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  1. #1
    Join Date
    Feb 2015
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    3

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    Quote Quoting jeff1970
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    I don't want them driving anywhere near me while playing around with an ipod or gps or whatever else.
    Have you ever adjusted the radio, turned on the A/C, looked at a girl or guy walking on the sidewalk, had a conversation with or even glanced at the person sitting next to you? All of those have been proven to be equally distracting, but have just come to be accepted and not ticketed.

    And you do realize that your statement about lattes is quite judgmental, considering there are homeless people with cell phones. Would you like to go without hot water for a month?

    This website is for useful information - it's good form to make sure a post is actually adding to the conversation.

  2. #2

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    Wow… talk about abuse!! I don’t doubt that Carl is right when he says that CHP (and SoCal cops) have been using 22350 as a “defacto distracted driving” cite… but that doesn’t make it right. California cops, courts and DA’s violate California law all the time, ironically, while enforcing the law. This seems like another one of those cases.

    Let’s take a look at what the law actually says… not what some cop or agency thought that the law SHOULD have said:

    22350. No person shall drive a vehicle upon a highway 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, and in no event at a speed which endangers the safety of
    persons or property.

    There are two sections to this statute related to speed. The first considers weather, visibility, traffic, and road surface/width. Obviously, this section is not applicable. The second section is concerned with “…a speed which endangers the safety of persons or property”. But what does that mean? If the LEO is relying on this part, then the argument becomes far more esoteric.

    Analogy: if a bull runs through an empty, open pasture, did he endanger anyone? The obvious answer is “no”, but I guess one could argue that a person could jump down out of a tree or even parachute into the pasture at any time and that person would be endangered if the bull chased them. So clearly, the bull is ALWAYS “dangerous”. But reasonable people applying the true meaning of words understand that in order to “endanger” there are two things required: proximity and specificity. The bull is not a danger because there is no one in close proximity. Additionally, there is no specificity. The only person who could be endangered by the bull is the hypothetical person. So, while the bull may be “dangerous”, he has not “endangered” anyone until a specific person comes into close proximity.

    To further illustrate, let’s look at the definitions of “dangerous” and “endanger”:
    Dangerous - able or likely to cause harm or injury.
    Endanger - to bring into danger or peril

    So, dangerous is the “ABILITY” to bring into peril, endanger is “ACTUALLY” bringing into peril. By a reasonable person’s standards, most things are “dangerous”. A knife is dangerous. A person can slash and thrust the knife in open air and he is dangerous. But, until there is a SPECIFIC person in close PROXIMITY to the guy with the knife, he has not ENDANGERED anyone. The belabored point here is that a car is dangerous. Any speed driven is dangerous. But there must be proximity and specificity to “endanger”. The legislature did NOT use the word “dangerous” in 22350. Obviously if they did, then EVERYONE would be in violation. They used the word “endanger”. So, in order to be in violation of 22350’s second section a person’s speed must have put a specific person or property in some close proximity into peril.

    This long diatribe is not to suggest that using 22350 in a situation like this is never reasonable. A motorist looking down at their iPod on an open desert highway with no other traffic, people or property is a very different scenario than the same act occurring on a busy city street while approaching an occupied crosswalk. In the desert scenario, clearly no one is endangered. In the city scenario, there is proximity and specificity… actual people are emperilled, not a “hypothetical” person.

    Obviously, as Carl suggests, the CHP and other LEAs are frustrated because the California legislature has not written a “distracted driving” statute. As a result of this frustration, they have obviously begun blending the definitions of “dangerous” with “endangered”. But the cops’ frustration should be vented on the legislature. It should NOT be taken out on the public by making up new meanings of words and laws. This is NOT law enforcement. This is law creation. Everyone hates the concept of legislation from the bench. Legislation from the badge is worse.

    OK… back on topic. Take a look at 22351(a):

    “(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.”

    In other words, the cop will have to CLEARLY PROVE that your speed ENDANGERED (i.e. brought into peril) specific persons or property. Notice that the legislature opted to enhance the burden on the state by use of the adverb “clearly”. It is the obvious intent that a very high standard is to be placed on the prosecution for a conviction of 22350 when a person is driving under the speed limit. Unless you had to swerve to miss a parked car or pedestrians were diving out of your path, this will be an extremely difficult burden to meet (that is, if the judge has any respect for the law).

    But wait, there’s more!

    40503. Every notice to appear or notice of violation and every
    complaint or information charging a violation of any provision of
    this code regulating the speed of vehicles upon a highway SHALL
    specify the approximate speed at which the defendant is alleged to
    have driven and EXACTLY THE PRIMA FACIA OR MAXIMUM SPEED LIMIT
    APPLICABLE to the highway at the time and place of the alleged
    offense and shall state any other speed limit alleged to have been
    exceeded if applicable to the particular type of vehicle or
    combination of vehicles operated by the defendant.

    While I have seen some crazy speed limits in my days, I’m sure that the actual PF speed limit in your case was NOT 1mph. Therefore, this ticket (i.e. the charging document) is defective on its face. While this is a bit of a technicality, it is the law. It’s not made up or hypothetical law (like the hypothetical person that could possibly have been endangered by your speed), it is actual law.

    As you might be able to tell, I’m very interested in this case. As such, I’ll make you a commitment. If you argue all the points that I have made here and you do so in a manner that ensures preservation for appeal, I will commit to assisting you in writing your appeal should you lose in court. This is an obscene and ridiculous application of one law to make up for the legislature’s failure to write an appropriate law.

  3. #3
    Join Date
    Oct 2013
    Location
    WV
    Posts
    230

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    I am curious, what is a reasonable speed you can operate a vehicle while texting, or in your instance while searching for a song on your Ipod?

  4. #4
    Join Date
    Feb 2015
    Posts
    22

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    That's an interesting question. Does it have anything to do with the statute?

  5. #5

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    Quote Quoting Mephis
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    I am curious, what is a reasonable speed you can operate a vehicle while texting, or in your instance while searching for a song on your Ipod?
    Your question is irrelevant to this thread. If you want to start a new thread, I'll be happy to comment

  6. #6
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    It doesn't matter whether any of us agrees with the interpretation of distracted driving being used to argue an unsafe speed or not. What matters is what the COURTS have to say on it, and thus far, the courts seem to be allowing the citation of VC 22350 for distracted and dangerous driving. Unless or until there is an appellate court fix, or the legislature modifies the CVC, if the local courts accept this interpretation it is a fact of life that a cited driver will have top contend with.

  7. #7

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    Quote Quoting cdwjava
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    It doesn't matter whether any of us agrees with the interpretation of distracted driving being used to argue an unsafe speed or not. What matters is what the COURTS have to say on it, and thus far, the courts seem to be allowing the citation of VC 22350 for distracted and dangerous driving. Unless or until there is an appellate court fix, or the legislature modifies the CVC, if the local courts accept this interpretation it is a fact of life that a cited driver will have top contend with.
    Although you refuse to admit it, there are many things that the courts and LEA's do that are not in compliance with state law. The reason they can do these things is because 95% of the public will not challenge a ticket for whatever reason. Therefore, this becomes a consistent and easy revenue stream. But I agree with you that an appellate court decision is needed to stop this bastardization of the plain language of the law. That's why I committed to help with an appeal. You see... I actually have respect for the rule of law. I don't just sit by defending the state when I know what they are doing is wrong. When an LEO/LEA twists the meaning of the law and uses it against the public, that is NOT the rule of law. That is the rule of men.... and I have NO respect for the rule of men. And I believe that if you (as well as every other LEO) took your oath seriously, you would not be habitually defending the state either.

    - - - Updated - - -

    Quote Quoting cdwjava
    View Post
    The cite will read VC 22350 with a safe speed of 1 ... if you had inclement weather 22350 cites they'd read the same sort of thing. Not having ever written one myself, I don't know what they typically say, but, I imagine they are similar to any other unsafe speed cites issued when the "safe" speed is not the posted limit.
    Do you just believe what any other cop or judge says.... just because they are a cop and/or a judge? Do you ever question them when they say something that makes no sense? How is 1mph a safe speed? Where did that come from? Are you ok with the fact that it is just made up? Are you suggesting that 1mph cannot be unsafe? Would you allowe a 3 yearold to drive if he only went 1mph? Would you allow your foot to be run over if the car was only going 1mph?

    The truth is that I made several very valid and rational arguments of why this type of ticket is wrong. But you just can't bring yourself to admit that. Instead, you just point to the court as if it is a force in the universe that cannot be disputed such as gravity. Or you point out the absurd 1mph thing and don't have the guts to recognize the mindless stupidity of it. Let's face it.... you are a state employee and you support your boss... no matter how stupid or wrong your boss may be at the time.

  8. #8
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Unsafe Speed Ticket for Use of an iPod, VC 22350

    Quote Quoting Jim_bo
    View Post
    Although you refuse to admit it, there are many things that the courts and LEA's do that are not in compliance with state law.
    As long as a COURT (you know, those people that are to interpret and apply the law) say it is permitted, then it is permitted. If the courts view 22350 as applying to non-roadway conditions that also make driving unsafe, then law enforcement would be remiss in not applying an accepted and thus far lawful interpretation of the statute.

    When/if there is a controlling court case or a change in the statute(s) that render the section inapplicable, I am sure you will it change. Until then, the officers will use the tools the law permits them to.

    The truth is that I made several very valid and rational arguments of why this type of ticket is wrong. But you just can't bring yourself to admit that. Instead, you just point to the court as if it is a force in the universe that cannot be disputed such as gravity. Or you point out the absurd 1mph thing and don't have the guts to recognize the mindless stupidity of it. Let's face it.... you are a state employee and you support your boss... no matter how stupid or wrong your boss may be at the time.
    First, Jim, you don't know a damn thing about me. Second, your insulting and berating nature is getting tiresome. Third, you can make your points without being a pompous ass.

    'Nuff said.

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