Does that include the 55mph MAXIMUM Statutory limit?
Produce what document?
An E&T survey which does not exist?
Or A "study" which AGAIN, is not required per 23334 (See * below)
This is bringing up a deja vu of construction zone speed limits where there is no requirement to conduct a survey and yet you would suggest that the prosecution still has the burden of producing a survey... that does not exist, and one which may even be impossible to conduct in a contrsuction zone in that they are constantly changing!
Just like it would be sufficient for the officer to simply testify that a speed violation occurred in a 65mph zone, or a 55mph zone or a 70mph zone is sufficient to overcome the burden that an E&T survey need not be produced to justify the statutory speed limit, the mere mention by testimony that this is a "crossing" should be sufficient to provide enough reason to overcome the presumption that an E&T survey is not required.
The defendant can then object to the definition of a crossing to see whether he can provide one in connection to the location of the violation, but as you can probably tell, we were not ever able to establish the location with any reasonable certainty, at least not one which would overcome the presumption that the violation had occurred on the crossing.
So a statutory limit is a hard number (i.e. 25mph) set by the legislature (as in a school zone as described in 22352 as well as referred to in Goodrich) and so your claim that a 25mph school zone limit is a max limit?
And yet 22352, the same code authorizing such limit states:
(a) The prima facie limits are as follows
and shall be applicable unless changed as authorized in this code and, if so changed, only when signs have been erected giving notice thereof:
(2) Twenty-five miles per hour
(A) On any highway other than a state highway, in any business or residence district unless a different speed is determined by local authority under procedures set forth in this code.
(B) 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.
I see a statute, I see a description defining "prima facie", I see a hard number (i.e. 25mph) and I see the definition of a "school zone!
The appellate has no place to establish or disestablish anyone's authority if such authority was established by statute. What statute? You'll see in a minute...
But there is no need to go to the appellate to ask for a review so as to establish that 23334 being inconsistent with any other provision in the code, would mean that the provisions of 23334 control, rule and prevail. Such authority is already clearly established by law:
23250. All of the provisions of this code not inconsistent with the provisions of this chapter shall be applicable to vehicular crossings and toll highways. This chapter shall control over any provision of this code inconsistent with this chapter.
That simply means... Any provisions under the code which are in agreement with the provisions under chapter 13 are applicable; however, any inconsistency of this chapter with the rest of the code, i.e. other provisions in the vehicle code such as Prima Facie Limits and requirements for E&T surveys to establish PF limits, all of those provisions and since they are inconsistent with the provisions of this chapter, are thrown out the window and the provisions of this chapter, chapter 13 are applicable to vehicular crossings and toll highways.
That makes the following, an applicable statute in spite of your suggestion that it conflicts with other provisions of the code.
23334. The Department of Transportation may adopt rules and regulations not inconsistent with this chapter for the control of traffic on any vehicular crossing to aid and insure the safe and orderly flow of traffic, and shall, so far as practicable, notify the public of the rules and regulations by signs on the vehicular crossing.
Is that inconsistent with the speed related statutes under chapter 7:
DIVISION 11. RULES OF THE ROAD
CHAPTER 7. SPEED LAWS
Article 1. Generally ........................................ 22348-22366
Article 2. Other Speed Laws ................................. 22400-22413
It sure as hell is, but you'll note that 23334 through 23336 ids not part of Chapter 7, instead, they are part of Chapter 13:
DIVISION 11. RULES OF THE ROAD
CHAPTER 13. VEHICULAR CROSSINGS AND TOLL HIGHWAYS
Article 1. General Provisions ............................... 23250-23255
Article 2. Towing on Vehicular Crossings .................... 23270-23273
Article 3. Tolls and Other Charges .......................... 23300-23303
Article 4. Special Traffic Regulations ...................... 23330-23336
I refer you back to VC 23334 and ask you to note that it states that as long as it is not inconsistent with any provisions under that chapter, meaning chapter 13, the the legislature has authorized the DOT to adopt rules and regulations for the control of traffic on any vehicular crossing and those rules would be in effect and would override any inconsistency you may find with provisions from any other chapter of the vehicle code.
Further more and with the speed trap rules being part of a different Division (Division 17), and as a result, a different Chapter and certainly a different Article (Not the same division 11 chapter 7 OR division 11 Chapter 13), again, 23334 would not fall under those requirements to produce an E&T survey in this case!
The DOT did not establish its own authority under 23334, the legislature did!
Not relevant for vehicular crossing in that those have a different set of rules:
Enforcement of a PF limit on a highway not subject to 22404 or 23334 requires an E&T survey to justify the posted limit, PLUS the posting of the speed limit.
Enforcement of a speed limit on a bridge not subject to 40802 or 23334 requires (1) a study (an investigation), PLUS(2) a public hearing PLUS (3) the posting of a notice and/or the speed limit on the bridge.
Enforcement of a speed limit on a vehicular crossing not subject to 40802 nor 22404 requires (1) notice to the public of the rules and regulations (including the speed limits) by signs on the vehicular crossing.
The fact that a study was conducted in this case which also cited 23334 is clearly, not necessarily part of any requirement, though it certainly appears to be part of the due diligence that the DOT is free to perform in cases where it chooses to but is not obligated to do so! (from * above). And so one could presume that there was no study for the officer to present. Would that make those speed limits unenforceable?
22350 is not only citeable for PF violations. It can be used in any circumstance including max limit violations!
neither 22405 nor 22402 are relevant here....
But in using the same analogy, speed limits on vehicular crossings are authorized as part of the authority granted to the DOT to perform traffic control on vehicular crossings.
And 22351 needs a PF limit (either under PF for subsection (a) to apply) or (over PF for subsection (b) to apply).
You just said it was... You said it would not apply in 22405 cases as your attempt to further suggest that it would not apply here!
And yet by citing 22350 does not necessarily suggest that a violation of a PF limit, does not invoke speed trap laws nor the requirement to produce a survey...
A speed limiut established pursuant to 23334 was set as a way to control traffic on any vehicular crossing and to aid and insure the safe and orderly flow of traffic... And so to you, a speed measured at 28miles per hour in excess of that limit of 50mph, still needs further proof that it was unsafe? Really?
With that being said, you couldn't even justify a speed of 78 being legal in a 70mph speed limit zone. Are you telling me you'll have a hard time convicting in a case where the defendant was clocked at 78 in a 50mph?
And last but certainly not least, you can claim that in every case where all hope is lost but really it need not apply in every 22350 prosecution, I don't case what Behjat (the joke of case law) held!
If you think that is a reasonable analogy, let me know I'll respond to it... I know and you know that would never happen!
If you choose to reply... I will probably refer you to 23250 again...
Its the same authority that is granted to the DOT under several other statutes... Why is it that in this case it is the authority gets questioned?
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 one 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.