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  1. #1
    Join Date
    Apr 2006
    Posts
    147

    Question Does CVC 40802 "Speed Trap" Apply if Charged With 22349b

    state california.


    I just gotten and read a correctly indented version of cvc 40802 (from Aaron see my other thread, thanks Aarron). I need help in fully understanding this law or how to read it correctly.

    I was told from several sources that cvc 40802 or the "speed trap defense does not apply if you are charged with 22349b even if a radar is used, specifically the traffic engineering survey are not required. The CHP in the answer to my discovery specifically said that an engineering survey has not been done and not require because I was charged with 22349b.

    It seem from reading 40802 the section marked (ii) [the exception clause] that if you were charged with 22349b using a radar they do not need to proved that you’re driving was unsafe but still must have an engineering survey, completed 24 hours training on the use of radar, their radar must meet, National Traffic Highway Safety Administration standards, and be calibrated.

    Help me understand this law, what is your legal opinion on this and what would be your reasoning?

    Thanks

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Does CVC 40802 "speed trap" apply if charged with 22349b

    The statute reads,
    Quote Quoting California Vehicle Code, Section 22349.
    (a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

    (b) Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following apply:
    (1) A two-lane, undivided highway is a highway with not more than one through lane of travel in each direction.

    (2) Passing lanes may not be considered when determining the number of through lanes.

    (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.
    Presumably their position is that, as 22349(b) applies "notwithstanding any other provision of law", the speed trap law (being a different provision of law) is inapplicable.

  3. #3
    Join Date
    Apr 2006
    Posts
    147

    Question Re: Does CVC 40802 "speed trap" apply if charged with 22349b

    Arron,

    thanks. This help me know what they are thinking and I am sure they will use this if it goes to trial?

    But, my argument will then be:

    CVC 22349 essentially said you cannot go over 55mph in an undivided highway and the "Notwithstanding any other provision of law" clause only makes this law controlling (overrule others) if it conflicts with any other law. So, this clause will make cvc 22349 prevailing if there is say another law that said ‘you can go 70mph on Tuesdays” Right?

    However, cvc 40802 addresses only what constitute a speed trap and in my case here what are the requirements when they (the police) use a radar among them a traffic engineering survey. So, it does not conflict with cvc 22349.

    So, can anyone help me with the logic of their (police) position?


    P.S. CVC 22349 even with the "Notwithstanding any other provision of law" clause cannot be all over controlling. If that is true then even the police cannot go over 55mph. Right?

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