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  1. #1

    Default California, 100 in a 70mph Zone

    My question involves a speeding ticket from the State of: California.

    I received a speeding ticket for going 100 mph in a 70 mph zone around the Barstow area early January. The officer wrote 100 mph and indicates he used a Lidar gun. I received in the mail that my Mandatory court date is March 2, 2011. Would this be the day I would be appearing before a judge? I'm extremely nervous and noticed many mentions of a licence being suspended because of this infraction(22348(B) VC-1). Is there some way I could avoid the licence suspension and possibly gain traffic school as I'm on the threshold of this charge.

    I'm not sure if this is relevant, but I remember the drive was uphill and the office was sitting just over the crest of the hill. I clearly saw him and was already on the brakes when he came out to pull me over not 1 minute after.

  2. #2
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    Default Re: California, 100 in a 70mph Zone

    Quote Quoting NervouStudent
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    My question involves a speeding ticket from the State of: California.

    I received a speeding ticket for going 100 mph in a 70 mph zone around the Barstow area early January. The officer wrote 100 mph and indicates he used a Lidar gun. I received in the mail that my Mandatory court date is March 2, 2011. Would this be the day I would be appearing before a judge? I'm extremely nervous and noticed many mentions of a licence being suspended because of this infraction(22348(B) VC-1). Is there some way I could avoid the licence suspension and possibly gain traffic school as I'm on the threshold of this charge.
    Driving at 100mph would not warrant a 22348(b) citation, instead, you would be in violation of 22356. You would have to exceed 100 for 22348(b) to be valid.

    Quote Quoting NervouStudent
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    I'm not sure if this is relevant, but I remember the drive was uphill and the office was sitting just over the crest of the hill. I clearly saw him and was already on the brakes when he came out to pull me over not 1 minute after.
    Its not relevant.

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    Default Re: California, 100 in a 70mph Zone

    The appearance you are to make is for your arraignment. If it were me, I would go there, plead not guilty and ask to be released on my own recognizance. You may have to pay bail up front (pretty expensive) but definitely plead not guilty. Why?? Because you ARE not guilty!!

    22348b says:

    (b) A person who drives a vehicle upon a highway at a speed
    greater than 100 miles per hour is guilty of an infraction
    punishable, as follows:

    Since the cop wrote 100mph on the ticket, you were not driving GREATER than 100mph. Therefore, you did NOT violate 22348b!! Now, had you been charged with a different section of the vehicle code, you may have a different plea... but you are clearly not guilty of 22348b. And, before you ask, the judge can NOT change the charge. The cop can change the charge, but only before arraignment. Once you go to arraignment, you are locked in.

    Now... be clear... do NOT get in a hurry and tell the judge this at arraignment. If you do, the case could simply be dropped and you could be charged under a different section (i.e. 22356). Double jeopardy says you can't be TRIED twice for the same offense... it does NOT say you can't be arraigned twice. So, plead not guilty, get a trial date, show up for trial. Let the cop testify and then ask for a dismissal as the prosecution has not provided a prima facie case against you.

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    Default Re: California, 100 in a 70mph Zone

    If the officer wrote 100 MPH then a simple motion to dismiss would work w/o any testimony needed - and I would suggest you requesting a dismissal.

    So, even if all the facts claimed are correct, it does not support a conviction. Do this pre-trial & you will know before the state presents their case. Prepare to object to docs, do discovery and be prepared if the judge will not allow the dismissal. And if it goes to retrial, once the state rests (after your cross) then motion for acquittal ..

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    Default Re: California, 100 in a 70mph Zone

    Quote Quoting EWYLTJ
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    Now... be clear... do NOT get in a hurry and tell the judge this at arraignment. If you do, the case could simply be dropped and you could be charged under a different section (i.e. 22356). Double jeopardy says you can't be TRIED twice for the same offense... it does NOT say you can't be arraigned twice. So, plead not guilty, get a trial date, show up for trial. Let the cop testify and then ask for a dismissal as the prosecution has not provided a prima facie case against you.
    It is not likely that the citation will be refiled (for 22356) after it is dismissed (due to 22348 being inapplicable). If they do decide to do that, it would NOT be double jeopardy for them to re-file under a different code section (whether it be before the arraignment, after it, before a trial or after it):

    From People v. DiFiore, 197 Cal. App. Supp. 3d 26 - Cal: Court of Appeals 1987

    We recognize that when a motorist is driving in excess of 55 miles per hour, the officer might cite that driver either for violating section 22348 or section 22350, or both sections. Assuming that an officer has cited that motorist under section 22350, the People would be entitled to amend the complaint to dismiss the charge of violating section 22350 and allege instead a violation of section 22348, providing that the defendant is given an adequate opportunity to respond to the new charge.


    (Keep in mind that in 1987, VC 22348 was similar to what we know today as 22349). Though the same idea would apply... Dismiss one citation, and refile it under another code section as long as the element(s) of the offenses charged are different. In this case, the element of 22348 is "in excess of 100mph" whereas the element of 22356 is "in excess of 70mph". No Double Jeopardy! Additionally, in cases where the driver was driving in excess of 100mph, it would also be proper for the officer to cite for BOTH, 22348 AND 22356 (from the same case law citation above: "the officer might cite that driver either for violating section 22348 or section 22350, or both sections").

    Of course, there is nothing to stop the officer from filing an amendment with the court (amending the 22348 to 22356) and mailing it to the driver as long as it is done BEFORE the arraignment.

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    Default Re: California, 100 in a 70mph Zone

    Isnt all of that exactly what I said? The OP should just go to arraignment and quietly plead not guilty and wait for trial. Once the trial begins, THEN double jeopardy DOES attach.

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    Default Re: California, 100 in a 70mph Zone

    Quote Quoting EWYLTJ
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    Isnt all of that exactly what I said?
    No its not! You're saying that as long as he can get past the arraignment, then they cannot file under a different code section. Fact is, the CAN!

    Quote Quoting EWYLTJ
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    The OP should just go to arraignment and quietly plead not guilty and wait for trial.
    The only thing that they cannot do if/when OP enters a plea at the arraignment, is that they can no longer amend the citation by filing/mailing a "certificate of correction". However, they CAN issue a different citation with a different code section (i.e. charge him with a different crime), although that very rarely happens in traffic court.

    Quote Quoting EWYLTJ
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    The OP should just go to arraignment and quietly plead not guilty and wait for trial.
    Double jeopardy is NOT an issue if they charge a different code section. Only if they refile under the same charge/code section. If the 22348 gets dismissed, they CAN in fact issue another ticket citing 22356.

    In other words, the intitially charged him "in violation of VC 22348/exceeding 100mph"... If that is dismissed, there is nothing that would prevent them from re-issuing another citation charging him with a "different crime", that being "in violation of VC 22356/in excess of 70mph". Since a violation of 22356 is different from a violation of 22348, Double Jeopardy is NOT an issue!

    The only way the defendant can prevent them from having the ability to re-file/reissue the citation with a different code section, is by taking his arraignment/trial past the one year statute of limitations (but that's a different story). However, and with extensions limited to a total of 90 day (60 day initial request + 30 day upon request from the judge), it may be difficult to get past the 1 year time limit without intentionally FTA-ing (which, as we know, can get you in another big mess).

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    Default Re: California, 100 in a 70mph Zone

    Dude... what is your point? Are you seriously just that low on self-esteem such that you HAVE to be right about something? You STILL didn't say anything I didn't. I never said that the prosecution cannot refile a different charge.... in fact, I said the OPPOSITE. I said that the cop cannot change the charge after arraignment. While you are right, it is POSSIBLE for the prosecution to drop the case and refile a new case after arraignment, you would also be right in saying it is POSSIBLE to be struck by lightning.... twice... in the same day.... in the same spot.

    I told the OP what a reasonable, rational approach would be in his case. However, you seem to feel a need to say I am wrong about SOMETHING. Who are you here for??? The OP, or your own ego? Geez!!

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    Default Re: California, 100 in a 70mph Zone

    Regardless of what/who I'm here for, you posted incorrect information about double jeopardy being applicable. I corrected it.

    Deal with it!

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    Default Re: California, 100 in a 70mph Zone

    Quote Quoting That Guy
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    Regardless of what/who I'm here for, you posted incorrect information about double jeopardy being applicable. I corrected it.

    Deal with it!
    Really??? I said:

    Double jeopardy says you can't be TRIED twice for the same offense... it does NOT say you can't be arraigned twice. So, plead not guilty, get a trial date, show up for trial. Let the cop testify and then ask for a dismissal as the prosecution has not provided a prima facie case against you.

    What part of that is incorrect?

    Geez, did you get your kitchen pass revoked or something?

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