Can an Officer Assigned to Desk Duty Still Testify in Traffic Court

[BrianGC]

The courts may not be concerned about the visual observation followed by the confirmation, but that is how the training is done.

So the question remains:
Are police required to observe estimate prior to using radar on traffic for purposes of establishing probable cause? If so, a rear pointing radar unit would not be allowed because we all know nobody can accurately observe estimate a pair of headlights 400' away through a rearview mirror. Shooting radar into blind turns would also not be allowed. Nor can an observed estimate be done through a Lidar sighting telescope.

The laws or protocols that require probable cause prior to breathalyzing are likely documented somewhere. If so, would the answer to this question be written somewhere?

Posted 35, 85th percentile at 48 ... happened in my city and we stopped radar enforcement. Engineering adjustments permit it to be posted at 40, but not 45. But, it's also a state highway so Cal-Trans posts it and we can't make them change it.

So basically what you are saying is in that instance of a blatant disregard for the posted speed limit the correct response from the State was to raise the posted speed limit to make higher speeds allowable?

In that case the State raised the speed limit. What if they did not? Would the State find it allowable for Officers to write thousands of speeding tickets in an attempt to lower that average speed or would they use other means to control the speed such as stop lights, stop signs, speed bumps, road signs, etc? it is my understanding that the purpose of radar is not to control or lower speeds in a situation like that.

And, I have to say, while you and That Guy may have some sort of thing going on, understand that he is probably the most technically knowledgeable person on CA traffic matters on these forums (there are two others that also come to mind, but one has been particularly scarce recently). He knows a great deal more than I when it comes to the legalities involved and the statutes. It is disappointing to see both of you going back and forth like this, but, he is a stickler for correct information, and even I have been corrected by him from time to time. I tend to post off the cuff without spending the time to look up statutes and case law (usually, if I have to put more than 5 minutes into a post, I don't), he dedicates a great deal of time to providing detailed responses and the forum is better for it. So, hopefully, the two of you can relax it a bit.

Your praise of That Guy is somewhat earned but a bit puzzling too. He does spend a lot of his time researching written laws, but what he uses that research for is to tell people that they have no chance of defending their citation. Written law is only part of the equation. How it is applied in the courtroom is the other, which he apparently has zero experience with. He also has never spoken to experts (Traffic Lawyers) that utilizes commonly used methods of reducing or dismissing citations. He advises people to the letter of the law without knowledge of the other side of the equation. He seems to get a kick out of telling people they have no chance of contesting a citation.

We know there are two sides of opinion and experience on traffic citations. The police/prosecution side and the defense side. They can be polar opposites yet both hold just as much weight. What I would like to see is more respect for the defense opinions here. Not to allow those like That Guy to badger and insult posters that offer a differing opinion. To date I know of only two guys here that represent the defense side of practiced law, Searcher99 and this new guy Tim Wayne. That's all. And That Guy is trying his hardest to chase them away. Forums should offer contrasting opinions but some here would like the pro-prosecution opinions to dominate even though we all know the letter of the law is not the end-all in courtroom outcomes.

[Disagreeable]

SoCal seems to have a problem confusing the police department and the department of transportation.

http://www.dot.ca.gov/dist05/traffic...eed-Zoning.PDF

[BrianGC]

SoCal seems to have a problem confusing the police department and the department of transportation.

http://www.dot.ca.gov/dist05/traffic...eed-Zoning.PDF

Then please answer the question I pose, if you understand it.

[Disagreeable]

Then please answer the question I pose, if you understand it.

I understand the question. Your problem is traffic court case resolutions are handled locally and cases are not published like higher courts. Further a magistrate court will usually exercise more leniency than a court judge. Probable cause is easy to establish if all it results in is usage of a radar unit. Then it is a matter of who was using the unit, whether they used it properly and whether it was properly calibrated.

[cdwjava]

So the question remains:
Are police required to observe estimate prior to using radar on traffic for purposes of establishing probable cause?

No. For instance, I don't use radar and I can visually estimate speed. Whether the court accepts my training and experience is sufficient absent formal training in estimation is for the trier of fact to determine.

The laws or protocols that require probable cause prior to breathalyzing are likely documented somewhere. If so, would the answer to this question be written somewhere?

There is a difference between what the LAW requires and what the training might include. Sounds like the training exceeds the legal requirements.

So basically what you are saying is in that instance of a blatant disregard for the posted speed limit the correct response from the State was to raise the posted speed limit to make higher speeds allowable?

No, what I am saying is that in spite of the 85th percentile justifying a higher limit, the state allowed the Speed Limit to remain posted at 35. I don't know why.

In that case the State raised the speed limit. What if they did not? Would the State find it allowable for Officers to write thousands of speeding tickets in an attempt to lower that average speed or would they use other means to control the speed such as stop lights, stop signs, speed bumps, road signs, etc?

If the posted speed limit was not supported by a current and accurate speed survey, then the speed trap laws could apply.

Your praise of That Guy is somewhat earned but a bit puzzling too. He does spend a lot of his time researching written laws, but what he uses that research for is to tell people that they have no chance of defending their citation.

That is his opinion. The reader can choose to heed that position or not. Most people that post here ARE guilty. What they are looking for is a way to wrangle out of the citation that they are essentially guilty of. California seems to be unique among the states in that we have allowed so many ways to wrangle a way out of traffic offenses.

Written law is only part of the equation. How it is applied in the courtroom is the other, which he apparently has zero experience with. He also has never spoken to experts (Traffic Lawyers) that utilizes commonly used methods of reducing or dismissing citations.

You don't know that. I have both the experience and time speaking with attorneys, and even those attorneys will tell you that their client is essentially guilty. What they do is attempt to cast reasonable doubt on the testimony, or, to use the system to their client's advantage (very often at a cost that greatly exceeds their potential liability for a guilty plea).

We know there are two sides of opinion and experience on traffic citations. The police/prosecution side and the defense side. They can be polar opposites yet both hold just as much weight.

There is no requirement that people here act as cheerleaders if they see that a poster's argument is flawed. There are plenty of sites that will rah-rah a poster and tell them to fight the system and do what they will. However, many of those sites give people a false sense of empowerment and just enough info to provide the reader with enough rope to hang himself when he torques a judge or commissioner. Most people are not completely capable of accurately following the proper rules or heeding the information that is alluded to in some of those sites. And, some of the information is simply wrong.

What I would like to see is more respect for the defense opinions here. Not to allow those like That Guy to badger and insult posters that offer a differing opinion.

I don't have any control over that. Miss Manners doesn't reside here.

To date I know of only two guys here that represent the defense side of practiced law, Searcher99 and this new guy Tim Wayne.

Tim Wayne seems to be a shill for a web site ... if so, then he may not be here long.

There are others, they just don't post all the time since we hear many of the same arguments over and over again and repeating the same arguments becomes somewhat tiresome.

[free9man]

California seems to be unique among the states in that we have allowed so many ways to wrangle a way out of traffic offenses.

I think Washington gives ya'll a run for your money on that point. At least from reading the WA threads here.

[cdwjava]

I think Washington gives ya'll a run for your money on that point. At least from reading the WA threads here.

They don't seem to have the same idiosyncrasies of law we have. Heck, their officers don't even have to show up at trial!

[BrianGC]

There is a difference between what the LAW requires and what the training might include. Sounds like the training exceeds the legal requirements.

It sounds like you are not absolutely sure whether probable cause by speed estimation is required before the use of radar? What makes me curious about this is that police are often required to have probable cause before using other types of advanced electrical analyzing methods such as eavesdropping, wire tapping, breathalyzing, bugging a premisses, lie detection, possibly using directional microphones to listen through glass, possibly setting up surveillance cameras, searching phone records and extracting DNA.

No, what I am saying is that in spite of the 85th percentile justifying a higher limit, the state allowed the Speed Limit to remain posted at 35. I don't know why.

This leads me to an interesting question. When the police know that the 85th percentile is 48mph in a 35 zone, are they told by their superiors to refrain from writing citations for 48mph and below? Or do they write citations for whatever they feel will fly in hopes the recipient does not know the law and will fight it? IOW, are Officers told to generally respect the 85th percentile speed while using radar?

If the posted speed limit was not supported by a current and accurate speed survey, then the speed trap laws could apply.

Then is writing citations for less than 48mph operating a speed trap?

That is [That Guy's] opinion. The reader can choose to heed that position or not. Most people that post here ARE guilty. What they are looking for is a way to wrangle out of the citation that they are essentially guilty of. California seems to be unique among the states in that we have allowed so many ways to wrangle a way out of traffic offenses.

And some here see everyone as guilty and recommend they all pay up. They/he also does not seem to agree with you that there are "many ways to wrangle out of a citation".

You don't know that.

I have asked him his experience level many times. When he refuses to expound on it, the answer becomes apparent. Especially when he is never short on words or time.

I have both the experience and time speaking with attorneys, and even those attorneys will tell you that their client is essentially guilty. What they do is attempt to cast reasonable doubt on the testimony, or, to use the system to their client's advantage (very often at a cost that greatly exceeds their potential liability for a guilty plea).

Police often use whatever techicallity of the law to write a citation and enforce it in the courtroom. A defense lawyer is doing the same thing, but in reverse. Isn't it fair play?

The primary purpose of writing citations is to keep drivers safe by curbing people's bad driving habits. Just receiving that citation will leave an impression on a driver, irrespective of winning or losing in the courtroom IMO.

There is no requirement that people here act as cheerleaders if they see that a poster's argument is flawed.

There is a big difference between acting like a cheerleader and acting like an unstable a-hole. Besides, to him, every explanation is flawed.

Tim Wayne seems to be a shill for a web site … if so, then he may not be here long.

That does not invalidate his post.

[cdwjava]

It sounds like you are not absolutely sure whether probable cause by speed estimation is required before the use of radar?

I know of no court requirement that MANDATES an officer testify to observation before radar, but that is how they are trained to testify to it.

What makes me curious about this is that police are often required to have probable cause before using other types of advanced electrical analyzing methods such as eavesdropping, wire tapping, breathalyzing, bugging a premisses, lie detection, possibly using directional microphones to listen through glass, possibly setting up surveillance cameras, searching phone records and extracting DNA.

A detention (aka "traffic stop") requires a lesser burden of proof often referred to as reasonable suspicion.

To issue a citation for a violation of the CVC an officer needs articulable probable cause. "Probable cause" for an arrest exists when the totality of the circumstances would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. What you describe is probable cause for a search warrant and that is a different burden. In the case of articulable probable cause for a search warrant, you need not posses probable cause to believe the person involved is guilty of a crime, only that there exists probable cause to believe that the evidence of a crime can be found in the place/places/items/persons to be searched.

This leads me to an interesting question. When the police know that the 85th percentile is 48mph in a 35 zone, are they told by their superiors to refrain from writing citations for 48mph and below? Or do they write citations for whatever they feel will fly in hopes the recipient does not know the law and will fight it? IOW, are Officers told to generally respect the 85th percentile speed while using radar?

An officer that KNOWS the speed limit is improperly posted is operating a speed trap in violation VC 40801, and any evidence obtained (i.e. radar) can be suppressed per VC 40803.

Then is writing citations for less than 48mph operating a speed trap?

If based on radar, sure. But, if there are other conditions such as traffic or road hazards that make the speed traveled otherwise unsafe, then the driver can be cited for VC 22350 even without the support of radar. Whether he would be convicted would depend on any evidence and testimony.

And some here see everyone as guilty and recommend they all pay up. They/he also does not seem to agree with you that there are "many ways to wrangle out of a citation".

Compared to the available options in iother states, there are many ways to get out of speed violations - particularly 22350. VC 22348 and 2239, not so much ... but, even then, the wrong subsection due to the number of lanes, etc., can result in dismissals a lot.

I most often recommend people pay up because I assume they have lived and jobs that would be interfered with if they take 2 to 4 trips to the courthouse trying to fight their traffic matter and then lose the option of traffic school if they lose at trial. Many people who come here want to avoid the points, and the only near guarantee of getting TS is when that notice comes or upon a guilty plea. But, if people have the time and money to fight them, they are certainly free to do so. Me, I'd lose too much to take a couple days off to deal with traffic court. But, that's me.

I have asked him his experience level many times. When he refuses to expound on it, the answer becomes apparent. Especially when he is never short on words or time.

Many people have great knowledge without the experience of using it ... though, I don't think that's the case with TG. There are also reasons why some people here don't expound upon their experience or employment, some of which involve liability or even the fact that they have an employer that might not appreciate their dedication to his part time endeavor.

Police often use whatever techicallity of the law to write a citation and enforce it in the courtroom. A defense lawyer is doing the same thing, but in reverse. Isn't it fair play?

Never said it wasn't. But, CA offers far more of these loopholes than do other states. Part of it is because we hold infractions to be technically criminal whereas many other states hold them to be civil. We have also codified far more rules as to how these things are to be enforced and the minutiae - sometimes conflicting - that must be adhered to.

The primary purpose of writing citations is to keep drivers safe by curbing people's bad driving habits. Just receiving that citation will leave an impression on a driver, irrespective of winning or losing in the courtroom IMO.

One would hope. But, there are those on this forum that proudly brag about the citations they have received and how they have beaten them. They either continue to be a menace to society due to their constant lawlessness on the roadways, or they are full of hot air. I suspect a little of both ... and if they are in court a lot, I suspect they are unemployed or self-employed and have some other issues for which they might want to see a therapist.

There is a big difference between acting like a cheerleader and acting like an unstable a-hole. Besides, to him, every explanation is flawed.

Many of them are.

That does not invalidate his post.

Doesn't make him or his site correct, either. And, shilling for other sites is a violation of the TOS. And referring people to some other cite for answers in most every post can be considered a violation of said TOS. But, that's not my call to make as I am not a Mod here.

[BrianGC]

What you describe is probable cause for a search warrant and that is a different burden.

Thanks for hitting all of my questions, you cleared a lot up for me.

However this question still remains. Police are very restricted on using advanced electronic surveillance without a warrant. Example: A recent GPS ruling was just released restricting police from attaching GPS's to cars (not sure if that was with or without a warrant). I suspect, and will probe this further, if police are required to do an observed estimate prior to shooting radar at a car. That could be why they are taught to make that claim in court. Also, I have never heard of automated radar speed 'traps' to be used in CA. Could this be why? Is it because they need probable cause before its use? But on the flip side, I've never heard of anyone ever beating a radar ticket for the proof of no probable cause prior to its use.

One such instance of no observed estimate would be the use of rear shooting radar at night. We all know it is impossible to do an accurate observed estimate at night through a rearview mirror. Besides, many police, I assume, just leave their radar on and take every car's speed. Where's the observed estimate then? Are police also taught to claim they did an observed estimate through a review mirror at night, when it is impossible to do with any accuracy?

The next time I talk to my 'Traffic' Lawyer, I will bounce this off him and let you know how he responds. He should have at least an opinion on it.