When a speeding ticket lists the violation code as California Vehicle Code 22350 on a Highway, and there is the use of a Radar or LIDAR measurement of speed, a well prepared Defendant should be thinking “traffic engineering survey probably required.”
There are some exceptions, but that is the general rule. From a Defense Attorney’s point of view on a Monday morning, it works like this:
California law hates speed traps. No joke. The California Legislature has published an explicit dislike for speed traps. It’s written into law, in California Vehicle Code sections 40802(a) and 40803(b). These statutes say that as a clear matter of law, evidence of a driver’s speed is NOT ADMISSIBLE in court if it was obtained in a “speed trap”. And in some situations, the law presumes there actually was an illegal speed trap.
Presumption of innocence? Presumption of speed trap also? Can a well prepared Defendant use that as a defense?
For many speeding tickets involving the use of Radar or LIDAR speed measurements, those 2 Vehicle Code sections require the prosecution to establish the ticket is not based on a “speed trap” in its case at trial.
|We have to point out that this issue only matters if the Defendant pleads “not guilty” and demands a trial by Declaration or a live Court Trial on their speeding ticket. If a Defendant pleads “guilty” or “no contest”, the case ends without a trial. No “Traffic Engineering Survey” (TES), as the law calls it, is required.|
If a Defendant admits he/she is guilty at an Arrignment or by mail, the prosecution does not have to prove anything. The case just ends. But if a Defendant demands a trial, the prosecution must prove up the case with real evidence.
In its details, Vehicle Code section 40802 says that if a speeding ticket Defendant demands a trial for an alleged violation of the Basic Speed Law, aka Vehicle Code section 22350, with the use of Radar or LIDAR, the legal burden is on the prosecution (police officer testifying at trial) to show there was no “Speed Trap” as defined by the Vehicle Code. If the prosecution cannot meet this burden, the Defendant is entitled to a “Not Guilty” verdict in the court trial -without ever having to give their own evidence.
There are some exceptions to the rule listed in this long statute. For example, if the alleged speeding violation was on a local street or road a TES is not required. Other speeding violations may not qualify (such as VC22349).
But it is clear that a TES is required where the Defendant’s speed was measured by Radar or LIDAR device on a state or interstate highway; and the officer wrote the citation under Vehicle Code section 22350. In such a case, the law requires the testifying officer to show there was no “speed trap” by establishing 2 different elements:
1) the posted SPEED LIMIT IS JUSTIFIED by a Traffic Engineering Study; and
2) that the defendant drove at a speed that endangered people or property, or that the defendant drove at a speed that was unreasonable for the driving conditions. Vehicle Code section 40802(a)(2)
A well prepared Defendant will attack both of these elements at trial.
For An Officer to Justify a Posted Speed Limit, the Vehicle Code Requires:
A) the presence in court of the ORIGINAL or CERTIFIED COPY of a CURRENT Traffic and Engineering Survey conducted within 5 years of the date of the ticket (Vehicle Code section 40802(a)(2)), or
B) The ORIGINAL or CERTIFIED COPY of a Traffic Engineering Survey within 7 or 10 years of the ticket if it was renewed as required by Vehicle Code section 40802(c)(2)
A mere summary of the survey is insufficient to meet the prosecution’s burden (People v Ellis (1995) 33 CA4th Supp 25). An officer’s testimony as to the contents of the survey without the survey present in court is also in sufficient (Id.).
Section 40802 also lists other details of the required contents of the TES, such as sample size of traffic studied, 85th percentile measurement, etc. You should review the statute in preparation for your trial to get the details. But dont get stuck in the details.
When in Doubt, Object!
Bottom line? If you have a Veh Code sec 22350 violation on a highway, you should demand the officer produce a Certified TES in court – even if you are not sure its required. You might just win on that point. It doesnt hurt to try and make the officer and judge work.
If there is an exception that may apply to your facts, or even if it is not clear if the Officer’s proposed survey is current, a diligent defendant will object to the introduction of the speed evidence and the offered TES evidence in order to protect their rights.
You have the right to object and demand that the judge rule on those issues, even if you are wrong in the end.
If an unsuspecting Defendant fails to object to an out of date or faulty TES at trial, it is possible the issue will go unnoticed, or be lost by an accidental “waiver of objection”. A well prepared Defendant will not let that happen. You have the right to challenge all the evidence.
How a Defendant Might Use the Traffic Engineering Survey Requirement in a Defense.
The law requires the prosecution to establish that there was no speed trap during their prima facie case – which means in the beginning. Thus, the proper time for the Defendant to object to a Traffic Engineering Survey problem is immediately after the officer’s opening testimony ends. A Defendant can object to the TES evidence (or lack of it) and ask for dismissal at this point in the trial by stating something like:
“Your honor, I must object to the evidence of my alleged speed offered by the officer, and ask that it be stricken. That evidence of speed is not admissible because the prosecution has not meet its burden to show that the evidence was not the product of a speed trap as defined in Vehicle Code sections 40802(a) and 40803(b). The prosecution has not justified the speed limit as required under California Vehicle Code section 40803(c). (See also People v Earnest (1995) 33 Cal. App 4th Supplement page 23). The prosecution has not meet it’s burden, and I ask for dismissal on that ground. I request a ruling on this objection.”
With such an argument, even if you lose, you will have preserved the issue for appeal in the record clearly just in case you want to keep on fighting an unfair speeding ticket.
With some preparation, you can build upon this simple script.
You can also make this objection in a written motion for a Trial by Declaration, or as a written Motion at the Court Trial if you want. For appeal purposes, it may be better if your motion to “Exclude Evidence of Speed Obtained at a Speed Trap” is in writing on the record.
Situations Where a Traffic Engineering Survey is Not Required.
There are several exceptions to the TEST requirement. A TES is not required on a local road for example, or in a designated “Senior” zone. It would be wise for a Defendant to study the Vehicle Code sections listed above to get a feel for where their facts may fit in, and to study their citation carefully.
A TES is not required in alleged violations of California Vehicle Code section 22349 – which is a different statute that makes it illegal to drive above the Maximum speed limit of 65mph or 70mph in some areas. For that violation, all the officer need show at trial is that the max speed was exceeded. There is no requirement that the max speed limit in that law be justified. So if you are charged with a violation of VC22349 instead of VC22350, these issues do not apply.
If You Lose the TES Objection, Continue the Fight By Arguing The Speed Was Not Unsafe for the Conditions.
If it turns out that the court finds the officer did present a valid TES, the defendant does not lose automatically, There is a second element of the speeding offense under Veh Code 22350.
As stated above, when a TES is required Vehicle Code section 40803(c) requires the officer in a VC22350 violation to show to 1) the speed limit is justified; and
2) that the defendant’s speed was unsafe for the conditions.
If you lost on the TES objection, you are still free to argue that even though your speed may have been above the posted limit and the TES guidelines, it was still safe for the conditions at the time. You may be able to bolster this argument by giving evidence of the weather, road conditions, and traffic at the time.
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