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  1. #1
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    Default Getting a Dismissal of a California VC 22349(B) Speeding Ticket

    My question involves a California speeding ticket citing 22349(b) "70+ in a 55". My trial is at the end of this week.

    Question 1

    Assuming that no prosecuting attorney is present at my trial (which is probable), I will argue that (before the officer testifies), "Prosecution of this case is an executive act as per Esteybar v Municipal Court (one that the judiciary cannot perform) and that officer _________ who has appeared is a witness, nothing more, nothing less as per People v Marcroft and therefore he cannot perform an act of prosecution."

    I plan to move for dismissal based on the fact that the prosecution has not met the burden of VC40803.

    For some reason, my instinct tells me it isn't this easy, and the judge will just get angry at this.

    I've also heard that this can be skirted by the court if the violation is an infraction and if the judge remains impartial "doesn't coach the witness".

    Do you have some advice on this approach?

    and then one more...

    Question 2

    At my arraignment, the no-nonsense judge added that CA 22349(b) did not require a survey and that the violation would be upheld if I was driving one MPH over 55, 58 or any other speed - it's the same violation.

    This was a particularly dismal edict since my last line of defense was a graph printout of actual vehicle speed that day (my truck carries a OBDII speed recording system). At the time of violation, (and before and after) it shows the vehicle never exceeded 63 MPH.

    The judge seemed pretty confident, and almost seemed to be expecting my defense.

    Is my only remaining defense to simply request an original radar training certificate?


    Much thanks,

    Jack

  2. #2
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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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    Assuming that no prosecuting attorney is present at my trial (which is probable), I will argue that (before the officer testifies), "Prosecution of this case is an executive act as per Esteybar v Municipal Court (one that the judiciary cannot perform) and that officer _________ who has appeared is a witness, nothing more, nothing less as per People v Marcroft and therefore he cannot perform an act of prosecution."
    The officer is not performing an act of prosecution... He's merely there "to testify as a witness". The officer is well aware of his role in the courtroom, and so is the judge.

    Quote Quoting JackA
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    I plan to move for dismissal based on the fact that the prosecution has not met the burden of VC40803.
    And your motion for a dismissal will be denied quicker that you can say "your honor".

    You were cited for violating the maximum statutory 55mph speed limit on a two lane undivided highway. If those elements are present, there is no requirement for the prosecution to present a valid E&T survey (pursuant to VC 40802) justifying the speed limit...

    Had you been cited for VC 22350, then it would be a completely different story. But you were not!

    Quote Quoting JackA
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    I've also heard that this can be skirted by the court if the violation is an infraction and if the judge remains impartial "doesn't coach the witness".
    Not sure what you're trying to say!

    Quote Quoting JackA
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    At my arraignment, the no-nonsense judge added that CA 22349(b) did not require a survey and that the violation would be upheld if I was driving one MPH over 55, 58 or any other speed - it's the same violation.
    Pretty accurate assessment.

    Quote Quoting JackA
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    This was a particularly dismal edict since my last line of defense was a graph printout of actual vehicle speed that day (my truck carries a OBDII speed recording system). At the time of violation, (and before and after) it shows the vehicle never exceeded 63 MPH.
    And by doing so, you're admitting to driving in excess of the maximum limit... Heck you're making an easy task of proving your guilt, much easier.

    Quote Quoting JackA
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    Is my only remaining defense to simply request an original radar training certificate?
    You certainly can request it. But expect to receive it. But you can also expect the officer to testify that he also visually estimated your speed prior to/in conjunction with using Radar... and with a speed estimate of 15 mph over the limit, it is pretty much a slam dunk!

    Quote Quoting JackA
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    Do you have some advice on this approach?
    Well, not necessarily on any approach you've suggested, but here is my advice. If the officer happens to appear in court for the trial, see if you can take the traffic school option. Assuming you are eligible, that maybe your only saving grace!

    Good luck!

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

    Now that is very useful -- thank you!


    Simply out of curiosity now...

    VC40803(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 speed trap as defined in paragraph (2) of subdivision (a) of Section 40802.

    Is the prosecution for 22349(B) required to prove "not a speed trap" ?

  4. #4
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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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    Is the prosecution for 22349(B) required to prove "not a speed trap" ?
    Nope......

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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.

  6. #6
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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).

  7. #7
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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!

  8. #8
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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...

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

    Quote Quoting JackA
    Is the prosecution for 22349(B) required to prove "not a speed trap" ?
    Technically, the prosecution for VC 22349(b) is required to prove "not a speed trap", but the definition of "speed trap" (in VC 40802) says a speed trap is a particular section of highway where ...
    • ... speed is measured by clocking the time a vehicle travels the section, or
    • ... the speed limit is established by VC 22353(a)(2)(A): 25 mph in business or residential area, or
    • ... the speed limit is established by VC 22357: increasing limit from 25 mph by E&T survey*, or
    • ... the speed limit is established by VC 22358: decreasing limit from 65 mph by E&T survey, or
    • ... the speed limit is established by VC 22358.3: decreasing limit from 25 mph by E&T survey

    *"E&T survey" = "engineering and traffic survey".

    But in your case, the speed limit is established by VC 22349(b), so it is a matter of law that the evidence or testimony presented is not based on a speed trap. Since it is law, the prosecution does not have to point that out to the judge; the judge already knows that.

    As for advice for your case, one tactic you can try is when you are called to contest your ticket, if you know the judge to be a "hanging" judge, you can file a peremptory challenge saying you do not want that judge to try your case. They are required to reschedule your trial with a different judge. The book Fight Your Ticket & Win in California can tell you how to do that.

    The advantage of this is that you double your chances of the officer not showing up.

    An another tactic is to challenge the calibration of the speedometer of the officer's vehicle. See the above book.

    Quote Quoting JackA
    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)...

    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.
    VC 22349(c) is pertinent.

    However, the California Department of Transportation Traffic Manual has declared "reasonable signing" to be every 10 miles.

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

    Quote Quoting DavidForthoffer
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    As for advice for your case, one tactic you can try is when you are called to contest your ticket, if you know the judge to be a "hanging" judge, you can file a peremptory challenge saying you do not want that judge to try your case. They are required to reschedule your trial with a different judge. The book Fight Your Ticket & Win in California can tell you how to do that.
    It is my understanding (from Jack's first line in his first post) that his trial is the end of THIS week (??tomorrow??). A peremptory challenge is not an option at this point! (See CRC 3.516 which requires the moving party to serve its motion within the 20 days after assignment of the case to a particular court/judge) - that likely happened when Jack was arraigned (and my guess is its been longer than 20 day ago since the arraignment).

    Even if it were still an option, who's to say that his case would be assigned to a judge who's less of a "hanging" judge?

    Quote Quoting DavidForthoffer
    View Post
    An another tactic is to challenge the calibration of the speedometer of the officer's vehicle. See the above book.
    Based on the information that the OP has posted, his speed was measured by RADAR. And while in theory, the speedometer calibration may affect a Radar reading *IF* it is operated in "moving mode", there is no legal requirement (and no case law precedence) that requires the speedometer to be calibrated for a radar reading to be admissible. In fact, there is no legal requirement to provide speedometer calibration certificate in cases where a citation was issued for a violation of any of the maximum speed limits (See People v. Lowe, 130 Cal. Rptr. 2d 249 - Cal: Appellate Div., Superior 2002).

    The only calibration requirement is for electronic SMDs (Radar/Laser/Lidar... but NOT speedometers) and even then, only for cases where the prosecution must prove that there was no speed trap, and by now, we all know this is, by no means or description, a speed trap case.

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