22350 - the term 'conducted' in a survey

[zanex]

What is the name of your state (only U.S. law)? California

Hi all,

I was recently cited with a 52 in a 35 ticket, with a CVC 22350. This was cited by LIDAR as the officer told me, as well as noted on the citation. The citation also noted that the weather was clear, dry, and traffic was medium. Because it was LIDAR, i was also at the front of the group of cars.

Now, I have heard of the defense against the basic speed law but I also looked into researching the engineering and traffic survey.

Knowing that the survey may be out of date after 5 years, I requested a copy of the survey from city hall. First, the street I was on was not a local road, street, or school zone (the road is has 2 lanes in each direction with a landscaped center divider). However, this is where things got confusing:

The title page of the survey says June 2003, and under it is the ordinance number along with an "Approved Nov 2003." However, inside the survey itself, it says that the radar surveys were conducted in March, 2003.

The reason this is confusing is because CVC 40802(a)(2) states:

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 under
subparagraph (A) of paragraph (2) of subdivision (a) of Section
22352, or established under Section 22354, 22357, 22358, or 22358.3,
if that prima facie speed 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. This paragraph does not apply to a local
street, road, or school zone.

Emphasis of mine on the word conducted. The reason I ask is because the November date would include my citation within the 5 year limit but the other two dates would mean this survey was out of date, and thus the speed trap argument can be used. Would conducted in this case mean when the radar survey was done (March), when the survey was (assumed) to be written (July), or when the survey was approved by the city (November)?

I suppose this might be irrelevant too, since the critical speed is > 45 but the speed limit was set at 35, which by the Caltrans rules at the time, would be far too low.

 

[I_Got_Banned]

You're reading (& posting) it out of context...

The 5 year limitation only applies in limited cases where the officer testifies that he/she clocked you at a certain speed above the prima facie/posted limit using radar, laser, or other electronic device used to measure the speed of the accused (does not include a speedometer/pacing).

However, and if the officer is able to establish that he’s met the criteria set in CVC Section 40802(c), then he’s able to validate such survey for a period of 7 years.

Lastly, if he’s able to that he’s met the criteria set in CVC Section 40802(c), and he has had a registered engineer evaluate the section of the highway and determines that no significant changes in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume, then he has thereby validated that survey for a period of 10 years.

40802(C)
1) When all of the following criteria are met, paragraph (2) of this subdivision shall be applicable and subdivision (a) shall not be applicable:
>A) When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.
>B) When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.
>C)
>>i) The prosecution proved that the arresting officer complied with subparagraphs (A) and (B) and that an engineering and traffic survey has been conducted in accordance with subparagraph (B) of paragraph (2). The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D).
>>ii) The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.
>D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.
2) A "speed trap" is either of the following:
>A) 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.
>B)
>>i) A particular section of a highway or state highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within one of the following time periods, 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:
>>>I) Except as specified in subclause (II), seven years.
>>>II) If an engineering and traffic survey was conducted more than seven years prior to the date of the alleged violation, and a registered engineer evaluates the section of the highway and determines that no significant changes in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume, 10 years.
>>ii) This subparagraph does not apply to a local street, road, or school zone.

You can rest assured that the “script” that the officer will adhere to as he testifies in court, will in fact include mentioning a certificate of training, that the radar/laser/measuring device meets the specific requirements, and that it was calibrated with the specified period, and that he tuned/tested it as is required by law… etc… Fact is, the officer also has a copy of the particular survey and is fully aware of the date it was “conducted”, “written” and/or “issued”…

As for what is considered a “local road” or not, you must also read CVC 40802(b). That will define it in more detail.

40802(b)
1) For purposes of this section, a local street or road is defined by the latest functional usage and federal-aid system maps submitted to the federal Highway Administration, except that when these maps have not been submitted, or when the street or road is not shown on the maps, a "local street or road" means a street or road that primarily provides access to abutting residential property and meets the following three conditions:
>A) Roadway width of not more than 40 feet.
>B) Not more than one-half of a mile of uninterrupted length. Interruptions shall include official traffic control signals as defined in Section 445.
>C) Not more than one traffic lane in each direction.
2) For purposes of this section "school zone" means that area approaching or passing a school building or the grounds thereof that is contiguous to a highway and on which is posted a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. "School zone" also includes the area Approaching or passing any school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children if that highway is posted with a standard "SCHOOL" warning sign.

Generally, for a 22350 violation, and in addition to your attempting to establish that the prosecution failed to meet their burden of establishing one or more of the criteria set by 40802(c), you should also attempt to establish that the speed at which you were allegedly clocked and cited for was in fact reasonable and prudent under the conditions that existed at the time. The officer will testify that it wasn’t.

22350. 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.

For example, and as the officer is testifying, you are going through a list of items that he has to mention/certify to as he attempts to prove that the circumstances did not present a “Speed Trap”. When he’s done, you will get an opportunity to question him about any items that he either missed or was unable to prove, but you should also question him as to what it was that led him to believe that your speed presented a danger to person or property at the time.

There are quite a few threads on this forum that go into detail about how to defend against a 22350.

Hope this helps...

 

[zanex]

Okay, that definitely helps a bunch. For the local road definition, the road I was on two lanes in each direction, so it was definitely not a local road.

So you're also suggesting to not count on the fact that the survey was more than 5 years old, as being 7 years old is sufficient if the criteria in 40802(c) is set and if he is prepared, he will bring the information?

What about if the speed limit was unjustified as per the rules of the Caltrans manual?