1. law, govt and politics

CASE DISMISSED
With Special California
Strategies
How to Fight and Beat Your Speeding Ticket
Based on the strategies of Captain Roland Hoeffener
Edited by Attorney James F. Sadler
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CASE DISMISSED
How to Fight and Beat Your Speeding Ticket
With Special Strategies for Beating California Tickets
This is copyright material, January, 2008. If you got this material by any means other than a
purchase from Jeff Mulligan or BeatMySpeedingTicket.com you have a pirated copy. If this is the
case, please email the author at [email protected] and let me know where you
obtained it. (You can keep your copy for providing this help)
You cannot give this book away for free.
You cannot give it away as a bonus.
You do not have rights to resell this book
While all attempts have been made to verify the information provided in this publication, the
author does not assume any responsibility for errors, emissions or contrary interpretation of this
information.
This publication is not intended for use as a source of legal advice. The author wants to stress
that the information contained herein may be subject to varying international, federal, state and/or
local laws or regulations. The purchaser or reader of this publication assumes responsibility for
the use of these materials and information. Adherence to all applicable laws and regulations is
the sole responsibility of the purchaser or reader.
We do not intend to give you legal advice regarding specific legal problems because the answer
may depend upon the facts and circumstances surrounding your situation. In addition, the law is
ever changing, and though we try to keep everything up to date it may be necessary for you to
obtain information more current than that contained on this site.
The author does not assume my responsibility or liability whatsoever for what you choose to do
with this information.
Any perceived slight of specific people or organizations is purely unintentional.
Use this information at your own risk.
Congratulations you have made the choice to fight that ticket and win.
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Table of Contents
Table of Contents..........................................................................................................................3
Preface..........................................................................................................................................4
Introduction Phase 1 .....................................................................................................................4
California Trial By Written Declaration ..........................................................................................6
Violation Type 1. Maximum Speed Law (exceeding 65 MPH) -- 22349(a): .................................8
Violation Type 2. Basic Speed Law (unsafe speed for conditions)--22350:...............................16
Violation Type 3: 22356 Exceeding Posted Speed of 70MPH via Aircraft Ticket ......................26
Introduction Phase Two ..............................................................................................................28
Why Does Case Dismissed Actually Work?................................................................................30
The Ticket ...................................................................................................................................32
The First Layer of Your Defense .................................................................................................34
Some Legal Basics .....................................................................................................................35
Some Courtroom Basics You Should Know................................................................................38
Avoid These Mistakes .................................................................................................................41
Preparing Yourself for the Trial ...................................................................................................44
What Will The Trial Be Like?.......................................................................................................45
Your Trial.....................................................................................................................................47
Unprepared Prosecution .............................................................................................................49
Caught in a Speed Trap ..............................................................................................................51
Caught by a Pace Car.................................................................................................................51
Questions for the Trial: Pace Car Speedometer .........................................................................54
Caught by Radar .........................................................................................................................57
Questions for the Trial: Beating Radar........................................................................................60
Caught by Laser/Lidar.................................................................................................................65
Review and Additional Pointers ..................................................................................................69
Addendum 1: Important to Read .................................................................................................72
Addendum 2: Special Section- Important....................................................................................74
How to Conduct Legal Research into Speeding Tickets .............................................................79
Appendix 1: Not Guilty Plea & TR-205 forms.............................................................................80
Appendix 2: California Vehicle Codes - Speed Trap Laws .........................................................83
Note: It’s a good idea to read through the entire book
first so you fully understand the strategies.
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Preface
Thank you for purchasing Case Dismissed, we hope that our tools will
help you to beat your speeding ticket. This version of Case Dismissed is
specifically for use in California speeding tickets.
We suggest that you first complete Phase 1 of Case Dismissed. This
phase outlines how to submit both a Written Not Guilty Plea and request a Trial
By Written Declaration. You will find a blank Written Not Guilty Plea, a sample
TR-205 form, and copies of California Speed Laws in the Addendums at the end
of this book.
Should you receive undesirable results or dislike the content in Phase 1,
we strongly suggest that you move on to Phase 2. Both Case Dismissed phases
have resulted in many cases being dismissed.
Introduction Phase 1 – Fight in Writing
California Vehicle Code section 40902 lets you contest a traffic citation in
writing, without having to appear in court. This process is called “trial by
declaration”. You may use trial by declaration if your case involves a Vehicle
Code violation or a violation of local ordinance, under the Vehicle Code.
To qualify for Trial by Written Declaration, you must (1) Pay your bail in
full, submitted along with the Not Guilty Plea Form which can be found in
appendix 1 of this document. (2) Have only a vehicle infraction. (3) No accident
or injury involved. (4) No failure to appear or pay on the current case.
The court will send you back a form TR-205, and you fill that out along
with a statement of defense that you choose from among those we supply below.
The state will notify you of their ruling and, if found not guilty, your bail
amount is refunded. If you are found guilty, you can still elect to have a trial in
person to fight the ticket, and you use the other strategies in the book.
The following materials include sample documents and may help you to
win your case or have your fines reduced. You must fill out the forms and submit
them properly. Be sure that you include the proper bail amount. Because the
contents of this document are copy-protected, we have created web pages
that you can visit and from which you may copy the relevant defense tactic
into your own word processor, edit and print to submit to the court. The
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links are found at the beginning of each tactic below.
The chart below shows the flow of the process
After you have submittted the not guilty plea and bail check, the state sends back
form TR-205. You will fill that out. You also will review the Defense Tactics
provided below for the type of violation and find the tactic that is most relevant for
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your ticket scenario.
Open a new document in your word processing program and cut and
paste the Defendant Statement from the appropriate Defense Tactic off the web
page and into this new document. Carefully review the document and enter all of
the facts of your case, the data that you need to enter will be indicated by
parenthesis ( ) in the document, most of the necessary data will be on your ticket,
do not enter any comments or irrelevant information. Be sure to REMOVE the
parenthesis when you are done. Each Defense Tactic section has its own
Defendant Statement with a link to a web page, where you can cut and paste the
text.
Fill out the Trial By Written Declaration form---TR205 that the court sent to
you. On the back, under 6."Statement of Facts", write: "Please see attachments."
In the space "Number of pages attached," write the number of pages you are
attaching to the TR-205 (this will be to attach the Defendant
Statement/Statement of Facts.)
Sign and date BOTH the TR205 Trial By Written Declaration form and
your attached Defendant Statement/Statement Of Facts.
Mail the court your Trial By Written Declaration form TR-205 and
Defendant Statement/Statement Of Facts. Your full bail should have been
submitted with your written not guilty plea. (Some courts allow your written
declaration to count as your written not guilty plea: in these cases, submit bail
with your written declaration.) Mail all documents at least five days prior to your
due date via certified mail, return receipt requested. Don't forget to ask for a
RETURN RECEIPT: this is your proof of delivery.
California Trial By Written Declaration Procedure Details
Step #1 To contest your speeding ticket without appearing in court Your
FIRST STEP will be to submit a Written Not Guilty Plea to the court. This will
save you from having to appear in court.
As part of your Written Not Guilty Plea, you will also request a Trial By
Written Declaration. This also allows you to avoid appearing in court.
The Written Not Guilty Plea is a legal document. With this document you
must also send the full bail amount as indicated on your ticket. The bail amount
is considered a deposit to guarantee that you will appear in court (or as in your
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case a Trial By Written Declaration) and serves as a deposit for any fines
assessed by the court. (If you are found Not Guilty the fees will be refunded to
you) The Written Not Guilty Plea must be sent to the court by registered or
certified letter AND must be postmarked five (5) days prior to the appearance
date indicated at the bottom of your ticket. If there are fewer than 5 days before
the appearance date, you may submit the Written Not Guilty Plea in person.
#2 When the trial court receives your Written Not Guilty Plea, you will be sent
a TR-205: Trial By Written Declaration form by the court.
In the following section you will find our approach for beating tickets in
certain traffic ticket scenarios. You will need to find your Violation Type (noted
on your ticket) and a Defense Tactic for your situation. You will find information
to compose your Defendant Statement, to include with your Trial By Written
Declaration form.
For your reference:
(http://www.dmv.ca.gov/pubs/vctop/d17/vc40519.htm) – Link to CA laws
(http://www.dmv.ca.gov/pubs/vctop/d17/vc40902.htm) - Link to CA laws
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Violation Type 1. Maximum Speed Law (exceeding 65 MPH) -22349(a):
Defense Tactic 1: Brief acceleration to yield to tailgater
For this tactic we cite certain situations and laws that create a situation
that allows for a brief accelerated speed to be used and justified.
CVC 22349(a), the Maximum Speed Law, states that it is illegal to drive
above the 65mph speed limit on any California Highway (unless otherwise
posted). When traveling on California Highways you are also required to follow
other traffic laws including the Basic Speed Law, CVC 22350.
CVC 22350, states that a driver must drive at a speed that is safe for the
current conditions. (Conditions take in to account, weather, traffic volume,
visibility, and road surface conditions). We find that if all of the above conditions
are favorable, that it is legal to drive reasonable above the posted speed limit,
based on CVC22351 which says that “The speed of any vehicle upon a highway
in excess of the prima facie speed limits...or established as authorized in this
code (includes the 65mph max speed limit) 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." Therefore, in this situation, traveling above
the posted speed is not illegal.
Also necessary in this tactic was the need for a brief acceleration to
comply with CVC 21753 "Yielding for Passing", for the passing tailgater. CVC
21753, states that a “driver of an overtaken vehicle shall give way to the right in
favor of the overtaking vehicle on audible signal or the momentary flash of
headlights by the overtaking vehicle...." Based on this, we feel that momentarily
speeding up to allow traffic to pass is not a violation of a posted speed.
Sample Defendant Statement (for your use)
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22349(a).
Please review the facts of my case contained within this document. While
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driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I observed an overtaking vehicle in my lane. I felt this vehicle was
approaching quickly and felt unsafe in my current lane. Due to another vehicle at
my immediate right, I briefly accelerated to get by the car at my right, to yield to
the right for the overtaking car, and to remove my vehicle from a potentially
unsafe situation. Shortly after I moved to the right lane, I was stopped by Officer
(enter name), Badge # (enter ID number, both name and ID should be on your
ticket) and subsequently charged with violating CVC 22349(a).
On the section of (enter name of highway) where I was stopped, the road
conditions and weather allowed for speed slightly above the posted speed limit.
For my safety, I felt it necessary to briefly accelerate to allow the overtaking car
to pass. I contend that my speed, above the posted speed limit was necessary
and with the limits of the Basic Speed Law.
CVC 22351, section b of Speed Law Violations, states "The speed of any
vehicle upon a highway in excess of the prima facie speed limits...or established
as authorized in this code (includes the 65mph max speed limit) 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."
When I was stopped both the weather and road conditions were favorable,
and due to the potential unsafe situation with the overtaking car, I was in the
limits of Basic Speed Law. My exceeded speed at the time of my stop was not
against the law.
I respectfully request at this time that my traffic citation be dismissed.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
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Defense Tactic #2: Speed was safe for conditions
For this tactic we are going to use the Basic Speed Law to void the
Maximum Speed Law penalty. You should not be charged for breaking one law
to abide by another. Making your brief time above the speed limit, permissible.
CVC 22349(a), the Maximum Speed Law, states that it is illegal to drive
above the 65mph speed limit on any California Highway (unless otherwise
posted). When traveling on California Highways you are also required to follow
other traffic laws including the Basic Speed Law, CVC 22350.
CVC 22350, states that a driver must drive at a speed that is safe for the
current conditions. (Conditions take in to account, weather, traffic volume,
visibility, and road surface conditions). We find that if all of the above conditions
are favorable, that it is legal to drive reasonably above the posted speed limit.
This is supported by CVC 22351 Speed Law Violations, "The speed of any
vehicle upon a highway in excess of the prima facie speed limits...or established
as authorized in this code (includes the 65mph max speed limit) 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."
Therefore, in this situation, traveling above the posted speed is within the
law, based on CVC 22351.
Sample Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22349(a).
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22349(a). The officer recorded my speed as (enter
speed on ticket) in a 65MPH zone, I believe that I was not driving faster than
(enter your estimated speed) MPH.
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CVC 22350, states: "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."
My ticket states that the road was (enter road conditions from your ticket,
ex. clear and dry with light traffic). In the area that I was stopped on (Name of
Highway), it is a (enter number of lanes, ex. three) lane highway in good
condition, I felt it was quite safe to drive at (enter your estimated speed) MPH
with the road and weather conditions as they were.
CVC 22351, section b of Speed Law Violations, states "The speed of any
vehicle upon a highway in excess of the prima facie speed limits...or established
as authorized in this code (includes the 65mph max speed limit) 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."
The conditions at the time of my stop were favorable as documented on
my ticket, by Officer (enter name), this made the speed at which I was traveling
safe. I was in the limits of Basic Speed Law. My exceeded speed at the time of
my stop was not against the law.
I respectfully request at this time that my traffic citation be dismissed.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
(Print Your Name here and sign above).
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Defense Tactic #3: Speed of Traffic Made it Unsafe to Drive at 65mph
In a situation like this you cannot challenge the fact that the law was
violated, here you can bring up other laws that might cancel out the law in which
you have violated. In this tactic you will attempt to cancel out the Maximum
Speed Law by using both the Basic Speed Law and the Minimum Speed Law.
You want to justify speeding above 65MPH, by stating circumstances and
laws that made it lawful to briefly drive above the posted speed limit. Again, we
should not be charged for breaking one law to abide by another.
CVC 22349(a), the Maximum Speed Law, states that it is illegal to drive
above the 65mph speed limit on any California Highway (unless otherwise
posted). When traveling on California Highways you are also required to follow
other traffic laws including the Basic Speed Law, CVC 22350 and the Minimum
Speed Law CVC 22400.
The Minimum Speed Law states: "No person shall drive upon a highway
at such a slow speed as to impede or block the normal and reasonable
movement of traffic...."
If the traffic on the highway is moving at 80MPH, and you are traveling at
a slower speed than that, such as a posted speed limit of 65MPH, you would be
slowing down the flow of traffic an creating a potentially hazardous situation. By
following the speed of the traffic, you are obeying the Minimum Speed Law and
are not creating a road hazard by following the Maximum Speed Law, driving at
65MPH or slower.
Basic Speed Law, CVC 22350, states that a driver must drive at a speed
that is safe for the current conditions. (Conditions take in to account, weather,
traffic volume, visibility, and road surface conditions). If traffic is traveling above
the speed limit, it is not safe to drive 15 to 20MPH slower. To travel at the rate of
the speed of traffic does violate the Maximum Speed Law but it does obey the
Basic Speed Law and does maintain safety.
Sample Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22349(a).
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Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22349(a) by traveling at (enter speed on ticket)
MPH. I respectfully request that my citation be dismissed as, while I was
traveling at exceeded speed, it was necessary to abide by both the Minimum
Speed Law and the Basic Speed Law.
At the time that I was stopped, the traffic was (enter description of traffic,
i.e. heavy and was moving at about 80 MPH). Initially I attempted to maintain the
65mph maximum speed, even with the traffic going (enter approximate speed of
traffic, i.e. 10-20 mph) faster than that. Due to the volume and speed of the
traffic I felt that I could not maintain the slower speed and be safe. This is when I
increased my speed.
"The Minimum Speed Law," states that "No person shall drive upon a
highway at such a slow speed as to impede or block the normal and reasonable
movement of traffic...." By driving at the posted 65 mph speed limit, I was slowing
the normal flow of traffic, it was safer to obey the Minimum Speed Law, by
traveling at the speed of the traffic, than to obey the Maximum Speed Law and
cause a dangerous situation by traveling at the slower posted speed limit.
CVC 22350, Basic Speed Law states: "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." It is not safe to drive slower than the speed of traffic, so it is not safe
to drive 65mph when traffic is going 80mph. This does go against the Maximum
Speed Law, but in my case it was safer for me to follow the Basic Speed Law, to
maintain safety.
The conditions at the time of my stop were favorable as documented on
my ticket, by Officer (enter name), this made the speed at which I was traveling
safe. I was in the limits of Basic Speed Law. My exceeded speed at the time of
my stop was not against the law.
I respectfully request at this time that my traffic citation be dismissed.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
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_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
Defense Tactic #4: Aircraft enforced, Illegal Speed Trap from Air
When using aircraft to enforce speed laws, the officer on the ground is
supposed to clock the drivers speed independently. Police aircrafts clock speed
by timing you across two designated areas on the road, that can be seen by the
aircraft. Your speed is calculated by the time it took you to get from one area to
another. This is an illegal speed trap, based on 40802(a)(1), it is illegal to use
time-distance calculation to clock speed.
An aircraft speeding ticket must have the names of both the ground and
air police officers. The pilot is the witness to your speeding, so his name must
appear to confirm speed. The officer in the patrol car must also sign your ticket
as he is responsible for identifying you as the driver. If your ticket is not signed by
both officers, your ticket could be dismissed for lack of evidence.
Sample Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22349(a).
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22349(a) by traveling at (enter speed on ticket)
MPH. I respectfully request that my citation be dismissed as, while I was
traveling at exceeded speed, it was necessary to abide by both the Minimum
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Speed Law and the Basic Speed Law.
I saw the patrol vehicle prior to being stopped, I had verified that I was
driving the posted speed limit. Officer (enter patrol officer name) stated that he
had not seen my speed, this was confirmed on my ticket with the “violation not
committed in my presence” section selected, it was indicated that I had been
clocked by aircraft at approximately 80mph.
A car similar to mine had passed me shortly before I was stopped. It is
possible that Officer (on the ground) mistakenly stopped me as the speeder,
because the description of the car, given by Officer (pilot) was similar to mine.
Regardless, if Officer (the pilot) states that he did not follow my car, until I
was stopped to make sure that Officer (on the ground) pulled over the car that he
saw speeding, I respectfully request that my case be dismissed due to a lack of
sufficient evidence.
Additionally, please dismiss my case if either officer failed to present a
written declaration, for lack of evidence.
If my alleged speed was recorded by timing in the aircraft, as I drove on a
marked section of road used for speed tracking. I respectfully request that the
court dismiss my ticket as this constitutes an illegal speed trap as described in
CVC 40802(a)(1), "A particular section of a highway measured as to distance
and with boundaries marked, designated, and otherwise determined in order that
the speed of a vehicle may be calculated by securing the time it takes the vehicle
to travel the known distance."
Evidence obtained through the use of a speed trap is illegal based on
CVC 40801: "...nor shall any speed trap be used in securing evidence as to the
speed of any vehicle for the purpose of an arrest or prosecution under this code."
If speed trap evidence was used as testimony by the citing officer, it is
inadmissible based on to CVC 40804(a): "...any officer or other person shall be
incompetent as a witness if the testimony is based upon or obtained from the
maintenance or use of a speed trap."
I respectfully request that if either officer’s evidence was obtained via
illegal speed trap, that my case be dismissed.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
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this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
Violation Type 2. Basic Speed Law (unsafe speed for
conditions)--22350:
Defense Tactic #1: Radar ticket. "Safe & reasonable speed" and "speed
trap" argument.
This is the best and most often contested type of ticket.
It is not illegal to drive above the speed limit in areas posted with a 3050pmh speed limit. On these roadways the posted speed limit is a suggested
speed based on a speed survey of that road. It is illegal to drive above the
posted speed limit only if the road conditions make it unsafe to do so.
CVC 22350, The Basic Speed Law, states: "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."
In this type of traffic stop an officer is required to record road conditions. If
you were driving in heavy traffic and visibility was poor due to weather conditions,
and you were driving 10 to 15mph above the speed limit, this would be a
warranted ticket as the conditions were unsafe. If the traffic had bee light to
medium, it could be safe to travel 10-15mph above the posted speed limit. In this
situation a ticket for a Basic Speed Law violation would be unwarranted.
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For most Basic Speed Law enforcement, radar is used to determine
speed. The use of radar is legal only if a traffic survey has been done on the
roadway within the last five years.
According to CVC 40802(a)(2) a radar speed trap is, "A particular section
of a highway with a...speed limit that is provided by this code... 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."
In CVC 40803(b), another code, police must provide that the evidence
obtained by radar was not obtained by use of a speed trap. In this situation the
officer must submit a copy of the traffic survey from where the stop occurred.
The survey must have been created in the last five years and would confirm that
the road where you were stopped did not have a speed trap. If the officer cannot
prove this, the radar evidence is deemed illegal and the case must be dismissed
to comply with 40803(b).
The key with this situation is to prove that the road is a speed trap due to
an out of date speed survey. If the officer cannot submit a valid survey, the case
must be dismissed.
Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22350.
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22350 by traveling at (enter speed on ticket) MPH in
a (enter posted limit) MPH zone. I believe that I was traveling between (enter
speed) MPH and (enter speed) MPH at the time and believe that my speed was
safe for prevailing conditions.
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CVC 22350, Basic Speed Law states: "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."
When I was stopped the road was (enter traffic and road conditions, ex.
dry and clear with light traffic. My ticket states the traffic condition as "enter
condition from ticket, ex. light (this should match your claim as well) ." There was
no person or property at risk. Based on this, I feel that the Officer cannot make a
valid case that I violated the Basic Speed Law.
Additionally I believe that the speed limit of (enter limit) on (enter name of
road) is low. This reflects an out of date traffic survey and may be an illegal
speed trap, based on CVC 40802(a)(2) which states that an illegal speed trap is
"A particular section of a highway with a...speed limit that is provided by this
code...the 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." If the survey on (enter name of road) is more than
five years old, the use of radar for determining speed is illegal.
The prosecution must prove that an illegal speed trap has not been used,
when using radar as evidence for speeding violations. 40803(b), Speed Trap
Evidence says "In any prosecution under this code of a charge involving the
speed of a vehicle, where enforcement involves the use of radar or other
electronic devices which measure the speed of moving objects, the prosecution
shall establish, as part of its prima facie case, that the evidence or testimony
presented is not based upon a speed trap as defined in paragraph (2) of
subdivision (a) of Section 40802."
If the prosecution does not provide a certified copy of the speed survey, to
prove that (enter name of road) is not an illegal speed trap, as is required by law,
I respectfully request that the Court rule the radar evidence inadmissible and
dismiss my case based on CVC 40805.
Admission of Speed Trap Evidence, CVC 40805, states: "Every court
shall be without jurisdiction to render a judgment of conviction against any person
for violation of this code involving the speed of a vehicle if the court admits any
evidence or testimony secured in violation of, or which is inadmissible under this
article."
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If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
Defense Tactic #2: Radar ticket. "Radar Beam Spread” (for violations of
10mph or less in medium to heavy traffic)
Safe Speed for Conditions
In California it is not illegal to drive above the posted speed limits in 30 to
50MPH zones. These posted limits are suggested speeds and are determined
by a speed survey on the road. It is illegal to exceed the posted speed limits only
if the road conditions make traveling at the exceeded speed unsafe.
CVC 22350, Basic Speed Law states: "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."
An officer is required to report road conditions when issuing a ticket. If the
road and weather conditions were poor, with heavy rain and heavy traffic for
example, and you were at least 10MPH above the speed limit, it is likely that your
ticket is justified. On the other hand, if it was a clear day and traffic was light to
medium, it could be completely safe to drive above the posted speed. In this
case a ticket for Basic Speed Law violation is unjustified, but you will find that
officers will issue a ticket anyway.
Drivers can be easily convinced that they have broken the Basic Speed
Law. Police Officers typically fail to mention that the ticket is being written for
unsafe speed for conditions, they tell the driver that they were exceeding the
speed for the zone. The driver usually knows they were driving above the posted
speed and signs the ticket thinking they are guilty, when they could have been
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driving at a speed that is not illegal and were not endangering property or other
vehicles.
Traffic Survey
California requires that most highways be subject to traffic surveys. The
surveys are conducted by the city engineer and are used to determine a safe
speed for a piece of road. One thousand cars are tracked as they drive across a
monitoring device, the safe speed is the average speed that the thousand cars
traveled at on the piece of road.
Now, the posted speed is different from the determined safe speed. The
posted speed is a recommended speed and is calculated by using 85% of the
safe speed. A measured safe speed of 50MPH would be multiplied by 85% to
get a suggested speed of 43MPH. This recommended speed is then rounded
down to a posted speed of 40MPH. It is not unlawful to drive above the posted
speed limit unless the road and weather conditions make it unsafe to do so.
Radar Beam Spread
In the first 22350 defendant statement, we state that it is possible that the
use of radar in these situations could be an illegal speed trap. This scenario can
be used for any radar situation.
Here we look at the use of radar beam spread. This scenario works best
when your ticket is for 10MPH or less above the posted speed limit in medium to
heavy traffic.
Radar beams spread at about one foot for every four feet of travel from
their source. At 150 feet from its source, the beam will be 40 feet across,
covering four traffic lanes. The wide stretch of the police radar allows it to track
several cars at once, but it can only track the speed of one car at a time. There
is no way to determine which vehicle’s speed is being recorded by the device.
When traffic is medium to heavy there can be reasonable doubt as to which car’s
speed was being recorded by the radar device.
If you received your ticket in medium to heavy traffic, you can state that
your speed was safe and that the speeding vehicle was not yours.
Defendant Statement
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Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22350.
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22350 by traveling at (enter speed on ticket) MPH in
a (enter posted limit) MPH zone. I believe that I was traveling at a safe speed for
the road conditions and was not in violation of the Basic Speed Law.
CVC 22350, Basic Speed Law states: "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."
Officer (enter name) omitted the details of the road conditions at the time
of my stop on my ticket. He correctly entered the traffic flow as Medium. I can
confirm that the road was dry with good visibility when I was stopped. Officer
(enter name) did not enter the Safe Speed for (enter name of road) on my Notice
to Appear. I believe that I was traveling at a safe and reasonable speed for the
conditions at the time that I was stopped.
I believe that my speed was safe and reasonable for the conditions as
maintained by the most recent traffic survey for (enter name of road). The survey
states that the Safe speed as (enter safe speed), which is 1MPH different than
the approximate speed entered on my ticket. Taking this into consideration, I
believe that I was not in violation of the Basic Speed Law when I was stopped, I
do not believe that my speed at the time of my stop was illegal, based on CVC
22350.
I also believe the officer’s radar may have been tracking another vehicle,
as there were cars both in front, behind and passing me as I traveled on (enter
street name). This is confirmed by Officer (enter name) entering the traffic level
as Medium on my ticket. A beam angle of police radar is 12-16 degrees, this
creates a beam width of 1 foot for every four feet of travel of the beam from the
antennae. So at 160 feet from its source, a police radar beam is typically 40 feet
wide.
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The officer recorded on my ticket that my radar determined speed was
(enter speed) from 150 feet way. At this distance, it is possible that any of the
several cars traveling through the two lane wide radar beam could have caused
the speed that was recorded on the police radar device. Based on the officer’s
notation of Medium traffic and that my alleged speed was determined at a
distance of 150 feet, this creates reasonable doubt as to which car was indicated
as speeding on the radar unit.
Based on the presence of reasonable doubt, and the Traffic and
Engineering Survey for (enter name of street) has determined the Safe Speed to
be (enter safe speed), this is approximately the speed at which the offer states I
was traveling, I respectfully request that that the court dismiss my traffic ticket.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
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Defense Tactic #3: Radar Ticket in a School Zone
Basic Speed Law Violation in a School Zone:
Driving above 25mph in a school zone is a violation of 22352, the Prima
Facie Speed Limit. However, since most speeding tickets on residential and city
streets are issued under 22350 Basic Speed Law, most officers fail to properly
write school zone tickets as a violation of 22352.
The prima facie speed limit makes speeding above 25MPH in a school
zone illegal. Under Basic Speed Law, it is only illegal to drive above the posted
speed limit if it is unsafe.
If the officer writes a ticket for a 22352 violation, he would have to prove
that the driver was speeding above 25MPH. If the driver receives a ticket for a
22350 violation the officer must prove that the speed at which the driver was
traveling was unsafe for the road conditions at the time of the traffic stop.
Safe Speed for Conditions
In California, it is not illegal to drive above a posted speed limit, in 3050MPH zones. Posted limits in 30-50 mph zones are "suggested" speeds based
upon a speed survey of the road. It is only illegal to drive above the posted speed
limit if the road conditions make it unsafe to drive at the exceed speed.
CVC 22350, The Basic Speed Law states: "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."
In these situations, officers must record the conditions of the road at the
time the traffic ticket is written. If you were in heavy traffic during a heavy rain
shower, and were driving 10-15MPH above the speed limit, this is not a safe
situation and your ticket is justified. On the other hand, if the weather was good
and the traffic was light to medium it is possible that it could be completely safe
to drive above the posted speed limit. Here the Basic Speed Law violation would
be unwarranted, but you will likely get a ticket anyway.
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A driver can be convinced that they have violated the Basic Speed Law
quite easily. Officers typically do not tell a driver that they have been driving at
an unsafe speed for conditions. They will usually tell the driver that you were
driving, for example, 50MPH in a 40MPH zone. At this point, the driver knows
that he was driving above the posted speed limit, so he signs the ticket,
assuming guilt. However, if the exceeded speed was not putting people or
property in danger, then the speed was not illegal.
Radar Speed Traps
For most Basic Speed Law enforcement, radar is used to determine
speed. The use of radar is legal only if a traffic survey has been done on the
roadway within the last five years.
According to CVC 40802(a)(2) a radar speed trap is, "A particular section
of a highway with a...speed limit that is provided by this code... 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."
In CVC 40803(b), another code, police must provide that the evidence
obtained by radar was not obtained by use of a speed trap. In this situation the
officer must submit a copy of the traffic survey from where the stop occurred.
The survey must have been created in the last five years and would confirm that
the road where you were stopped did not have a speed trap. If the officer cannot
prove this, the radar evidence is deemed illegal and the case must be dismissed
to comply with 40803(b).
The key with this situation is to prove that the road is a speed trap due to
an out of date speed survey. If the officer cannot submit a valid survey, the case
must be dismissed.
Sample Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22350.
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
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and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22350 by traveling at (enter speed on ticket) MPH in
a (enter posted limit) MPH zone. I believe that I was traveling (enter speed) MPH
in a (enter speed) MPH zone.
Officer (enter name) states that I was driving in a school zone with a
temporary prima facie speed limit of 25MPH, this is the foundation of my ticket.
Although, Officer (enter name) did not write my ticket for driving in a prima facie
school zone, CVC 22352(b)(2). I was issued a ticket for violating Basic Speed
Law, CVC 22350. I did not violate CVC 22350. I was traveling at a safe speed
for the road conditions, when I was stopped, (enter speed) MPH in a (enter
speed) MPH zone.
CVC 22350, The Basic Speed Law states: "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."
The road had light traffic and the weather was clear when I was stopped.
There were no people or property at risk. My driving past a school in a 40MPH
zone at 40MPH did not endanger property or individual, under the Basic Speed
Law. Therefore, Officer (enter name) cannot make a probable case that I was in
violation of the Basic Speed Law.
Additionally, it seems that the posted speed of (enter speed) on (enter
name of street) is artificially low, suggesting the possibility of an out of date traffic
survey, therefore the use of Radar could represent a Speed Trap based on CVC
40802(a)(1).
If the prosecution fails to provide a copy of the speed survey for (enter
name of street) with its Written Declaration, to prove that the road where I was
stopped was not a speed trap, as is required by Speed Trap Evidence, CVC
40803(b). I respectfully request that the Radar evidence be deemed
inadmissible and dismiss my case based on CVC 40805.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
Print and sign name and date
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Violation Type 3: 22356 Exceeding Posted Speed of 70MPH via
Aircraft Ticket
Defense Tactic #1: Illegal Speed Trap from Air
When using aircraft to enforce speed laws, the officer on the ground is
supposed to clock the drivers speed independently. Police aircrafts clock speed
by timing you across two designated areas on the road, that can be seen by the
aircraft. Your speed is calculated by the time it took you to get from one area to
another. This is an illegal speed trap, based on 40802(a)(1), it is illegal to use
time-distance calculation to clock speed.
An aircraft speeding ticket must have the names of both the ground and
air police officers. The pilot is the witness to your speeding, so his name must
appear to confirm speed. The officer in the patrol car must also sign your ticket
as he is responsible for identifying you as the driver. If your ticket is not signed by
both officers, your ticket could be dismissed for lack of evidence.
Typically in cases involving a single officer, where a written declaration
must be supplied, 30% of officers fail to do this. In cases where there are two
officers about 50% of officers fail to submit the written declaration.
Sample Defendant Statement
Click Here for cut and paste version
I (enter your name), Case No. (enter case number) respectfully submit
this written declaration in accordance with CVC 40902. I plead Not Guilty to the
alleged violation of CVC 22356(b).
Please review the facts of my case contained within this document. While
driving (enter direction, ex. North, West, East) on (Name of Highway), at
approximately (enter time of day, include a.m. or p.m.) on (enter date, month, day
and year), I was stopped by officer (Enter name and ID number from ticket) and
cited with a violation to CVC 22356(b), Exceeding 70MPH Speed Limit. I believe
that I was traveling at the posted speed limit.
Officer (enter name of officer) explained that he had not seen me
speeding, as I was clocked via aircraft. The aircraft pilot recorded my speed at
approximately 80MPH. This information was also recorded on my traffic ticket.
I noticed a vehicle similar to mine, pass me, prior to my traffic stop. Since
the description of the speeding car, would have been similar to mine, I believe
that Officer (enter name) stopped my car by mistake, thinking mine was the
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speeding car.
Regardless, if Officer (enter pilot name) states that he did not follow my
vehicle until the traffic stop, he can not be sure that Officer (enter name ground
officer) stopped the correct vehicle. I respectfully request that my case be
dismissed for lack of reliable evidence.
If either officer fails to submit a Written Declaration, I respectfully request
that my case be dismissed for lack of evidence.
If Officer (enter pilot name) determines that my speed was recorded by
timing my travel between marked length of road, I respectfully request that the
court dismiss my ticket as this would be an illegal speed trap based on CVC
40802(a)(1), "A particular section of a highway measured as to distance and with
boundaries marked, designated, and otherwise determined in order that the
speed of a vehicle may be calculated by securing the time it takes the vehicle to
travel the known distance."
Use of speed trap evidence is illegal based on CVC 40801, "...nor shall
any speed trap be used in securing evidence as to the speed of any vehicle for
the purpose of an arrest or prosecution under this code."
The evidence from a speed trap is considered inadmissible based on CVC
40804(a), "...any officer or other person shall be incompetent as a witness if the
testimony is based upon or obtained from the maintenance or use of a speed
trap."
If the pilot’s testimony indicates that a speed trap was used to record my
speed, I respectfully request that my case be dismissed.
If the court does not rule in my favor, I request a Trial de Novo.
Under the perjury laws of the state California, I swear that all facts within
this document are true to the best of my knowledge.
_____________________________________
Date
_____________________________________
Print Your Name here and sign above.
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Introduction Phase Two
The essence of Case Dismissed Phase 2 is Trial by
Ambush. You will challenge the evidence against you by
making essential to the prosecution something they should
have, but cannot produce in court at your trial. You catch the
prosecution unprepared. Illegal? No, but fatal to the
prosecution’s case against you.
The key to Case Dismissed is breaking the chain of evidence
against you. This book will show you exactly how to do that. There
are specific sections for dealing with the method that caught you, be
it pace car, radar or laser. But read all the sections as there is useful
information in each of them.
Note: Most people who beat their ticket never have to use these
methods. Most cases are dismissed because the police officer does
not appear, or they realize they will not win (They see a defendant is
prepared). It is highly likely you will never use the information in this
book because your trial won’t get that far.
However, you MUST have a viable strategy in case you do end up
having a trial. Case Dismissed gives you this viable strategy.
To succeed and beat your ticket, you may need to appear in court and
argue your case. This may sound intimidating. It is; for the unprepared. You are
going in against professionals who are there every day. What you will do maybe
once or twice in your life, they do hundreds of times a day.
Prosecutors and police officers have a huge experience advantage
against you. They know what to say, how to say it and when to say it. They’ve
heard and beat the stupid excuses and gimmicks. They have built their own
systems that allow them to try and convict dozens of people a day.
Are you intimidated yet? Well don’t be. Because Case Dismissed is
going to help you take advantage of their system. That’s the ambush part of the
strategy. You will be far more prepared than they ever expect you to be. You
will be demanding information that they should have, but neglect to bring to court
simply because it would take too much time to be that prepared. It would mess
up the flow of their high speed conviction system. You will turn the tables on
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them and, realizing their weakness has been discovered, they will dismiss your
case due to lack of evidence.
I assume you have checked the ticket, the car described is your car and
the ticket is yours. There are no obvious mistakes or fatal flaws that make the
infraction invalid (misspelling your name or an incorrect address does not
invalidate the infraction, the officer will identify you as the person he ticketed.)
The info on the ticket has to be VERY wrong for it to be a fatal flaw, such as an
entirely different type of car, or major difference in color.
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Why Does Case Dismissed Actually Work?
The core principle behind Case Dismissed is that the prosecution
must be able to document the accuracy of the measuring device. If the
measuring device is a radar, they must be able to document the accuracy
of the radar and of the device that calibrated the radar. The same is true of
the speedometer in the police car that was pacing you, and the same is true
with a laser. There are legal precedents for all this, and in the following
pages, you will be given general information on a trial, a background as to
how this legal strategy works, and strategies and specific questions for
each measurement type.
“If it is the law, then why don't prosecutors come to court with all
the material to win. Surely they know they should have this
documentation?”
You’ve got to understand a few facts. If you’ve ever been to traffic court,
and I highly recommend going before your trial so you get comfortable with how it
works, you will see that this is a machine. A money machine.
The prosecutor and court personnel are there to grind through as many
cases as possible during the day. It is a numbers game and they need to pump
people through.
You, being the prepared individual, are a serious impediment to
productivity.
Most defendants are completely unprepared. They believe that their lame
excuse will get them off. If their ticket is truly unjust, they somehow believe the
officer will always tell the truth. These defendants are mowed down like long
grass. The prosecutor knows this, so they do not prepare for each individual
case.
In fact, the system is set up so they can’t. Do you know how much time it
would take to pull all of this evidence foundation documentation together for
every single ticket? It just can’t happen. It should, but it doesn’t.
Suddenly, a prepared defendant (you) steps up. You calmly place some
case law on the table and begin cross examining the officer, asking questions
about the foundation of evidence that the prosecutor knows he doesn’t have.
At this point, the prosecutor has three choices.
1. Try to challenge existing case law.
2. Beg the judge to stop you.
3. Chalk one up in the loss column and quickly get rid of you.
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He isn’t going to challenge case law because it just isn’t worth it. Besides,
he knows these precedents are already set and he isn’t going to the supreme
court any time soon.
He may well ask the judge to ignore proper law and let him get away
without foundation. That is why you will always provide the relevant case law
before your trial starts. If the judge does happen to side with the prosecutor, you
now have excellent grounds for dismissal on appeal. Rightfully, the judge cannot
ignore precedent.
No, the final choice is the most likely. The prosecutor will want to get rid
of you as quickly as possible. In fact, the prosecutor will most likely ask for
dismissal before you even have a chance. He doesn’t need your grief. He is
unprepared, he knows it, the judge knows it, the police officer knows it and you
know it.
Okay, you ask, why doesn’t the police officer come prepared? Essentially,
it comes down to money. It will take a lot of time for each officer to be properly
prepared with documentation for every single speeding arrest they make. Who is
going to pay for that? As a taxpayer, do you want police out on the street
preventing crime or in the office documenting tuning fork calibrations and
collecting repair logs for cruisers?
Look at it this way. It’s all about the money. They stopped you because
they want yours. But they can’t spend enough money being prepared to defend
everyone so they just go by the averages, knowing that once in a great while one
of you will get away. Perhaps if everyone used Case Dismissed, there wouldn’t
be so many speeding traps. On the other hand, if everyone used it, they would
likely come up with different laws and or procedures to eliminate its
effectiveness.
Moral? The prepared side beats the unprepared side.
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The Ticket
Also known as, The Pleading which happens to be the charge against you.
Examine the ticket: The important side is the side the officer did not fill in. It is the
side explaining what it is you are supposed to do if you intend to fight.
Every jurisdiction may have its own format. There is no standard format.
Consider this side as being designed with evil and malicious intent. Some of the
information of evil intent may also be on the other side.
Here is what to look for and do:
•
•
•
•
•
If you intend to plead not guilty or contest the ticket what must you do.
If you want the officer to be at your hearing what must you do
If you want to subpoena witnesses what must you do
Is it an infraction or an misdemeanor (this relates to your 6th
amendment rights)
If you want to examine any records or have copies of records, what must
you do
Not doing as the ticket specifies is not fatal, however it will make your defense
harder, possibly cause a second time-consuming hearing, and cause unwanted
confusion.
Special Directions:
1. If you send anything by mail send it registered, return receipt and keep a
copy of what you sent. Bring it to court with you.
2. If the ticket states anything to the effect that if you want the arresting
officer present you must do something, DO IT! You want the arresting
officer present. I know, it sounds stupid, but you definitely, absolutely,
positively want to request the officer to be there. Without the officer, you
have nothing to cross examine but a ticket.
3. If your ticket says that you may subpoena the officer, do so This is a trick
and if you do not issue a subpoena, the officer will not show up and the
Judge will say that you should have subpoenaed the officer. Your case will
not be dismissed and the Judge will use the officer’s written deposition as
evidence. (Call the court clerk to find out how do subpoena the officer. It
is different in different states.)
4. If the ticket says that you must do something concerning discovery, reply
with these words only. 'The Defendant requests the prosecution present in
court competent foundation to any evidence it intends to introduce.
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Now read the rest of the ticket and try to determine what method was used to
determine your speed. If it is not indicated on your ticket you can request this
information from the court. However, the court may give you a wrong answer.
Unless the ticket specifically states the method or you know what method was
used then come prepared with all defenses, Laser (lidar), Radar and
speedometer defenses.
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The First Layer of Your Defense
Realize that just by showing up in court, you have greatly increased the
odds that your ticket will be dismissed. You have taken the first, and most
important step in beating your ticket. Every day more than 100,000 people roll
over and pay their fine. Even when they know they weren’t speeding or were
operating their vehicles in a perfectly safe manner. Appearing in court is the first
“layer” in your defense. Why? Because often the police officer who gave you the
ticket simply will not show up. In a significant percentage of cases, which vary by
county, the officer may not show up for one reason or another. (Again, as stated
above, look over the ticket carefully to see if there is something you must to do
ensure that the officer is present.)
Remember, “If they can’t talk, you will walk.”
Many people advocate trying to get the court date changed. It may be a
good idea, but you need to consider your personal circumstances. If the date is
moved, you had better show up.
If the officer doesn’t show up at the moved date, the prosecution will likely
ask for a new date and they will probably be granted that request, since they will
argue that you have already had the date moved. The Judge will probably agree.
So another date is set and you have spent yet another day in court without
resolution.
If you have a job that requires travel or has little flexibility, attending all
these court dates could be a problem. Not showing up for a trial date is a more
serious offense and can result in the issuance of a warrant for your arrest. Don’t
go there.
On the plus side, there is probably a greater chance that the officer will not
show up and that you can get the case dismissed. So consider your options, and
go for a postponement if your circumstances allow it. The clerk or courthouse
can tell you the exact procedure to follow to get a new trial date.
This certainly can’t be the basis for your defense, but it could be a good
first layer. And it may very well be a painless way to beat your speeding ticket.
The second layer is the ambush, which the rest of the book discusses.
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Some Legal Basics
1. The police officer is also an officer of the court. Be nice to him, do not
insult him. Insulting him is like insulting the Judge. Remember the Judge, the
prosecutor and that police officer know each other very well. They are both
officers of the court.
2. Be nice, polite and friendly to the Judge and the prosecutor. They have
a job to do. That job is to convict you and impose a fine.
3. Don’t come to court dressed like a slob. That is an insult to the court.
4. Stick to the point: getting your case dismissed. Do not get
sidetracked.
5. You are charged with a specific speed, say 15 MPH over the speed
limit. It is the prosecution’s job to present evidence that in fact you were traveling
at that speed. Not “some” speed, not “fast” but 15 MPH over the limit. Even if
they prove that you were going fast, fast is not what you are charged with.
6. If you open your mouth, and admit to anything, and I mean anything,
the charge against you can be changed. You can and will be found guilty if it
came from your own mouth. If the judge, magistrate or prosecutor asks you
anything about the ticket or circumstances surrounding it, politely reply that you
would prefer not to testify against yourself. Don’t start quoting the fifth
amendment like you are on TV, just be polite and firm.
7. Innocent until proven Guilty is ‘Legal Fiction’. Like fiction, don’t believe
it. You are in court because you are presumed guilty. The only thing between you
and the conviction is the evidence.
8. Proof required in criminal cases (tickets) is “beyond a reasonable doubt”
not “beyond all doubt”. The key word is “reasonable”. Unless you challenge the
evidence, it will be presumed to be “reasonable”.
Case Dismissed makes the evidence against you inadmissible or
unreliable:
Do not, repeat, Do not try to prove that you are innocent:
The only reason for the trial is to hear the evidence and convict you:
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Case Dismissed
www.BeatMySpeedingTicket.com
The evidence could be:
1.
Either you were paced by the officer’s car, that is, he followed you and
noted your speed on his speedometer, or he timed you using a stopwatch
or VASCAR timing device.
2.
The officer used a radar type device to determine your speed.
3.
The officer used a laser device.
Quick overview:
This is a quickie, for you to get the idea. Take this situation. You were
cruising along and suddenly there was a cop behind you with his lights blinking.
He tells you he has been following you for ¼ mile. This means the cop paced you
with his car, using his speedometer to determine how fast you were going. He
has given his testimony and now it is your turn to ask him questions. You ask him
is to present documentation from a recognized speedometer shop as to the last
time the speedometer in the car he used that day was calibrated.
Surprise, he can’t. Few police forces calibrate their speedometers. If a
police force does, chances are the officer does not have the documents with him.
No, they can’t go and get them to try you some other day. The trial is now and if
the prosecution was unprepared, too bad. The prosecution rested its case when
they handed the witness over to you. The evidence presented now has a fatal
flaw.
You immediately ask for the case to be dismissed.
Note: You did not prove anything; you simply asked for documentation that the
prosecution was unable to present. By asking for it, it became an essential
element of the prosecution’s case against you. Do not attempt to prove that the
officer did not read his speedometer correctly. You simply took away their
assertion that the speedometer was accurate to a legal degree of certainty. You
cast doubt as to the accuracy of the speedometer. You broke the chain of
evidence.
(The Judge knows that the speedometer, even though not 100% accurate
was at least close. Close counts in horseshoes, atom bombs and hand grenades.
The Judge knows you were going fast. However the charge is an exact figure
based on readings from a device that the prosecution can no longer prove to be
accurate to a legal degree of certainty.)
Fines are based on an exact figure. For instance, 11 to 15 MPH over the
limit $75, 16 to 20, $125. If you open you mouth and say “I was not going that
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Case Dismissed
www.BeatMySpeedingTicket.com
fast”, you opened the door to a change in the charge. The court can assume by
your own words that you were going over the speed limit. The court can now find
you guilty of speeding and impose a fine without a definite speed. The charge
can and will be changed to an arbitrary figure. You opened the door to a change
of charge, you admitted to a crime.
Remember when you plead not guilty, you plead not guilty to going 15
MPH over the speed limit. That is your plea, and 15 MPH over the limit is their
charge.
37
Some Courtroom Basics You Should Know
This section is designed to provide you with some background information
regarding your trial.
1. Cross Examination. When the prosecution has finished questioning
their witness, the prosecution rests. You have the right to cross-examine the
witness, but only as to the testimony the witness gave. That is, you cannot ask
questions about something not covered in the direct testimony. The Prosecutor
then has the right to question the witness again after you are finished, but only as
to items covered in either the examination or your cross examination. After the
prosecutor is done with his re-direct, you can re-cross examine the witness. It
seldom gets to this point.
2. Best Evidence Rule. Basically if an original is available and it exists, it
must be used. In the event the original does not exist a photocopy may be used
provided that there is certification that the photocopy is a true copy of the original.
Remember this, if someone tries to introduce a photocopy. Ask for the original
and object to a photocopy.
3. Case Law. Applied law is based on case law. This is where someone
takes a case all the way to the Appeals Courts in the State or Province, or to the
State, Provincial or Federal Supreme Court and a ruling is made. That case is
reduced to writing by the particular court and then is published so that the lower
courts (e.g., the court in which your case is being tried) in that particular
jurisdiction may and should follow the ruling of the higher court. Relevant
California case law and statutes are included with Case Dismissed.
4. Case Law and Calibration. As it applies here: In every state and
Province there is case law regarding radar and the use of pace cars. In every
situation the ruling is that whatever means is used to determine your speed, the
device must be accurate and functioning correctly. Calibration is recognized as
being essential to proving that a measuring device is accurate. If the calibration
of a device is not challenged, it is presumed to be accurate and functioning
properly.
Calibration must be done within a reasonable period of time of an arrest. A
calibrated unit, if damaged or altered, is no longer considered calibrated unless it
is re-calibrated and found to be functioning correctly. If a device is used to
calibrate another device that device itself must have been calibrated within a
reasonable period of time prior to use for calibration. (in this event courts agree
that six months is a reasonable period of time)
5. Reasonable Time in Regard to the Radar. The unit must be tested
before your arrest within a reasonable time. That time is no more then the day of
the arrest. To show that the device was functioning properly during the arrest the
unit should be checked again immediately after the arrest.
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6. Reasonable Time in Regard to the Testing Device to Test the
Radar. This is generally accepted as no more then six months and in some
states it is three months. The same applies to speedometers.
7. Radar Log. The radar gun must be accompanied with a log, showing
repairs, when it was last tested, who tested it and what malfunctions the unit has
had in the past. There is also an arrest log that the officer must keep. This log
shows the time of your arrest and the time when he tested the radar unit. He has
an obligation to present the log if it is material to the evidence, provided you ask
for it.
8. Maintenance Log. For the vehicle in the event of being paced. Ask for
it, and ask for the documentation on the speedometer certification.
9. Match up the paperwork. If the prosecution produces certification or
related paperwork it may not match up. That is if they produce a certification on
the tuning forks for a certain radar unit. Make them show that by serial number
(yes they all have serial numbers) that this particular tuning fork was used on the
specific radar unit to which it belongs and that specific radar unit was installed in
the specific car that day where it was used to determine your speed. They must
show this by logbook entries, the officer’s word is not good enough unless you
accept it. (In the vast majority of cases, the officer does not have a clue as to the
serial number of the radar unit installed in the car he was assigned to that day,
and the trial is now. There is no time to spend days researching maintenance
records to make a decent paper trail. Remember the prosecution has already
rested its case, it can not ask for an extension unless you let them. (If the
prosecutor asks for an extension, object. The judge will turn him down. If you do
not object the judge may grant the request).
10. Radar. Okay, we all know the stories of radar clocking trees at 100
MPH and stop signs at 75MPH. All courts have taken judicial notice that radar
readings are admissible provided the following chain of four items remains
unbroken.
a. The unit was used properly by a trained and qualified operator;
b. The radar unit is properly maintained;
c. The radar unit was properly tested;
d. That the calibration device used to test the radar was in
proper operating order and was tested accurate within a
reasonable period of time.
(d. Is a key ambush item of Case Dismissed)
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11. Judicial Notice. Judicial notice is the practice of the court accepting
something as fact, which does not have to be proven again in that court. For
example, water is H20, fire is hot, ice is cold. Courts have taken judicial notice
that radar and speedometers are accurate measuring devices provided they are
calibrated and used correctly.
Do not bother telling the court that radar is bad, or that it doesn’t work. Do
not waste your time on explaining that there was heavy traffic, that the officer
mistook your car for another one, or that there might have been radar scatter.
Accept it, radar works, officers know how to use it, and the court will accept their
testimony unless you find fault with one, any one, of the above four admissible
evidence items.
Finding fault with any one of the items listed in the paragraph regarding
radar above breaks the chain of evidence. Break one link and the court can no
longer assume to a legal degree of certainty that the readings are accurate. This
leaves the prosecution without credible evidence as to their charge.
12. Leading Questions. Although you are usually allowed to ask leading
questions on cross-examination, a judge, particularly one who has not been
trained as an attorney, may not allow you to ask leading questions. If you ask a
leading question the prosecutor will most likely object and if you are uncertain as
to how to respond, you may be prevented from continuing with the particular
question. So it is best to avoid leading questions as you are not a lawyer and not
trained in the nuances of separating leading questions from allowable questions.
However it is necessary for you to have some basic understanding of what a
leading question is in order to avoid this potential problem.
A leading question is essentially a question that implies its answer. For
example, this is a leading question:
Q. Did Mrs. Smith tell you that her husband hit her?
An example of a non-leading question would be:
Q. What did Mrs. Smith say regarding her husband?
Basically the difference is that in one instance you make a statement and
then ask the witness to agree with it. In the other instance you are asking the
witness what the statement was. Non-leading questions can be thought of as
who, what, when, where, why, and how questions. If you can begin your question
with one of those words, you will safely skirt the leading question issue.
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13. Speed Traps. California has its own unique statutes with regard to
speed traps.
CALIFORNIA CODES
VEHICLE CODE
SECTION 40800-40808
40800. Every traffic officer on duty for the exclusive or main
purpose of enforcing the provisions of Division 10 or 11 of this code
shall wear a full distinctive uniform, and if the officer while so
on duty uses a motor vehicle, it must be painted a distinctive color
specified by the commissioner.
This section does not apply to an officer assigned exclusively to
the duty of investigating and securing evidence in reference to any
theft of a vehicle or failure of a person to stop in the event of an
accident or violation of Section 23109 or in reference to any felony
charge, or to any officer engaged in serving any warrant when the
officer is not engaged in patrolling the highways for the purpose of
enforcing the traffic laws.
40801. No peace officer or other person shall use a speed trap in
arresting, or participating or assisting in the arrest of, any person
for any alleged violation of this code nor shall any speed trap be
used in securing evidence as to the speed of any vehicle for the
purpose of an arrest or prosecution under this code.
Avoid These Mistakes
1. Do NOT motion the court before the trial for any documentation
whatsoever.
2. Do NOT motion the court for their evidence before the trial.
3. Do NOT testify, even if the prosecution challenges you to testify.
4. Make no statement whatsoever as to your speed, don’t even say
something as innocent as “I wasn’t going that fast”. Do not let the prosecutor con
you into making a statement, any statement. Remember the burden of proof is
on their shoulder. Don’t make their job any easier.
5. DO NOT let the prosecution know your intentions.
One of the major aspects of “Case Dismissed” is Trial by Ambush. You
are going to catch the prosecution unprepared. If you tip them off by letting them
know your intentions, they may produce the necessary paperwork at trial.
41
Remember for speeding offenses the trial is assembly line prosecution.
The prosecution has neither the time nor resources to gather the documentation
for every case it will hear in this session. Dozens of people will be tried one after
the other during your session with only a few minutes for each trial. The
prosecution expects you to be a wimp, an unprepared victim just like the dozens
before you and after you.
If you tip them off by asking in advance for all the required documents,
they will know what you are up to. For your single case they may come
prepared.
Remember “Trial By Ambush”. Yes the legal community frowns upon it.
However in your case you are only asking at trial what any reasonable
prosecutor would present. The fact he doesn’t present it as proper foundation to
the evidence is not your fault or responsibility. He is a trained lawyer, you are
not. He knows that the items you ask for are required. The fact that he didn’t
properly prepare is no excuse and he cannot claim Trial by Ambush. (Even
though you really ambushed him when you ask for the documentation, even in a
simple case like a traffic violation, he should have been prepared)
During the officer’s testimony, do not object to anything. Wait your turn;
do not tip them off as to your intentions. If you object when the officer introduces
the radar evidence by objecting to foundation, you open the door for the
prosecution. The prosecutor will know your intent. Wait until it is too late, let the
prosecution rest its case.
Remember, once the prosecution has rested, they cannot bring in more
evidence, their case is finished, and it is over. They can call no more witnesses
unless they are rebuttal witnesses to your cross examination of the officer. Since
you are asking for documentation, they can’t call another witness, all they can do
is present documentation they do not have at trial that day. You know the rest,
no documentation, or “If the paperwork don’t fit, you must acquit” Without
that evidence the prosecution has nothing, nada, no evidence. The evidence
presented by the officer is now worthless. Bottom line, do not tip them off.
6. You have ambushed the prosecution. They may try to introduce new
evidence. Do not let this happen. Argue that the prosecution has rested.
(Presenting logs or documentation that you ask for is not new evidence.
Presenting something that is different like another officer who happened to be
behind you is.)
7. DO NOT ask for a Jury Trial. The prosecutor will prepare himself for
that. Unknown to you at a Jury trial the prosecutor can ask for the full punishment
allowed by law including years of jail time for going just a few miles per hour over
the speed limit.
A Jury trial takes a lot of time and resources from the court. This makes
the court mad and you will most likely lose at a jury trial. The Jury can, without
42
being bound by the evidence or lack thereto still convict you. They may even be
getting back at you for wasting their time.
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Preparing Yourself for the Trial
1. Only a lawyer can give you legal advice. However by now you have
read enough to know what to do. Disclaimer: The author is not giving legal
advice.
2. After reading Case Dismissed, make up your own list or of questions (or
copy mine). You are allowed to read from a list at trial
3. Make up your own list of objections (or copy mine) should the
prosecution ask for more time.
4. Make up a list of requests, Motions to dismiss, so you can read them
from your list. As a matter of fact, you can make a full list of motions and ask for
them all, just in case one fits and another does not.
5. Write out a closing argument just in case you need to do a closing
argument. Do not be afraid to read it to the court, you do not have to memorize it.
6. You already know what device was used to determine your speed. It is
written on the ticket. The arresting officer told you (I clocked you with radar, laser
or followed your car). Prepare the appropriate defense for the appropriate arrest.
7. Find out from the court what days they have traffic court.
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Trial By Magistrate
In many states you will first receive a trial by magistrate or something simlar with
a different name. This is essentially a trial by someone other than a judge. Many
states have now made these legal by making speeding violations civil infractions.
Nevertheless, you must deal with these, and you can often win here.
Your strategy is the same, although these proceedings are typically less formal
than in a full court with a judge.
The magistrate is often an attorney or a retired judge. There may not be a
prosecutor, sometimes the officer presents his case.
The key to remember is that you can appeal a decision if it goes against you –
but you can also win here and get your case dismissed.
You use the same arguments and strategies from the rest of the book. The
magistrate may offer you a plea bargain, and it’s your right to determine whether
you want to take it or not, depending on your own circumstances.
What Will The Trial Be Like?
Fast, and I mean fast. The prosecutor already knows the questions he will
ask the officer. The officer already knows what to say to the prosecutor’s
questions. They have done this hundreds, if not thousands of time before. You
won’t catch all of what they say.
Pay attention only to testimony regarding calibration. If you are caught in
a speed trap, read the appropriate information below. Ask as few questions as
possible. Open no doors and once the point is made, stop and ask for the case
to be dismissed. Do not continue unless your motion is denied.
You will be nervous. Don’t worry, take your time, read your notes and then
ask any one of the prepared questions you have written down. You are allowed
to read from your sheet. Do not let the Judge or prosecutor rush you. Ask for a
moment to read your notes. They cannot deny this. (if they did deny this it would
be grounds for immediate appeal)
The prosecutor will try to rattle your cage by objecting. He may object to
your question as “leading”. (He knows where you are going and he is trying to
derail you). Turn to the Judge and state that you are a layman, not a skilled trial
attorney, and ask for some leeway. If you hear the word “sustained” it means the
officer won’t answer the question the way you asked it. Ask it another way. Start
the question off with “What”, “How” or “Did”. This will generally result in an
acceptable question.
Most of all, the prosecutor will try by suggestion to have you take the
45
stand and make a statement regarding your speed or how fast you think you
were going... DO NOT DO IT. You may be tempted to take the stand so that you
can tell your side of the story, DO NOT DO IT. Your story is not important and
will never lead to “Case Dismissed” or “Not Guilty”. Remember anything you say
in your own defense can and will be used against you. Only ask questions,
never give an answer. A question asked can never be used against you.
If your mind freezes, ask the judge for a moment to regain your
composure and read the notes. It will come back to you.
Most of all keep your questions as few as possible. The fewer the better.
Stay on target with your questions.
The entire trial should have only one objective. The speed-reading of
your car may be wrong or you may have been stopped in an illegal speed
trap. That is the only objective, achieve that and you win.
The prosecutor before the trial or during the trial may make you an offer
for a reduced charge. That is reducing the charge to a non-moving violation.
Take the offer. Turning down the offer may just anger the Judge and produce a
guilty no matter what.
The Judge knows that on appeal his ruling will most likely be overturned,
but in the meantime you have to put up a bond for appeal, hire a lawyer and
spend lots of bucks. Judges don’t like having their judgments overturned,
but to piss you off for refusing a deal he thinks is good might just make
him find you guilty.
46
Your Trial
OK you are going to fight the ticket. You have a court date and you appear
at the court on that day and at the time specified. There are a lot of people there,
mostly defendants, a few lawyers and the occasional policeman.
“All rise”, the Judge comes in and takes his seat. Generally he will first ask
if any lawyers are present with business for the court. (this is where the deals are
made). After the lawyers make their deals the cases are called. Generally this is
only the plea portion. Your name is called and you plead “Not Guilty”. The judge
sets a trial date for you and you go home. In some cases the trial is held right
away. Come prepared.
Now that you are at your trial remember, the burden of proof is on the
prosecution. You have nothing to prove, don’t try to prove anything.
Your case is called:
You say, “Your Honor may I approach the Bench” You approach the
bench and hand both the Judge and the prosecutor copies of the case laws
you brought with you. (you need three copies, one for the Judge, one for
the prosecutor and one for yourself).
You now say, “Your Honor these are the most notable case laws
concerning (radar, Vascar, Speed Traps, Lidar-laser, photo-radar or
speedometer) they deal with foundation and admissibility of evidence.”
You now sit down. They may read them and then again they may not.
For Radar and speedometer (being paced) and Vascar: bring,
Honeycutt v. Com; People v. Perlman; St. Louis v. Boecker; State v.Gerdes;
and State v. Tomanelli
For Lidar-Laser: bring, ADMISSIBILITY OF MOTOR VEHICLE SPEED
READINGS PRODUCED BY the LTI MARKSMAN 20-20 LASER SPEED DETECTION
SYSTEM.
For Photo-radar bring: Municipality of Anchorage v. Baxley
You also have a folder of case law specifically for California. You
should read through this case law and bring copies of any cases which are
relevant to your situation. This is a critical component of the case
dismissed strategy in California.
These can be found in the same folder as the Case Dismissed book
was found on your disk drive, under the Case-Law / Important ones folder or in the individual State Folders under Case Law
47
The arresting officer is called to the witness stand and the prosecutor asks
him questions. (Don’t be surprised if the officer lies through his teeth.)
After asking the officer’s name, years on the force and training
background he will get to the particulars of your arrest. The officer will remember
your arrest (Sure, even though he has arrested hundreds, maybe thousands
since he arrested you. You know he is lying. The judge knows he is lying. And
the prosecutor knows he is lying. He does not remember your arrest, his memory
is not that good and it does not matter, he is reading from the ticket and possibly
his notes).
Now the evidence is introduced. First the prosecutor will ask the officer
how he tested the radar. The officer will say something like; “I performed an
internal check by pressing the test button. The indicator light turned green
showing that the unit was working properly. I then tested the unit with the 30
mph tuning fork, the 50 mph tuning fork and the 70 mph tuning fork, all tested
well.”
The prosecutor will now ask him as to any special training he has had
regarding the use of the unit. (in most cases he will lie like a rug, he never had
any training, probably never even read the manual). However, the court will
accept his word. He does not have to produce his training certificates. The court
assumes he is telling the truth as an officer of the Court. Don’t bother
challenging his training unless it is obvious he has had none.
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Unprepared Prosecution
When The Arresting Officer Fails To Appear
When Prosecution Wants to Move the Trial Date
If the officer doesn’t show up for trial, the prosecution has no evidence to
present. They will often ask the court to set another date. Do not let them, you
must object. The Judge will say “without objection trial will be reset for June 13.”
If you don’t object they have another shot at you.
If you were lasered, timed, or viewed in an airplane by one officer and
another wrote you the actual ticket, both officers must be present.
You must object and state,
“Your Honor, the trial is today, and the fact that the prosecution
came unprepared is not my problem. I have appeared and am ready to
proceed with trial. If the prosecution is not ready, then I motion that the
case be dismissed for lack of evidence.”
Typically, if the primary officer does not appear in court, you won’t even
get this far as the prosecution will drop the case because they know they have no
evidence.
Treat the un-preparedness of the prosecution the same way. If they did
not bring something to court do not let them take time to get it.
When Prosecution Does Not Have the Paperwork It Should Have
(Should the officer not appear, ask for a dismissal, it most likely will be
granted. Do not let the prosecution try for another trial date, object.)
1. The trial is today; now, if the prosecution does not have the required
paperwork, don’t let them get away with asking for a postponement. They can
ask, but if you object it will not be granted.
Object this way.
“Your Honor, the trial is today, right now. If the prosecution
came unprepared for trial, that is their problem. The prosecution
knows, or should know, what is required to present proper foundation
for entering evidence. The prosecution knows or should know that
there must be evidence that both the radar unit and the unit testing
the radar unit were in good working order and that documentation to
prove this is essential to the presentation of their evidence. I request
you deny the motion by the prosecution.”
2. The prosecution may say that the officer’s word as to the fact that the
49
unit testing the radar or that the speedometer was tested should suffice.
Object this way.
“Your Honor, unless the officer has direct knowledge of this by being
present when the unit was tested, and presents evidence to that fact, his
testimony to something he has no direct knowledge of should be stricken.”
3. If the prosecution tries to say that it is assumed that the police
department has done these tests.
Object this way.
“Your honor, The prosecution has no direct knowledge of this,
presented no evidence to this and the assumptions of the prosecution or
the witness is exactly that, a presumption - with no basis in fact - and
should be rejected by the court.”
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Caught in a Speed Trap
It is well worth your time to read the case law Re: speeding traps in the
California folder of your case law. These cases explain California’s laws
regarding speeding traps in the specific procedures that must be followed. In
particular, the state requires a engineering survey to prove that a posted speed
limit is valid. If the officer does not physically produce the engineering survey,
your case should be dismissed.
The case law provided details these precedents and you’ll want to be familiar
with these concepts.
This layer of the case dismissed the strategy is very simple. After the officer
finishes his testimony, you are going to ask for the relevant engineering survey.
“Officer (whatever his name), please present to the court the relevant
engineering survey for the roadway on which my alleged violation
occurred.”
If by chance a proper engineering survey is produced, you should check to make
sure that the date of that survey is within five years of the date of your alleged
violation. If the document is not produced or if the engineering survey is too old,
you must immediately motion for a dismissal.
Remember that California has laws against speed traps which we have provided
in the appendix. Use that against the prosecution, and make sure they have
proper engineering surveys.
Caught by a Pace Car
OK let’s get to work. Let us assume you were caught by a pace car. The
arresting officer used the speedometer in his car to determine your speed.
You may want to print out these pages and go over them and make notes
on them. This is the heart of your defense.
He says he followed you for a certain distance at say 75 miles per hour in
a 50 mile per hour zone.
Wait until his testimony is finished. Now it is your turn. Ask the following
question.
“Officer (whatever his name), please present to the court
documentation from an approved speedometer shop certifying the
accuracy of the speedometer on the specific car used by yourself on or
about the time of my arrest.”
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Now you have him, he can’t produce the record and remember the paper
trail. If he produces something it must show what car, and identify the car used
during the arrest. In other words along with the certification there must be a log.
DO NOT ACCEPT “I AM CERTAIN THAT THE CAR HAS HAD ITS
SPEEDOMETER CERTIFIED”. If he says this, ask him,
“I am asking for facts, not your beliefs, please present to the court
documentation as to the certification of the speedometer.”
When he cannot produce the documentation or show a proper trace to the
specific car, motion the court; ask for
“Defendant motions for dismissal”.
If the motion is granted, you win. If the motion is not granted motion
again, this time ask for
“Motion to exclude evidence as the prosecution can not certify as to
accuracy of the device used to determine defendant’s alleged speed to a
legal degree of certainty.”
If the motion is denied as to the exclusion of evidence, rest your case and
go to the closing argument. The prosecution will make the first argument. Now it
is your turn. Here is a statement you can use for your closing argument:
1. Since all fines are based on a specific speed, and this Charge is
based on a specific speed the accuracy of the device used to determine
that speed is essential.
2. The prosecution has failed to present evidence that the
speedometer, the measuring device used, is accurate or that the
speedometer has been tested by a qualified facility within a reasonable
period of time prior to the arrest.
3. No other credible evidence that clearly and definitively, to a legal
degree of certainty, quantifies the specific allegation, has been introduced.
4. Defendant requests the court to render a finding of not guilty as
the prosecution has failed to prove its charge.
Notes:
It is highly unlikely that you will get to make a closing argument; the case
will in all likelihood be dismissed. However it is a good idea to prepare for a
closing argument. Use a similar closing argument for radar if the need arises.
Some notes on the speedometer and how to destroy that evidence:
52
1. No car manufacturer certifies the accuracy of the speedometer; only a
test facility can do that, usually a certified speedometer shop.
2. Some states for their State Police either have their own test facility or
use some approved facility to test their speedometers. It is doubtful that the
arresting officer will have that documentation at trial. Even then it is more
doubtful that a connection can be drawn to the specific car used that day
because officers change cars all the time.
3. Almost no municipality ever has their Police car speedometers checked.
Chances are that in a municipal court there is no record, because the
Speedometers are never tested.
Another way some municipalities certify their speedometer:
The officer states that on that day he drove the car past another officer
who clocked him on radar at 30 mph, 50 mph and 70 mph and that his
speedometer agreed with the radar readings.
1. Only the officer who used the radar gun can testify as to the readings
on the gun.
2. Only the officer who tested the radar gun can testify as to the test
performed. Without the second officer present and testifying, challenge the
admissibility of the evidence that the speedometer was tested and found to be
working correctly.
“Your Honor, only the officer performing the tests can testify as to
the readings he observed and what tests if any he performed on the radar
unit itself. We have no testimony from that officer. Motion to strike
evidence presented as to the accuracy of the speedometer”.
If the second officer is there and testifies: (highly unlikely) you will have to
use the radar defense which is the next discussion.
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Questions for the Trial: Pace Car Speedometer
If I were to prepare a list for trial, this is what it would look like. Remember
this is only a list I would use. I am not giving legal advice. Do with this list as you
please. You can add items; or refer to suggested questions from other advice on
the net.
1. Listen to testimony of officer
Listen for: if the speedometer was checked or not. If the speedometer
was checked, how was it checked?
Q1. Officer (name) how did you check the accuracy of the speedometer in
your car?
A1. I did not check it, or the Maintenance people checked it, (no
knowledge of it being checked or how it was checked).
(If maintenance checked it go to Q1a)
Q2. Officer (name) are you a qualified speedometer technician?
(Alternate question, Officer have you had any formal training in speedometer
repair and calibration).
A2. No (he will say no).
Q3. Can you, not being a qualified speedometer technician, to a legal
degree of certainty, certify to the court that the speedometer in the car you used
on or about (at the of my arrest) was accurately calibrated?
A3. No. (if he says yes, say; Officer you just testified that you have no
training in speedometer repair or calibration, other then your personal feelings as
to the accuracy, do you have any documentation from a certified speedometer
shop attesting to the accuracy of the device?).
Ask for dismissal.
___________________________________________________
If Maintenance people checked it or it was calibrated in any way then ask:
Q1a. Officer (name) Please present to the court documentation to that
effect, documentation that shows the speedometer in the particular car used by
you on or about the time of my arrest was calibrated by a facility certified to do
such checks and calibration.
Wait for answer (if unable to present documentation, go to Q2. above and
ask the next two questions, then ask for dismissal).
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(If documentation is presented, make certain it deals with the vehicle the
officer used that day)
Should the officer produce the correct paper work ask:
Q1b. Officer (name) Please present to the court documentation from The
Specific Vehicles Maintenance Record showing that no changes in tires,
transmissions or items on the car in question that may affect speedometer
readings have been changed or altered, and no accidents with the car in
question have happened since the time of the certification of the speedometer.
(He won’t be able to show this) then ask the following two questions:
Q1c. Officer (name) Are you a certified speedometer technician?
Q1d. Not knowing if tires were changed, the accident history since the
last speedometer certification or the existence of other maintenance items, which
can affect speedometer accuracy on the said vehicle, can you, not being a
certified speedometer technician certify, that without direct knowledge of the
vehicle’s maintenance or accident history you can, to a legal degree of certainty
state that the speedometer on the car used by yourself on or about (date) was as
accurate, and functioning exactly as it was on the day the speedometer was last
certified?
Motion: Defendant Motions for dismissal as the prosecution can not
certify as to accuracy of the device used to determine defendant’s alleged
speed to a legal degree of certainty.”
__________________________________________________________
B: Officer had another officer use a radar gun to determine the accuracy
of the speedometer in the car that paced you.
Notes:
Only the officer that calibrated and checked the radar gun can testify as to
the accuracy of the radar gun.
Only the officer using the radar gun can testify as to the readings on the
gun.
1. If only the arresting officer testifies do the following (other officer not
present):
Q1. Officer (name) is it important that the radar gun used to determine
your speed be accurate?
Ask no more questions, no matter what he answers he loses. He will most
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likely answer Yes. If so, go to the motion below. If he answers No, have some
fun with him, then go to the motion below.)
Motion to Dismiss: Defendant motions for dismissal as there is no
evidence that the radar gun used to test officer (his name) car speedometer was
functioning properly or accurately when the test was done. There is no testimony
from the officer using the gun as to the actual readings on the gun. There is
testimony from the officer using the gun that the readings reported belong to the
car in question. There is no testimony that the officer using the radar gun was
properly trained in the use of the gun. There is no testimony from the officer
using the gun that the gun itself was properly tested or if it ever was tested.
The prosecution has failed to present proper foundation as to the testing
and accuracy of the speedometer of officer (name) car at or near the time of the
arrest.
If the officer using the radar gun testifies - go to radar defense section.
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Caught by Radar
Have no fear, Case Dismissed works great here.
HOW RADAR CALIBRATION WORKS
Well first off, it really isn’t radar. Sure an electron beam is sent out and
returned, but the Doppler effect determines the speed reading. That is where
frequency changes as a moving object approaches you or moves away from you.
The change in the frequency determines the speed. To do this the radar unit
utilizes a “beat frequency oscillator”.” This deals with beats in the millions per
second.
Tuning forks are the typical method used to test the accuracy of a radar
gun. The tuning forks induce a specific number of beats per second which
correlate exactly to a speed. That is there is a 30 mph fork, a 50 mph fork and a
70 mph fork. OK, the speed forks may vary depending on manufacturer; most
have a minimum of three (the quantity is not important). These forks are similar
to the ones you remember from music classes. The teacher hits the tuning fork
marked “A” and you have an “A” on the chromatic scale. The frequency can be
slightly off and no one will notice, our ears are not that good.
On the radar unit a change in frequency of 10 kHz or 10 beats per second
in millions is enough to make it unreliable. A scratch on the tuning fork is enough
to cause that. If the tuning fork is ever dropped or damaged in any way it
becomes unreliable.
That is why at least every six months the forks must be sent away to a
certified facility to be re-adjusted, tested and re-certified. It is also important that
the tuning forks not be damaged in any way since the last test and certification.
These last two points are often weak points in the prosecution’s chain of
evidence. Case Dismissed will show you how to uncover this weakness for
your own benefit.
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We discussed ways of testing the radar equipment above. Remember not
only must the radar unit be tested but the device testing the radar unit must also
have been tested within a reasonable period of time.
This is the critical weakness in almost every trial, as the prosecution is
rarely prepared to properly document the entire chain of evidence. It’s just
too much work for the volume of cases they have. You are going to
ambush the trial by pouncing on this weakness – kind of like how they
pounced on you when they hid on you to catch you speeding.
The trial:
The trial is same up to the point where the officer explains how he tested
his unit.
When he is done, the prosecution rests its case and you now examine the officer.
Ask the officer to present certification of the last time the tuning forks were
tested and calibrated by a certified facility. If he cannot present it, ask for
dismissal.
If he presents it make certain that it is the original and not a copy. Reject
the copy stating the “best evidence rule”. If he can’t produce the original, ask for
dismissal.
If he presents the original, ask him to prove by serial number that the
tested tuning forks belong to the radar gun that was used to determine your
speed. Not only must the gun match up to the car used that day it must also
match up to the tuning forks.
I had one instance where the officer actually produced a tuning fork
certification. He could not match it by serial number to the car or the gun in the
car. To do that he also needed the car’s maintenance records, which he did not
have. He had to show in the radar log that the tuning forks certified belonged to
the specific gun. As a matter of fact he didn’t even know which car he was in that
day. Well you know the rest, Case Dismissed.
Suppose the officer only states that he performed the internal check on his
gun. Now you ask him about the unit. Ask him about the tuning forks that came
with the unit and why he did not use them. You can have some fun with him.
You don’t even have to ask about the tuning forks having been tested because
now that is irrelevant. The gun was not even tested properly. Case dismissed.
Proceed through the trial just like in the speedometer case, except shoot
down the testing of the unit that tested the radar gun. Repeat: the unit that
tested the radar gun is your target!
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Some notes:
If the gun was tested shortly prior to the arrest and then tested shortly
after the arrest, the court can presume that the gun worked properly during the
arrest. This is important because most officers never perform the test after the
arrest.
You can with clear conscience ask. “Is it not true, the manual provided by
the manufacturer of the radar device recommends that for accuracy the gun be
tested at a time shortly prior to use and immediately after an arrest.” (All radar
manuals state this.)
If he says, “I don’t recall that being in the manual”, ask him when the last
time he read the manual. On the other hand if he states that it is true, then ask
him why he did not follow recommendations. You really can have some fun with
this.
(If you feel comfortable following this thread, please, do so. It is not
essential to “Case Dismissed” and mistakes made by you here will not affect
“Case Dismissed” because you have not used it yet. However you deserve the
fun.)
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Questions for the Trial: Beating Radar
As mentioned above, if you’re caught with radar in a speeding trap,
special laws apply. In particular, the state requires a engineering survey to prove
that a posted speed limit is valid. If the officer does not physically produce the
engineering survey, your case should be dismissed.
The case law provided details these precedents and you’ll want to be familiar
with these concepts.
This layer of the case dismissed the strategy is very simple. After the officer
finishes his testimony, you are going to ask for the relevant engineering survey.
“Officer (whatever his name), please present to the court the relevant
engineering survey for the roadway on which my alleged violation
occurred.”
If by chance a proper engineering survey is produced, you should check to make
sure that the date of that survey is within five years of the date of your alleged
violation. If the document is not produced or if the engineering survey is too old,
you must immediately motion for a dismissal.
1. Listen to the testimony
“Officer (whatever his name), please present to the court the relevant
engineering survey for the roadway on which my alleged violation
occurred.”
If by chance a proper engineering survey is produced, you should check to make
sure that the date of that survey is within five years of the date of your alleged
violation. If the document is not produced or if the engineering survey is too old,
you must immediately motion for a dismissal. It the survey paperwork is proper,
continue below:
If there is no testimony as to checking the radar ask:
Q1. Officer (name) is it important that the radar be functioning properly?
If the answer is No have fun with him and ask for dismissal.
If answer is Yes:
Q2. Please tell the court how you determined that the radar was
functioning properly and how you determined its accuracy.
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If he says he didn’t check it, ask for dismissal:
If he only did the internal check he will say something like this:
I pressed the internal check button and the internal check indicated that
everything was functioning properly.
Q3. Officer (name) is it not true that the radar unit you used also calls for
a check with specific tuning forks set at various speeds.
If he says No, ask questions about his training into the use of radar make
a fool out of him and ask for dismissal.
(Every radar unit comes with tuning forks or some kind of beat frequency
oscillator. The internal checks only test the circuitry; they do not and cannot test
the accuracy of the reading. Unless external beat frequency oscillations of a
specific frequency are introduced it is impossible to determine that the readings
of the gun are accurate. Remember the radar gun determines your speed by
measuring the external beat frequency oscillations produced from the Doppler
effect of your moving vehicle).
If he say Yes, but did not check the radar with the forks, ask for dismissal.
If he say Yes, and describes how he checked the radar with the forks ask
the following.
Q3a. Officer (name) I am certain that you recorded this check in the log
for the radar. Please present the log showing at what time on (date) you
performed this check.
Q3b. Please show on the log where you checked the unit again after my
arrest.
If he can not show a check that is almost immediately after the arrest, ask:
Q3c. Like all mechanical and electronic devices can this unit fail or can
become inaccurate?
Q3d. Is it reasonable that if a unit was checked and found to be
functioning properly before the arrest and then checked again immediately after
the arrest that in all probability it functioned properly during the arrest?
Q3e. Since you did not check the unit immediately after the arrest, can
you within a legal degree of certainty state unit functioned properly and was
100% accurate during the arrest?
He may, and most likely will say something like this. “I used the gun on
other vehicles after the arrest and it worked perfectly, so it must have been
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accurate.”
Q3f. You testified that you did not check the radar gun immediately after
the arrest, what evidence do you have that the readings on the other cars you
mentioned was accurate?
(Depending on his answers you can ask various questions, however this is
not “Case Dismissed”, and losing on this point is not fatal.)
If he finally agrees that he can not prove accuracy after the arrest, ask for
dismissal.
“Your Honor, Defendant motions for dismissal. Since the unit was
not properly tested after the arrest the prosecution has not proven to a
legal certainty that the unit which was used to determine defendants speed
was functioning properly at the time of the arrest.”
If he has checked the radar gun with the tuning forks, both before
and after, then continue below (or if the Judge denies the previous motion):
Q1a. Officer (name), the tuning forks, are they specific to the radar unit,
or will any other tuning fork, say one that I can buy at the music store work?
Q2a. If the tuning fork is damaged, bent broken, cracked, exposed to
excessive heat, is it likely then that the tuning fork is as accurate as when it came
from the factory?
Q3a. For the check with the tuning forks to be accurate, is it important
that the tuning forks themselves to be accurate?
Q4a. Are you certified to check and calibrate these tuning forks?
Q5a. Do you have the equipment to calibrate these tuning forks and if so
are you trained and certified in the use of this equipment?
Q6a. Officer (Name) Please present to the court documentation from a
certified facility that checks these tuning forks that they have been checked and
found accurate within a reasonable period of time prior to the date of the arrest.
If the answer is he has no such documentation. Ask for Dismissal.
“Your Honor, Defendant asks for dismissal as there is no evidence
that the essential tuning forks used to test the radar were themselves
accurate. Therefore the test of the radar unit is invalid and no legal
certainty can be drawn as to the accuracy and proper functioning of the
radar unit upon which the Prosecution has rested its case.”
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If the motion is denied, ask:
Q1b. What does the manual for the radar gun you used that day say
about the condition of the tuning forks or any cautions as to the handling of the
tuning forks?
Q2b. Does the manual state in any way that the tuning forks can be
dropped, cracked, bent or exposed to excessive heat without need for recalibration?
Q3b. Does the manual state that no matter what condition the tuning
forks are in that they will always be accurate, irrelevant of abuse, cracking,
bending, exposure to excessive heat and so on?
If the answer is No ask for Dismissal this way:
“Your Honor, Courts have taken judicial notice that Radar works and
is reliable provided that:
“The operator is trained in the use of the specific unit,
“The unit is tested correctly prior to and after use, and
“The testing unit itself is properly calibrated, undamaged and
checked periodically by a qualified facility within a reasonable period of
time.
“The prosecution has failed to present evidence to the fact that the
tuning forks used to test the radar gun were undamaged and in good
calibrated working order. Thereby the prosecution has failed to prove to a
legal degree of certainty the accuracy of the radar gun upon which the
prosecution has rested its case. Defendant motions for dismissal.”
Radar, Officer with the proper paperwork:
The chances that this will ever happen are very slim (unless you tip them
off by making motions for this evidence before the trial)
By questions you must determine that the tuning forks belong to the
specific gun used. That it was the gun in the officer’s car (ask for log books) If
this fails go for a paper trail that the tuning forks have not been dropped,
mutilated or exposed to excessive heat since the certification.
Q1a. Officer (name) what is the serial number of the gun used by yourself
on the day of the arrest?
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Q2a. Please show to the court documentation that the tuning fork’s serial
number (read the serial numbers from the documentation on the testing) belong
to radar gun with serial number (previous question) NOTE: if the two don’t match
ask for dismissal.
Q3a. (Only if the numbers match) Officer what is the license number or
other identifying number of the car (motorcycle) you were using on the date of
the arrest?
Q4a. Please present documentation that the radar unit serial number
12345 was installed in car (motorcycle) 6789 on the date of the arrest. (If it was a
hand held unit documentation that this was the unit the officer checked out that
day).
Remember; “If the numbers don’t fit, you must acquit,” ask for
dismissal
If the numbers fit do not quit:
Q1b. Officer (name) Please present documentation or other evidence that
since the date of the last certification that the tuning forks have not been
damaged, dropped, bent, cracked, exposed to excessive heat or been in a
vehicle that was involved in an accident.
At this point, rest your case and do the best you can in your closing
argument. The odds of things ever getting to this point are very slim.
Review:
Pace Car or Speedometer
1. Documentation when the speedometer was last inspected and certified
2. Documents are for the car that was used to pace you
3. The documentation must be from an accredited facility, Joe’s garage
won’t do.
4. If radar was used to determine car speedometer accuracy, go to radar
Radar
1. Documentation as to the certification and testing of the testing unit
(tuning forks or whatever other device was used)
2. Within a reasonable period of time (no more then 6 months)
3. Documentation is for the unit installed in car used at time of your arrest.
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Caught by Laser/Lidar
Not all jurisdictions have taken judicial notice as to the workings and
accuracy of Laser. Assume that the jurisdiction you are in has not taken judicial
notice.
Good news, less then 1/10 of 1% of citations are with the use of Laser.
For anyone who gets a laser ticket, we encourage you to fight it. That in itself isn't
news, (we encourage everyone to fight all speeding tickets) but lasers are not on
judicial notice in many of the country's courts. The prosecution teams around the
country are glad you don't know that. (Note: I cannot provide a list of states as it
may change at any time).
When faced with Laser the chances that Judicial notice in your state exists
is small. For example, in March of 2000, the COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT reversed a speeding ticket conviction when it
railed to recognize judicial notice of the LTI 20-20 laser. However, in Georgia as
sited in VAN NORT v.THE STATE the legislature has certified many of the radar
and laser detectors used.
It is not up to you to know if judicial notice exists and it will be very hard for
you to find out. When the laser evidence is being introduced object this way:
“Your Honor, the prosecution is introducing evidence based on a
laser type of device. This State has not taken judicial notice as of yet
concerning Laser. Unless the prosecution presents foundation with the
introduction of expert witnesses on laser I object to the introduction of this
evidence”.
You have a good chance of being in a State where there is no Judicial
notice of laser. The worst that can happen is that you are in a state where
judicial notice exists. Apologize for your misunderstanding and then continue with
your defense (Note: You must object as soon as the officer or prosecutor
mentions the word laser).
Laser is a narrow beam of light generally invisible. It is effected by
moisture and any medium through which it passes. Glass, and moisture will bend
the beam. Most states have not taken Judicial Notice that Laser is accurate.
Check with your state. If no Judicial Notice exists then the prosecution must
present an expert witness to testify as to the workings of the specific laser gun.
In most instances the Laser was set up as a stationary unit. This requires
testimony as to how it was set up and the testing of the accuracy of the set up.
The only way to test it is to have a specific car with a calibrated speedometer
pass through the area at various speeds and determine if the speed reading on
the car and the laser unit agree.
65
If used by an officer in a car the unit must have been in free air as
shooting through the windshield will cause the light to bend and give a reading
that can not be certified as being correct or even that of the correct vehicle.
Bending of light is basic science, when light is passed through a prism it
bends at different angles depending on the frequency of light, Thus the rainbow
or more specifically the light spectrum. The rainbow is light passing through
moisture and being bent. The different frequencies present us with the colors of
the Rainbow. Remember this is visible light, all light bends depending on the
frequency. If you the light is in a frequency range that the human eye can not
see, the human eye can not see where the beam is pointing to or how much it is
bent.
Bent light travels a different distance and the Laser gun measures a
specific return from a specific distance. If the light is bent, there is no assurance
of accuracy as there is no calculation or compensation as to the bent light.
Assume the state has taken Judicial notice. There will be a requirement for
such Judicial notice and it will have the following criteria.
1. The Laser was used in open air.
2. The moisture content of the air was below a certain range.
3. The operator was properly trained.
4. The accuracy of the unit was checked by a verifiable method (a pace car).
Questions:
Q. Officer, how did you determine the unit you used was accurate (he will testify
to an internal check of the electronics and may state that it was tested on a pace
car)
If No Pace Car:
Q. Officer, the self check of the unit is an electronics check is it not?
Q. Other then the self check what other check did you perform?
Q. Can you see the beam of light with the naked eye. (He may be able to see
where it reflects off of an object, but not the beam itself.)
Q. Without checking the unit against a moving object where the speed of the
object is known can you with a legal degree of certainty, and based on your
detailed engineering knowledge of the workings of the unit state that the unit
worked that day as per engineering specifications. (Note engineering knowledge
and engineering specifications)
If he says yes:
Q. Officer please describe to the court your engineering qualifications. (Do you
have a engineering degree specializing in Laser spectrometry?) (Have you done
scientific research into the specific unit etc.)
If he says no: Ask for dismissal
If the unit was tested against a moving object:
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Q. Officer, is it important that the moving object you tested it against have itself
an accurate ability to determine the speed the object was traveling at. (In this
case it would most likely be another police car)
Q. Officer please present to the court documentation as to the last time the
speedometer on the car used was tested and certified by an approved
speedometer facility.
If he can not present this, Ask for dismissal.
If he shot you through the glass of his car:
Q. Officer have you ever seen a rainbow?
Q. I school, like every school child you were taught that light bends when passed
through a medium and this makes a rainbow?
Q. Did the school teacher ever let you see a prism and the colors that the prism
produces when light passes through.
Q. Did the school teacher explain that the different frequencies bend at different
angles, separating the light into blue, violet and yellow.
Q. Glass, water, water moisture like in a rainbow bends light does it not?
Q. When you used the unit through the windshield, do you know how much the
light was bent? Could you see the beam?
Q. If you could not see the beam, and you know the light was bent, how did you
determine with a legal degree of accuracy where the reflection with which to
determine the speed came from?
Q. Does the unit you used compensate for all the possible bending of light when
passed through a medium such as the curved windshield of your car?
Q. The curve of the windshield of your car is not consistent is it? At some places
it curves more then others is that not correct?
Q. Without compensating for the exact curvature, the type of glass, and the
layers to the glass and bending of the light, is not logical that there will be a
different reading from that of a straight shot through clear air?
At this point, Ask for Dismissal as the prosecution has not proven beyond
reasonable doubt that errors introduced by shooting the laser through a window
have resulted in an accurate speed.
If the shot was through an open window.
Q. Remember the rainbow, and how light is bent by the moisture in the air
making the rainbow. Moisture bends light does it not.?
Q. What was the moisture content of the air at the time of the arrest?
Q. Did you make any compensation for the moisture content?
Again, you have to ask your question based on the circumstances. the
bottom line is that the arresting officer will have to show that the unit was tested
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against a moving object and that the moving object must have had a calibrated
instrument with which to determine it's speed. Documentation is required if you
ask for it.
Remember, the prosecution presented the evidence. They have to defend
that evidence, you don't. If the evidence is brought into question the prosecution
must present the back up. It is the prosecution’s responsibility to back up its
evidence. If they didn't bring it to court and it is challenged, well too bad, the
prosecution should have known better.
Laser has many more problems then radar. That is why most courts have
not taken Judicial notice that it works correctly every time.
The problems with Laser are moisture, the bending of light and a
independent verification that the unit is working correctly (pace car).
The advantage of Laser is that it is so quick that most radar/laser
detectors will not give the warning until it is too late.
Bad News: Certified professionals usually calibrate a Laser.
Good News. To calibrate laser requires a certified technician or someone
with specialized training.
Like the radar, first find out how they calibrated it (from the testimony of
the officer) then go after the certification of the unit that did the calibration.
Basically use the radar defense modified towards whatever they used to calibrate
the Laser.
Did they calibrate the laser both before and after timing you?
When was that calibration device last calibrated? Ask the prosecution to
produce the calibration documentation and if they can’t, ask for a motion to
dismiss.
Photo Laser is usually used in stationary traps where a picture of your
license plate may be taken along with your speed. In this case the person that
testifies must be the person that set up the site, accept no substitute.
Documentation as to the calibration is also required.
Unfortunately you will have to defend yourself here by ear. Use “Case
Dismissed” as you see where it will fit the best.
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Review and Additional Pointers
1. DO NOT motion before trial as to the evidence the prosecution will use.
You already know what they will use, any motion of this type will tip them off.
Remember this is “Trial by Ambush”. I know other sites and books recommend
you get all of the prosecution’s information before hand. DO NOT DO THIS, this
is not a major case, only someone with something up their sleeve will ask for the
information. The prosecution expects you to be a simpleton, unprepared just like
the thousands before you and after you. The prosecution will spend absolutely
no time in preparing for your case. Remember if the prosecution is tipped off,
and prepares itself, they may just turn up with documentation you don’t want.
2. DO NOT, ABSOLUTELY NOT, under any circumstances testify
yourself. Do not take the stand, do not say anything about your own speed. Do
not come up with a story, like my car had four cylinders not firing so it is
impossible for me to have gone at that speed. I GUARANTEE YOU WILL
LOSE. If you take the stand the prosecutor is allowed to cross examine you.
Believe me he will trap you and you will be found guilty from your own mouth.
Remember you are not here to prove your innocence. Everyone knows you are
guilty, the Judge, the police officer, the prosecutor and you yourself know you
are guilty. All they need is evidence to prove your guilt, don’t give them any
evidence.
3. Remember the object: Make the evidence inadmissible: if that fails
Make the evidence unreliable: If the evidence is not reliable to the degree of
legal certainty, it can not be used to convict you. With the evidence gone: The
prosecution has nothing.
4. Do not attack the arresting officer’s honesty. Even if he lies do not go
for his honesty. Remember if he lies in your case he has lied hundreds of time
before, he is good at it. However, if you prove that he failed to so something, that
is OK.
5. Your only target is the evidence. The main target is the calibration of
either the speedometer or the radar unit. On the radar unit your main target is
calibration of the tuning forks. On Laser, it is the calibration of the laser itself, or
the machine that calibrated it.
6. There is a thing called “The chain of evidence”. Break one link and the
entire evidence disappears. Your only job is to break one link.
7. Motion for dismissal every time you have broken a link.
8. When the prosecution rests its case, it is over for the prosecution.
Unless you let them, they may not enter any more evidence or call any other
witnesses. DO NOT LET THEM if they try. Once you rest your case, the trial is
over except for closing arguments. This is important to remember because the
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prosecution may ask for time to get the documents you requested.
9. Accept it as being truthful when the officer says his unit or speedometer
read a certain speed. That is what he read and the court assumes he is telling
the truth. Accept it as the truth yourself. What you must show is that what he
read may not have been accurate. The key word is MAY . May does not ascend
to the degree of legal certainty for conviction. You do not have to prove that the
reading were inaccurate, do not even try to prove the readings as being
inaccurate. They have to prove the readings were accurate. All you want to do is
show that they MAY be wrong.
10. To show that they may be wrong all you have to do is ask for proper
calibration. Without accurate calibration, the court must take judicial notice that
the readings may be wrong and you win.
11. Things happen fast in court. The court does not have much time for
each trial. However you can take as long as you need to defend yourself. Do not
let the court rush you. If you need a moment to think or read something, tell the
court that you need a moment. Do not let the court push you; ask for a recess if
you need more time.
12. Do not stray off of the beaten track. If the officer says something that
does not relate to the calibration of the unit, but you feel is interesting to attack,
avoid the temptation. Remember anything that alters your focus from what you
prepared for is a distraction, it will negatively affect your defense. Focus only on
the calibration, it is the only thing you are prepared for, everything else can be,
and probably is a trap. The calibration is the only thing that will win the case for
you, so focus on it and nothing else.
13. The violation you are charged with is specific. “Speeding, 75 MPH in a
50 MPH zone”. The word speeding is like the word “theft”. If you were charged
with theft the charge would be theft of something specific. If the prosecution
cannot prove you stole that specific thing, they lose. If the charge were “murder”
it would be the murder of a specific person. You may have killed someone else,
but if you did not kill that specific person, or that person is not really dead then,
case dismissed.
In your case you are charged with a specific speed. That speed is written
on the ticket (citation). The prosecution must prove that speed. Like a murder
trial where you allegedly killed Fred. The prosecution can prove you killed Sam,
Harry and Peter. They can prove you are a murderer, but unless they can prove
you killed Fred, you go free. The same in the speeding ticket, they can prove
you are a person that speeds, but unless they can prove you were going 75 MPH
(the speed you are charged with) they have nothing.
Caution: Remember the murder trial, if you admit or agree to killing Sam,
Harry and Peter, the prosecution can amend the complaint and charge you with
their murder, even if you did not kill Fred. On the other hand the prosecution can
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show you killed Sam, Harry and Peter, the court can assume that you are a
murderer, but unless they have a Dead Fred, a dead Harry or a John will not do.
You walk because the charge was for a dead Fred.
Some additional reading: Not necessary for you to win, you already
know “Case Dismissed”
For those of you interested, every State in the USA and Province in
Canada has volumes of legal reference books. The books I am talking about
concern Case Law. This is previous cases that have been brought to the
supreme court of the state or province where a ruling has been handed down.
These books can be found in most major libraries and are available to the public.
Every State or Province has cases that went to its Appeals Court relating
to Radar and speedometers. If you quote case law, only the case law in your
state or province applies. So “San Jose vs. Joe Shmo” in California has little or
no bearing on your court in Montana.
Since the volumes of these books are in the hundreds with thousands of
cases in each book and dozens of cases relating to each subject you will need
some help. A lawyer learns how to look this up in law school and a law clerk is
specialized in looking up cases. You are not. However here is a hint. If go to the
most recent index and look up the word “speeding” or “Radar” you will see
dozens of headings like “ Radar, unit to test must itself be tested, Orange Co. Vs.
Joe Blow 1982 SW 23, 2, 13.5. OK you may have to ask someone how to find
that in all the books. Generally there will be someone at the library to help you.
See also the reference to caseclerk.com below.
This is interesting reading. And making copies of some of the recent ones
and bringing them to court will not hurt you. They certainly will help you in
understanding the thinking of why calibration is so important. You might even
impress the Judge. There is too much case law out there and to publish herein
all the cases relating to speeding for all 50 states and 10 Canadian provinces is
beyond the scope of this exercise. Besides, it is not critical to your defense.
What is important is that every state and every province has ample case
law relating to speeding and the fact that there is a requirement that the
speedometer and radar be calibrated and checked within a reasonable period of
time. Additionally, as mentioned before, the unit which checks the radar itself
must have been checked by a certified facility within a reasonable period of time,
generally 6 months.
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Addendum 1: Important to Read
1. If at any time the Judge says something to the effect that the tuning fork
testing or speedometer testing is not important say:
“Your Honor, before you, you have copies of case law where
high courts around the country have clearly and unanimously ruled that
this is essential if brought up by the defense.”
2. For a Laser (Lidar) defense print out three copies of In the MATTER OF
the ADMISSIBILITY OF MOTOR VEHICLE SPEED READINGS
PRODUCED BY the LTI MARKSMAN 20-20 LASER SPEED DETECTION
SYSTEM.. Hand a copy to both the Judge and the prosecutor before the
trial begins then state.
“Your Honor, many jurisdictions have not taken Judicial notice
of laser. Before you are findings by appellate Judges concerning laser
evidence. This finding deals with the Marksman laser gun, however the
principals apply to all laser type speed measuring devices and the
defendant draws your attention to this Judges ruling after careful
investigation with expert testimony from many expert witnesses.”
Remember to read both the laser section and this section (the ruling can
be found in Case-Law/New Jersey. It should have expanded (unzipped)
when you downloaded Case Dismissed. If not go back to the web page
and download the folder. There are 39 rulings from 13 States.
3. If you were attacked by Photo Radar, got to the Alaska folder in Case-Law
4. If you are from California, read all the case laws in the California section of
Case law. You most probably will find a situation that you can apply to
your situation and use it by asking the questions outlined in the case law.
5. If you have the time and fortitude I suggest that you read as much of the
case law you can stomach. If your State is listed then read all the case law
that is there. This will prepare your mind.
6. If you bring case law to court remember you have to give a copy to both
the Judge and prosecutor. Bring whatever case law you think will do you
the most good. Remember the prosecutor will have brought none. (This is
a speeding trial and no prosecutor is going to do legal research on a
simple conviction.)
7. The prosecutor, after reading the case law, will try to argue and state that
it does not apply. Argue back stating:
“Your Honor it is obvious that the prosecution does not like
the rulings that have been handed down by higher courts. These rulings
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have been well thought out and they apply directly to speeding
convictions. I request that the court consider these rulings in applying
the law in my case.”
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Addendum 2: Special Section- Important
When the Judge says that you should have subpoenaed the requested
information before trial. (Hint, read this to the Judge, it may be to long to
memorize)
“Your Honor, the requested items go to foundation as to the
evidence presented. Any responsible prosecutor would have come
prepared with the documentation necessary to lay a proper foundation as
to the evidence he is presenting. It is not up to the defendant to provide
foundation for the prosecution’s evidence. It is only reasonable that if a
measuring device is used that the prosecutor be able to show within a legal
degree of certainty that the device was both accurate and functioning
properly. This requires foundation as to recent testing or certification of the
measuring device and in the case of radar that the tuning forks, which are
measuring devices themselves, have been tested and certified as well.”
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Actual Trial Transcript
This is an actual transcript of a actual trial where the defendant was prepared. The defendant
was the daughter of the original author of the information on which Case Dismissed is based.
She is a registered nurse with no legal experience whatsoever.
IN THE MUNICIPAL COURT OF WEBSTER GROVES MISSOURI, THIRD CIRCUIT, ST. LOUIS
COUNTY
CASE NUMBER: 24-99-8736J
Hearing Date: June 3, 2001
Defendant. (Blank)
Reported by: Peter Knap: Court Reporter
Trial Judge: Hon. Fredric M. Potts
COUNSEL OF RECORD: Adam P. Fornbe Esq.
For the Defendant: Pro Se
The Municipal Court calls Sergeant Francis Jones as witness, having been previously duly
sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. Fornbe
Q Officer, Please state your name and spell your last name for the record.
A Sergeant Francis Jones, J O N E S
Q How are you employed, sir?
A By the City of Webster Groves Police department.
Q On 03/11 of 2001 did you issue a speeding Citation No. 42-2687-9696 ?
A Yes, I did.
Q To whom did you issue that Citation?
A To the Lady at the Defense table Mrs. (name-blank)
Q Why did you issue her a Citation?
A On the date of the violation, March 3, 2001, on or about 11 AM, I was driving along Big Bend
Blvd. when I had occasion to observe a Blue Toyota Four Runner enter the street from the right
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and proceed at what appeared to be a great rate of speed. I followed the defendant for several
blocks and noted the speed at 46 MPH. the speed limit on Big Bend Blvd is 25 MPH.
Q And how is it that you ascertained this speed, using which device?
A The speedometer on the Police car that I was driving.
Q To your knowledge was that speedometer functioning properly and recording accurately on
the day and at the time of the arrest?
A Yes
Q If the speedometer should fail or not read accurately, are there any indications that such may
be the situation?
A Yes, the speedometer would start fluctuating, stick or go to zero if it failed.
Q On the date of the arrest, before and within a reasonable time after the arrest did you observe
any such failure indications on your speedometer?
A No.
Q Did Mrs. (name blank) say anything at her arrest that may be noteworthy to bring to the court's
attention?
A. She said that she knew she was going fast and did not realize she was going 46 MPH
THE COURT: Without objection the statement is Admitted .
Mr. Fornbe: I have no further Questions.
THE COURT: Mrs. (name blank) You may take the stand or ask questions if you wish.
THE DEFENDANT: Yes. Sergeant Fornbe, do you have any formal training in either
speedometer repair or calibration?
A: No.
THE DEFENDANT: Does your police department regularly check and certify the speedometers
used on the departments police cars?
A: I am certain that they do.
THE DEFENDANT:: Do you have any direct knowledge as to that fact?
A: No, but I am certain that the department does do these checks.
THE DEFENDANT: Sergeant Fornbe, then please present to the court a certification from such a
facility as to the last time the speedometer on the car you used that day was calibrated and
certified?
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PROSECUTOR: The witness has testified as to the accuracy of the speedometer
THE DEFENDANT: Your honor the witness has testified that he has no formal training in either
speedometer repair or calibration and as such can not testify as to the accuracy of the
Speedometer.
THE COURT: Sergeant Fornbe, do you have such documentation as requested by the defense?
A: I am certain that we do, the police department is in the basement of this court house, we have
our records there.
PROSECUTOR: Your Honor, had the witness wanted such records she should have requested
them prior to trial.
DEFENDANT: Your Honor, it is not the function of the defense to present foundation as to the
prosecutions evidence.
PROSECUTOR: Your Honor, I notice the Defendant reading from material, copies of which have
not been made available to the Prosecution. I request the court order the Defense to make
available for review the papers from which she is reading?
DEFENDANT: Your Honor, these are my trial notes and I object to turning over to the
prosecution my notes. they are not presented as evidence and contain my defense strategy.
THE COURT: Motion denied,
DEFENDANT: Does this mean I have to turn over my notes to the prosecution your honor?
THE COURT: No, it means the prosecution at present has no right to see your notes. However
you may show them to him if you so wish.
PROSECUTOR: Your Honor the prosecution requests this trial be continued next week in order
for the Prosecution to find the paperwork requested by the defense?
DEFENDANT: I object your honor, the trial is today and if the prosecution failed to bring
documents necessary for foundation the prosecution should move on without them.
PROSECUTOR: Your Honor, may we have thirty minuets to search for them in the police
station?
THE COURT: Are you asking the court to take a thirty minuet recess. We have twenty people
here waiting for their trial. Sergeant Jones, do you believe you can find the requested paperwork
in thirty minutes?
A: I don't know your Honor, I don't even know if we have them here or if they are located
somewhere else.
THE COURT: Motion denied, please continue.
DEFENDANT: The defense motions for dismissal as the prosecution has failed to prove to a
legal degree of certainty that the measuring device used was accurate and functioning properly
at the time of the arrest.
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PROSECUTION: Your Honor, the defendant admitted to speeding to the officer at the time of the
arrest.
DEFENDANT: Your Honor, the defendant is charged with traveling at 46 mph, something the
prosecution has failed to prove.
THE COURT: Case dismissed, Please call the next case Mrs. Cleary
Last recommendation: The Pinellas Police Department in Florida has put
out a web page describing the thoroughness of their testing of radar,
speedometers, tuning forks and laser. They subsequently removed the page probably because they didn’t like my customers using it against them. Too bad
for them, but I saved the information and published it to my own site for safe
keeping and future reference.
I recommend that you go to the site and print out the site on your printer. Take it
to court with you and in the event the Judge or the prosecutor questions your
questioning concerning anything in calibration bring the printed pages to the
attention of the court. You should take three copies with you. Do it this way.
“Your Honor, if I may (hand one copy to the Judge and one to the
prosecuting attorney). Pinellas County Police have chosen to publish on the web
what they do regarding calibration and the legal requirements for calibration. I
realize this is not Pinellas County however the calibration requirements are
universal. A radar gun or speedometer is no different in Pinellas County then it is
here. Calibration should not be any different.”
This should shut up any motions by the Prosecution that calibration is not
necessary.
The web site address is: http://www.BeatMySpeedingTicket.com/pinellas
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How to Conduct Legal Research into Speeding Tickets
As you have read above, specifically in the laser section, Judicial Notice of
the admissibility of laser readings has not been granted in every state. This is
changing rapidly.
The best way I have found to research case law is a web site called
www.caseclerk.com. This web site allows you to search for any case law relating
to your particular state. For example, you can search for Appeals Court Rulings
in the State of New York that contain the word “laser”.
You can get a 24 hour subscription to caseclerk.com for $29.95 as of this
writing. I suggest that this might be valuable additional information for you.
Although Case Dismissed comes with abundant case law, the more
ammunition you can amass in your defense, the better. Since it is now so easy
to use the internet to collect the relevant information, it makes sense to do so.
By using any case law you find in conjunction with the principles you have
read here, you will be a well-prepared defendant. Preparation and knowledge
are the keys to the dismissal of your charges.
You are now prepared to fight and beat your speeding ticket. You know
the principles of law necessary, you know how to act and what to say in court.
You are equipped with case law and in the event you need more, you know
exactly where to get it easily and conveniently.
Your chances of beating your speeding charges are excellent. You are
fully prepared, while the prosecution is overwhelmed and under-prepared. They
are counting on you being another faceless number. You are not.
You still have one decision to make. Should you get a lawyer? Only you
can answer that and I certainly would not advise against it. An attorney with
experience fighting speeding tickets will have specific knowledge of the laws in
your jurisdiction. If you were honestly NOT speeding at all, and the police officer
clearly made a mistake, it may be wise to consult with an attorney. Perhaps you
can get the charges dropped based on the facts of the case without resorting to
the techniques in Case Dismissed.
The odds are highly in your favor now. So go to court, argue your case,
and use the justice system to your advantage. And when you are done, listen for
those words we all love to hear, “Case Dismissed”.
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Appendix 1: Not Guilty Plea & CA TR-205 forms
(on following pages)
Not Guilty Plea form download You must print out this form, fill it in and return it
to court with the check for the appropriate bail amount.
The Written Not Guilty Plea is a legal document. With this document you
must also send the full bail amount as indicated on your ticket. The bail amount
is considered a deposit to guarantee that you will appear in court (or as in your
case that you will have a Trial By Written Declaration) and serves as a deposit for
any fines assessed by the court. (If you are found Not Guilty the fees will be
refunded to you) The Written Not Guilty Plea must be sent to the court by
registered or certified letter AND must be postmarked five (5) days prior to the
appearance date indicated at the bottom of your ticket. If there are fewer than 5
days before the appearance date, you may submit the Written Not Guilty Plea in
person.
This form asks for some specific information related to your ticket. You will find
that info on the ticket itself, such as the code violation, court, and bail amount.
The court will reply with the TR-205 form. You fill out that form, and attach the
appropriate defense document that you edited for your specific case from those
supplied.
Note – it is easier to download and print from this link. If you are comfortable printing a single page from a
pdf document, then you can print and fill out the page below. They are the same form – just different ways
to download and print.
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CVC 40519(b) Written Not Guilty Plea
Attention: Traffic Court Clerk
Date: ___________________________________________
Court Name: _____________________________________
Court Address:
________________________________________________
_________________________________________________
_________________________________________________
Re: Written Not Guilty Plea for Citation #_____________, dated
_____________.
Dear Court Clerk,
I hereby waive my right to arraignment pursuant to Section 40519(b) of the
California Vehicle Code and plead Not Guilty to violating CVC
__________________.
Also, I request a Trial by Written Declaration pursuant to CVC 40902. I have
enclosed a check for bail as required.
Thank you,
_______________________________
_______________________________
(signature)
(date)
Defendant Name: _________________________________________________
Defendant Address:
________________________________________________________________
________________________________________________________________
Defendant Phone Number: __________________________________________
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82
Appendix 2: California Vehicle Codes - Speed Trap Laws
CALIFORNIA CODES
VEHICLE CODE
SECTION 40800-40808
40800. Every traffic officer on duty for the exclusive or main purpose of enforcing
the provisions of Division 10 or 11 of this code shall wear a full distinctive
uniform, and if the officer while so on duty uses a motor vehicle, it must be
painted a distinctive color specified by the commissioner.
This section does not apply to an officer assigned exclusively to the duty of
investigating and securing evidence in reference to any theft of a vehicle or
failure of a person to stop in the event of an accident or violation of Section
23109 or in reference to any felony charge, or to any officer engaged in serving
any warrant when the officer is not engaged in patrolling the highways for the
purpose of enforcing the traffic laws.
40801. No peace officer or other person shall use a speed trap in arresting, or
participating or assisting in the arrest of, any person for any alleged violation of
this code nor shall any speed trap be used in securing evidence as to the speed
of any vehicle for the purpose of an arrest or prosecution under this code.
40802. (a) A "speed trap" is either of the following:
(1) A particular section of a highway measured as to distance and with
boundaries marked, designated, or otherwise determined in order that the speed
of a vehicle may be calculated by securing the time it takes the vehicle to travel
the known distance.
(2) A particular section of a highway with a prima facie speed limit that is
provided by this code or by local ordinance under subparagraph (A) of paragraph
(2) of subdivision (a) of Section 22352, or established under Section 22354,
22357, 22358, or 22358.3, 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. This
paragraph does not apply to a local street, road, or school zone.
(b) (1) For purposes of this section, a local street or road is defined by the
latest functional usage and federal-aid system maps submitted to the federal
Highway Administration, except that when these maps have not been submitted,
or when the street or road is not shown on the maps, a "local street or road"
means a street or road that primarily provides access to abutting residential
83
property and meets the following three conditions:
(A) Roadway width of not more than 40 feet.
(B) Not more than one-half of a mile of uninterrupted length. Interruptions shall
include official traffic control signals as defined in Section 445.
(C) Not more than one traffic lane in each direction.
(2) For purposes of this section "school zone" means that area approaching or
passing a school building or the grounds thereof that is contiguous to a highway
and on which is posted a standard "SCHOOL" warning sign, while children are
going to or leaving the school either during school hours or during the noon
recess period. "School zone" also includes the area approaching or passing any
school grounds that are not separated from the highway by a fence, gate, or
other physical barrier while the grounds are in use by children if that highway is
posted with a standard "SCHOOL" warning sign.
(c) (1) When all of the following criteria are met, paragraph (2) of this
subdivision shall be applicable and subdivision (a) shall not be applicable:
(A) When radar is used, the arresting officer has successfully completed a
radar operator course of not less than 24 hours on the use of police traffic radar,
and the course was approved and certified by the Commission on Peace Officer
Standards and Training.
(B) When laser or any other electronic device is used to measure the speed of
moving objects, the arresting officer has successfully completed the training
required in subparagraph (A) and an additional training course of not less than
two hours approved and certified by the Commission on Peace Officer Standards
and Training.
(C) (i) The prosecution proved that the arresting officer complied with
subparagraphs (A) and (B) and that an engineering and traffic survey has been
conducted in accordance with subparagraph (B) of paragraph (2). The
prosecution proved that, prior to the officer issuing the notice to appear, the
arresting officer established that the radar, laser, or other electronic device
conformed to the requirements of subparagraph (D).
(ii) The prosecution proved the speed of the accused was unsafe for the
conditions present at the time of alleged violation unless the citation was for a
violation of Section 22349, 22356, or 22406.
(D) The radar, laser, or other electronic device used to measure the speed of
the accused meets or exceeds the minimal operational standards of the National
Traffic Highway Safety Administration, and has been calibrated within the three
years prior to the date of the alleged violation by an independent certified laser or
radar repair and testing or calibration facility.
(2) A "speed trap" is either of the following:
(A) A particular section of a highway measured as to distance and with
boundaries marked, designated, or otherwise determined in order that the speed
of a vehicle may be calculated by securing the time it takes the vehicle to travel
the known distance.
(B) (i) A particular section of a highway or state highway with a prima facie
speed limit that is provided by this code or by local ordinance under
subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or
84
established under Section 22354, 22357, 22358, or 22358.3, if that prima facie
speed limit is not justified by an engineering and traffic survey conducted within
one of the following time periods, 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:
(I) Except as specified in subclause (II), seven years.
(II) If an engineering and traffic survey was conducted more than seven years
prior to the date of the alleged violation, and a registered engineer evaluates the
section of the highway and determines that no significant changes in roadway or
traffic conditions have occurred, including, but not limited to, changes in adjoining
property or land use, roadway width, or traffic volume, 10 years.
(ii) This subparagraph does not apply to a local street, road, or school zone.
40803. (a) No evidence as to the speed of a vehicle upon a highway shall be
admitted in any court upon the trial of any person in any prosecution under this
code upon a charge involving the speed of a vehicle when the evidence is based
upon or obtained from or by the maintenance or use of a speedtrap.
(b) In any prosecution under this code of a charge involving the speed of a
vehicle, where enforcement involves the use of radar or other electronic devices
which measure the speed of moving objects, the prosecution shall establish, as
part of its prima facie case, that the evidence or testimony presented is not based
upon a speedtrap as defined in paragraph (2) of subdivision (a) of Section
40802.
(c) When a traffic and engineering survey is required pursuant to paragraph (2)
of subdivision (a) of Section 40802, evidence that a traffic and engineering
survey has been conducted within five years of the date of the alleged violation
or evidence that the offense was committed on a local street or road as defined
in paragraph (2) of subdivision (a) of Section 40802 shall constitute a prima facie
case that the evidence or testimony is not based upon a speedtrap as defined in
paragraph (2) of subdivision (a) of Section 40802.
40804. (a) In any prosecution under this code upon a charge involving the speed
of a vehicle, any officer or other person shall be incompetent as a witness if the
testimony is based upon or obtained from or by the maintenance or use of a
speed trap.
(b) Every officer arresting, or participating or assisting in the arrest of, a person
so charged while on duty for the exclusive or main purpose of enforcing the
provisions of Divisions 10 and 11 is incompetent as a witness if at the time of
such arrest he was not wearing a distinctive uniform, or was using a motor
vehicle not painted the distinctive color specified by the commissioner.
This section does not apply to an officer assigned exclusively to the duty of
investigating and securing evidence in reference to any theft of a vehicle or
failure of a person to stop in the event of an accident or violation of Section
23109 or in reference to any felony charge or to any officer engaged in serving
any warrant when the officer is not engaged in patrolling the highways for the
85
purpose of enforcing the traffic laws.
40805. Every court shall be without jurisdiction to render a judgment of
conviction against any person for a violation of this code involving the speed of a
vehicle if the court admits any evidence or testimony secured in violation of, or
which is inadmissible under this article.
40806. In the event a defendant charged with an offense under this code pleads
guilty, the trial court shall not at any time prior to pronouncing sentence receive
or consider any report, verbal or written, of any police or traffic officer or witness
of the offense without fully informing the defendant of all statements in the report
or statement of witnesses, or without giving the defendant an opportunity to make
answer thereto or to produce witnesses in rebuttal, and for such purpose the
court shall grant a continuance before pronouncing sentence if requested by the
defendant.
40807. No record of any action taken by the department against a person's
privilege to operate a motor vehicle, nor any testimony regarding the proceedings
at, or concerning, or produced at, any hearing held in connection with such
action, shall be admissible as evidence in any court in any criminal action.
No provision of this section shall in any way limit the
admissibility of such records or testimony as is necessary to enforce
the provisions of this code relating to operating a motor vehicle
without a valid driver's license or when the driving privilege is
suspended or revoked, the admissibility of such records or testimony
in any prosecution for failure to disclose any matter at such a
hearing when required by law to do so, or the admissibility of such
records and testimony when introduced solely for the purpose of
impeaching the credibility of a witness.
40808. Subdivision (d) of Section 28 of Article I of the California Constitution
shall not be construed as abrogating the evidentiary provisions of this article.
86
California Vehicle Codes - Speed Laws
CALIFORNIA CODES
VEHICLE CODE
SECTION 22348-22366
22348. (a) Notwithstanding subdivision (b) of Section 22351, a person shall not
drive a vehicle upon a highway with a speed limit established pursuant to Section
22349 or 22356 at a speed greater than that speed limit.
(b) A person who drives a vehicle upon a highway at a speed greater than 100
miles per hour is guilty of an infraction punishable, as follows:
(1) Upon a first conviction of a violation of this subdivision, by a fine of not to
exceed five hundred dollars ($500). The court may also suspend the privilege of
the person to operate a motor vehicle for a period not to exceed 30 days
pursuant to Section 13200.5.
(2) Upon a conviction under this subdivision of an offense that occurred within
three years of a prior offense resulting in a conviction of an offense under this
subdivision, by a fine of not to exceed seven hundred fifty dollars ($750). The
person's privilege to operate a motor vehicle shall be suspended by the
Department of Motor Vehicles pursuant to subdivision (a) of Section 13355.
(3) Upon a conviction under this subdivision of an offense that occurred within
five years of two or more prior offenses resulting in convictions of offenses under
this subdivision, by a fine of not to exceed one thousand dollars ($1,000). The
person's privilege to operate a motor vehicle shall be suspended by the
Department of Motor Vehicles pursuant to subdivision (b) of Section 13355.
(c) A vehicle subject to Section 22406 shall be driven in a lane designated
pursuant to Section 21655, or if a lane has not been so designated, in the righthand lane for traffic or as close as practicable to the right-hand edge or curb.
When overtaking and passing another vehicle proceeding in the same direction,
the driver shall use either the designated lane, the lane to the immediate left
of the right-hand lane, or the right-hand lane for traffic as permitted under this
code. If, however, specific lane or lanes have not been designated on a divided
highway having four or more clearly marked lanes for traffic in one direction, a
vehicle may also be driven in the lane to the immediate left of the right-hand lane,
unless otherwise prohibited under this code. This subdivision does
not apply to a driver who is preparing for a left- or right-hand turn or who is in the
process of entering into or exiting from a highway or to a driver who is required
necessarily to drive in a lane other than the right-hand lane to continue on his or
her intended route.
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.
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(b) Notwithstanding any other provision of law, no person may drive a vehicle
upon a two-lane, undivided highway at a speed greater than 55 miles per hour
unless that highway, or portion thereof, has been posted for a higher speed by
the Department of Transportation or appropriate local agency upon the basis of
an engineering and traffic survey. For purposes of this subdivision, the following
apply:
(1) A two-lane, undivided highway is a highway with not more than one through
lane of travel in each direction.
(2) Passing lanes may not be considered when determining the number of
through lanes.
(c) It is the intent of the Legislature that there be reasonable signing on affected
two-lane, undivided highways described in subdivision (b) in continuing the 55
miles-per-hour speed limit, including placing signs at county boundaries to the
extent possible, and at other appropriate locations.
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.
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.
22352. (a) The prima facie limits are as follows and shall be applicable unless
changed as authorized in this code and, if so changed, only when signs have
been erected giving notice thereof:
(1) Fifteen miles per hour:
(A) When traversing a railway grade crossing, if during the last 100 feet of the
approach to the crossing the driver does not have a clear and unobstructed view
of the crossing and of any traffic on the railway for a distance of 400 feet in both
directions along the railway. This subdivision does not apply in the case of any
railway grade crossing where a human flagman is on duty or a clearly visible
electrical or mechanical railway crossing signal device is installed but does not
then indicate the immediate approach of a railway train or car.
(B) When traversing any intersection of highways if during the last 100 feet of
the driver's approach to the intersection the driver does not have a clear and
unobstructed view of the intersection and of any traffic upon all of the highways
entering the intersection for a distance of 100 feet along all those highways,
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except at an intersection protected by stop signs or yield right-of-way signs or
controlled by official traffic control signals.
(C) On any alley.
(2) Twenty-five miles per hour:
(A) On any highway other than a state highway, in any business or residence
district unless a different speed is determined by local authority under procedures
set forth in this code.
(B) When approaching or passing a school building or the grounds thereof,
contiguous to a highway and posted with a standard "SCHOOL" warning sign,
while children are going to or leaving the school either during school hours or
during the noon recess period. The prima facie limit shall also apply when
approaching or passing any school grounds which are not separated from the
highway by a fence, gate, or other physical barrier while the grounds are in use
by children and the highway is posted with a standard "SCHOOL" warning sign.
For purposes of this subparagraph, standard "SCHOOL" warning signs may be
placed at any distance up to 500 feet away from school grounds.
(C) When passing a senior center or other facility primarily used by senior
citizens, contiguous to a street other than a state highway and posted with a
standard "SENIOR" warning sign. A local authority is not required to erect any
sign pursuant to this paragraph until donations from private sources covering
those costs are received and the local agency makes a determination that the
proposed signing should be implemented. A local authority may, however, utilize
any other funds available to it to pay for the erection of those signs.
(b) This section shall become operative on March 1, 2001.
22353. When conducting an engineering and traffic survey, the City of Norco, in
addition to the factors set forth in Section 627, may also consider equestrian
safety.
22354. (a) Whenever the Department of Transportation determines upon the
basis of an engineering and traffic survey that the limit of 65 miles per hour is
more than is reasonable or safe upon any portion of a state highway where the
limit of 65 miles is applicable, the department may determine and declare a prima
facie speed limit of 60, 55, 50, 45, 40, 35, 30 or 25 miles per hour, whichever is
found most appropriate to facilitate the orderly movement of traffic and is
reasonable and safe, which declared prima facie speed limit shall be effective
when appropriate signs giving notice thereof are erected upon the highway.
(b) This section shall become operative on the date specified in subdivision (c)
of Section 22366.
22354.5. (a) Whenever the Department of Transportation determines, upon the
basis of an engineering and traffic survey, to increase or decrease the existing
speed limit on a particular portion of a state highway pursuant to Section 22354,
it shall, prior to increasing or decreasing that speed limit, consult with, and take
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into consideration the recommendations of, the Department of the California
Highway Patrol.
(b) The city council or board of supervisors of a city or county through which
any portion of a state highway subject to subdivision
(a) extends may conduct a public hearing on the proposed increase or decrease
at a convenient location as near as possible to that portion of state highway. The
Department of Transportation shall take into consideration the results of the
public hearing in determining whether to increase or decrease the speed limit.
22355. Whenever the Department of Transportation determines upon the basis
of an engineering and traffic survey that the safe and orderly movement of traffic
upon any state highway which is a freeway will be facilitated by the establishment
of variable speed limits, the department may erect, regulate, and control signs
upon the state highway which is a freeway, or any portion thereof, which signs
shall be so designed as to permit display of different speed limits at various times
of the day or night. Such signs need not conform to the standards and
specifications established by regulations of the Department of Transportation
pursuant to Section 21400, but shall be of sufficient size and clarity to give
adequate notice of the applicable speed limit. The speed limit upon the freeway
at a particular time and place shall be that which is then and there displayed
upon such sign.
22356. (a) Whenever the Department of Transportation, after consultation with
the Department of the California Highway Patrol, determines upon the basis of an
engineering and traffic survey on existing highway segments, or upon the basis
of appropriate design standards and projected traffic volumes in the case of
newly constructed highway segments, that a speed greater than 65 miles per
hour would facilitate the orderly movement of vehicular traffic and would be
reasonable and safe upon any state highway, or portion thereof, that is otherwise
subject to a maximum speed limit of 65 miles per hour, the Department of
Transportation, with the approval of the Department of the California Highway
Patrol, may declare a higher maximum speed of 70 miles per hour for vehicles
not subject to Section 22406, and shall cause appropriate signs to be erected
giving notice thereof. The Department of Transportation shall only make a
determination under this section that is fully consistent with, and in full
compliance with, federal law.
(b) No person shall drive a vehicle upon that highway at a speed greater than
70 miles per hour, as posted.
(c) This section shall become operative on the date specified in subdivision (c)
of Section 22366.
22357. (a) Whenever a local authority determines upon the basis of an
engineering and traffic survey that a speed greater than 25 miles per hour would
facilitate the orderly movement of vehicular traffic and would be reasonable and
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safe upon any street other than a state highway otherwise subject to a prima
facie limit of 25 miles per hour, the local authority may by ordinance determine
and declare a prima facie speed limit of 30, 35, 40, 45, 50, 55, or 60 miles per
hour or a maximum speed limit of 65 miles per hour, whichever is found most
appropriate to facilitate the orderly movement of traffic and is reasonable and
safe. The declared prima facie or maximum speed limit shall be effective when
appropriate signs giving notice thereof are erected upon the street and shall not
thereafter be revised except upon the basis of an engineering and traffic survey.
This section does not apply to any 25-mile-per-hour prima facie limit which is
applicable when passing a school building or the grounds thereof or when
passing a senior center or other facility primarily used by senior citizens.
(b) This section shall become operative on the date specified in subdivision (c)
of Section 22366.
22357.1. Notwithstanding Section 22357, a local authority may, by ordinance or
resolution, set a prima facie speed limit of 25 miles per hour on any street, other
than a state highway, adjacent to any children's playground in a public park but
only during particular hours or days when children are expected to use the
facilities. The 25 mile per hour speed limit shall be effective when signs giving
notice of the speed limit are posted.
22358. (a) Whenever a local authority determines upon the basis of an
engineering and traffic survey that the limit of 65 miles per hour is more than is
reasonable or safe upon any portion of any street other than a state highway
where the limit of 65 miles per hour is applicable, the local authority may by
ordinance determine and declare a prima facie speed limit of 60, 55, 50, 45, 40,
35, 30, or 25 miles per hour, whichever is found most appropriate to facilitate the
orderly movement of traffic and is reasonable and safe, which declared prima
facie limit shall be effective when appropriate signs giving notice thereof are
erected upon the street.
(b) This section shall become operative on the date specified in subdivision (c)
of Section 22366.
22358.3. Whenever a local authority determines upon the basis of an
engineering and traffic survey that the prima facie speed limit of 25 miles per
hour in a business or residence district or in a public park on any street having a
roadway not exceeding 25 feet in width, other than a state highway, is more than
is reasonable or safe, the local authority may, by ordinance or resolution,
determine and declare a prima facie speed limit of 20 or 15 miles per hour,
whichever is found most appropriate and is reasonable and safe. The declared
prima facie limit shall be effective when appropriate signs giving notice thereof
are erected upon the street.
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22358.4. Whenever a local authority determines upon the basis of an
engineering and traffic survey that the prima facie speed limit of 25 miles per
hour established by paragraph (2) of subdivision (a) of Section 22352 is more
than is reasonable or safe, the local authority may, by ordinance or resolution,
determine and declare a prima facie speed limit of 20 or 15 miles per hour,
whichever is justified as the appropriate speed limit by that survey. The
ordinance or resolution shall not be effective until appropriate signs giving notice
of the speed limit are erected upon the highway and, in the case of a state
highway, until the ordinance is approved by the Department of Transportation
and the appropriate signs are erected upon the highway.
22358.5. It is the intent of the Legislature that physical conditions such as width,
curvature, grade and surface conditions, or any other condition readily apparent
to a driver, in the absence of other factors, would not require special downward
speed zoning, as the basic rule of section 22350 is sufficient regulation as to
such conditions.
22359. With respect to boundary line streets and highways where portions
thereof are within different jurisdictions, no ordinance adopted under Sections
22357 and 22358 shall be effective as to any such portion until all authorities
having jurisdiction of the portions of the street concerned have approved the
same. This section shall not apply in the case of boundary line streets consisting
of separate roadways within different jurisdictions.
22360. (a) Whenever a local authority determines upon the basis of an
engineering and traffic survey that the limit of 65 miles per hour is more than is
reasonable or safe upon any portion of a highway other than a state highway for
a distance of not exceeding 2,000 feet in length between districts, either business
or residence, the local authority may determine and declare a reasonable and
safe prima facie limit thereon lower than 65 miles per hour, but not less than 25
miles per hour, which declared prima facie speed limit shall be effective when
appropriate signs giving notice thereof are erected upon the street or highway.
(b) This section shall become operative on the date specified in subdivision (c)
of Section 22366.
22361. On multiple-lane highways with two or more separate roadways different
prima facie speed limits may be established for different roadways under any of
the procedures specified in Sections 22354 to 22359, inclusive.
22362. It is prima facie a violation of the basic speed law for any person to
operate a vehicle in excess of the posted speed limit upon any portion of a
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highway where officers or employees of the agency having jurisdiction of the
same, or any contractor of the agency or his employees, are at work on the
roadway or within the right-of-way so close thereto as to be endangered by
passing traffic. This section applies only when appropriate signs, indicating the
limits of the restricted zone, and the speed limit applicable therein, are placed by
such agency within 400 feet of each end of such zone. The signs shall display
the figures indicating the applicable limit, which shall not be less than 25 miles
per hour, and shall indicate the purpose of the speed restriction. Nothing in this
section shall be deemed to relieve any operator of a vehicle from complying with
the basic speed law.
22363. Notwithstanding any speed limit that may be in effect upon the highway,
the Department of Transportation in respect to state highways, or a local
authority with respect to highways under its jurisdiction, may determine and
declare a prima facie speed limit of 40, 35, 30, or 25 miles per hour, whichever is
found most appropriate and is reasonable and safe based on the prevailing snow
or ice conditions upon such highway or any portion thereof. Signs may be placed
and removed as snow or ice conditions vary.
22364. Whenever the Department of Transportation determines, upon the basis
of an engineering and traffic survey, that the safe and orderly movement of traffic
upon any state highway will be facilitated by the establishment of different speed
limits for the various lanes of traffic, the department may place signs upon the
state highway, or any portion thereof. The signs shall designate the speed limits
for each of the lanes of traffic.
22365. Notwithstanding any other provision of law, any county or city, which is
contained, in whole or in part, within the South Coast Air Quality Management
District, may, if the county or city determines that it is necessary to achieve or
maintain state or federal ambient air quality standards for particulate matter,
determine and declare by ordinance a prima facie speed limit that is lower than
that which the county or city is otherwise permitted by this code to establish, for
any unpaved road under the jurisdiction of the county or city and within the
district. That declared prima facie speed limit shall be effective when appropriate
signs giving notice thereof are erected along the road.
22366. (a) Whenever the Director of Transportation determines the date upon
which the state may establish a maximum speed limit of 65 miles per hour on
highways without subjecting the state to a reduction in the amount of federal aid
for highways, the director shall notify the Secretary of State of that determination.
(b) The notice required under subdivision (a) shall state that it is being made
pursuant to this section.
(c) The notice shall specify a date which is either the date determined pursuant
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to subdivision (a), or a later date designated by the director.
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