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  1. #21
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    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...

  2. #22
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting quirkyquark
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    Let's see when VC 40802 requires a survey :

    [LIST][*] Prima facie limit (i.e. not a specific statutory maximum)?[*] ...
    Not disagreeing with you, because it was my contention that complying with 22354 was consistent with 23334; however, in the survey that the OP obtained, the DOT used 23334 as their justification for setting the speed limit. You'll note that a prima facie speed limit established under 23334 isn't listed as one of the preconditions to qualify for 40802(a)(2) and 40802(c)(2)(B)(i), which is the genesis for this whole digression, IMO.

    Quote Quoting CVC 48082(a)(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.
    Above just for posterity.

    Edit: Nevermind, I get your point -- the prosecution had the burden of showing that 40802 wasn't in play but failed to do so. Sorry I'm slow on the uptake tonight.

  3. #23
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting themadnorwegian
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    DOT used 23334 as their justification for setting the speed limit. You'll note that a prima facie speed limit established under 23334 isn't listed as one of the preconditions to qualify for 40802...
    Well, my point was that DOT can purport to use whatever they want to justify something; that doesn't make it kosher. That's for a court to decide, and an appellant should let the DA/CA play devil's advocate (if they want to). On its face, the only speed laws on the books are 22348-22366, with special cases in 22400-22413.

    All the appellate record (citation, statement/transcript) shows is that the alleged 22350 violation was of a 55 mph PF (circled) limit on a six-lane(?) state highway, enforced by radar. That makes it "prima facie" subject to 40802.

    If we assume the limit was set under the vague authority provided by 23334, I think 22350 is not the best citing statute (23336 would be). This is because the 22351(b) presumption of guilt only applies to p.f. speed limits either in 22352 or "established as authorized in this code." I would argue that since 23334 does not explicitly authorize DOT to set arbitrary speed limits on vehicular crossings, and DOT cannot be delegated the authority to create new laws, then the limit is unauthorized - at least for 22351(b) purposes. For some light reading re this last part, see the interesting 1923 CA Supreme Court case of Ex parte McLain (190 Cal. 376); McLain went 28 mph over a bridge whose limit DOT's predecessor set to 15 mph.

  4. #24
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting quirkyquark
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    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 --
    Your theory lives and dies by the mere presumption that a limit set by 23334 is a PF limit... Where do you find reason to establish that a speed limit set by 23334 is a PF limit?


    Quote Quoting themadnorwegian
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    the prosecution had the burden of showing that 40802 wasn't in play but failed to do so. Sorry I'm slow on the uptake tonight.
    Only if the speed limit in the related case is a PF limit... I'm still missing the part where we could even begin to assume that 23334 sets a PF limit.

    Quote Quoting themadnorwegian
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    however, in the survey that the OP obtained, the DOT used 23334 as their justification for setting the speed limit.
    Correction: not a "survey"... A "study". Big difference!


    Quote Quoting quirkyquark
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    Well, my point was that DOT can purport to use whatever they want to justify something; that doesn't make it kosher. That's for a court to decide, and an appellant should let the DA/CA play devil's advocate (if they want to). On its face, the only speed laws on the books are 22348-22366, with special cases in 22400-22413.

    All the appellate record (citation, statement/transcript) shows is that the alleged 22350 violation was of a 55 mph PF (circled) limit on a six-lane(?) state highway, enforced by radar. That makes it "prima facie" subject to 40802.
    So the D.O.T. can purport anything they want and that doesn't make it kosher... But the officer possibly randomly marking anything on the citation makes a misclassification of a speed limit, and that becomes a kosher reason why a conviction could be turned over on appeal?

    In other words, let us assume that the appellate established reason why a limit set by 23334 is not a PF limit, would that then make the officer's classification of the limit as a PF limit, an obligation to the prosecution to produce a survey even though one will never exist for a bridge or a crossing?

    Is it then your suggestion that speed limits could not be enforced by Radar on a bridge/crossing simply because it is not part of D.O.T. policy (or more importantly) is it NOT stated, ANYWHERE, in the code that a bridge/crossing limit will ever need to be justified by a survey?

    - - - Updated - - -

    Quote Quoting quirkyquark
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    If we assume the limit was set under the vague authority provided by 23334, I think 22350 is not the best citing statute (23336 would be).
    While it might not be the "best" statute to cite, there certainly is no restriction NOT to cite 22350 for citations within zones that are NOT subject to PF limits, is there? I cannot see one reason why 22350 is limited to zones with PF limits!

    Quote Quoting quirkyquark
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    This is because the 22351(b) presumption of guilt only applies to p.f. speed limits either in 22352 or "established as authorized in this code."
    Clearly, 22351 need not even be brought into the picture here or that it must be utilized for every 22350 citation?

    Why, you might ask? Well, simply because 22351 (a) AND (b) both apply to circumstances when the speed limit is considered a PF limit. 22350, on the other hand, covers a wider scope than those limits established as PF limits.

    Example: 22350 would apply in a 65mph speed zone established as a MAX speed according to 22349. Does that mean 22351(b) must apply then?

    Quote Quoting quirkyquark
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    I would argue that since 23334 does not explicitly authorize DOT to set arbitrary speed limits on vehicular crossings, and DOT cannot be delegated the authority to create new laws, then the limit is unauthorized - at least for 22351(b) purposes.
    23334 authorizes the DOT to establish ANY RULES AND REGULATIONS including but not limited to speed limits, so while it does not explicitly specify speed limits, that is included in under the ANY part...

    And again, no one has purported that a 22350 citation must be proven via a purpose that is described under 22351.

    Quote Quoting quirkyquark
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    For some light reading re this last part, see the interesting 1923 CA Supreme Court case of Ex parte McLain (190 Cal. 376); McLain went 28 mph over a bridge whose limit DOT's predecessor set to 15 mph.
    Did 22351 or anything similar to it even exist in 1923?

    Other than that, the fact is, Radar use and its application into speed trap rules did not happen until 1955 when Scott Beamer (In Re Beamer ) opted to go out and intentionally speed, as a test of the legislatures meaning and intent behind the new requirement. And for those who don't know about the Beamer case, not only did he spend some time in jail as part of the penalty for his conviction of 35 in 25mph zone. But in his insistance that he go through the test that he intended on, the cops and due to the relatively new device they were using at the time, they missed him on his first pass... So he turned around and sped past them a second time... or so the story goes!

    So how is it that this scheme here relative to existing laws versus those which were argued back in 1923?

    - - - Updated - - -

    Quote Quoting quirkyquark
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    For some light reading re this last part, see the interesting 1923 CA Supreme Court case of Ex parte McLain (190 Cal. 376); McLain went 28 mph over a bridge whose limit DOT's predecessor set to 15 mph.
    Dead link... Yo!

    Response Error.

    Technical description:
    502 Bad Gateway - Response Error, a bad response was received from another proxy server or the destination origin server.

  5. #25
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    My point is that given a multi-lane state highway that isn't a school/senior zone, any speed limit lower than 65 mph should be considered prima facie, and given the conduct at trial, the appeal should proceed on the basis that the 40802 speed trap presumption applies. It was the burden of the prosecution to produce that document at trial and claim that because of 23334 it didn't apply, and they did not satisfy this burden.

    Quote Quoting That Guy
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    Your theory lives and dies by the mere presumption that a limit set by 23334 is a PF limit... Where do you find reason to establish that a speed limit set by 23334 is a PF limit?
    Anything not a max speed limit is PF, and maximum speed limits must be statutory. (read: set at a hard number by the Legislature, and not via rule/regulation by the Executive). See:

    Quote Quoting People v. Goodrich (1994) 33 Cal. App. 4th Supp. 1, 4
    We hold that the rules and procedures governing speed traps and the use of radar are inapplicable to those cases where the state Legislature has mandated a maximum speed of a vehicle — in this case, 25 miles per hour at a school when children are present. (Veh. Code, 22352, subd. (b)(2).)

    The Legislature encourages local authorities to set speed limits on "their" local streets and highways and to do so in accordance with the motoring patterns from the 85th percentile of drivers (Veh. Code, 627; CalTrans Traffic Manual 8-03.3). The Legislature has repeatedly shown its ongoing disapproval of speed traps. (People v. Sullivan (1991) 234 Cal. App.3d 56 [285 Cal. Rptr. 553]; Veh. Code, 40808.)

    But where, as in this case the Legislature has intervened and set the 25-mile-per-hour school-zone speed limit, the local authorities are prohibited from raising the limit even if a higher speed would be equally safe and/or justified by a traffic and engineering survey. (Veh. Code, 22347.)
    Quote Quoting That Guy
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    In other words, let us assume that the appellate established reason why a limit set by 23334 is not a PF limit, would that then make the officer's classification of the limit as a PF limit, an obligation to the prosecution to produce a survey even though one will never exist for a bridge or a crossing?
    If the appellate court establishes that 23334 overrides 22354.5 and allows setting speed limits, then what kind of limit it is wouldn't matter because 40802 wouldn't apply. But they have to establish that, not DOT.

    Quote Quoting That Guy
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    Is it then your suggestion that speed limits could not be enforced by Radar on a bridge/crossing simply because it is not part of D.O.T. policy (or more importantly) is it NOT stated, ANYWHERE, in the code that a bridge/crossing limit will ever need to be justified by a survey?
    No, radar can definitely be used on a bridge. "Max safe" bridge speed limits are to be set pursuant to VC 22404, following an engineering "investigation." Even though these would be prima facie limits for the purposes of VC 22350 violations (but not VC 22405 violations), they are explicitly authorized by VC 22402 and the speed trap laws don't apply (while the 22351(b) presumption of guilt does).

    Quote Quoting That Guy
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    While it might not be the "best" statute to cite, there certainly is no restriction NOT to cite 22350 for citations within zones that are NOT subject to PF limits, is there? I cannot see one reason why 22350 is limited to zones with PF limits!
    Of course 22350 isn't limited. By "best" I meant that if the speed limit is purported to be set via 23334, then it's best to simply cut off any speed trap or "safe speed" argument by citing 23336 instead.

    Quote Quoting That Guy
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    Clearly, 22351 need not even be brought into the picture here or that it must be utilized for every 22350 citation?
    When 22351 isn't or cannot be used, then the prosecution must prove that the speed was unsafe (i.e. "unreasonable" or "endangering") instead of simply relying on it being in excess of the limit.

    Quote Quoting That Guy
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    23334 authorizes the DOT to establish ANY RULES AND REGULATIONS including but not limited to speed limits, so while it does not explicitly specify speed limits, that is included in under the ANY part...
    So, in theory, they could set the speed to 100 mph via 23334, and that would override VC 22349/22356, because hey, 23334 controls over everything else in the VC which conflicts, right? Of course not. It's up to a court to circumscribe the limits of that authority.

    Quote Quoting That Guy
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    Did 22351 or anything similar to it even exist in 1923?
    Yes, long before then -- since 1905, in fact:

    Quote Quoting quirkyquark
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    In looking at the history of 22351, it's retained this language since the VC was reorganized in 1959. It was originally written in 1905(!), and the older version (just before the 1935 amendment to current language) is certainly more explicit in the consequences:

    Quote Quoting 22351b part of Vehicle Code 511 in 1935, before 1935 amendment to current language
    The speed of any vehicle upon a highway in excess of any of the limits specified in this section is prima facie unlawful and warrants conviction for illegal speed except that the defendant is entitled to an acquittal in the event it is established by competent evidence that any said speed in excess of said limits did not constitute a violation of the basic rule declared in 510 hereof at the time, place and under the conditions then existing.
    Quote Quoting That Guy
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    So how is it that this scheme here relative to existing laws versus those which were argued back in 1923?
    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.

    Quote Quoting In re McLain (1923) 190 Cal. 376


    (read California Highway Commission as Caltrans/DOT and Motor Vehicle Act as Vehicle Code)

    In re Application of FRED F. McLAIN for Writ of Habeas Corpus

    Crim. No. 2513

    Supreme Court of California

    190 Cal. 376; 212 P. 620; 1923 Cal. LEXIS 534


    February 1, 1923

    PRIOR-HISTORY: APPLICATION for a Writ of Habeas Corpus to discharge from custody the petitioner, who was charged with violating the Motor Vehicle Act.

    COUNSEL: David R. Faries, J. Allen Davis and William B. Gilroy for Petitioner.

    Thos. Lee Woolwine, District Attorney, for Respondent.

    JUDGES: In Bank. Waste, J. Myers, J., Lennon, J., Seawell, J., Kerrigan, J., Lawlor, J., and Wilbur, C. J., concurred.

    OPINION BY: WASTE

    OPINION

    This is an application for release on a writ of habeas corpus. It appears from the petition that the petitioner was convicted and ordered imprisoned for the alleged violation of the provisions of the Motor Vehicle Act.

    The essential facts are that the petitioner operated and drove an automobile over and upon a certain bridge, a portion of Colorado Street, a public highway in the city of Eagle Rock, and between certain signs or limit markers erected and standing at each extremity thereof, at a rate of speed of twenty-eight miles per hour, in violation of an order of the California Highway Commission 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.

    It appears that prior to the arrest and conviction of the petitioner the California Highway Commission, by virtue of authority assumed by it under the provisions of section 22a of the Motor Vehicle Act (Stats. 1919, pp. 220, 221), established a speed limit of fifteen miles per hour for all vehicles traveling over this particular bridge, and caused to be erected signs marking the location and limits of the highway to which such rate of speed applied. By section 1 [4] of the vehicle act (Stats. 1919, p. 193), for the purposes of the act, the word "highway" is made to include any bridge intended or used by the general public for the passage of vehicles. Section 22a, above referred to, provides, in substance, that any person operating or driving an automobile on the public highways shall operate and drive the same in a careful and prudent manner and at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway; provided, that it shall be unlawful to operate or drive at a rate of speed in excess of thirty-five miles an hour, with a limitation of speed in territory closely built up and in the business district of incorporated cities, and when approaching grade crossings and intersecting highways. The section then provides "that the maximum rate of speed over any bridge, dam, trestle, culvert, causeway or viaduct as well as the maximum rate of speed over any state highway or portion of state highway may be established by the state highway commission at less than the rate established by law, when in the judgment of said commission the safety of persons using the highway or the protection of the highway shall be promoted thereby, but whenever any such different rate of speed is so established by said commission, the commission shall cause to be erected suitable signs to mark the location and limits of the highway to which said different rate of speed shall apply, and such signs shall be placed at a distance of not less than one hundred feet or at a greater distance than one hundred fifty feet from the highway or portion of highway or from the approaches of any bridge, dam, trestle, culvert, causeway or viaduct with respect to which such different rate of speed may be so established. In the case of a bridge, dam, trestle, culvert, causeway or viaduct, such maximum rate of speed so established by said commission shall not be less than ten miles an hour, and in the case of any other highway or portion of highway, such maximum rate of speed so established shall not be less than fifteen miles an hour." The statute provides (sec. 32a, Stats. 1917, p. 410) that any person violating any of its provisions (the italics are ours) shall be guilty of a misdemeanor and, upon conviction, shall be punished in the manner therein provided. Nothing is said, in express terms or by necessary implication, that would make a violation of any of the regulations or rules of the Highway Commission a violation of the act, or punishable as such.

    The conviction and imprisonment of the petitioner rest upon the validity of the above-quoted portion of section 22a. His contention is that there is here an attempted unconstitutional delegation of power by the legislature to the Highway Commission. It is settled, of course, beyond controversy, that the power conferred upon the legislature to make laws cannot be delegated by it to any subordinate body. If the power to be exercised by the Highway Commission under the provisions of the above section amounts to a lawmaking power, as contended for by the petitioner, it follows that such provision must be unconstitutional. (Beatty, C. J., in Ford v. Harbor Commrs., 81 Cal. 19, 37 [22 Pac. 278].) The legislature cannot delegate its power to make laws. ( Harbor Commrs. v. Redwood Co., 88 Cal. 491, 494 [22 Am. St. Rep. 321, 26 Pac. 375]; Locke's Appeal, 72 Pa. St. 491 [13 Am. Rep. 716]; Field v. Clark, 143 U.S. 649, 694 [36 L. Ed. 294, 12 Sup. Ct. Rep. 495, see, also, Rose's U. S. Notes].) The principle applies to a case where it is sought substantially to prescribe a criminal offense by the regulation of a department. It is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed, or omitted, "in violation of a public law either forbidding or commanding it." (8 Am. & Eng. Ency. of Law, 2d ed., 279; United States v. Eaton, 144 U.S. 677, 687 [36 L. Ed. 591, 12 Sup. Ct. Rep. 764, see, also, Rose's U. S. Notes]; sec. 15, Pen. Code.) The act nowhere declares that it shall be unlawful to drive or operate an automobile over a bridge, or other designated portion of the highway, at a rate of speed greater than that fixed by the Highway Commission, but it seemingly attempts to confer upon the commission the power to so declare. ( Ex parte Cox, 63 Cal. 21.) In that case the legislature delegated to the board of viticultural commissioners the power to make certain rules in the nature of quarantine, to prevent the importation of diseased vines. The act expressly provided that any willful violation of such rules should constitute a misdemeanor. Cox was discharged upon habeas corpus by the court, he having been convicted of violating certain of the rules and regulations, the opinion holding that the legislature had no authority to confer upon the board the power to declare what acts should constitute a misdemeanor.

    There is very little difference, if any, in effect between the portion of the vehicle act here under attack and the section of the act to provide for the proper sanitary condition of factories and workshops (Stats. 1889, p. 3) which this court had under consideration in Schaezlein v. Cabaniss, 135 Cal. 466 [87 Am. St. Rep. 122, 56 L. R. A. 733, 67 Pac. 755], and which laid down certain definite regulations relating to sanitation, ventilation, and working conditions in factories and workshops. It further provided, in section 4, that if, in such places, any process or work was carried on by which dust or injurious gases were generated that were liable to be inhaled by the persons employed therein, and it appeared to the commissioner of the bureau of labor statistics that such inhalation could, to a great extent, be prevented by the use of some mechanical contrivance, the commissioner should direct that such contrivance should be provided and used. The concluding section provided a penalty for "violating any of the provisions of the act." Schaezlein and others were convicted of having unlawfully refused and neglected, after notice, to provide and use a suction device in a metal-polishing shop, within a reasonable time after having been directed by the commissioner so to do. The ultimate question there presented was the constitutionality of section 4 of the act just quoted. The court said (at page 471): "The manifest objection to this law is, that upon the commissioner has been imposed not the duty to enforce a law of the legislature, but the power to make a law for the individual, and to enforce such rules of conduct as he may prescribe. It is thus arbitrary, special legislation, and violative of the constitution." We are unable to draw a distinction between the effect of that decision on the situation there considered and its application to the facts here.

    The statute itself distinguishes between the rates of speed prescribed by the legislature and those to be determined by the commission in such way as to be practically determinative of the question we are considering. It declares that the maximum rate of speed over bridges or over any portion of the highway "may be established by the State Highway Commission at less than the rate established by law." (The italics are ours.) Here seems to be a plain recognition by the legislature that the rates of speed to be determined by the commission are not to have the effect of law. There are, therefore, two sufficient reasons why the detention of the petitioner is unlawful. Viewed as an attempt to legislate concerning the rate of speed for vehicles over the bridge, as part of the highway, the declaration of the commission was without authority, and void. Accepted as a rule or regulation for vehicles using the bridge, the statute has fixed no penalty for its violation.

    For the proper enforcement of its laws, the legislature may delegate a power to an officer, board, or commission to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. ( Field v. Clark, supra; United States v. Grimaud, 220 U.S. 506, 520 [55 L. Ed. 563, 31 Sup. Ct. Rep. 480, see, also, Rose's U. S. Notes]; Harbor Commrs. v. Redwood Co., supra.) But in such cases the distinction between the legislative and administrative function must be recognized and enforced. "The distinction is fundamental. Where the charge is of crime it must have clear legislative basis." ( United States v. George, 228 U.S. 14, 22 [57 L. Ed. 712, 33 Sup. Ct. Rep. 412, see, also, Rose's U. S. Notes].)

    The petitioner is ordered discharged.

  6. #26
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting quirkyquark
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    My point is that given a multi-lane state highway that isn't a school/senior zone, any speed limit lower than 65 mph should be considered prima facie, and given the conduct at trial, the appeal should proceed on the basis that the 40802 speed trap presumption applies.
    Does that include the 55mph MAXIMUM Statutory limit?

    Quote Quoting quirkyquark
    View Post
    It was the burden of the prosecution to produce that document at trial and claim that because of 23334 it didn't apply, and they did not satisfy this burden.
    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.

    Quote Quoting quirkyquark
    View Post
    Anything not a max speed limit is PF, and maximum speed limits must be statutory. (read: set at a hard number by the Legislature, and not via rule/regulation by the Executive). See:
    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:

    22352.
    (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!


    Quote Quoting quirkyquark
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    If the appellate court establishes that 23334 overrides 22354.5 and allows setting speed limits, then what kind of limit it is wouldn't matter because 40802 wouldn't apply.
    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!

    Quote Quoting quirkyquark
    View Post
    But they have to establish that, not DOT.
    The DOT did not establish its own authority under 23334, the legislature did!

    Quote Quoting quirkyquark
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    No, radar can definitely be used on a bridge.
    OK...

    Quote Quoting quirkyquark
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    "Max safe" bridge speed limits are to be set pursuant to VC 22404, following an engineering "investigation."
    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?

    Quote Quoting quirkyquark
    View Post
    Even though these would be prima facie limits for the purposes of VC 22350 violations (but not VC 22405 violations), they are explicitly authorized by VC 22402 and the speed trap laws don't apply (while the 22351(b) presumption of guilt does).
    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).


    Quote Quoting quirkyquark
    View Post
    Of course 22350 isn't limited.
    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!

    Quote Quoting quirkyquark
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    By "best" I meant that if the speed limit is purported to be set via 23334, then it's best to simply cut off any speed trap or "safe speed" argument by citing 23336 instead.
    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...

    Quote Quoting quirkyquark
    View Post
    When 22351 isn't or cannot be used, then the prosecution must prove that the speed was unsafe (i.e. "unreasonable" or "endangering") instead of simply relying on it being in excess of the limit.
    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!

    Quote Quoting quirkyquark
    View Post
    So, in theory, they could set the speed to 100 mph via 23334, and that would override VC 22349/22356, because hey, 23334 controls over everything else in the VC which conflicts, right?
    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...

    Quote Quoting quirkyquark
    View Post
    It's up to a court to circumscribe the limits of that authority.
    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?

    Quote Quoting quirkyquark
    View Post
    Yes, long before then -- since 1905, in fact:

    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 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.

  7. #27
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting That Guy
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    Only if the speed limit in the related case is a PF limit... I'm still missing the part where we could even begin to assume that 23334 sets a PF limit.
    I think that we're both over thinking the problem here. The prosecution has the burden of proving that a speed trap doesn't exist when radar is used, correct? If so, then it was the prosecutor's responsibility to show that this was a local street, produce a survey that justified the limit, or introduce some kind of evidence that shows that the speed trap provisions don't apply, despite the use of radar. Since case law presumes the presence of a speed trap until that presumption is rebutted, and we have no information that it was rebutted, we'd have to assume that failed to prove the absence of a speed trap.

    Just quoting case law that we all know and love:

    Quote Quoting People v. Halopoff
    [W]e declare the obligation of the prosecutor to establish that a speed trap was not involved in those cases where radar is used to apprehend a defendant.
    Quote Quoting People v. Flaxman
    [W]henever radar is used in conjunction with a prima facie speed limit it is always relevant to determine whether or not the prima facie speed limit has been justified as required by the statute, regardless of the fact that the violation has no relation to any prima facie speed limit.
    Quote Quoting People v. Earnest
    Can the People meet their initial burden of showing that the combination of a prima facie speed limit and the use of radar enforcement did not create a speed trap with no more than the citing officer's testimony as to the existence and contents of a current engineering and traffic survey for the pertinent segment of roadway? They cannot.

    We hold that the People, whenever radar is involved in the enforcement of a posted speed limit, must produce, in the courtroom, either the original traffic and engineering survey for the location of the citation or a certified copy of that survey which (1) was conducted within the five years preceding the alleged violation and (2) justifies the posted speed limit.
    This means that when the posted speed limit isn't a maximum speed limit, and radar (or laser) were used to measure the speed, the prosecution must present some evidence that rebuts the presumption of the presence of a speed trap. The study that the OP posted might have been sufficient, but my understanding is that it wasn't presented in court. You and I have been proceeding as though it had, and were arguing whether or not 23250 and 23334 are inconsistent with the provisions in 22354. However, I missed the fact that if the prosecution fails to meet their burden then presumed fact is the existence of a speed trap, not the opposite.

  8. #28
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting That Guy
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    Does that include the 55mph MAXIMUM Statutory limit?
    You missed "multi-lane", which implies it's not two-lane undivided.

    Quote Quoting That Guy
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    Produce what document? An E&T survey which does not exist?
    See TMN's eloquent explanation and citation of case law above.

    Quote Quoting That Guy
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    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.
    And was there such a mention? In any case, NO, the presumption can only be rebutted by explicitly mentioning that the speed limit was not set pursuant to those statues encompassed by 40802.

    Quote Quoting That Guy
    View Post
    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?
    It's a "hard" limit and a statutory maximum despite being called p.f. because of VC 22357 (which the opinion I quoted typos as VC 22347):

    Quote Quoting V C Section 22357 Increase of Local Speed Limits to 65 Miles Per Hour

    22357. (a) Whenever a local authority determines upon the basis of an engineering and traffic survey that a speed greater than 25 miles per hour would facilitate the orderly movement of vehicular traffic and would be reasonable and safe upon any street other than a state highway otherwise subject to a prima facie limit of 25 miles per hour, the local authority may by ordinance determine and declare a prima facie speed limit of 30, 35, 40, 45, 50, 55, or 60 miles per hour or a maximum speed limit of 65 miles per hour, whichever is found most appropriate to facilitate the orderly movement of traffic and is reasonable and safe. The declared prima facie or maximum speed limit shall be effective when appropriate signs giving notice thereof are erected upon the street and shall not thereafter be revised except upon the basis of an engineering and traffic survey. This section does not apply to any 25-mile-per-hour prima facie limit which is applicable when passing a school building or the grounds thereof or when passing a senior center or other facility primarily used by senior citizens.
    Quote Quoting That Guy
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    The appellate has no place to establish or disestablish anyone's authority if such authority was established by statute.
    Golly gee, Mr. Tee Gee! So now courts have no place interpreting a statute because, well, it's A STATUTE!?

    Quote Quoting That Guy
    View Post
    Now it comes to a single provision allowing the DOT to establish a speed limit on a limited number of "highways"
    No, its a provision allowing DOT to promulgate rules/regulations for the safe flow, etc. etc. The ONLY provisions setting or allowing DOT or a local authority to establish speed limits are the "speed laws". In fact, I'd argue that any speed limit purportedly set pursuant to VC 23334 is NOT a p.f. or a max or any kind of official speed limit -- it's a rule establishing a speed limit. Any violations should be prosecuted via VC 23336, which would only require a showing that the rule was broken -- no survey, no need to prove unsafe speed, etc. On the other hand, if VC 22350 is used (which, as you said, can be used anywhere at any time), the prosecution has the prima facie burden of proving that the speed was unsafe or endangering because VC 22351 does not apply in this case. And that's what I would recommend if the survey (or VC 23334) had been brought up at trial.

    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.

  9. #29
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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    I'm still here. My CR-142 and CR-143 forms were submitted to the court last week, so they should be filed by now. Next step is waiting for the judge's response to my proposed statement on appeal (I think!).

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    Default Re: When is it Worth Appealing a Traffic Ticket Conviction

    Quote Quoting supralover23
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    I'm still here. My CR-142 and CR-143 forms were submitted to the court last week, so they should be filed by now. Next step is waiting for the judge's response to my proposed statement on appeal (I think!).
    Glad to see you're hanging around. Since the proposed statement route restricts your grounds of appeal to those stated, did you mention anything about the survey in there? If not, you may want to file an amendment (can do so within 10 days of filing CR-143).

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