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  1. #91
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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting themadnorwegian
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    I'd like to call time-out. I don't see how threatening to refer Supra's case back to the DA is going to encourage any future forum posters to be forthcoming with details about their tickets. It's also worth noting that both Quirky and I agreed that the prosecution hadn't satisfied their burden in this particular case. I'm not saying that to brag or to keep score, but just so we're clear that it puts him and me in the category of those who are totally clueless, completely ignorant, and full of sheer stupidity. For posterity, I've been lumped in with worse -- at least you're not suggesting I molest reindeer at the snow mobile park.

    This case is finished unless the People appeal. If opinions are so cemented that this appellate division ruling is viewed skeptically, I don't see how we can possible make progress here unless we're willing to come to an agreement about what positions we're open to reconsidering. Can everyone please be civil here?
    TMN, you are free to call anything you want.... Just like I have and will continue to call :shenanigans: when it comes to this thread and this faulty ruling and the OP's continued attempts to not only manipulate the facts of his appeal, but to manipulate the ruling which isn't even close to supporting the reason he came here seeking advice on. Of course that has not stopped him from blatantly denying that his “victory”: has nothing to do with realistic facts of his case.

    Just to get these two points out of the way, let me FIRST say that if you think that most people who come on here seeking advice are truly “forthcoming” and honest, then you really aren't too observant at all, maybe even more gullible than what you are trying to infer in your last post. But we both now better, TMN so why pretend?

    In addition, and if you think I was “threatening” with anything I have stated, then you would be completely wrong. Of course I cannot and will not dictate what might or will happen. But I can and will continue to do what I can to make sure that the truth, the facts and the scope of this ruling, remains to within the limits of the basis under which it was issued. If you think I am wrong in doing so, then so be it... I think it came to a point in this thread where we agreed to disagree on several points. You can add one more entry to those points.

    In all honesty, and while it took a lot of effort to get through much of what we discussed here, and throughout that time, I had had the impression that you were as much after the truth as I was, that you were expecting a valid and appropriate ruling and that any interpretation of such would be based on the facts of this case. And because of that I couldn't care less if my understanding was wrong. In fact I still don't care whether I was wrong or right. And no, much to the disappointment of the OP , my ego is quite intact. At least I have an ego, I still have my self respect, and I still am after the truth... Which is quite different than what he has and what he is clearly after.

    Little did I know that while we were discussing vehicular crossings, 23334, 23250, studies but not surveys, the OP was manipulating the facts of this case by making it seem that there was a survey but it was not presented in court, and therefore his guilty verdict must be reversed. Of course I could not control what he submitted to the court. And you could deny this as much as he will, but when he submitted his CR143, his “proposed statement on appeal”, he was already aware that a survey did not exist, he was already aware that what he originally thought was a survey turned out to be a study. And yet he never mentioned any of that. Again, not my place to suggest or decide what he should present or what he shouldn't. But if in my opinion, I think he lied, then you can rest assured that I will epxresss my opinion and I will stick by it.

    What is even worse than his big lie, is the fact that I had never even anticipated that you would see as blatant an attempt to twist the facts as the OP has attempted here after his ruling, (when he was attempting to explain things to me for the last time -as he described it-), and not only to have you turn a blind eye to it, but to post your view that I need a time out because what I am doing might prevent future posters from being forthcoming?

    Frankly, TMN, you can continue to side with your claim that there is a presumption. You can continue to affiliate your stance with what Quirky analogized on here, but when you do, always remember that things may not seem to be what there are at first glance... What is that saying... “all that glitters, isn't gold”. Well, while it is not my intention to offend or insult anyone, while I would rather have this thread continue to fall further and deeper into the archives here, while I would rather avoid having to rehash and re-quote any more to try and convince you of what should have been obvious months ago, I think I would like to take one more stab at it but not to have you change your mind, no. Clearly and with the way you turned a blind eye to the bullshit that the OP is purporting, you needed this decision even more than the OP did. So go ahead and gloat, go ahead and sing “victory” with the OP, but rest assured that this victory was not based on an existing presumption, it was not based on factual basis of the laws as they were intended, it was based on yet another attempt by Quirky to demonstrate how he would attempt to turn laws backwards in an attempt to make a case out of nothing and regardless of how ridiculous an attempt it may seem. In other words, feel free to brag about you and Quirky agreeing there is a presumption, but do yourself a favor before you undertake such bragging rights... Re-read the information that Quirky posted. And understand that while he was styraight forward and matter of fact with you that there was a presumption, the information he was posting in response to me indicated nothing but a hypothetical. But don't believe me... Read through it yourself:

    Here is Quirky's first post in this thread:

    Quote Quoting quirkyquark
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    23334 is fascinating -- thanks TG/TMN. But ignoring the theory, here's a contrarian perspective, which completely ignores VC 23334, etc. -- make that the entire "survey", because it appears it was neither introduced or even referred to at your trial --- that means it's not and cannot be part of the appellate record.

    Let's see when VC 40802 requires a survey :

    • Prima facie limit (i.e. not a specific statutory maximum)?
    • Limit provided by the Vehicle Code ("under this code, or..." i.e. not, for argument's sake, say, the Streets and Highways Code)
    • Radar/Lidar used
    • Not local street/road or school zone


    All of this applies to your case -- the 55 mph on the "approaches" is PF and definitely NOT a statutory maximum (rule/regulation does not equal statute.) Case law is clear that the survey must therefore be produced in court. Whether the survey justifies the limit, complies with VC 627, MUTCD, etc. are questions that need only be considered if/once the survey is/was produced.

    I don't know if you've filed a notice of appeal (30 days limit), but if you have, I'd consider proceeding with a statement on appeal (get a recording if available) which accurately reflects the trial proceedings. Leave the 23334 arguments to the DA/CA...
    Fascinating indeed. A quick summary:

    1) Quirky's “contrarian” perspective;
    2) He ignores 23334 (even though it is the basis for how this speed limit was established in this case and without it being center stage this appeal has no basis);
    3) He refers to the “STUDY” as the “survey”;
    4) he describes what we later determined to be a “Maximum prima facie speed limit” as a PF limit;
    5) He misrepresents the speed limit as being 55mph possibly in his attempt to simply distance it (or Is it bring it closer) from (to) being a maximum limit by any means when in fact it is 50 mph and it is in every sense of the word a maximum speed as far as the type of limit it represents. Only that it is a maximum limit that is not represented by any of the 3 statutory authorities declaring max speed limits (22349(b) for the 55mph limit, 22349(a) for the 65 mph limit or 22356 for the 70 mph limit).

    That was not the end of Quirky's argument.... After you posted immediately after that post saying exactly what you refuted much later on in this thread, that 40802 lists several statutes upon which its definitions apply and yet none of those reference 23334 as being under the scope of 40802... This is the exact post where you got lost... This is where you stopped making any rhyme to any reason. It was like you had been brainwashed!

    Quirky had pulled the wool over your eyes (no disrespect intended) and all you could see from then on was a “presumption”. This is in spite of even more of Quirky's handy work. Not only did he manipulate and misrepresent the FIVE main elements in this case (listed above) but in post #23, he claims that the DOT cannot purport what it wants, as that would not be kosher?

    Well, the DOT did not purport anything, it did not enact 23334, instead the state legislature did. In it and similar to the authority that the legislature granted the DOT or local authority to establish speed limits pursuant to 40802 under certain circumstances, it also granted the DOT the authority to establish some sped limits under circumstances that are“less common and less treaded upon. And it is those rare exceptions that differentiated this case from any other California speed trap case that I am aware of”.

    As if it wasn't enough to misrepresent the language of the statute, Quirky also opted to provide a case law citation which he misrepresented the precedent it is known for, as his way to bolster his misrepresentation of the meaning of 23334 having granted the DOT with proper authority. In support of these convoluted conclusions, he cited People v. McClain whereby he claims that McClain was overturned simply because the court had ruled that the DOT was not authorized to establish laws which if violated, would result in someone being incarcerated.

    Obviously, that was far from being the holding the McClain court had made. While he did actually change his tune a bit, it was still way off. And it appears I actually responded to his same statement twice. Once was here:

    Quote Quoting That Guy
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    Quote Quoting quirkyquark
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    That opinion seems to only be freely available through the California Court's "public" Lexis system, with no direct linking, so I'll add it in entirety below. The reason I mentioned it is to show that DOT can't create statutory maximum speed limits. The violation of any speed limit purported to be established by rule/regulation via 23334 must be prosecuted via VC 23336, since that is the statute making such conduct unlawful and setting the penalty for it.

    Let me remind everybody that the person presenting this argument, was indeed the same person who argued for weeks, that the MUTCD (a document merely published by the DOT to establish rules and regulations that it operated under but not necessarily legal provisions intended to override, overcome or negate any laws or statutes), he claimed that the MUTCD had the full force and effect of the law, and that its provisions are deemed to have the power of acts of the legislature...

    Now it comes to a single provision allowing the DOT to establish a speed limit on a limited number of "highways"(if I may use that definition with it blowing up in my face), stretches that may not amount to more that a couple of hundred miles in total, compared to thousands and thousands of miles statewide, all while we all know that this is not the only instance in the vehicle code allowing such authority, although this, in Quirky's book, happens to be the one straw that broke the camel's back!

    I'm sorry Quirky but I still disagree! I am glad that you brought all this up though, simply because I had not been able to close several holes in my arguments in answer to TMN's objections, and I was looking way past the resources that I had available here... And although he did mention 23250 maybe more than once, I am guessing I never read and understood it as clearly as I did today. So I hope that this answers both of your objections.
    And as second time here:

    Quote Quoting That Guy
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    Quote Quoting quirkyquark
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    That opinion seems to only be freely available through the California Court's "public" Lexis system, with no direct linking, so I'll add it in entirety below. The reason I mentioned it is to show that DOT can't create statutory maximum speed limits. The violation of any speed limit purported to be established by rule/regulation via 23334 must be prosecuted via VC 23336, since that is the statute making such conduct unlawful and setting the penalty for it.
    Come on, Quirky, remember who you're arguing this with. ^That^ is an incorrect interpretation of what the court held in McLain and you know it. Problem with that is, it casts this cloud of ambiguity over each and every post you've made here. I'm not sure who you're trying to prove this to... McLain had no opinion as to which code section should be utilized to prosecute which violation; it simply ruled that a if a violation of a speed limit is to be declared as unlawful, and if a driver deemed in violation is going to be subject to imprisonment as a result, the decision to declare such speed as unlawful should be done by the legislature and not by the commission. In other words, McLain ruled that laws should not be established by any authority other than the state legislature.

    In other words, McLain after being caught driving at a rate of speed of twenty-eight miles per hour, in violation of an order of the California Highway Commission (the DOT's predecessor) fixing the maximum rate of speed of vehicles traveling over said bridge and between the limit markers at fifteen miles per hour. For this offense he was arrested, found guilty, and sentenced to imprisonment in the county jail.

    The court ruled that no one can be jailed based upon a violation established by the commission. Instead, the violation must be enacted by the legislature. So contrary to your interpretation, the fact that a speed violation can be cited under 23336 or 22350 matters not simply because both violations were set and enacted by the state legislature.

    Furthermore, VC 23250, 23334, 23336 or 22350 for that matter and others were not enacted by the DOT, they were enacted by the legislature! And so they are all valid in their own application!
    If none of that is going to make you second guess his entire theory including but not limited to his “presumption” then maybe this will clearly establish his true intent:

    Quote Quoting quirkyquark
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    Anyway, this is an academic argument since the OP seems to have hightailed it and I won't be continuing it unless another practical case/question comes up. I will note that Caltrans' own operations/maintenance manual (http://www2.dot.ca.gov/hq/esc/oe/pro...Volume%20I.pdf) makes no mention of the use of VC 23334 to set speed limits, while it does list VC 22354 and VC 22402. I suspect this use of VC 23334 may not be Caltrans policy, but possibly a district-only or even traffic engineer-only. Would be nice to discover more via more document requests for BATA-bridges and possibly other CPRA requests, but again, not worth it for a hypothetical.

    ...”this is an academic argument”.... “Would be nice to discover more via more document requests for BATA bridges and possibly CPRA requests, but again, not worth it for a hypothetical

    In between all of that his suspicion that 23334 is not Caltrans policy, that it is a district specific or traffic engineer specific, is another stretch simply because 23334 is a state statute, not only a part of some regional policy or one engineer's opinion.

    But that was the other angle that Quirky used as the basis for his establishing a “presumption” that really, could not exist simply because the elements required for it to exist are not valid. But that was not the only basis for his “presumption”...

    Quote Quoting That Guy
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    Quote Quoting quirkyquark
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    Quote Quoting That Guy
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    For now, this should be sufficient to get a few heads a-scratching:

    Of course with a survey not ever existing for a vehicular crossing, with one not being required for the same, and with that being a legally established FACT which has co-existed with the "vehicle code" ever since its inception, making the survey and the requirement to produce one the main issue of an appeal is kind of like hoping your imaginary friend will appear to testify as your star witness on your behalf at your trial!
    Assuming arguendo your 23334 argument is valid, this "FACT" still has to be established on/in the record by the prosecution...which, apparently, it was not.
    My 23334 argument *IS* VALID and no, VC 41100 Clearly states that there is no need to establish that “FACT” on/in the record by the prosecution.

    And I am still unsure as to how you “apparently” came to your conclusions when we are presumably reading the same info! The same way you cannot regulate the prosecution's case to a requirement to have to overcome a presumption of a speed trap in a maximum speed violation, you cannot impose such requirement in cases when the relevant code sections do not include that requirement!

    So the officer need not disqualify or qualify anything really. He simply testifies as he would in a maximum speed case, he mentions the clocked speed, mentions the speed limit, adds the icing on the cake by virtue of his training, throws in the calibration bit and he's done. Defendant can now start his uphill climb or he can face reality and concede!
    Still agree with Quirky? Is this what the law has been reduced to? The burden of proof is reduced to "A contrarian theory", in other words, a backwards approach? Does that mean that instead of one denying speeding, one should simply claim that he/she was not really speeding, only that the earth happened to decide to spin faster in an opposite direction that he/she was traveling and that, should be sufficient reason to convince a court of your innocence?

    I must say that I will never understand that side of Quirky. Still, had that been a similar idea to what was presented to the appellate here, at least I would give it an A for creativity. What actually transpired gets and A for being underhanded and sinister, and it gets a big FAT F for being honest and much less than forthcoming.

    While I have heard of “contrarian theories” as part of an investment strategy, I have never heard the term being applied to a legal analogy. So I don't how you assumed he had proved his presumption and to say you were convinced of his presumption would be an understatement. As for a n “arguendo”, that is defined as I am sure you already know as an alternative theory that a defense attorney might use to offer a theory, all while not admitting anything. But in the way Quirky used it, it ended up with a presumption being a fact and what are clearly facts getting flushed down the drain.

    Still think that you and Quirky agreed and therefore that must mean I am wrong? Still want to latch onto a “presumption” that was clearly a figment of someone's imagination, a contrarian theory and part of an arguendo? Please, don't let me influence your decision in any way. All of these facts are there for your review. But please do me a favor, when you affiliate yourself with the OP and while you condone his behavior of being underhanded and dishonest, it isn't me that is grouping you with anyone... You are doing that on your own!

    - - - Updated - - -

    Quote Quoting supralover23
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    And even more personal attacks to round the post out. Sigh.
    Oh quit the act... Because I am not buying your bullshit story... Nobody should. As far as the rest of your post here, as well as you shooting your mouth off in other threads, "patience is a virtue"... Far from being a fitting trait, but rest assured I will get to addressing your "claims" in due time.

    In the meantime, if you want respect? Earn it... Then again, I simply despise lies and those who tell them... so it maybe too late for you!

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting That Guy
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    TMN, you are free to call anything you want.... Just like I have and will continue to call :shenanigans: when it comes to this thread and this faulty ruling and the OP's continued attempts to not only manipulate the facts of his

    ...

    off in other threads, "patience is a virtue"... Far from being a fitting trait, but rest assured I will get to addressing your "claims" in due time.

    In the meantime, if you want respect? Earn it... Then again, I simply despise lies and those who tell them... so it maybe too late for you!

    Yikes. Knowing how long it takes me just to read your posts, I can imagine how long it takes to write them.

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting ptatohed
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    Yikes. Knowing how long it takes me just to read your posts, I can imagine how long it takes to write them.
    Probably just a fraction of the time! Even then, reading is not the only requirement when it comes to my posts... Understanding is just as important; and based on your comments in your own thread, you really leave a lot to be desired when it comes to the latter.

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting That Guy
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    In addition, and if you think I was “threatening” with anything I have stated, then you would be completely wrong. Of course I cannot and will not dictate what might or will happen. But I can and will continue to do what I can to make sure that the truth, the facts and the scope of this ruling, remains to within the limits of the basis under which it was issued. If you think I am wrong in doing so, then so be it... I think it came to a point in this thread where we agreed to disagree on several points. You can add one more entry to those points.
    If I misread or misunderstood what you were saying, then I apologize. It sounded like you were saying that the ruling was so wrong that you were going to push to have the DA's office review the case.

    Quote Quoting That Guy
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    In all honesty, and while it took a lot of effort to get through much of what we discussed here, and throughout that time, I had had the impression that you were as much after the truth as I was, that you were expecting a valid and appropriate ruling and that any interpretation of such would be based on the facts of this case. And because of that I couldn't care less if my understanding was wrong. In fact I still don't care whether I was wrong or right. And no, much to the disappointment of the OP , my ego is quite intact. At least I have an ego, I still have my self respect, and I still am after the truth... Which is quite different than what he has and what he is clearly after.
    I'm here to further my own understanding and to learn. Some of the same reasons that you're here. Later in your post, it sounded like you were saying that you thought that I was bragging. That really wasn't my intention. As I said before, I'm not here to keep score. I'm just here to further my own knowledge.

    Quote Quoting That Guy
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    What is even worse than his big lie, is the fact that I had never even anticipated that you would see as blatant an attempt to twist the facts as the OP has attempted here after his ruling, (when he was attempting to explain things to me for the last time -as he described it-), and not only to have you turn a blind eye to it, but to post your view that I need a time out because what I am doing might prevent future posters from being forthcoming?
    They say the road to hell is paved with good intentions. I wasn't trying to single you out in particular for a time out. Rather, I had hoped that both you and Supra would take it easy for a while. However, right after I posted he attacked you back. I appear to have done nothing to broker peace or civility.

    Quote Quoting That Guy
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    Frankly, TMN, you can continue to side with your claim that there is a presumption. You can continue to affiliate your stance with what Quirky analogized on here, but when you do, always remember that things may not seem to be what there are at first glance... What is that saying... “all that glitters, isn't gold”. Well, while it is not my intention to offend or insult anyone, while I would rather have this thread continue to fall further and deeper into the archives here, while I would rather avoid having to rehash and re-quote any more to try and convince you of what should have been obvious months ago, I think I would like to take one more stab at it but not to have you change your mind, no. Clearly and with the way you turned a blind eye to the bullshit that the OP is purporting, you needed this decision even more than the OP did. So go ahead and gloat, go ahead and sing “victory” with the OP, but rest assured that this victory was not based on an existing presumption, it was not based on factual basis of the laws as they were intended, it was based on yet another attempt by Quirky to demonstrate how he would attempt to turn laws backwards in an attempt to make a case out of nothing and regardless of how ridiculous an attempt it may seem. In other words, feel free to brag about you and Quirky agreeing there is a presumption, but do yourself a favor before you undertake such bragging rights... Re-read the information that Quirky posted. And understand that while he was styraight forward and matter of fact with you that there was a presumption, the information he was posting in response to me indicated nothing but a hypothetical. But don't believe me...
    As I said before, I'm not interested in the bragging rights and wasn't trying to gloat. I tried to make that clear in a previous post. I think that the OP won on a technicality. If he faced off against a competent prosecutor, he would have been found guilty. But I'm still not understanding how we don't agree about 40803(b). Maybe I am stupid, but "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 speedtrap as defined in paragraph (2) of subdivision (a) of Section 40802." I took this to mean that since the OP was ticketed on a charge involving the speed of a vehicle where enforcement used radar, then the prosecution had to introduce evidence that shows that 40802 doesn't apply. This could have been the officer's testimony that the OP was ticketed on a vehicular crossing. It also could have been the court taking judicial notice that the intersection where the citation occurred was on a vehicular crossing. The officer could have also introduced the study that said the speed limit was set according to 23334. But none of those things happened. The court settled the statement on appeal. The People's prima facie case was defective because they didn't show that the speed trap laws don't apply. I agree with you that the speed trap laws don't apply here, but evidence to prove this wasn't introduced.

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting themadnorwegian
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    They say the road to hell is paved with good intentions. I wasn't trying to single you out in particular for a time out. Rather, I had hoped that both you and Supra would take it easy for a while. However, right after I posted he attacked you back. I appear to have done nothing to broker peace or civility.
    If you don't mind, could you point out what was construed as me attacking TG?

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting supralover23
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    If you don't mind, could you point out what was construed as me attacking TG?
    The hypocrisy of your question is that you were good enough to point out "oh another personal attack" to describe realistic factual descriptions I made in my post but you couldn't decide which offensive comments you were making in yours? If you're incapable of making such determination then you should refrain from using the "Reply" or the "Quote" buttons.

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting That Guy
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    The hypocrisy of your question is that you were good enough to point out "oh another personal attack" to describe realistic factual descriptions I made in my post but you couldn't decide which offensive comments you were making in yours? If you're incapable of making such determination then you should refrain from using the "Reply" or the "Quote" buttons.
    "Oh, another personal attack" was a realistic factual description of your posts, both in this thread and elsewhere. I have never once insulted you, derogated you, or anything of the sort. Since I first posted here, I've been nothing but civil and polite, despite your inflammatory comments. How about we get some unbiased third parties (maybe some site administrators?) to come take a look, and make a determination on which posts are more antagonistic, yours or mine.

    Oh, and by the way, I'm still waiting patiently for your response to this post, going on about a month now.

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    Default Re: CVC 22350 -- Worth It to Appeal

    Quote Quoting supralover23
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    "Oh, another personal attack" was a realistic factual description of your posts, both in this thread and elsewhere. I have never once insulted you, derogated you, or anything of the sort. Since I first posted here, I've been nothing but civil and polite, despite your inflammatory comments. How about we get some unbiased third parties (maybe some site administrators?) to come take a look, and make a determination on which posts are more antagonistic, yours or mine.
    The site administrators have better things to do that to try and convince you of where you went wrong! If you feel like getting chewed out by one of them, then feel free to summons them to mediate. In the meantime, keep living in your fantasy world!

    Quote Quoting supralover23
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    Oh, and by the way, I'm still waiting patiently for your response to this post, going on about a month now.
    You don't decide when or how I respond... In fact every time you mention it, your reply goes back down to the bottom of the list! If you'd like to wait when your turn comes, then fine... If not, then that's fine too; you'll still get your reply when I say you'll get your reply!




    Quote Quoting themadnorwegian
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    If I misread or misunderstood what you were saying, then I apologize. It sounded like you were saying that the ruling was so wrong that you were going to push to have the DA's office review the case.
    I seriously am not asking for an apology TMN, far from it. Would it be so wrong if I did in fact contact the DA's office to have the case reviewed? I don't think so... Even if you think it was wrong, this thread is filled with differences of opinion about a number of different topics that who knows, we may both be way off about... So what is one more disagreement!

    Quote Quoting themadnorwegian
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    I'm here to further my own understanding and to learn. Some of the same reasons that you're here. Later in your post, it sounded like you were saying that you thought that I was bragging. That really wasn't my intention. As I said before, I'm not here to keep score. I'm just here to further my own knowledge.
    I am glad you recognize that is what I am here for, and I hope that the other reasons that you did not mention do not include any egotistical or self righteous reasons that supra believes I have; quite the contrary, what might seems like a self righteous egotistical attitude to him, and whether you agree or disagree with that, is simply indicative of the fact that he's clearly intimidated by my knowledge. There is a fine line between self-righteous and egotistical versus self confident and self assured. And anyone who sees the former in me is simply too immature to know the difference.

    I might seem a bit snarky in many of my posts, but seriously, having been on this forum and elsewhere for as long as I have and reading some if the silly half brained excuses some people might post, take it as my way of telling you that an experienced judge will see it as 10 times more silly and unbecoming than I would. But to assume I am saying it out of my belief that I am holier than thou, you couldn't be anymore wrong about me!

    Quote Quoting themadnorwegian
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    They say the road to hell is paved with good intentions. I wasn't trying to single you out in particular for a time out. Rather, I had hoped that both you and Supra would take it easy for a while. However, right after I posted he attacked you back. I appear to have done nothing to broker peace or civility.
    I firmly believe that as we go though life, and for each responsibility that we voluntarily undertake, we are assuming ownership of the same even if it was never ours to begin with. Case in point, he is pretending to be clueless as to how offensive and out of line he was. And he's laid it in your lap to try and explain to him where he went wrong! I say leave it alone, then again, and at the risk of sounding like a hypocrite, I will be asking you to explain to me how is it that you missed his attempt to misrepresent, or should I say torture the ruling he got into something that it is not even close to being... So maybe you should feel free to answer whatever question he might have.

    Quote Quoting themadnorwegian
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    As I said before, I'm not interested in the bragging rights and wasn't trying to gloat. I tried to make that clear in a previous post.
    Did I misunderstand any part of your post to mean that you were bragging when you were not? Not even... So let me rephrase what I stated previously. “In spite of the fact that I do not feel you are here to brag or gloat, I urge you to start bragging and gloating if you are able to tell me that you still truly feel that Quirky's opinion is factual or that his so called 'presumption', -a presumption that he was not able to prove and later interpreted as an unproven hypothesis- still exists... Let me elaborate...

    The understanding I had and still have is that you simply stated that you and Quirky agreed and so I am, by definition (and through your pulling of the Quirky card) incorrect in my approach. As if the Quirky card was the ace up your sleeve that I didn't know about. Well, it wasn't... In fact I had stated in the past that although you had initially agreed with Quirky's presumption, your arguments were based on different points than those presented by Quirky. If I am wrong about that, and if you continue to draw strength from Quirky's points, then you are by my definition undermining the strength of your argument simply because it should be clear that Quirky's validation is quite lacking.

    I realize that talking about Quirky when he isn't here to reply might be looked at as being improper, however, I am not criticizing Quirky for being Quirky, I am simply attempting to show how the one issue that he brought forth and how the seeds for a theory that he planted (the "presumption") had no basis under the law; that it was a simple "what if" that could not be sustained as his attempt to explain it progressed and that at the end, he flat out admitted that it was an academic hypothesis that needed more research before it could get developed into a valid theory.

    In the meantime, you were convinced by its validity, but rather than going back to review, reiterate and strengthen Quirky's points, you opted to go searching for points that you are still arguing are valid, even though they are not. Mainly, that 40803 states “in every prosecution involving the speed of a vehicle” when in reality it could not refer to “every prosecution involving the speed of a vehicle” simply because there are several speeds and cases where it would fail several tests if applied thereto!

    My next question would then be another blunt inquiry as to whether you still feel that Quirky's representation of the “presumption” he claimed to exist, and in light of the nature and content of his posts making such a claim, is still as strong and as valid as it had been throughout the length of our entire discussion? A “yes, I feel strongly that a presumption still exists” or “no, I am now having some doubts as to the existence of such a presumption” answer will suffice here as well.

    Quote Quoting themadnorwegian
    View Post
    I think that the OP won on a technicality. If he faced off against a competent prosecutor, he would have been found guilty.
    So... Justice, in your opinion should not be necessarily based on the facts of the case and not on the relevant points of law, as well as on a judge's ability to ascertain such facts and understand such points. It should instead be based upon whether it is fiscally feasible for a prosecutor to review a defendant's possibly false claims and to invest the resources in submitting an answer by which the court could even begin to review the pertinent facts underlying each and every case.

    Gotcha...

    If that is the case, the infraction appeals are no longer be based upon whether grounds for each appeal exist or not and instead should be based ion whether a defendant can slip his case to the appellate without waking up the big bad monster that is the prosecutor. There is so much wrong in that I wouldn't know where to start.

    In addition, does that sentence mean that had there been a prosecutor in this case, then you would not have argued the existence of a presumption? Because a presumption would no longer exist?

    Is that your way of conceding that the OP has no claim here? Your way of agreeing with me that this appeal and particularkly the reversal part of it is a sham and an injustice?

    Quote Quoting themadnorwegian
    View Post
    But I'm still not understanding how we don't agree about 40803(b). Maybe I am stupid, but "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 speedtrap as defined in paragraph (2) of subdivision (a) of Section 40802." I took this to mean that since the OP was ticketed on a charge involving the speed of a vehicle where enforcement used radar, then the prosecution had to introduce evidence that shows that 40802 doesn't apply. This could have been the officer's testimony that the OP was ticketed on a vehicular crossing. It also could have been the court taking judicial notice that the intersection where the citation occurred was on a vehicular crossing. The officer could have also introduced the study that said the speed limit was set according to 23334. But none of those things happened.
    All of the above point that you mention are VALID points... Under circumstances that your presumption does in fact exist! They are subsequent steps that follow the establishment of a presumption not the other way around. The fact that there is a study in this case and not a survey means those requirements and steps which you outlined are not feasible, they aren't required and have no place in the process that resulted in this conviction.

    In other words, you know that a presumption does not apply in this case simply because you are aware that (a) the speed limit was set pursuant to 23334, that (b) there is a study and not a survey, that ( c) this is a vehicular crossing and that (d) speed trap laws do not apply. Judge Novak did not know any of that.

    How is it that you and I were able to deduce the involvement of CVC 23334, 23250, vehicular crossings and speed studies versus speed surveys, in this case? We had to review the underlying information that is applicable here. And as such, that information is an integral part of any review. Whether it is one conducted by a judge sitting at the appellate level or by two laymen trying to play Monday morning quarterback.

    If you, Quirky and the defendant were so sure that this presumption exists, even knowing full well that it did not apply by virtue of the fact that the speed limit here was set per 23334, and as such a speed trap could not be proven, then why is it that part and parcel of this plan that Quirky drew up, was a well defined step to simply refrain from any reference to 23334 (“let the DA/CA bring it up if they want”)?

    If you, Quirky and the defendant were so confident that this presumption exists, even knowing full well that a survey did not exist and as such a speed trap could not be proven, then why is it that the defendant found it critical that he mention that a survey should have been produced even though by the time he submitted his brief (not his settled statement) there was no doubt in anyone's mind (well, except for Quirky's) that a survey did not exist?

    If you, Quirky and the defendant were so convinced that this presumption exists, even under the (a) through (d) circumstances I described above, circumstances that were undeniable in this case, then why refrain from introducing any of those facts as part of the case? And why is it that the defendant's brief is void of any mention of any of them. Instead, he did not hesitate on wasting much needed space to explain how, why and when a “survey” which is not relevant in this case, is the cornerstone for why this decision should be reversed?

    After all, if it is your opinion that in spite of the fact that these (a) through (d) circumstances existed, and if CVC 40803 still applied here and the prosecution still had the obligation to overcome that so called presumption, then why refrain from mentioning any of these facts I described under (a) through (d) above?

    If it is as you have continued to impress and attempt to convince me, such a “presumption” applies each and every time a speeding case is brought into court, then why not mention the (a) through (d) facts I outlined above and still claim that this so called presumption still exists even under those circumstances and that as such, this conviction shall be overturned for (1) in the interest of justice and (2) in line with what you are purporting to be the true meaning and application of California's speed trap laws?

    Quote Quoting themadnorwegian
    View Post
    The court settled the statement on appeal.
    And?

    I do not see that as the court further validating any sort of presumption, nor is it to be considered as a way to further confirm a requirement that the officer should have presented a study or that he must overcome any sort of presumption. The fact that the court settled the statement, is to simply confirm that “yes, this is the context of what transpired in court”, does that in fact validate the defendant's grounds for appeal as being valid? Not by any stretch. Does it in fact approve of what he later argued as part of his opening brief (a document that was not reviewed by the lower court nor was it signed off on by no one)? Not by any definition!

    In other words, you'll have to keep in mind that the defendant's arguments were broadly expanded upon in the brief that he submitted to the appellate. It is in that document that he was able to manipulate the facts, eliminated some basic information about circumstances that existed in this case, and expand upon a hypothetical “presumption” that not only does not apply under the circumstances but one that simply turned out to be an academic hypothesis that had no basis or foundation in this case. Why? Simply because it is impossible to apply in such a case (a survey that does not exist is impossible to present to overcome a presumption that isn't there and a study need not be presented to overcome the presumption simply because the law does not require nor does it mention that the officer needs to present a study to overcome a made up presumption).

    The court did not sign off on the defendant's brief... Did it? The district attorney did not receive a copy so that it could be reviewed thereby giving them the opportunity to file a response. Did they? And The appellate judge has no clue as to what was or is or isn't required in a speed trap case, she read the defendant's brief, and without any opposition or even a hint of research, she signed off on his understanding without any question or doubt.

    Did we forget about the standard of review that we seem to repeat to each and every defendant who comes along wanting to appeal? What happened to a “review in a light most favorable to the verdict”? And how does that favor your alleged “Presumption”?

    That alone should have prompted the Honorable judge in this case to reach out to one of those references I assume she has access to, to review what valid presumptions are applicable in this case.

    Quote Quoting themadnorwegian
    View Post
    I agree with you that the speed trap laws don't apply here, but evidence to prove this wasn't introduced.
    And it is still my contention that you are still only halfway there...

    Do you seriously believe that a judge sitting on the appellate division, should base her decision on 100% of the defendant's brief?
    Do you feel that it would be proper for that judge to simply review the facts that are presented by one side and decide the case based on that half of the story? Or do you believe that a judge has the duty to establish his/her own knowledge base so that she can fairly and properly and accurately decide a case on its merits and not strictly on the basis that a defendant's brief looked nice and included many seemingly relevant citations all while ignoring the simple fact that there might be other provisions of law involved here that needed to be reviewed as well?
    Do you seriously think it is proper for her to get paid over a Quarter of a million dollars a year to wear that robe and sit up on the bench saying "nice looking brief son, what font is it that you used? ... and all these nice full paragraph citations that you used and included in here, it simply makes my job so easy... All of them say you're not guilty! We'll let you know within 90 days".

    Plain and simple, TMN, she should be embarrassed to have even considered making ruling without a review of ALL relevant facts. Facts which I believe that the OP manipulated in this case. Pretty underhanded and dishonest in my opinion, but that does not relieve her of the responsibility to decide the case on merit. OK, so what is "merit"? Is it simply reduced to the defendant's understanding of the law? Should we tear down each and every wall of books and references that each and every judge has in his/her chambers in lieu of the contents of a defendant's brief? Or do you feel that a judge might need a reference or four to review the basis of a defendant's claim who might have been more motivated by ignorance or greed or both than he was by the facts of law.

    (And no, the “ignorance and greed” references are not by any means pointed at you. At least not until there is an indication that you were fully aware of what the OP argued in his brief... Until now, I am assuming those arguments and since they were not the focus of OUR discussions and as such I can only attribute them to the party that owns them).

    Last but certainly not least, the role of a judge is to decide a claim based on the legal basis for such a claim, not based on the information that only one party decides will favor its cause. If this is not a valid definition, then why should we wait for judges to become seasoned to make it to the appellate? Let us decide appellate issues by arbitration. You present your points, no one from the other side presents anything, and the arbitrator gets to decide the case based on how favorable a result you feel you are entitled to. That is the EXACT description of what happened in this case.

    And you are trying to tell me that is fair? Are you freaking kidding me?

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