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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?

    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
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    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.

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

    All still useful. And thanks to you both. Indeed trial is tomorrow.

    One point where there seems to be some disagreement is in regards to "prosecution" proving there isn't 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 ..."

    If indeed "prosecution" is required to prove anything at all, but I only have the judge and the officer present, who plays the role of the "prosecution".

    If that's the case (is it?)

    I've seen it suggested that

    "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. "

    If it's a bunch of hooey to raise the possibility that the absence of prosecution means the absence of proof that there is no speed trap, thus no case -- I'd rather not tick off the judge/commissioner.

    Thanks again, Here I go! 1:30 tomorrow afternoon.

  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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    One point where there seems to be some disagreement is in regards to "prosecution" proving there isn't a speed trap.
    So you've heard it from the judge, at your arraignment, you've heard it from me wherein I supported my statements with statutes, and David echoed the same thing I posted, and yet you are still in doubt... Not sure what else I can say. Try making your argument tomorrow before the judge and see what he says.

    Quote Quoting JackA
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    "Technically, the prosecution for VC 22349(b) is required to prove "not a speed trap"
    And technically, that statement has NO LEGAL BASIS WHATSOEVER.

    In all honsety, I am not sure why David decided to post in this thread. Half of the information he provided was already here and the other half is either incorrect, inaccurate or irrelevant! But I digress... Its not my place to dictate who can and who cannot post!

    As for your inference with regards to the prosecution's presence or lackthereof, you can read People v. Carlucci, 590 P. 2d 15 - Cal: Supreme Court 1979. Note that the Carlucci case is dated 1979, and traffic matters have been adjudicated in the same manner for... 31 years.

    Quote Quoting JackA
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    If it's a bunch of hooey to raise the possibility that the absence of prosecution means the absence of proof that there is no speed trap, thus no case -- I'd rather not tick off the judge/commissioner.
    Two different issues, two different answers (neither of which will work in your favor here or in court). Not sure why or how you can make such a connection. But like I said, you're free to bring up both matters collectively or independently and see what the judge says.

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

    OK Thanks Guy. I'll report back after the trial.

    -Jack

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

    Quote Quoting That Guy
    David echoed the same thing I posted
    No, I did not echo the same thing you posted.

    You basically said "No speed survey is required" without explaining how that is possible under California law when VC 40803(a) plainly says that no radar evidence may be admitted when using a speedtrap.

    I, on the other hand, did explain why, under specific law, evidence in a VC 22349(b) case never involves a speedtrap.

    And technically, that statement has NO LEGAL BASIS WHATSOEVER.
    The legal basis for 'Technically, the prosecution for VC 22349(b) is required to prove "not a speed trap"' is a plain reading of VC 40803(a).

    Half of the information [David] provided was already here and the other half is either incorrect, inaccurate or irrelevant!
    None of the information I provided was already here, and all of it was correct, accurate, and relevant.

    But I digress... It is not my place to dictate what people are allowed to say about me.

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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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    No, I did not echo the same thing you posted.

    You basically said "No speed survey is required" without explaining how that is possible under California law when VC 40803(a) plainly says that no radar evidence may be admitted when using a speedtrap.

    I, on the other hand, did explain why, under specific law, evidence in a VC 22349(b) case never involves a speedtrap.
    I'm not going to play "I said, you said" game with you!

    You can read, people V. Difiore, People v. Flaxman, People v. Miller.... etc. and you'll see that the prosecution is NOT required to present a survey in this case (or any maximum speed citation case for that matter), regardless of how you twist it.

    Quote Quoting DavidForthoffer
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    None of the information I provided was already here, and all of it was correct, accurate, and relevant.

    But I digress... It is not my place to dictate what people are allowed to say about me.
    There is an echo in here...

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

    Quote Quoting That Guy
    You can read, people V. Difiore, People v. Flaxman, People v. Miller.... etc. and you'll see that the prosecution is NOT required to present a survey in this case (or any maximum speed citation case for that matter)
    I am glad we agree that the prosecution is not required to present a survey in this case (or any maximum speed citation case).

    But what does People v. Difiore have to do with that? In Difiore, the Court of Appeals held that Difiore's conviction for driving 64 mph in a 40 mph zone must be reversed, because he was charged under VC 22350, and the prosecution had not presented an engineering and traffic survey.

    People v. Miller (90 Cal. App. Supp. 3d 35 - Cal: Court of Appeals 1979) basically goes through my posted reasoning above, and concludes "From this we conclude that the area of Highway 71 in question was not a "section of a highway with a prima facie speed limit" and thus no speed trap within the meaning of section 40802 subdivision (b) existed."

    In other words, the court did not say VC 40802(b) may be ignored. The court explained why Miller's conviction based on radar evidence did not violate VC 40802(b).

  8. #8
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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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    I am glad we agree that the prosecution is not required to present a survey in this case (or any maximum speed citation case).
    Back pedal much? Either way, I'm glad you finally understand the difference between a citation issued in violation of a maximum speed limit... and a citation that is issued in violation of a prima facie speed limit! Now, if you can understand that the requirements for Radar enforcement are not necessarily directly related to "speed trap laws" FOR EACH AND EVERY SPEEDING CITATION, then we'd all be better off!

    Quote Quoting DavidForthoffer
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    But what does People v. Difiore have to do with that? In Difiore, the Court of Appeals held that Difiore's conviction for driving 64 mph in a 40 mph zone must be reversed, because he was charged under VC 22350, and the prosecution had not presented an engineering and traffic survey.
    Now you're being dense (not sure if its intentional though). From People v. DiFiore (and this is only one related reference; there are plenty more):

    A person who drives in excess of the maximum lawful speed has not been subjected to a "speed trap" even if his speed has been detected by radar on a posted road unless the officer relies on the posted or prima facie speed limit.

    That IS directly related to the OP's main question, isn't it?

    Quote Quoting DavidForthoffer
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    People v. Miller (90 Cal. App. Supp. 3d 35 - Cal: Court of Appeals 1979) basically goes through my posted reasoning above, and concludes "From this we conclude that the area of Highway 71 in question was not a "section of a highway with a prima facie speed limit" and thus no speed trap within the meaning of section 40802 subdivision (b) existed."

    In other words, the court did not say VC 40802(b) may be ignored. The court explained why Miller's conviction based on radar evidence did not violate VC 40802(b).
    How about you re-read the first part of that same paragraph that you cited (yeah, the one you so conveniently left out)!!! Here, I'll make it easy for you:
    Section 22348, subdivision (a) prohibits driving upon a highway at a speed greater than 55 miles per hour "Notwithstanding ... any other provision of this chapter" and thus the opportunity to prove that the speed did not violate the basic speed law (Veh. Code, § 22350) is not available to a person charged with driving in excess of 55 miles per hour on a highway with such a speed limit.

    Meaning that "the opportunity to utilize VC 40802 (or 40803 for that matter) is not available to a person charged with driving in excess of a maximum speed statute...." That too, IS related to the OP's main question, isn't it???
    Please note that when Miller was decided, VC 22348 was "the maximum speed statute" in California. Since then, it has been repealed, reworded (to restrict its application to a "two lane undivided hwy") and enacted as VC 22349(b).


    So regardless of how you word it, and no matter what conclusion YOU draw from those cases, it is clear that BOTH the DiFiore and the Miller opinions establish that no survey is required and the prosecution is not obligated to prove that no speed trap existed in a maximum speed citation.




    Now, I will retract my "I'm not going to play 'I said, you said' game with you!" but only for a minute or so....

    Quote Quoting DavidForthoffer
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    No, I did not echo the same thing you posted.

    None of the information I provided was already here, and all of it was correct, accurate, and relevant.
    Yes you did ECHO... Re-read (MY) post #8 and you'll see that I DID explain why 40802 does not apply and therefore 40803 does not apply. A point that you "ECHOED" (after adding in your own twist) when you posted later! That was one half of your post...

    The other half of what you posted, was with regards to your suggesting that the OP should request a "peremptory challenge" and to look into the "speedometer calibration" in a Radar case... Both of those suggestions are either incorrect, inaccurate or irrelevant (add in "untimely" while you're at it)!

    Not only would pursuing either of those suggestions be a total waste of the OP's time and effort, they will, more than likely, irritate the judge hearing his case. Not a smart thing to do in traffic court!!!

    So yes, half of your post was an ECHO, and the other half was pointless (or should I say "worthless")!

    Quote Quoting DavidForthoffer
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    But I digress...
    Digress all you want... Blewis was spot on when he suggested that you are simply trying to increase your post count all while your credibility is shot because of the tangents that you tend to go off on all while not knowing half (maybe even less) of what you're posting about! So I will follow in his footstep and refrain from getting into these pointless meaningless arguments with you!

    Keep on trolling, David...

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

    Quote Quoting That Guy
    Back pedal much?
    I am not backpedaling at all. I never said that the prosecution is required to present a survey in this case (or any maximum speed citation case. I merely said that VC 40801 is still operative for such a case.

    From People v. DiFiore ...
    You need to understand the difference between dicta and holdings.

    A holding is a statement relating directly to the decision in the case, or where the court specifically says it is a holding. Such a statement is the result of the adversarial proceedings, and in turn will be carefully scrutinized when considering appeal. Holdings are binding on lower courts.

    Dicta, on the other hand, are statements made not directly related to the decision in the case. Courts often make such statements to give context to their reasoning, or for other reasons not germane to the issue in the case.

    Your quote is clearly dictum. The reasoning and decision of the court would have been exactly the same if they had said exactly the oppoiste. The point of that sentence in this case is to contrast with the next sentence.

    I and courts in general are far more impressed by holdings than by dicta.

    How about you re-read the first part of that same paragraph that you cited ...
    If that quote was so decisive, why do you think the court went to the trouble of writing the previous eleven paragraphs?

    It seems that even though both I and the DiFiore court say that VC 40802(b) must be satisfied and that it is always satisfied for charges under VC 22348(a), you still want to argue with us.

    I still disagree about the "ECHO". But you said nothing new, so I have nothing to respond to.

    The other half of what you posted, was with regards to your suggesting that the OP should request a "peremptory challenge" and to look into the "speedometer calibration" in a Radar case... Both of those suggestions are either incorrect, inaccurate or irrelevant (add in "untimely" while you're at it)!

    Not only would pursuing either of those suggestions be a total waste of the OP's time and effort, they will, more than likely, irritate the judge hearing his case. Not a smart thing to do in traffic court!!!
    In the case of a peremptory challenge, the trial would later be conducted by a different judge, and so it does not particularly matter about irritating the first judge. As for timeliness, the first notice one has about who the judge is is when the defendant appears in court for trial. So presenting the peremptory challenge then is timely.

    I have seen judges dismiss cases where the officer did not have a valid speedometer calibration certificate. It was certainly relevant and timely for those cases!

    Speaking of irritating judges: If you are being tried by a "hanging" judge, it might be a good defensive tactic to irritate the judge, as he might then make legal errors, such as refusing to let you make a closing argument. That might convert a loss to a win on appeal right there!

    Digress all you want... Blewis was spot on when he suggested that you are simply trying to increase your post count all while your credibility is shot because of the tangents that you tend to go off on all while not knowing half (maybe even less) of what you're posting about!
    What possible advantage is there to increasing one's post count past 100? I am not trying increase my post count.

    My "not knowing" mainly concerned Washington speed laws. My hat is now off to Barry Lewis for his expertise and competent posts in that area. I no longer post much at all in that area.

    However, I do know California speed laws and have fought many tickets, including appeals, learning something each time.

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

    OK Gentlemen,

    Court today was interesting. The officer showed up and the judge ruled that I was guilty.

    My delivery wasn't as crisp as I had hoped because the procedure was a bit confusing.
    Officer states, then I cross, then I state, he crosses then judge rules? I got lost.

    But I politely pointed out that prosecution wasn't present and that the simple reading of 40803 required that prosecution prove no speed trap. The judge politely informed me that I could point this out to the officer, and if I made an objection of that nature that she'd simply overrule it.

    In an attempt to create reasonable doubt, I asked the officer a few questions about use of radar (do you believe the radar unit you used is capable of a false reading? he said yes), ubt it seemed obvious to me this wasn't going to go anywhere.

    The judge asked if I have more "evidence" (I didn't know I was in "evidence presenting mode") so I presented evidence that for 7.3 miles there were no speed limit signs. The judge asked if I had been on the road before, and the officer and judge pointed out that no two lane roads in California have a limit over 55. Therefore I should know that exceeding 55 on an unmarked highway would be exceeding the limit.

    At this point I had no more to say, so the judge ruled guilty.

    Lesson learned: It's very hard to remember everything you were going to say when you don't understand the proper process during the court session.

    I feel a little better that I tried. So no regrets there. The gallery applauded and gave thumbs up as I left, so it must not have been too bad.

    One last regret though... I noticed the certificate the officer had in front of him seemed to be a cheap copy. I suspect had I asked to verify it, I might have objected to his testimony if it wasn't an original or a "Certified" copy. I suppose I'll never know.

    Listen, Thanks to all of you for you help, and even your disagreements - they are illuminating to me and I appreciate your volunteering to help us who occasionally visit this forum.

    All the best,

    Jack

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