This is the best moving violation to contest. Of the thousands of Basic Speed Law citations I have reviewed, at least half were improperly issued. More of these citations are dismissed by judges than any other.
Safe Speed for Conditions
It is not, in itself, illegal to exceed posted limits in California in 30-50mph zones. Posted speed limits of 30-50 mph are “suggested” speeds based upon a speed survey of the road. It is only illegal to exceed these suggested speeds if road conditions make it unsafe to do so.
The Basic Speed Law, 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.”
In these cases, the officer is required to record the road conditions at the time of the stop. If it was pouring rain with heavy traffic, and you were driving 10-15mph above the posted limit, this is not safe at all and the ticket is probably quite justified. However, if the weather was clear and dry with light to medium traffic, it might be completely safe to drive at 10-15 mph above the suggested speed limit. In these cases a Basic Speed Law citation is unjustified, though most officer’s will write them anyway.
Motorists are easily fooled into believing that they broke the Basic Speed Law . Most officers never mention that they are citing you for driving at an “unsafe speed for conditions.” The police will simply state,”You were going 50 in a 40 zone. Sign your ticket.” You know that you were driving above 40 mph, so you accept the ticket, assuming that you’re guilty.In reality, if your speed of 50 mph in a 40 mph zone was not endangering life and property, then driving at that speed was not illegal.
Radar Speed Traps
In most Basic Speed Law citations, police radar is used to determine your speed. The legal use of this technology is restricted by law. The use of police radar to determine your speed is only legal if a traffic survey was conducted within five years on the road where you were stopped.
CVC 40802(a)(2) defines a radar speed trap as:“A particular section of a highway with a…speed limit that is provided by this code…[which] 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.”
Another very useful code, CVC 40803(b), requires the police to prove that the radar evidence was not a speed trap by submitting a copy of the traffic survey with their declaration. Only such a survey conducted within five years would prove that the road you were stopped on was not a speed trap. If the officer does not prove in his declaration that the road we were cited on was not a speed trap (pursuant to 40802(a)(2)), then the radar evidence is illegal and the case must be dismissed pursuant to 40803(b).
Bottom Line:We assert here that we believe that the road is a speed trap due to an out-of-date survey. If the officer does not submit a valid survey with his declaration to refute this assertion, the judge must dismiss the case. Since most cops don’t expect the average motorist to know these evidence codes, few bother to submit a copy of the current survey.
For directions on how to use this document, click here.
STATEMENT OF FACTS
Defendant’s Name: Simone De Beauvoir
Case No.: S780824
I respectfully submit this written declaration to the Court pursuant to CVC 40902. I plead Not Guilty to the charge of violating CVC 22350.
The facts of my case are as follows: While driving on Sorrento Valley Road on 10-21-99, I was stopped by a SDPD Officer (I.D.#1234) and was charged with violating CVC 22350. The Officer has alleged that I was driving 62mph in a 45mph zone based on Radar evidence. I believe that I was driving approximately 50-55mph at the time of my stop and that my speed was quite safe for the prevailing conditions.
The Basic Speed Law, 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.”
At the time of my stop, the road was dry and clear with light traffic. On my citation, the officer marks that the traffic was “light.” No persons or property were put at risk. As such, the Officer does not make a credible case that I was in violation of the Basic Speed Law.
Further, I believe that the posted speed of 45mph on Sorrento Valley Road is artificially low, reflecting an out-of-date traffic and engineering survey and, as such, may constitute an illegal Speed Trap pursuant to CVC 40802(a)(2) which defines an illegal radar speed trap as:“A particular section of a highway with a…speed limit that is provided by this code…[which] 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 traffic survey on Sorento valley Road is more than five years old, the officer’s use of radar to determine my speed was illegal.
When using radar evidence, the prosecution is required to prove that the use of radar is not an illegal speed trap. Speed Trap Evidence 40803(b) states: “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 attach proof with its written declaration (a certified copy of the speed survey) to establish as part of its prima facie case, that Sorrento Valley Road is not an illegal Speed Trap, as they are required to do pursuant to CVC 40803(b), I trust the Court will rule the radar evidence inadmissible and dismiss my case pursuant to CVC 40805.
CVC 40805, Admission of Speed Trap Evidence, 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.”
I trust in the Court’s fairness and ask that my citation be dismissed in the interest of justice.
If the court does not find in my favor in this case, I request a Trial de Novo.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
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