What is a Speed Trap Defense? Take a look at California Veh. Code 40802(a)

In California traffic court, evidence of speeding gathered from a “speed trap” is not admissible to prove a person was speeding. This fact is the source of the “Speed Trap” defense. If it applies, you win.

In summary, the defense is this:

The government has the burden to prove at trial that your speeding citation was not based on a speed trap, as defined by California Vehicle Code section 40802. “Burden” means the officer or prosecutor must prove it first, before the defendant has to say anything.

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If the government cannot meet their burden, then the evidence of the defendant’s speeding is not admissible, and the citation should be dismissed.

If they can’t prove it was not a speed trap, then the defendant does not have to do anything but ask for a dismissal.

As speed trap is defined by Vehicle Code section 40802(a) as:

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 . . ., if that . . . speed limit is not justified by an engineering and traffic survey conducted within five years . . ., 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.

Most commonly, the speed trap defense is used when the officer who testifies at trial cannot produce a timely engineering report to establish that the posted speed limit was justified. If the report is missing, or not timely, it’s a speed trap citation.

Practice Note: This defense does not apply to local, residential streets.

Practice Note # 2: A speed trap defense will not work for a failure to appear charge. It’s not legal justification for not appearing in court on the date listed on your citation.

Practice Note #3: You must plead not guilty and have a trial to use this defense.  You cannot get a speed trap dismissal at the first court date, which is known as the “Arraignment”.

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Parking Tickets Do Not Lead To Warrants, But Can Hurt You

While watching the TV show Parking Wars this evening, it dawned on me that I should address a common question from users who are clearly afraid of the parking enforcement people, like those shown on the show.

It is fairly common knowledge that if you fail to appear for a court date on a speeding ticket, the court may issue a bench warrant.

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But what if a person is worried about old parking tickets? Can a court issue a warrant off a parking ticket?  How about 20 parking tickets?  What happens if you fail to pay on time?  Can you fight them in court?

In general, the answer is no. Over due parking tickets do not lead to arrest or bench warrants, because they are fundamentally different than a speeding ticket.  And generally, there is no right to a court date where you can present real evidence, only limited paperwork review by a bureaucrat.

Speeding tickets are handed out in person, by a sworn peace officer (cop).  And when an Officer gives out a speeding ticket, the driver is required to sign a ticket (also known as a “Promise to Appear” form).  By signing a ticket, the driver is giving a peace officer his (or her) sworn statement (promise) that he or she will appear in court on the date listed on the ticket.

Because the driver makes this promise, the law is harsh if the promise is broken.  A failure to appear on this signed promise is a misdemeanor crime (Vehicle Code section 40508(a).).

Parking citation are different.   They are not signed promises to appear.  When a city agency issues a parking ticket, they leave it on the car without a signature.  They do not secure a “signed promise to appear” from the driver of the car that is cited, and they have no way to confirm the person received service of a notice to appear or pay.

Because of this service problem with parking tickets, the law considers them a civil penalty, and not a criminal violation.  A civil penalty is a less serious way to piss off the government, and in general there is no requirement that you go to court at all on a parking ticket.  A driver who is cited for a parking violation may elect to pay a fine or fight the violation, but has little or no real court due process rights. The maximum penalty is a fine, and there is no risk of jail time.

However, there are real penalties for failing to pay parking tickets in California.  Most large cities have a limit to the number of tickets you are allowed to have.

For example, the author (me), once had a car towed in front of a law firm in down town San Diego because I had 5 pending tickets, only 2 of which were over due. They took my car away, but refused to arrest me.

And some cities, such as Santa Ana, and San Diego will send the over due fines to the State Franchise Tax Board for collection with interest. And eventually, always, from everyone, the FTB gets their money.

Some cities will refer the overdue fines to DMV, who will in turn require payment in order to renew a registration.

But every city varies.  You should not assume that DMV will tell you if there is a problem.

If you have outstanding parking citations, contact the city parking enforcement division and get it cleared up before it becomes a problem.

Don’t wait until they take your car.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Recommended Traffic Court Self Help Downloads

Going to court yourself to fight a traffic citation? A little preparation can save you time, money, and points on your drivers license. By doing your homework, you can learn how to avoid points on your record, how to negotiate a reduced fine, and how to schedule and have a traffic court trial if you want to fight a case.

In addition to the free content on TrafficCourtPros.com, here is a list of recommended independent downloads that are instantly available to assist you.

Winning a Traffic Court Trial: Proven strategies to help you win. Free from TrafficCourtPros.com Ex-Traffic Cop Shows Insider Secrets To Beating A Ticket.

Beat Any Speeding Ticket.

DUI Process:
Clear Your Drunk Driving Record.

Survive A Jail Or Prison Sentence.
Ultimate Guide To Surviving A Criminal Trial And Jail Sentence.

Traffic Ticket Secrets:
Uncover The Insider Secrets To Beat A Speeding Ticket!

Don’t Talk to the Cops!
Smart Advice From A Former Prosecutor

For more traffic court and misdemeanor court self help resources, see our Traffic Court Help page.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

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Top Mistakes Made by People in Traffic Court

Representing yourself in traffic court may seem easy at first, but time and again people in traffic court make mistakes that cost them time, money, and damage to their driving record. Here is a list of the top mistakes made in traffic court, and how to avoid them.

1. Pleading Not Guilty When There Is No Defense.

Many people will appear in traffic court and plead not guilty, because they feel a citation or charge is “unfair”, or because they are simply mad at the process. But unless you have a solid legal defense to the charge(s), pleading not guilty will not help a case.

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Once a person pleads not guilty, the case does not end. The court will schedule a trial. And a trial will result in more court appearances. If you lose a traffic court trial, you may lose the opportunity to attend traffic school, and be exposed to harsher penalties. We estimate that 90% of traffic court trials by people who do it on their own result in guilty verdicts.

2. Attempting to Present a Defense at the Arraignment (or first court date).

The first court date on most traffic citations and misdemeanors is called an Arraignment. The court does not take evidence or listen to explanations at the Arraignment. The Arraignment court is only interested in entering pleas of guilty, or not guilty, and then scheduling a trial where necessary. People who try to explain what happened at the Arraignment are wasting their time, and the courts time. If you want to challenge a citation, it is best to plead not guilty , get your trial date, and get out of the courthouse.

3. Failing to Ask for Traffic School.

A traffic school referral from the court on a moving violation can prevent negligent driver points from appearing on a persons driving record. If you do not ask for traffic school, or if you demand a trial and lose, you will lose the opportunity to attend traffic school. Traffic school is a privilege offered by the court and DMV, not a right.

4. Failing to Understand the Evidence.

Many people try to contest traffic violations by giving explanations that do not contradict the evidence provided by the police. It is important to recognize that the evidence against a traffic court defendant includes the citation and the officers testimony at trial about the incident.

Unless a defendant can directly offer favorable evidence to contradict what the officer introduces, the defendant will lose. So if a citation says “defendant failed to stop at a stop sign”, the defendant must present evidence that they did in fact stop. Explanations about why the defendant failed to stop - such as - there was no traffic, are useless.

Evidence that you can use at your traffic court trial include photos, eye witnesses (passengers), and civil engineer reports on the road conditions.

5. Not Understanding What The Charges Are.

Many defendants in traffic court waste time and money by trying to explain or defend against only one of several charges on a citation. If you want to contest a citation, you must look at it carefully to see what the charges listed on the citation and consider if you have a defense to all of them. The best way to do this is to actually look up the statutes (such as vehicle code section 22350 - speeding) to see what the statute (or law) actually requires. Most citations have more than one violation (or charges) listed. If there are four charges listed, and you want a trial because you think you have a defense to one, you need to understand that you will be found guilty of the other violations, even if you win on one. This fact may make the time and effort of fighting one charge out of five a wasted effort.

6. Believing That the Officer Must Appear in Court on the First Court Date.

Many people have a mistaken belief that if an officer does not appear in court on the date listed on a citation, the court will dismiss the case. This is not true. A police officer is only required to appear in court on the date of a trial - not the arraignment. An even if an officer fails to appear at the trial date, the court has the power to continue the trial to a new date where the officer can appear. Or the court may go ahead with the trial, using the officers citation as evidence against the defendant without the officer. If an officer fails to appear at a traffic court trial, the defendant should ask for a dismissal.

7. Failing to Understand That the Court is More Likely to Believe an Officer than a Defendant.

In the traffic court world, judges see the same officers over and over again, but defendants only once. Most judges view police officers (who are sworn public servants) as very credible witnesses. If a defendants only evidence to contest a citation is his or her own statement, it is not a fair playing field.

If you want to fight a traffic citation, you should consider these common error, and decide if you really do have the evidence you need to win - and whether it is worth your time and effort.

8. Setting a Trial Then Not Appearing.

The worst thing a defendant can do to destroy the chances of a good result it to miss a court date. Many people set traffic court trials, and then when the date comes around, they do not appear for the trial. When this happens, most courts will add new charges to the case (such as failure to appear under Vehicle Code section 40508a), and can issue a bench warrant, or suspend the defendants drivers license under California Vehicle Code section 40509.5.

If you set a trial date, you must appear in court at that date and time, regardless of whether you have to work, and even if one of your family members has recently passes away (common excuse that never works).

9. Failing to Understand the Difference Between An Excuse and a Defense.

Many ill fated traffic court defendants attempt to win a traffic court trial by presenting an excuse for the violation instead of a defense.

Examples of common excuses that never work are: 1) I was going with the flow of traffic; 2) I was only in the car pool lane for a few seconds; 3) I was lost; 4) the car was not mine; 5) the officer was rude and would not listen to my explanation; 6) I did not get a courtesy notice from the court.

Examples of Effective Defenses that are not excuses include: 1) My speed was safe and reasonable under the conditions; 2) I did in fact stop, but the officer was not in a location to see it; 3) I had insurance at the time, but not in my possession; 4) the sign was obstructed by trees and could not be seen by a reasonable driver.

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How Does Traffic School Help?

In California traffic citations, a driver may elect to attend traffic school as part of resolving a moving violation. Although it does cost money, when done correctly, traffic school can prevent a moving violation from hurting a driver’s DMV record. But few people actually understand how it works. Here is what you need to know.

When a driver receives a ticket for a moving violation, such as speeding (Vehicle Code section 22350), or running a red light, the driver has several options for dealing with the citation. The driver may plead not guilty, and have a traffic court trial. A driver may plead guilty, and pay a fine to end the case.

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But there is a third option: a driver may plead guilty and request a traffic school referral.

California drivers are eligible for traffic school once every 18 months. If a court finds that a driver is eligible and gets a traffic school request, the court refers the person to traffic school, imposes a fine and a traffic school fee.

From there is is up to the driver to sign up for and complete traffic school and pay the fines and fees on time. If the driver completes traffic school on time, and gets proof of completion to the court on time, the court will dismiss the violation completely from the courts records. The court also notified the DMV of the dismissal, and then DMV removes the violation from a persons driving record. In essence, the moving violation gets erased once traffic school is completed.

Traffic school is more expensive initially than just paying a fine. The court imposes a fine, and a traffic school fee. Then, on top of that, the traffic school charges a separate fee for the school. But by preventing the moving violation form appearing on DMV records, drivers can save money on insurance rates. In most cases, the money saved in the long run out weighs the fees for traffic school.

Other reasons to attend traffic school include preventing points on your DMV record that could lead to a suspension. If a driver receives too many moving violation points on their DMV record, the DMV will suspend the license. A traffic school dismissal can prevent a point from appearing on the DMV record, and for drivers who already have points on their record, may help avoid a suspension.

Tips for using traffic school to protect your record:

1. Request traffic school early. If you plead not guilty to a violation and demand a trial, it is very unlikely that the court will allow you to go to traffic school if you lose your trial. The loss of the opportunity to attend traffic school is often a penalty for wasting the courts time in a trial.

2. If you get a traffic school referral, sign up within 5 days. Drivers are responsible for signing up for traffic school, and some courts require that you sign up within 5 days of the referral. You can pick any approved school, and most courts have a long list of approved schools. Traffic school can be completed on line.

3. Make sure you get proof that you completed traffic school to the court before the deadline. Keep copies of all the records for yourself, in case there is a problem later.

Remember - traffic school is only applicable to moving violations, such as speeding. Traffic school is not available for failure to appear violations (Veh Code sec 40508a), insurance violations, or registration problems (Vehicle Code section 4000a).

If you have attended traffic school in the past 18 months, and need it again, ask for a second offense referral. Some courts will allow it.

C. Dort, Esq.

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Email: cdort@dortlaw.com

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