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  1. #1
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    Sep 2009
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    Default Correct Interpretation of CVC 22349

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

    California Vehicle Code 22349. (a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

    Questions:

    1. How does this relate to divided highways with posted limits of less than 65mph (e.g. 45mph on most CA expressways). As per 22349a, are you being charged with exceeding 65mph or the posted limit?

    2. During trial, should one defend not exceeding 65mph or the posted speed limit (which may be less than 65mph) ?

    3. How is the bail calculated in the situation #1 above. Is it based on exceeding 65mph (although posted limit may be less) or the posted limit.

    4. I was charged with a 67 in a 45 but seems like bail was calculated based
    on going 22mph over the posted limit and not for 2mph over. Is this correct as per the law?

    Thanks.

  2. #2
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    Default Re: Correct Interpretation of CVC 22349

    22349(a) charges you with exceeding the statutory 65mph limit (22356 set the limit to 70 in rural areas).

    So after reading your other thread (again), and realizing I overlooked the 22349(a) part, I'm not sure how the officer is gonna be able to justify citing you for 22349(a) when in fact, the speed limit on the highway you were on is set at 45mph.

  3. #3
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    Default Re: Correct Interpretation of CVC 22349

    Thanks for your insight!

    I am definitely challenging this one in court. So far, the DA has sent me a partial response to the IDR. They just sent me the backside of the ticket and said that the officer will bring the remaining evidence in court.

    My plan is to first file a motion to compel the DA to provide the remaining IDR and then go for TBWD.

  4. #4
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    Default Re: Correct Interpretation of CVC 22349

    Quick question: What part of CVC 22349 (a) says that it's ONLY applicable on highways that have a POSTED speed of 65? I'm not saying that you're wrong, St. That Guy, but I'm just curious.

    Barry

  5. #5
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    Default Re: Correct Interpretation of CVC 22349

    Quote Quoting blewis
    View Post
    Quick question: What part of CVC 22349 (a) says that it's ONLY applicable on highways that have a POSTED speed of 65? I'm not saying that you're wrong, St. That Guy, but I'm just curious.

    Barry
    Hahaaa... That is a great question, Sir Barry; and quite the eloquent set up for an even greater rebuttal, I am sure. There is no part that states that. However, I think the officer would have been better off citing for 22350 in this case rather than 22349(a).

    Furthermore, and as you may well know, the fine structure for California's speeding citations is based upon a graduated scale that is structured upon mph over the speed limit which was exceeded (1mph to 15mph, 16mph to 25mph & 26mph+). So for the OP to be cited in violation of exceeding 65mph (67 in 65) -which carries a fine of approximately $201- and yet be fined on the basis of exceeding the posted 45mph limit (67 in 45) -which carries a fine of approximately $321 is a bit... atypical, maybe even devious.

    I will say that I have seen similar cases such as this one which have resulted in convictions despite what I see as an apparent discrepancy.

    With that being said, and with as much value and respect that I hold to your -more often than not- valid and enlightening opinions, I'd love to hear your justification as to why a 22349(a) does apply in this case.

  6. #6
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    Default Further questions re: incomplete discovery

    Hi,

    I have a follow-up question regarding my case. The DA has sent me incomplete discovery material. They only sent me front/back copy of the ticket and nothing else.

    A few observations:
    1. The officer did not write down anything in front of "Distance Observed" on back of ticket.
    2. He says my car is Black (in fact, its dark Blue :-))
    3. The back of ticket has the LIDAR circled but he does not write when it was calibrated.

    Now for the questions :-)
    1. The officer does write ALT 67@422 in his notes. Does this (422) mean the distance he measured my alleged speed (67) using lidar?
    2. I am going to call the court and ask how to file a motion to compel discovery or exclude all evidence not provided in response to initial request. Is this the right approach or should I just file the TBWD and put the same request in there?
    3. Does the fact that the officer put my car as "Black" when its actually blue provides any grounds to strengthen my case? Can I argue that the officer stopped the wrong car as it was the busy lunch hour and there were many cars around me?

    Thanks for all the help! I can post the backside of the ticket if that helps :-)

  7. #7
    Join Date
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    Default Re: Further questions re: incomplete discovery

    The cop screwed up. He should have written you for 22350. You were charged with 2mph over. If I were you, I'd go to court for arraignment and ask for a dismissal in the interest of justice considering the narrow margin cited. If you lose that motion, you should be able to beat it at trial. It is a ridiculous charge.

  8. #8
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    Default Re: Further questions re: incomplete discovery

    Quote Quoting EWYLTJ
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    The cop screwed up. He should have written you for 22350. You were charged with 2mph over. If I were you, I'd go to court for arraignment and ask for a dismissal in the interest of justice considering the narrow margin cited. If you lose that motion, you should be able to beat it at trial. It is a ridiculous charge.
    Thanks! Can I also file this motion as part of my TBWD or do I have to showup at arraignment? I ask because my arraignment is set for Nov 3 but I will be traveling until Dec 8th so can't make it in person. I have already used up one extension so not sure if they will do it again.

  9. #9
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    Default Re: Correct Interpretation of CVC 22349

    If you can't appear for the arraignment, you can ask for an extension. All you have to do is call the court. Many courts even allow you to do it as a menu option on an automated phone system.

  10. #10
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    Default Re: Further questions re: incomplete discovery

    Quote Quoting EWYLTJ
    View Post
    If you can't appear for the arraignment, you can ask for an extension. All you have to do is call the court. Many courts even allow you to do it as a menu option on an automated phone system.
    He's already received his first extension:
    Quote Quoting videotape
    View Post
    I have already used up one extension so not sure if they will do it again.
    So neither the automated phone system nor the court's website will offer him a second one.

    Assuming you're still in town, you should appear in court (at the clerk's window) and ask for one.

    Either way, and regardless of whether you file your motion to dismiss now or with your TBD, I'm not too confident it will be granted. Wouldn't hurt to file it though... I think you've got a better chance at a "not guilty" after the TBD/trial but even then, it would be interesting to see how the officer will testify.

    To back track a bit....

    Quote Quoting videotape
    View Post
    3. The back of ticket has the LIDAR circled but he does not write when it was calibrated.
    They don't put the calibration date on the back of the ticket, nor on the front. What you should have on there is the unit number he used. That should be on the front -next to the LIDAR box.

    Quote Quoting videotape
    View Post
    1.The officer does write ALT 67@422 in his notes. Does this (422) mean the distance he measured my alleged speed (67) using lidar?
    Yes, 422 is the distance in feet.

    Quote Quoting videotape
    View Post
    2.I am going to call the court and ask how to file a motion to compel discovery or exclude all evidence not provided in response to initial request. Is this the right approach or should I just file the TBWD and put the same request in there?
    No, filing a motion to compel with your TBD will not get you anything. If the judge has that motion along with your declaration as well as the officer's declaration, do you think he's gonna grant your motion and further put the case on hold when in fact he has you argument as well as the officer's testimony right there in front of him?

    No, he's gonna read the declarations and move to the next case.

    Instead of going for overkill by filing a “motion to dismiss in the interest of justice”, you should file a “motion to compel”; assuming that gets read by the court and assuming the judge will in fact issue an order for the DA to provide you with the missing items, that “MAY” buy you some time until you return.

    Not sure how the timeline will work for you...

    Quote Quoting videotape
    View Post
    3.Does the fact that the officer put my car as "Black" when its actually blue provides any grounds to strengthen my case? Can I argue that the officer stopped the wrong car as it was the busy lunch hour and there were many cars around me?
    You can argue anything you want... The fact that the officer measured your speed at 422 feet and assuming he immediately gave pursuit and maintained visual contact with your vehicle (and my guess is that he will testify to all of the above, and in that order), “a mistaken identity” argument might not work too well in your favor.

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