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  1. #11
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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...

  2. #12
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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

  3. #13
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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
    View Post
    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
    View Post
    Thanks again for your patient help.
    You're welcome Jack! Let us know how it turns out!

  4. #14
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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.

  5. #15
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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.

  6. #16
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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.

  7. #17
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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
    View Post
    "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
    View Post
    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.

  8. #18
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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

  9. #19
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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.

  10. #20
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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
    View Post
    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...

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