This is another variation of our Maximum Speed Law defense. In cases like these, where violation of the letter of the law is not in dispute, we bring up other laws that might mitigate or nullify the citation in question. In this case, we use the Basic Speed Law in attempting to nullify the Maximum Speed Law charge.
Here we try to justify our speed above 65 MPH by noting specific circumstances and laws that made this speed momentarily necessary and legal. We contest that we should not be cited for breaking one law in order to obey another.
The maximum speed law, CVC 22349(a), is very simple. It states that it is illegal to travel above 65mph on any California highway (with the exception of highways posted at 70mph). So technically, if you drive at 66mph you are just as guilty as if you drive 100mph. However, you are also bound by a host of other laws such as the the basic speed law, CVC 22350, when you drive on any highway.
This basic speed law states that you must always drive a safe speed for conditions. These conditions include: weather, visibility, traffic, and the surface and width of the highway. If these safe conditions permit us to drive slightly above the posted maximum, we argue here that it was not illegal to do so. If this seems like a tenuous argument, it is. But CVC 22351 Speed Law Violations, supports it:“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.”
Since our speed here was just a few miles above the posted limit, we use CVC 22351 to justify that our traveling above the 65mph limit was not, in itself, unlawful.
For directions on how to use this document, click here.
STATEMENT OF FACTS
Defendant’s Name: Brendan Behan
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 22349(a).
The facts of my case are as follows: While driving northbound on I-5 at 1045 on 11-10-96, I was stopped by SDPD Officer Carnitas (I.D.#12345) and was charged with violating CVC 22349(a). Though Officer Carnitas has alleged that I was driving 75mph in a 65mph zone, I believe that I was driving no faster than 70 mph.
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.”
On my citation, the officer noted that the road was dry and clear with light traffic. Where I was stopped, Interstate 5 is a well-maintained four lane freeway, quite safe to travel on at approximately 70 mph with favorable weather and road conditions.
Section (b) of Speed Law Violations, CVC 22351(b), states: “The speed of any vehicle upon a highway in excess of the prima facie speed limits…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.”
The conditions existing at the time and place of my stop (favorable conditions attested to by Officer Carnitas in my citation) were favorable and made the speed I was traveling Safe and Reasonable under these conditions. As such, I know that I was not in violation of the basic speed law at the time and place of my citation and, pursuant to CVC 22351(b), contest that my speed at the time of my traffic stop was therefore not prima facie unlawful.
I trust in the Court’s fairness and believe that my citation should 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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