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  1. #1
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    Post Does the Speed Trap Defense Apply to Paced Tickets

    My question involves a traffic ticket from the state of: California

    45 in 35 light traffic..dry roads..clear weather..business area..36mph 85th %

    I got a survey..and its from 2006..since it is so old..can that be to my advantage to show the court the only one is out of date?

  2. #2
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    Default Re: VC 22350 Paced.engineering Survey

    If you were paced, the speed trap law doesn't apply and you will not prevail based on the lack of an engineering survey.

    Were did you get the survey? Are you sure the court doesn't have a newer one anyhow?

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    Default Re: VC 22350 Paced.engineering Survey

    Quote Quoting flyingron
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    If you were paced, the speed trap law doesn't apply and you will not prevail based on the lack of an engineering survey.

    Were did you get the survey? Are you sure the court doesn't have a newer one anyhow?
    I went down to the City I was cited in Monrovia Public Works..they gave me a the survey..I went and got in shortly after the ticket in August..And I am unsure if the court may have a new version of the survey.

  4. #4
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    Default Re: VC 22350 Paced.engineering Survey

    Well, you're free to try to raise it at trial, but

    1. Speed trap doesn't apply to other than electronic means. Electronic means to my knowledge has not been extended to car speedometers (it's for radar/lidar).
    2. They may well have a newer copy in court, but you probably stand a good chance they don't.

  5. #5

    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    Flyingron is right…. Speed trap laws apply only when speed is determined by electronic means. To my knowledge, this has not been extended to car speedometers (which clearly are electronic devices), but conversely, to my knowledge, electronic speedometers have not been excluded either. It is certainly worth a try and it clearly falls within the black letter of the law:

    40802. (a) A "speed trap" is either of the following:
    …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.

    Personally, I would think that it would be harder to argue that electronic speedometers are NOT within the definition of the law than to argue that they are. The statement “any other electronic device that measures the speed of moving objects” is pretty clear. I’m not sure how one could say that a speedometer does not measure the speed of a moving object.

    In order to follow this defense, I would send a discovery request to the DA and ask for, among other things, the make, model and year of the police cruiser (as well as the speedometer calibration records… for which there will be none). If you get the car information, it should be simple to look up some parts information to show that the speedometer is truly an electronic device.

    Second possible defense is that you could argue that the prosecution had not provided speedometer calibration records. While it is generally accepted that a speedometer is a reasonably accurate device, this assumption is predicated on a constant tire size. Various tire sizes will significantly change the speedometer reading for the same speed. For an extreme example, two tire sizes: 395/95R16 vs 395/20R16. These are both 16 inch tires and it is POSSIBLE to use them on a 16 inch wheel (which is reasonable to assume the wheel size for the cruiser is). At 40mph, the speed difference between the two tires is 19.5mph!! That is HUGE!! This is easily obtained by doing a bit of math, or you can use the calculator at http://tire-size-conversion.com/tire-size-calculator/ . So, since the officer will have testified prior to you saying anything, you should first ask him if he used the speedometer in making the determination of the speed of his car and your car. Once he says “yes”, then you should move to strike his testimony that was based on his speedometer reading because the prosecution had not introduced into evidence the size of tire used on the patrol car at the time of the incident as compared to the original stock tire size provided by the manufacturer. Your argument should not be that you are disproving the accuracy of the officer’s speedometer, but rather the prosecution has failed to provide prima facie evidence necessary for the court to rely on the officer’s speedometer.

    This is likely to fail. Not because it is not a very valid and legally sufficient argument… but more likely because the judge will be pissed that you raise such an obvious point in court. If the judge overrules your motion to strike, you should object. You must make the record clear that you have objected to the introduction of speedometer data and the judge must overrule you so that the issue will be preserved for appeal.

    For a third defense… this is a bit more esoteric and will require a bit more skill in arguing… but here goes… In People v DiFiore, the court stated:

    “A person who drives in excess of the maximum lawful speed has not been subjected to a "speed trap" even if his speed has been detected by radar on a posted road unless the officer relies on the posted or prima facie speed limit. The officer who does rely on the posted speed limit improperly benefits from the anti-speed-trap laws, if that officer is permitted to testify to a speed that is both unlawful and excessive, but the posted speed is not justified by a traffic survey.”

    In other words, the officer cannot say that since you exceeded the posted speed limit, your speed was unsafe while providing no evidence that the speed limit is the accepted “safe speed”. Typically, officers who pace are not subject to speed trap laws due to the fact that they are in traffic at the time and they can rely on first hand information about the safety of a driver’s speed. So, if the officer ONLY presents evidence that your speed was unsafe (and a violation of the basic speed law) simply because you exceeded the posted speed limit, then he is effectively stating that he did NOT use his first hand perspective to evaluate the safety of your speed based on the conditions at the time. Instead, he will be relying solely on the posted speed limit as defining a safe speed. Your argument will then be that the posted speed limit is not justified and therefore it is improper for the officer to rely on that as the only evidence of your speed being unsafe. To be clear… this is not calling the arrest a “speed trap”. This is saying that the officer must prove that your speed was unsafe as per the basic speed law and that and unjustified speed limit in itself does not do that.

    So… here are three viable defenses. Each of them have significant legal merit and could be used to prevail in this case if skillfully argued. But they will require you to do some legwork and become very familiar with the issues presented here. I have only scratched the surface. This will require some work on your part. You may not want to go through the effort, or you may not have confidence in your ability. That’s ok. However, you shouldn’t be discouraged by those who will follow this post trying to poke holes in these defenses unless they can provide valid legal reasons for why they won’t work (something other than an emotional response).

    Good luck. Post questions if you have them.

  6. #6
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    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    Jim_bo What do you make of both People Vs Huffman (2000) http://caselaw.findlaw.com/ca-superi...t/1224669.html and People Vs Behjat (2000) http://caselaw.findlaw.com/ca-superi...t/1402558.html

    Both attack the fact that only a speed was violated and that other elements of basic speed law was not proven..here ill paste the part.

     No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense.   (People v. Johnson (1980) 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.)   In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that he drove at a speed that was unreasonable for the driving conditions.3  (People v. Ellis (1999) 69 Cal.App.4th 1334, 1339, 82 Cal.Rptr.2d 409 [discussing statutory elements of basic speed law violation].)   This record contains no such evidence.

      The evidence shows only that appellant drove 59 miles per hour.   The record, however, contains no evidence supporting a finding that this speed violated the basic speed law.   First, it contains no facts suggesting anything or anyone was endangered.   Nor does it contain information from which any particular speed could be found to be reasonable or unreasonable.   That is, the record does not contain evidence on the weather, visibility, traffic volume, or road conditions when appellant was stopped.   Moreover, while the settled statement indicates the People introduced a radar speed survey, which may refer to an engineering and traffic survey under Vehicle Code sections 40802 and 40803, the record neglects to indicate what pertinent information bearing upon the factors listed in Vehicle Code section 22350 the survey may have contained.4


    I believe since there was no cars around me or ahead of me. The practicality of being charged with 10 over. and being in a business section at near 1:00 AM in the morning. That these cases apply very much to me. Sure these cases both involved a radar. But it seems the panels decision was more influenced by the very elements of the law than the presense of a valid speed survery..though that helped too.

    What do you make of such cases? I would use these two case laws to form a careful questioning of the witness..I understand language is tricky and must be absolutely with out error in how i present my questions.

    And about the calibration..I never saved this case law..but I remember the appelates straight up said or made a foot note..about how at 10-15 or more mph over..it was highly unreasonable that a speedometer would be off that much and that an officer visual alone was good? i think. and they even went as far as saying how calibration like you said is likely to fail..but the appelates said that it is not necessary for documentation on a calibration..mind you this is a while ago and im paraphrasing very much..ill see if i can find that. But I would rather not go down that route and make the judge think im just another punk trying to argue a technicality..I would find it more to my benefit to argue the meat of the situation..which is the content of the law..though i might ask for documentation just to get it on the record.. I guess i'll do my best to assess the judges mood.

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    This is the disposition to Huffman..do Dispositions have legal bearing as the discussion?

    DISPOSITION

    The judgment is reversed.

    I concur with the result, but not entirely with the majority's reasoning.   I would hold the record fails to support a conviction under Vehicle Code section 22350 because the record contains no evidence showing defendant drove “at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway,” or “at a speed which endangers the safety of persons or property” as explicitly required by the statute.   In my view, when the People choose to charge solely under section 22350, they assume the burden of proving defendant's speed was unsafe by introducing evidence concerning factors bearing upon safety at the time appellant was cited.   A current traffic and engineering survey might bear upon these factors:  For example, such a survey could contain information on immutable road conditions making speeds over the posted limit unsafe regardless of weather or traffic.   If so, however, the record must set forth these factors with particularity.

    If the People wish to avoid having to affirmatively prove that the defendant drove unsafely under the circumstances, they have the option of charging  under a more explicit statute, such as Vehicle Code section 22351, subdivision (b).1  Unlike the majority, I construe section 22351 as a charging statute that prohibits driving in excess of prima facie or posted speed limits, not merely as a statute shifting the burden of proof in a prosecution charging a violation of Vehicle Code section 22350.   Thus, if defendant had been charged with violating 22351, I would agree the People could satisfy their burden simply by introducing a current survey justifying the posted speed and showing defendant exceeded that speed.   I do not, however, believe this showing is adequate if the only charge is a violation of section 22350.

    On October 12, 2000, this court issued its opinion in People v. Behjat (84 Cal.App.Supp. 1, 101 Cal.Rptr.2d 193 (2000).).   In that case, as in this one, the three-judge panel agreed that a conviction for violating Vehicle Code section 22350 had to be reversed for lack of substantial evidence, but split on the significance of Vehicle Code section 22351 in a “basic speed law” prosecution.   In footnote 3 of the Behjat majority opinion, in which I participated, the court noted the People's case had been made more difficult because of their failure to charge under a more specific statute, such as Vehicle Code section 22351.   The concurring opinion reasoned, however, that section 22351 is not a charging statute but merely a statute to allocate the burden of proof in prosecutions under section 22350.   A different panel of this court now faces the same question about section 22351 and once again is divided.

    We certified Behjat for publication.   The Court of Appeal thereafter considered whether to transfer the case to itself in order to “resolve conflicting authority” or “deal with an unsettled issue of law.”  (See Cal. Rules of Court, rule 62(a).)   On October 19, 2000, the Court issued its order refusing to transfer, on the ground that no conflict or unsettled law existed.   In light of Behjat and the instant case, the four judges of the appellate division are now equally divided on the question of section 22351' s role in a basic speed law prosecution.

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    Oh and lastly is 22351(b) a charging statute or not? lol

    From Behjat (Disposition)

    I agree that the record fails to support the conviction, but I would reverse on narrower grounds.   The majority holds that if the People charge under Vehicle Code section 22350, they must affirmatively prove the defendant's speed was unreasonable under the circumstances, by offering evidence concerning weather, visibility, traffic or road conditions.   To relieve themselves of this burden, the People must charge under a different statute, for example, Vehicle Code section 22351 (see maj. opn. ante, at p. 194 fn. 3).

    Respectfully, I disagree.   In my view, Vehicle Code section 22351 is not a charging statute (as suggested by the majority in footnote 3) but, rather, it is merely a statute to allocate the burden of proof in prosecutions under Vehicle Code section 22350.   Thus, I would sustain a section 22350 conviction if the record indicated the People had offered into evidence (or had lodged with the court) a certified copy of a traffic and engineering survey showing a posted speed limit that was lower than the speed at which appellant drove. (Veh.Code, §§ 40802, 40803).   So long as the trial court found the survey justified the posted speed limit, then the People's burden  would have been met, because Vehicle Code section 22351 would then have shifted the burden to appellant to show his speed was safe under the circumstances.   On the record before us in this case, however, I agree that the conviction must be reversed.

    - - - Updated - - -

    This is why im hesitant to go the calibration route..People Vs. Lowe http://caselaw.findlaw.com/ca-superior-court/1464794.html

    Discussion (Lowe)

    Lacking California case authority on point, we are persuaded by the view of our sister states that speedometer readings may be introduced into evidence even without proof of the instrument's accuracy.   The fact finder is then free to consider the lack of such proof in determining how much weight to afford the reading.

    In light of the foregoing, we proceed to search the record for evidence supporting the conviction.   Officer Lopez testified without objection that his speedometer showed appellant was traveling at 85 mph.   He also testified the CHP periodically calibrates speedometers.   Appellant offered no evidence showing, or even suggesting, that officer's speedometer was inaccurate.   That instrument showed appellant moving at 15 mph over the maximum speed limit of 70.   The court, as fact finder, was entitled to evaluate the likelihood that a speedometer in an official CHP vehicle would be inaccurate by such a large amount;  evaluate the weight of the officer's testimony as to the speedometer reading in light of the lack of calibration results;  and decide whether appellant was speeding.   It did so and was convinced beyond a reasonable doubt appellant was guilty.   We are bound by its factual

    BUT!! I see why you say get discovery for calibration and TIRE calibration or whatever. One of the main issues the court took up with the defendant is that he did not have any records himself that might suggest it was out of whack..basically speedometers are to be presumed functioning even without documentation..unless you can show documentation showing that they could be in err.

    Is that about correct?

  7. #7

    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    Take a look at 22351:

    22351. (a) The speed of any vehicle upon a highway not in excess of
    the limits specified in Section 22352 or established as authorized
    in this code is lawful unless clearly proved to be in violation of
    the basic speed law.

    (b) The speed of any vehicle upon a highway in excess of the prima
    facie speed limits in Section 22352 or established as authorized in
    this code is prima facie unlawful unless the defendant establishes by
    competent evidence that the speed in excess of said limits did not
    constitute a violation of the basic speed law at the time, place and
    under the conditions then existing.

    You can be in violation of the basic speed law even if you are driving slower than the posted speed limit. Likewise, you can be driving in excess of the speed limit and NOT be in violation of the basic speed law. In short, 22351a says that the burden lies with the prosecution to prove that your speed was unsafe if you are below the speed limit. 22351b says that the burden lies with the defendant to prove that his speed was not unsafe if it was over the posted speed limit. So, effectively, the speed limit is only a line that defines who has the burden to prove their case. As per 22351b, if you are over the limit, you are assumed to be in violation of the basic speed law. However, that presupposes that the posted speed limit is valid. With a speed survey that hasn’t been updated since 2006, I’d argue that the speed limit is NOT valid. For a quick analogy, use the extreme as an argument. If the posted speed limit was 10mph on a major 4 lane highway. Would it be valid for the police to “pace” people and give them tickets for driving 50mph (especially if the speed survey showed the 85th percentile to be 55mph)?

    Now take a look at 41100:

    41100. In any action involving the question of unlawful speed of a
    vehicle upon a highway which has been signposted with speed
    restriction signs of a type complying with the requirements of this
    code, it shall be presumed that existing facts authorize the erection
    of the signs and that the prima facie speed limit on the highway is
    the limit stated on the signs. This presumption may be rebutted.

    This says that the posted speed limit is presumed to be to represent a justified speed limit… but it may be rebutted. By producing a copy of the most recent speed survey (from 2006), you would be rebutting the validity of the posted limit sign.

  8. #8
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    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    Oh when it comes to filing for informal discovery..I plan on sending it to the DA of Los Angeles..PA of Pasadena (court im at) and to the Police deparment cited.

    Umm when i send these letters..can i just put the address and person to whom im sending to..or do i have to be specific and say like floor or what part or something..or should i just go down and do it in person..I always felt more comfortable doing things in person.

    - - - Updated - - -

    Oh hell yeah! so you're saying its actually to my BENEFIT to introduce the survey into court? And also since monrovia public works did it..would cal trans have a survey? The street is Huntington Dr. Also known as FootHill Blvd.. More commonly known as Route 66..the one that goes from LA to Chicago.

  9. #9

    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    You only legally need to submit your discovery request to the DA. Caltrans will only have a survey if it is a state highway. Also, when you get a copy of the speed survey, you should get a certified true copy stamp on it. That makes it admissible. Also, it would be helpful if you could get a statement from public works that there is no more recent survey.

  10. #10
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    Default Re: Does the Speed Trap Defense Apply to Paced Tickets

    Quote Quoting Jim_bo
    View Post
    You only legally need to submit your discovery request to the DA. Caltrans will only have a survey if it is a state highway. Also, when you get a copy of the speed survey, you should get a certified true copy stamp on it. That makes it admissible. Also, it would be helpful if you could get a statement from public works that there is no more recent survey.
    Dang..you know I just went down to public works. They said only they handle that area. When I asked if it had been relooked on. They said they could not give out anything. I asked for a written paper saying there is no further assessment on the survey. I did not ask about the stamp though. I'll go down and try again for the stamp maybe.

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    oh umm they said it hadn't been touched on since 2006 though

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