    Is there any precedence of interpretation of 22349(c)
    (c) It is the intent of the Legislature that there be reasonable signing on affected two-lane, undivided highways described in subdivision (b) in continuing the 55 miles-per-hour speed limit, including placing signs at county boundaries to the extent possible, and at other appropriate locations.


    Other little nit:

    The court documents show 22349 (not a or b) while the citation specifies 22349(b). Probably nothing there, but doesn't hurt to find out if this little technicality makes a difference. Confirmed?

    So my plan:

    Show up dressed nice.
    Unless you'all advise otherwise
    • I'll ask for a certified copy of officers "use of radar" course (does this even matter?)
    • I'll request dismissal based on the fact that there was/is not reasonable signing for 8 miles on the highway

    I'll get chewed out by the judge
    Oh well, I tried.


    Thanks again for your patient help.

    -Jack

  6. #6
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    Quote Quoting JackA
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    I just returned to the scene and photographed the highway from the last speed limit sign (55 mph) leaving town, to the site of the citation. There is a total of 7.3 contiguous miles, plenty of entry roads, and not one speed limit sign headed North (my direction of travel). There really are none -- even for some ways after the citation site as well.

    Is there any precedence of interpretation of 22349(c)
    (c) It is the intent of the Legislature that there be reasonable signing on affected two-lane, undivided highways described in subdivision (b) in continuing the 55 miles-per-hour speed limit, including placing signs at county boundaries to the extent possible, and at other appropriate locations.
    The 55mph limit on a 2 lane undivided highway is one that is statutory pursuant to 22349(b). Meaning "unless otherwise posted for a higher limit, the 55 mph limit would ALWAYS apply". Now, you can cite 22349(c) and argue that, in your opinion, one sign every 8 miles or so is not sufficient and hope that the judge will agree with your definition of "reasonable" and "at other appropriate locations"... But even then, you're back to it being statutory and ignorance of the law is not excuse.

    You're free to try it and see what happens!

    Quote Quoting JackA
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    The court documents show 22349 (not a or b) while the citation specifies 22349(b). Probably nothing there, but doesn't hurt to find out if this little technicality makes a difference. Confirmed?
    Not relevant in that the notice from the court is a "courtesy reminder" of the due date and NOT part of the "charging document" so some inaccuracies will be tolerated. What matters is what the citation says and even then, as long as you're arraigned (the specific charge read to you by the judge) on the correct charge (including the subsection) then everything else is gravy. If you were not arraigned before a judge/commissioner, and instead entered your plea with the clerk, then you were likely given a form (to read and sign) advising you of (for one) your right to have the nature of the charge(s) and possible penalties read to you, and by signing it, you waived that right as well as others.

    Quote Quoting JackA
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    So my plan:

    Show up dressed nice.
    Unless you'all advise otherwise
    • I'll ask for a certified copy of officers "use of radar" course (does this even matter?)
    • I'll request dismissal based on the fact that there was/is not reasonable signing for 8 miles on the highway

    I'll get chewed out by the judge
    Oh well, I tried.
    Yes, you can ask for the training certificate, but my guess is the officer will testify that he's P.O.S.T. trained and certified as part of his direct testimony (i.e. before you even get a chance to ask).

    Quote Quoting JackA
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    Thanks again for your patient help.
    You're welcome Jack! Let us know how it turns out!

  7. #7
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    I've read the above thread and am curious about one issue. When one requests a speed survey, is it not for the purpose of establishing the validity of traffic citations being dispensed at a specific roadway? Is that not a Federal mandate? Without an engineering (speed survey) aren't the citations that are being rendered subsequently subject to dispute? I did not think that the sole purpose of requesting a survey report was for establishing the validity of the speed limit. Am I wrong?

  8. #8
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    I'm not certain what you mean by establishing "the validity of traffic citations."

    E&T surveys are used by jurisdictions to establish prima facie speed limits, which in turn allows law enforcement to use radar/lidar without violating the speed trap laws. This prevents jurisdictions from establishing unreasonable speed limits on roadways. However, the way the CVC is written, not all roadways require E&T Surveys to have valid prima facie speed limits (i.e. local roads within a school zone, residence or business district).

    Also, a valid E&T Survey is not necessary for enforcement of maximum speed limits.

  9. #9
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    I did not clearly relate my question. For example: without a speed survey, my question related to police agencies issuing citations. Doesn't Federal law require this survey in order to cite? What is the definition of "maximum speed limits"?

  10. #10
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    Default Re: Dismissal of California 22349(B) Speeding Seems Too Easy to Be True. Is it?

    Quote Quoting JackA
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    Even the radar use doesn't matter if the officer testifies that the visual estimate of speed was any substantial amount over 55.
    The officer must lay a proper foundation for his claim that he visually measured your speed. If not, it's not admissible. So he cannot just say "I visually measured the speed @ 63 MPH" ... object & get this stricken.

    Looks like you were looking for an easy out & found that there isn't one in your case ; its fine to look

    Now, you have a speeding case w/o an easy out. Go chk case law and see if the law requires the individual make of RADAR must be given judicial notice, not just the technology in general...

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