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  1. #21
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Quote Quoting M.Q.
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    I guess I would just have to rely on the online version of their handbook.
    You should be OK with that. If you don't mind paying 25c/page, just mail a "public records" request to the school and they WILL get it to you.

    Quote Quoting M.Q.
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    It looks like we are focusing more on VC 40802 Speed Trap, which I clearly understand my case falls under. How about VC 22350, which I am cited for?
    ...
    What I’m thinking is if the prosecution fails to prove any of these conditions then I automatically win without even going to the speed survey issue. Is this so?
    Here's why the speed trap laws (40801-40808) matter...a speed trap is presumed under them, and it's up to the prosecution to prove that it was not (typically by introducing a valid survey). If they don't do so, the law states the officer CANNOT testify ("incompetent witness") and the court is WITHOUT jurisdiction to convict you (i.e., the court MUST find you not guilty and dismiss the case).

    So, in theory (minus the pesky rules of evidence), it's an all-or-nothing proposition. If the prosecution fulfills their side and proves there was no speed trap, YOU are then presumed to have been at an unsafe speed unless you can prove otherwise (VC 22351). They have to show nothing else; the burden is on YOU to somehow show that none of the conditions for an unsafe speed existed at the time and no persons or property were endangered. You can try doing that via, e.g. the "30 Questions" defense but it may be difficult. Far easier to simply prove a speed trap and force the court to dismiss...

    Quote Quoting M.Q.
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    Another clarification is about the overall format of my defense, specifically—how do I tie up 22350 with 40802? “Transition” is what I’m looking for here. Should I say in my TBD or at the actual court hearing that “I believe I didn’t violate 22350 for the following reasons (citing proofs that all the conditions do not exist or are not met)… In fact, the citing officer violated the speed trap law 40802… and so on…” Is this the correct format—the first part of my defense is focused on disproving that I had violated 22350 and the second part on proving that in fact the police officer had violated 40802 (or 40801)?
    The right order to do things is:
    1. Show it was not a school zone (incorrectly signed). Maybe state that no children would be about, in any case, because of school rules.
    2. Use the CalTrans map to show that Crestmoor Dr. is a non-local road and the speed trap laws therefore apply.
    3. Show that the prosecution's evidence is insufficient to rebut (i.e. overcome) the speed trap presumption and therefore, the officer is incompetent to testify to anything (including any visual estimate of speed) and the court must dismiss your case.


    The right WAY to do these would be via appropriate objections as the officer testifies such that you can avoid having to testify at all, but that probably won't be possible here. So wait for the officer to finish his testimony, cross-examine if necessary, and then p

    Quote Quoting M.Q.
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    Can you clarify these legalese terms/phrases?

    “the court taking judicial notice..”
    "Judicial notice" is a mechanism where the court effectively brings certain things into evidence bypassing most of the rules of evidence. These "things" are defined by law so that this privilege cannot be abused. The court also cannot take judicial notice without allowing the parties a chance to object to it. In the case cited, the court used judicial notice to bypass the necessity of a witness proving those three requirements for the official records exemption were fulfilled.

    Quote Quoting M.Q.
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    “entered as a business record..”
    Only certain documents can be entered as official records. The two requirements that matter to you are: (1) Published by a public entity (Evidence Code 1530) and (2) Made by a public employee in the course of his duties (Evidence Code 1280). Documents not meeting these criteria MAY still be entered as "business records" if they satisfy these criteria:

    Quote Quoting Evid. Code 1270, Business Records exception to Hearsay
    1271. Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
    (a) The writing was made in the regular course of a business;
    (b) The writing was made at or near the time of the act, condition, or event;
    (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
    (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
    (c) typically requires in-person attendance of the custodian (i.e., the business employee who is responsible for maintaining records), or "other qualified witness," which typically has to be the traffic engineer who performed/certified the survey. The custodian can also provide an affidavit under subpoena instead of in-person attendance. Needless to say, none of these typically happen in your usual traffic case.

    Quote Quoting M.Q.
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    Are you saying that the signature and the rubber stamp stating the name and title of the engineer (Christopher Thnay on the very first page of the San Carlos speed survey sample) is not enough because he is not authorized official/employee of the San Bruno Public Works but a representative of a private entity?
    Exactly. Because the other important thing is, the Evidence Code presumes that the signature or seal (i.e., stamp) of a public employee are authentic unless you prove otherwise. The engineers "Professional Engineer" stamp and signature matter little in using the business/official records exceptions if he's a private employee and isn't at the trial in person.

    Quote Quoting M.Q.
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    Am I understanding this right--that I am probably going to lose the TDN and should prepare to appeal the court's decision? That's risky! I definitely want to win this at the trial and not wait to go to the appellate court.
    It's hard to say because your arguments require the commissioner/judge to both be very patient and not have a tendency to ride roughshod over the law. You would have to go see the 'performance' of the commissioner/judge your TDN is assigned to a few days/weeks before your trial. If they are impatient and don't listen to defendants' arguments, yes, you will probably lose unless the officer doesn't show or doesn't bring the survey. Otherwise, you do have a solid chance to get this dismissed at trial (and the officer could still do any of the things EWYLTJ suggested!)

    Quote Quoting M.Q.
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    This is a two-way street--I get to peek at the officer's argument and he gets to see mine. By making all my arguments known in my declaration, I am in effect revealing everything to the officer. If I lose TBD which is most likely, the witness (citing officer) would have a preview of my arguments and would likely make adjustments during the TDN. The court would also likely use or refer to my defeated TBD case and reinforce or support the previous judgement.
    The officer may not care enough to refer to your TBD before the TDN, and in theory the court isn't supposed to refer to the TBD in any way during the TDN. In practice, of course, what you stated is certainly likely. To that end, you are better off either just saying "I plead not guilty", or just making the "not a school zone" argument in your TBD -- it has the benefit of having lots of pictures and CANNOT be rebutted by the prosecution. Leave the speed trap arguments for the TDN.

    Quote Quoting M.Q.
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    What I was hoping to accomplish with the change of venue is to put the citing officer out of his comfort zone especially when he acknowledged during my stop that it was his first time to hear such a request, meaning he wasn't at all familiar with the county seat in Redwood.
    Well, other than from a geographic perspective, I doubt he would be out of his comfort zone in Redwood City. You can always try calling/visiting the court and informally asking the clerks what their policy on venue changes simply for peoples' convenience is, and ask for such a change if their policy exists and seems lenient.

  2. #22
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    I finally got a more complete copy of the speed survey for Crestmoor Drive in San Bruno. Please note that unlike the sampled San Carlos survey, this one has no statistics on accidents (ie. Appendix B). To see the survey, here's the link:

    http://www.adrive.com/public/23143c3...d8c2463b2.html

    Last Friday, I received the courtesy notice from the court. The document has the title "Notice of Bail", instead of the usual Traffic Courtesy Notice. I notice that there are some errors in my name. My first name was incorrectly spelled and my middle name was used as my last name instead of my real last name. I think these errors are minor and won't lead my case to being dismissed, would it?

    Now I like to know when do I start doing things. What's my timeline? Should I file my declaration now with the court, wait till my arraignment, or do it after? I know that the timing of every action/motion is crucial in fighting this ticket. So, please advise me in this area too.

    Again, thanks for all the feedback.

  3. #23
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Quote Quoting M.Q.
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    To see the survey, here's the link:
    Thanks, it runs into the same evidence problems discussed earlier. The TJKM engineer is in no position to certify or authorize anything as an official record. Please also read these posts about this issue when you have some time: Mostly Questions, Answers 1, Answers 2.

    Quote Quoting M.Q.
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    I think these [name] errors are minor and won't lead my case to being dismissed, would it?
    True, don't waste your time.

    Quote Quoting M.Q.
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    What's my timeline? Should I file my declaration now with the court, wait till my arraignment, or do it after?
    If you can afford to put up the bail right away, just send it in with a request for a TBD and a copy of the courtesy notice (or any tear-off portion). Why drag it out? If you can do this in person at the court, even better.

    Once you get your TBD forms, definitely bring up the school issue. Unless you are facing an overzealous or vindictive cop, he's not going to bother getting the survey correctly certified before your TDN, so you should go in all guns blazing and bring up all the survey/evidentiary issues too.

  4. #24
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    I submitted my written declaration last week. I am posting a copy below. I should have posted the declaration in the forum for advice and review before the submission but I hadn’t had an opportunity to do so. When I submitted it in person to the court, the clerk told me that the police officer concerned would have 15 days to respond. So I am basically within that period awaiting his response.

    Anyway, I welcome any feedback on my declaration, although I may not be able to modify it anymore. I may be interested to know if there is any glaring error in it in terms of logic or otherwise.

    Thanks and happy holidays!


    I respectfully submit this written declaration to the Court pursuant to CVC 40902. I plead Not Guilty to the charge of violating CVC 22350.

    The facts of my case are as follows: While driving north/northwest on Crestmoor Drive at 12:35pm on October 17, 2011, I was stopped by Officer Bxxxx (I.D. # xxxxx) and was charged with violating CVC 22350. Officer Bxxxx has alleged that I was driving 41 mph in a 25 mph school zone based on RADAR evidence. In fact, I was driving way below what Officer Bxxxx was alleging, about 35 mph.

    With my speed, I know I did not break the Basic Speed Law. CVC 22350 states: "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of the highway, and in no event at a speed which endangers the safety of persons or property." I know I was travelling at a Safe and Reasonable speed for conditions at the time of my stop. At that time (noontime), the weather was clear and sunny, road was dry, and traffic was light. No persons or property were put at risk by my driving. The mere act of passing a school at 35 mph is not assumed to “endanger the safety of persons or property” under the Basic Speed Law. The fact is there was no single person or student on the sidewalks or the road at the time of my stop. The John Muir Elementary School prohibits under any circumstance any student from leaving the school grounds during lunch break or noon recess. Thus, the citing officer does not make a credible case that I was in violation of the CVC 22350.

    As to Officer Bxxxx’s assertion that I was driving in a school zone with a prima facie speed limit of 25 mph, which is the sole basis of his citation, I contend that the section of the Crestmoor Drive where I was stopped was NOT a school zone. CVC 22352 (a)(2)(B) elaborates on the prima facie limit on school zone with the following: “When approaching or passing a school building or the grounds thereof, contiguous to a highway and posted with a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. The prima facie limit shall also apply when approaching or passing any school grounds which are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children and the highway is posted with a standard "SCHOOL" warning sign. For purposes of this subparagraph, standard "SCHOOL" warning signs may be placed at any distance up to 500 feet away from school grounds.” The section of the Crestmoor Drive where the school is located and where I was stopped does NOT have the standard “SCHOOL” sign. The California Manual on Uniform Traffic Devices (MUTCD), which makes and regulates the signs on all roads, defines what is the Standard (School warning sign): “The School Warning Assembly A(CA) shall be used on streets with prima facie 40 km/h (25 mph) speed limits that are contiguous to a school building or school grounds” (CA MUTCD 2010 Section 7B.08). A previous “Standard” School sign was specified in 1996 Traffic Manual of the MUTCD. NONE of the signs posted on the section of the Crestmoor Drive where I was stopped are the standard signs required by VC 22352. Instead, a different sign was posted in the area. I have enclosed in this declaration some pictures of that non-standard sign. Thus, it is clear that this section of the road is NOT a school zone as Officer Bxxxx claims. Moreover, the school is located on a higher ground and separated from the road by a fence, making the prima facie limit not applicable here.

    Further, I believe that Crestmoor Drive is a non-local road and the way my speed was evaluated on it may constitute an illegal Speed Trap pursuant to CVC 40802 (a)(2). This states that:

    “(a) A “speed trap” is either of the following:

    (2) 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, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.”
    Crestmoor Drive is definitely not a local street or road based on the map (Map 05L41) by the California Department of Transportation (CalTrans) found in its website. Instead, the department classifies Crestmoor Drive as a collector road. With this, my case falls under an illegal Speed Trap pursuant to CVC 40802 (a)(2).

    If the prosecution does not attach proof with its written declaration a certified copy of the speed survey for Crestmoor Drive to establish as part of its prima facie case that the road I was cited on was not a Speed Trap, as they are required to do pursuant to CVC 40803 (b), Speed Trap Evidence, I trust that the Court will rule the citing officer not competent to testify and dismiss my case pursuant to CVC 40805.

    I trust in the Court's fairness and believe that my citation should be dismissed in the interest of justice.

    If the Court does not find in my favor in this case, I request a Trial de Novo.

    I have enclosed 7 additional pages I would like admitted as evidence: a picture of the Standard “School” warning sign, sample non-standard school signages on Crestmoor Drive, and sample pictures of the John Muir Elementary School grounds and immediate vicinity.

    I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

    Date: December 12, 2011

    Defendant in Pro Per

  5. #25
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Quote Quoting M.Q.
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    Anyway, I welcome any feedback on my declaration, although I may not be able to modify it anymore. I may be interested to know if there is any glaring error in it in terms of logic or otherwise.
    You did a good job, I don't see any major snafus. Keep your fingers crossed!

  6. #26
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Today after coming home from work, I found in my mailbox a letter from the Court. I immediately suspected that it is the Court's decision on my case. I was right! The verdict? I was found Not Guilty! I am absolutely overjoyed! I didn't expect to win at all! In fact, I was anticipating my case would go to TDN. But I'm glad it doesn't have to now. This is a big sigh of relief for me!

    Most of all, I like to thank quirkyquark for all his feedback from which I mainly based my tight-knit defense in my declaration to the Court. I believe that the pictures (about 9 in total) I had submitted along with my declaration also made my arguments solid and almost indisputable.

    Quirky, I can't thank you enough. Words aren't sufficient to express my gratitude. You helped me win two cases already! You have unbelievable knowledge of the law and wisdom in its use as well as a big heart to help the needy. In short, all I can say is you're awesome, man! I salute you!

  7. #27

    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Congrats.

    I'm beginning to wonder how much money this forum saves people every year.

  8. #28
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Quote Quoting California student
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    Congrats.

    I'm beginning to wonder how much money this forum saves people every year.
    Not to worry Stu... Some people don't learn their lesson and will eventually feel Karma's grip!

  9. #29
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    Quote Quoting M.Q.
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    The verdict? I was found Not Guilty!
    Congratulations, and thank you for the kind words. If you have a chance to visit the court, please get a copy of the cop's declaration and post it here. There's a chance he may not have submitted it. If he did, it's good to know that (some) judges out there still read and fairly consider TBDs....

  10. #30
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    Default Re: How to Fight Speeding in a School Zone, VC 22350

    I finally found out the reason why I got a not guilty decision for my case. In a recent visit to the court, a clerk told me that the officer did not submit his declaration. Good for me! This is why it is useful to do TBD as the citing officer may not file his. It just like an officer not appearing in a TDN.

    All I can say is a win is a win, and what a good feeling it is to be free from what could be a big headache.

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