Subject: Fought my ticket and won...

From: [email-masked] (Dan Howell)
Date: 10 Aug 1995 02:08:12 GMT

Just though I'd relate my experiences in my most recent encounter with the
traffic enforcement system in California.

I received a traffic ticket, for 52 in a 25, clocked with radar.  He offered
to show me the radar reading, and I accepted the offer.  I otherwise remained
silent, except in asking that he make the place to appear the county seat.
He apparently believed I was going to traffic school since he mentioned that
the traffic school requirements in the City of L.A. are less than that of
Torrance.  With a non-committal "hmmm..." I said nothing else to counter the
impression that my county seat request was based on traffic school requirements
(I actually had no idea of this, my reason for requesting the county seat is
to make it less likely that he would show up for trial: this has worked every
time I have tried it so far).  He made the court of appearance San Pedro,
which is withing the city limits of Los Angeles and thus qualifies as a county
seat court.  The officer, other than of course committing the highly unfriendly
act of writing a citation, was otherwise friendly and polite.

On the day of the appearance, a month after the ticket, I went to the court.
I fully expected that I would have to pay bail and set a trial date.  To my
surprise, however, the clerk said because it was over 25 mph over the speed
limit, I was required to appear at arraignment.  She said the earliest she
could set the arraignment was June 19, which was 45 days later.  I said this
was acceptable.  In actuality, I was delighted, as this simply added further
delay to the trial date and thus reducing the likelihood of Officer Friendly
remembering much about the date of the ticket.  I did not let the clerk know
of my inner joy, however, and kept my poker face intact.

Before my arraignment, I decided to file an "Informal Discovery Request".  I
had basically followed the procedures in the Fight Your Ticket book, and had
a copy of the request served both on the police department and the District
Attorney.  In the request, I asked for a copy of the back side of the ticket,
the names and addresses of all prosecution witnesses, and a copy of the
traffic and engineering survey required by Vehicle Code Section 40802(b) to
justify the use of radar in enforcement of the prima facie 25 mph speed limit.

A few days before the arraignment, I received a reply from the police
department.  I got the copy of the back side of the ticket.  They ignored
the request for the names and addresses of all prosecution witnesses, and
said that they didn't have the requested traffic and engineering survey.
The district attorney never replied.

The back of the ticket had the notes "QUICK PACE 45+, SOLO N/B, 1 CAR S/B
NOT PAST ME AT CLK".  I interpreted this to mean that he believed that he
paced me, rather quickly, at 45 mph or more, and that when he took the radar
reading I was the only car in the radar beam, and that after he read the
reading another car appeared from the opposite direction.  The ticket said
"light" traffic, so this seems consistent.

When I appeared at arraignment, I mentioned my discovery request.  The judge
said I was supposed to have it served on the city attorney not the district
attorney.  I said that might explain why the district attorney never responded.
He said I could file it with the court clerk and that they would take care of
it.  I pleaded not guilty, and requested that a court reporter be present at
trial.  The judge said that would cost $25.  I reluctantly accepted, not
knowing whether the $25 charge was legal or not, and not believing it was
worth $25 to figure out whether it was or not.

  Question for the legal types: Does anyone know whether it is legal for the
  court to charge $25 for a court reporter in such a case?  Should I be entitled
  to a refund of this since the case was eventually dismissed?

I paid the $271 bail plus the $25 court reporter fee.  My trial was set for
August 3, exactly 45 days after the arraignment.  I also filed my discovery
request with the clerk, who said that they would send it with the city
attorney.  I had them stamp my own copy of the request so that I had proof
that I filed it with the court.

Less than a week before my trial, I received a response from the city
attorney.  I had gotten a copy of the back of the ticket (again!), and this
time the name and address of the only prosecution witness (no surprise), those
being the name of the citing officer and the address of the police station.

However, they denied my request for the traffic and engineering survey, and
claimed that the road I was cited on was a "local street or road", not
defined by the latest functional usage and federal-aid system maps as
submitted to the Federal Highway Administration, but otherwise within
the definition of 40802(b).  This claim, however, was unsubstantiated.

So here is 40802(b), defining "speed trap" and "local streets and roads":

  40802.  A "speed trap" is either of the following:
     (a) [...]
     (b) A particular section of a highway with a prima facie speed
  limit provided by this code or by local ordinance pursuant to
  paragraph (1) of subdivision (b) of Section 22352, or established
  pursuant to Section 22354, 22357, 22358, or 22358.3, which speed
  limit is not justified by an engineering and traffic survey conducted
  within five years prior to the date of the alleged violation, and
  where enforcement involves the use of radar or other electronic
  devices which measure the speed of moving objects.   This subdivision
  does not apply to local streets and roads.
     For purposes of this section, local streets and roads shall be
  defined by the latest functional usage and federal-aid system maps as
  submitted to the Federal Highway Administration.  When these maps
  have not been submitted, the following definition shall be used:  A
  local street or road primarily provides access to abutting
  residential property and shall meet the following three conditions:
     (1) Roadway width of not more than 40 feet.
     (2) Not more than one-half mile of uninterrupted length.
  Interruptions shall include official traffic control devices as
  defined in Section 445.
     (3) Not more than one traffic lane in each direction.

Well, I knew that (3) clearly applied.  However, I was not sure about (1)
or (2), and I was not sure whether "abutting residential property" would
include a high school, a school bus depot, a YWCA, and an adult school.
There were no houses, apartment buildings, or condominiums, which I would
consider to be "residential property", in the vicinity of where I received
the ticket.

Also, the road, by my odomoter, was 6/10 of a mile between what this section
seems to define as "interruptions".  Section 445 defines "traffic control
signals" as what is otherwise commonly known as traffic lights.  It certainly
is possible that other things may be included in the term "interruptions",
but it was unclear from this section, or upon researching the statutes or the
case law, that the legislature or the courts have ever given a more specific
definition of "interruptions".  I therefore at least believed this would
introduce reasonable doubt as to whether this road was a local street or road.

In order to confirm my odometer reading, I went to the city planners office
to get a certified copy of their maps of the area.  Much to my surprise, the
map showed the road to be 110 feet wide!  Well, who am I to argue with the
city planners maps!  I figured, let the prosecution introduce evidence to
rebut the certified maps that I was going to introduce as evidence that
the road was not a local street or road.

In actuality, at some point in time the road was narrowed, to much less than
40 feet, but this fact was not shown on these maps, which were certified as
updated in 1992.

Knowing this, however, I was not going to let that little piece of rebuttable
prima facie evidence be the hinge of my case.  I added up the lengths of the
various sections of the road between the intersections which had traffic lights,
and came up with 2825 feet, just enough to be over the 1/2 mile which thus
disqualified this street as a local street or road.

So, before trial, I was prepared to make the prosecution prove EVERY element
of this, which included:

  The officer was wearing a uniform.  (true)
  The officer was in a marked vehicle.  (true, as I remember)
  The officer was using radar. (true)
  The officer was enforcing a prima facie speed limit (25 mph).
  The road was not a speed trap, i.e.:
    The road was surveyed (it wasn't, by their own admission), or
    The road was defined as a local street or road on the FHA maps (it wasn't,
      by their own admission), or
    The road "primarily provides access to abutting residential property"
      (I would argue it doesn't: no houses apartments or condiminiums), and
    The road is not more than 40 feet wide (They would have to rebut physical
      evidence, I doubt testimony alone would be sufficient), and
    The road is not more than 1/2 mile between interruptions. (They would have
      to rebut the physical evidence that the road was more than 1/2 mile, or
      present a legal definition of "interruption" that included something
      other than traffic lights), and
    There was only 1 traffic lane in each direction.  (true)
  The radar evidence was competent.  (I had various cross-examination questions
    designed to challenge officer's training in the use of radar, and the use
    of radar in the instant case).
  The "quick pace", if he testifies to it, was sufficient to ascertain an
    accurate estimate of my speed.  (I had various questions designed to challenge
    the credibility of this as well)

At this point, if the prosecution somehow proved *ALL* of the above, I could
still win if I was able to show that my speed was safe under the conditions.
Given clear, dry weather and light traffic, and cross-examination questions
designed to get the officer to admit that he was not driving unsafely when HE
was obviously driving much faster than 25 in order to pursue me, I was hoping
that this would be enough to claim that my speed was safe.  This however, I
believed to be the weakest part of my argument.  My main argument was that
this was a speed trap and therefore the officer's testimony was inadmissable
(VC 40804) and the court was without jurisdiction to find me guilty (VC 40805).

When I arrived at the court for trial, I overheard them talking to the city
attorney's office.  I overheard that hadn't subpoenaed the officer, and they
wanted to request a continuance.  At this point, I knew that the officer was
not going to be here today, and since this was the 45th day since arraginment,
I had the right to have my case dismissed.  The judge started by asking me
some questions about the discovery motion.  I let him know that the city
attorney responded, but that I deny their claim about the road being a
"local street or road".  The judge was apparently unaware that this was the
45th day since arraignment, since he started talking about how this is "day
0 of 10" and that my trial must be heard within the next 10 days.  I reminded
him that I was also aware of my right to have my trial heard within 45 days
of my arraignment.  He said that I only have that right if I do not consent to
a later date.  I told him that I didn't; today was August 3, and my arraignment
was June 19, and that this was exactly the 45th day since my arraignment.  The
judge took some time to calculate the number of days, which confirmed that
indeed it was 45 days.  He then dismissed my case.  Case won!

Looking back at this I wonder if my discovery request were really necessary.
If I had not filed it, the city attorney would not have been interested in
the case, the officer wouldn't have shown up, and the case would have simply
been dismissed as a matter of routine.  There are several appellate cases
showing that the prosecution ALWAYS has the burden of producing evidence of
the traffic and engineering survey, even when the defendant doesn't request
it.  But since my case was dismissed anyway, there was no loss, and I learned
a few more things about the law, and about how the Torrance city attorney
handles these types of requests.  Also, having a copy of the back side of the
citation prepared me for knowing what kind of testimony the officer would have
been likely to give.  And the city attorney's response prepared me for being
able to refute the "local street or road" exception if that were to have
been brought up in trial.

I have posted this simply to relate my experiences, to let you know what kind
of things you can expect when fighting tickets.  None of this of course
is legal advice.  If you want to fight your tickets, do your own research.
I highly recommend the book Fight Your Ticket from Nolo Press.  I also
recommend joining the National Motorists Association, which has a legal
resource kit that you can rent from them (mostly has stuff about radar,
VASCAR, etc.).  Also, if you are member of the NMA for more than a year, they
will reimburse your fine if you take a ticket to trial and lose.

Nolo Press
950 Parker Street
Berkeley, CA 94710
1-510-549-1976
[email-masked]
http://gnn.com/gnn/bus/nolo/index.html

National Motorists Association
6678 Pertzborn Road
Dane, Wisconsin 53529
1-800-882-2785
[email-masked]

-- 
Dan Howell  <[email-masked]>

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From: [email-masked] (David K. Bryant)
Date: Thu, 10 Aug 1995 05:33:25 GMT

>     (3) Not more than one traffic lane in each direction.

Ah, but you quote out of context...   following (3) is the paragraph:

   This section shall remain in effect only until January 1, 1993,
   and as of that date is repealed, unless a later enacted statute,
   which is enacted before January 1, 1993, deletes or extends
   that date.

That wipes out the Speed Trap defense.  Unless it's still in
force... my VC is from 1991.

In any case:  you lucky dog!

---

From: [email-masked] (Scott Dunn)
Date: Thu, 10 Aug 1995 14:15:15 GMT

In article <[email-masked]>,

>In any case:  you lucky dog!

No, he is not really lucky.  I read the whole thing myself and I could 
see the amount of preparation he put into it.  Pay close attention to how 
many lines of defense he developed.  He didn't depend on just one 
argument.  He was prepared to make the prosecution prove every element of 
fact to support their charge.

I can think of some other burdens to place on the prosecution as well.  
But my ideas are not tested yet.
-- 
Scott Dunn : [email-masked] : FOIA/PA researcher, tutor 
"When there is crime in government, there is no justice." --Potato

---

From: [email-masked] (Bob Morrow)
Date: Fri, 11 Aug 95 15:04:53 GMT

Dan-

Great post!  It is possible to fight and win, in fact, the chances of someone winning when they fight a ticket
are pretty darn good!

And yes, everyone should join the NMA.  The price of a ticket (and the resulting (insulting?) insurance
surcharges) is a heck of a lot more than it is for a year's membership in the NMA.

Bob Morrow                                                                Join the NMA!  $29/year
National Motorists Association                                   800-882-2785
reply to:  [email-masked]