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  1. #1
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    Default Wrong Speedometer Calibration in Discovery Items

    My question involves a speeding ticket from the State of: California
    The officer appeared at my trial de novo with discovery items in hand...I gave 3 weeks lead time. The judge wouldn't dismiss but granted a continuance until 2/8/2010. Discovery comprised both sides of the officer's ticket; his declaration form TR-235; an essay declaration; and a speedometer calibration record from the wrong vehicle. The ticket note states vehicle # 17; the essay states #18; and the CSAA calibration record is for #14.
    Can I move to bar his testimony about the pacing speed because of that mistake? Can I ask questions about the incident not covered in his essay or on the ticket notes? Can I impeach his testimony about estimated speed with evidence of his inability to estimate distance? On the ticket he wrote A.M. (and my name as "Robin") but his written account stated P.M. (and "Ruben"). Could that help me?

  2. #2
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    What Vehicle Code section were you cited for?
    You might want to also include the speed info from your citation... i.e. Your alleged speed, "P.F./Max (posted limit)".... "Safe Speed".... etc.

  3. #3
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    I was cited for 85 in 65...22349(a) on Dec 24th, 2008. The officer was pulling on to the freeway when he first observed me "passing him at approx 85 mph" in the #1 lane. He accelerated from #4 to #1 "300 ft to the rear". I saw him enter the #1 lane 700 to 800 feet behind me and (I was in the HOV lane at the wrong time) I immediately began pulling over trying to hide behind a semi in the right lane. Officer M. accelerated towards me and changed lanes as I did. I just pulled to the shoulder knowing it was a cop and stopped. The whole process took 3/4 mile according to the "location of violation", and the officers written declaration yet his notes on the back of the ticket indicate: "Distance Observed: 1.5 miles" and "Distance CHP Veh Behind: 300 ft." His Christmas present to me was no HOV ticket. He never could have paced me so my speed was an educated estimation.

  4. #4
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    Quote Quoting Torturella
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    Can I move to bar his testimony about the pacing speed because of that mistake?
    Bar his “entire” testimony? Highly unlikely... You can request that the calibration certificate be excluded, but even without that, if he were to testify that he paced you, and whether his calibration certificate was mentioned or not, the court will more likely deem his speedometer as being accurate enough for a pace.

    Why? A number of reasons:
    1. (I assume this is the CHP)... It is a well known fact that the CHP -as a matter of policy- is pretty consistent about calibrations. In fact, and while it is typical that an annual calibration is considered sufficient, the CHP will calibrate (each and every vehicle) once every 3 months.
    2. You were charged with driving at 20mph over the limit. So even if you can somehow succeed in excluding his calibration certificate, or otherwise suggest that his speedometer was off by even as much as 10mph (highly doubtful it would be that high), you would still be guilty of exceeding the MAXIMUM speed limit of 65 mph... In other words, even though that would cast some doubt as to the accuracy of his measurement, does that mean that you have raised “reasonable doubt” as to your guilt? That might depend on the judge...
    3. Even if he does not present the court with a calibration certificate, his measurement will be deemed sufficiently accurate for a conviction (with or without a calibration certificate)... Here is another thread where I cited a case (People v. Lowe) that clearly demonstrates that point: Park Ranger Speeding Ticket California Sacramento

    Quote Quoting Torturella
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    On the ticket he wrote A.M. (and my name as "Robin") but his written account stated P.M. (and "Ruben"). Could that help me?
    When it comes to these errors, and while it might raise some doubt as to how attentive the officer was when he wrote up his declaration, does not necessarily mean that he paced you at the wrong speed on the day he cited you. Most likely, and since these errors are not considered “elements of the offense” with which you were charged, and in the grand scheme of things, they will more likely than not be considered as irrelevant. You can still try though...

    Quote Quoting Torturella
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    I was cited for 85 in 65...22349(a).
    I'm sure you have read CVC 22349(a) but here it is anyways...

    CVC 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.

    So the officer only needs to establish that you were driving in excess of 65mph. In your case, and for you to cast any reasonable doubt as to your guilt, you would have to somehow establish an error rate of +/- 20mph... which is +/- 23.5%... That's a tough uphill climb.

    Quote Quoting Torturella
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    The officer was pulling on to the freeway when he first observed me "passing him at approx 85 mph" in the #1 lane.
    And by that point, as far as he was concerned, you were already caught!

    Quote Quoting Torturella
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    I immediately began pulling over trying to hide behind a semi in the right lane.
    Probably too little too late...

    Quote Quoting Torturella
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    I just pulled to the shoulder knowing it was a cop and stopped.
    You mean you pulled over before his lights came on?

    I'd be curious to find out what the conversation went like... You know... the part where he asks “do you know why I pulled you over?”... And your answer was "_________".... What?

    Quote Quoting Torturella
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    The whole process took 3/4 mile according to the "location of violation", and the officers written declaration yet his notes on the back of the ticket indicate: "Distance Observed: 1.5 miles"
    Bring it up... Cross examine him about the discrepancy and see what he says... Added to the inconsistency regarding your name and the AM/PM part (even with as minor as it may be), and with the “right” judge, it might get you where you want to be... Who knows?

    Quote Quoting Torturella
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    His Christmas present to me was no HOV ticket.
    Which, by the way, carries a $425+ fine... Just so you'd know!

    Quote Quoting Torturella
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    He never could have paced me so my speed was an educated estimation.
    Its actually called “visual estimation”. Every officer who is assigned to traffic enforcement, and particularly one who has been trained in the use of Radar/Laser (meaning EVERY ChiPper) is trained in visual estimation and can do so with an accuracy of +/- 5mph. And that by itself, and in numerous cases, has been deemed sufficient for a conviction... with, or without a calibrated speedometer. Don't feel bad though... 22349 cases are pretty tough to beat.

    Sorry I do realize I haven't really provided you with much help. But please, do keep us updated...

    Good luck!

  5. #5
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    The officer turned on his lights as he merged in behind me and I pulled over on the shoulder. He said, "I pulled you over for speed and driving in the HOV lane, do you know how fast you were going?". I said 65 but he wrote on the back of the ticket, "didn't know how fast".
    I prepared another discovery request asking for proof or certificates of that "estimation training" as well as a written translation of his notes. His writing and shorthand are difficult and I would like to know how he pulled certain details out of them.
    His notes: "I was coming on Passed me looked solo est 85 I moved behind 85 M.P.H. rear decks 3/0f, it moved to s-4 at 85 then slowed I followes om Sto (or "on" or "oh" or "off" Sto crossed out)"... "Almost self suceendly (surrender?) didnot know how fast, going to work"... All spelling as close as I can make out.
    I realize I have a hopeless case but I want to make the system work to get my conviction. I expect him not to reply to the 2nd request and I intend to bring it up at the trial. He makes simple mistakes on matters of importance and in my case he could be mistaken also.
    What do you think of this tactic? Likely to piss everyone off to my disadvantage?

  6. #6
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    Quote Quoting Torturella
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    What do you think of this tactic? Likely to piss everyone off to my disadvantage?
    Yupp! Its your case though... Conduct it which ever way you see fit.

    Just keep in mind that:
    • There is not such thing as a certificate for "visual estimation"... It is part of his Radar/laser training... And as long as he presents THAT certificate, the court will assume that his testimony regarding your speed 9with or without a calibration) is sufficiently accurate for a conviction - especially when you were alledgedly driving at 20mph over the MAXIMUM limit (there is very slim chance, if any, that he was off by 20mph).
    • He is under no obligation to respond to your request to "translate his notes"... You can question him about what he has written in his notes during the trial. But to "complain to the court" because he didn't write notes that you think are legible... Good luck getting anywhere with that. In fact, some may argue that the officer is not under any obligation to any of your requests for discovery and that that burden falls solely on the DA.
    • Laslty, the officer gave you a HUGE break on the HOV violation (its in his notes AND he will probably mention it as part of his testimony. And while that should not, by any means suggest that you should simply lay down on the speeding charge, just be aware of the fact that there is nothing that prevents the officer from issuing another citation and handing it to you as you're walking out of court. I'm not saying that will happen... Yet, there is nothing to stop him from doing so...

    Your proposed actions and the way you seem to plan on conducting this case, may only tend to frustrate the officer & piss off the judge (you're pushing your luck)... And guess who's going to end up on the losing end when that trial is over?

  7. #7
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    It looks like my best tactic is to not request any more items. I should point out in trial his mistakes and if he doesn't bring his radar/laser training certificate I could mention that in summation.
    As far as his issuing a new citation for HOV, the original date was Dec 24th, 2008. Is there a statute of limitations for such a case?
    Also, the new higher HOV fines went into effect last Jan 1, right? ($50 difference)

  8. #8
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    Quote Quoting Torturella
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    It looks like my best tactic is to not request any more items. I should point out in trial his mistakes and if he doesn't bring his radar/laser training certificate I could mention that in summation.
    Even if you were to request any additional material, first, you've already made your discovery request, the officer did provide you with the materials you requested, and the court afforded you the opportunity and time to prepare your defense. So I highly doubt you would get any more relief from the court re any additional items. And second, you are asking for items that either do not exist or that he is under no obligation to provide... So either way, your additional request will not get you anything but more importantly, it may give the impression that you are either grasping for straws, or are simply trying to further delay the proceeding... neither of which will work to your advantage.

    Quote Quoting Torturella
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    As far as his issuing a new citation for HOV, the original date was Dec 24th, 2008. Is there a statute of limitations for such a case?
    You did in fact post the Dec '08 date and I failed to consider that... So yes, the statute of limitations for an infraction (criminal matters in general) is, in fact, one year from the date of the violation so you're pretty safe on that issue.

  9. #9
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    Default Re: Wrong Speedometer Calibration in Discovery Items

    Quote Quoting That Guy
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    It is part of his Radar/laser training... And as long as he presents THAT certificate, the court will assume that his testimony regarding your speed (with or without a calibration) is sufficiently accurate for a conviction -
    If he does not present that certificate would that be useful if I handle it right? Specially with the wrong speedometer calibration...

    Quote Quoting That Guy
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    In fact, some may argue that the officer is not under any obligation to grant any of your requests for discovery and that that burden falls solely on the DA.
    I first called the Alameda County DA to find out how to ask for the discovery and was told to make the request to the CHP officer himself. The DA only handles non traffic requests.

  10. #10

    Default Re: Wrong Speedometer Calibration in Discovery Items

    Quote Quoting Torturella
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    If he does not present that certificate would that be useful if I handle it right? Specially with the wrong speedometer calibration...

    I first called the Alameda County DA to find out how to ask for the discovery and was told to make the request to the CHP officer himself. The DA only handles non traffic requests.
    That may be true operationally but legally speaking the prosecution has the legal responsibility to meet discovery (see PC 1054) ... it is their job to forward your request to the investigating agency and to coordinate the response. The fact they choose not to is not your responsibility. If you want to send a "courtesy copy" to the investigating agency that's not a bad idea as it may be the only way to get a response.

    Did your discovery request ask for the DA to disclose any and all evidence to be presented at trial? If so and you were not given discovery items you should object to any items that the witness (officer) attempts to introduce at trial. It seems that since this cite is over a year old you have already waived your speedy trial rights so this could just end up being another continuance.

    One caveat the same PC codes that allow for discovery in infraction cases also require that YOU disclose any evidence you plan on using at trial (1054.3 PC). For these I would send ONLY to the DA and let them worry about forwarding it to their witness.

    There is nothing wrong with making the "system" work for their $$'s but if you haven't prepared any real defense than the court will probably be able to tell.

    One more method you can use ... did your discovery request include a request for all witness(es), see PC 1054.1(a), and was it properly served upon the DA? If so and there was no disclosure of a witness list than the officer-witness should not be allowed to testify. Again will just be another continuance but it depends on how much you want to drag it out ... always ASK for a dismissal and let the judge deny and change it to a continuance.

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