CVC 21950 (a) Failure to Yield

[asiny]

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

L.A. County- local City police had setup a sting operation in order to educate drivers on the little known wording in 21950 (a) Failure to Yield to Pedestrian, specifically, an unmarked crosswalk.

4 lane road- 2 lanes both directions. I observed a pedestrian crossing from East to West- I was traveling North to South- as the pedestrian was within the middle of the 2nd lane I slowed my vehicle, moved to the 4th lane furthest from them and proceeded. At no time did the pedestrian slow their stride or did I hinder their travel.

Moments later I was stopped by an officer who informed me of the operation, educated me and cited me. I accept the education (I was unaware of the unmarked crosswalk) and the citation fine... but I don't accept the point infraction attached. Educate me and fine me but I think for a law wording that the police, themselves, agree is little known to the point they had to setup a sting operation to educate drivers, adding a point infraction that will negatively affect my insurability for the following 3-5 years seems unnecessary.

I have read through a good number of forum threads that relate to 21950(a) - and all of them post;

(a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

(b) This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.

(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian.

(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.

Subsequently the poster, and thread, usually continue to refer to 21950(a) as such;

(a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

Regarding the above unbolded text, what way is 21950(c) held?

My interpretation is that 'except as otherwise provided in this chapter', as a driver, I did 'exercise all due care' and 'reduced the speed of the vehicle' taking action to 'safeguard the safety of the pedestrian'.

Yes, I am ready for the responses of 'you are glad to argue that in court', but I am more interested in how others view this. The law is led with a firm option that a driver MUST yield- followed with a caveat that offers the driver another option (c).

Thoughts?

 

[Zigner]

Thoughts? I think you're right, but the reality is that it's a crap-shoot. Good luck.

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

L.A. County- local City police had setup a sting operation in order to educate drivers on the little known wording in 21950 (a) Failure to Yield to Pedestrian, specifically, an unmarked crosswalk.

4 lane road- 2 lanes both directions. I observed a pedestrian crossing from East to West- I was traveling North to South- as the pedestrian was within the middle of the 2nd lane I slowed my vehicle, moved to the 4th lane furthest from them and proceeded. At no time did the pedestrian slow their stride or did I hinder their travel.

Moments later I was stopped by an officer who informed me of the operation, educated me and cited me. I accept the education (I was unaware of the unmarked crosswalk) and the citation fine... but I don't accept the point infraction attached. Educate me and fine me but I think for a law wording that the police, themselves, agree is little known to the point they had to setup a sting operation to educate drivers, adding a point infraction that will negatively affect my insurability for the following 3-5 years seems unnecessary.

I have read through a good number of forum threads that relate to 21950(a) - and all of them post;

Subsequently the poster, and thread, usually continue to refer to 21950(a) as such;

Regarding the above unbolded text, what way is 21950(c) held?

My interpretation is that 'except as otherwise provided in this chapter', as a driver, I did 'exercise all due care' and 'reduced the speed of the vehicle' taking action to 'safeguard the safety of the pedestrian'.

Yes, I am ready for the responses of 'you are glad to argue that in court', but I am more interested in how others view this. The law is led with a firm option that a driver MUST yield- followed with a caveat that offers the driver another option (c).

Thoughts?

 

[asiny]

Thoughts? I think you're right, but the reality is that it's a crap-shoot. Good luck.

Very much the aforementioned 'you are glad to argue that in court'- thanks Zig

 

[Sloop John D]

Court interpretation of this statute has been very liberal, which gives you a good shot at winning.

Many police are under the mistaken impression that if a pedestrian is in the crosswalk, the driver must come to a complete stop until the crosswalk is completely clear. This is incorrect. According to the courts, you just need to leave enough space so that the pedestrian has safe passage. As long as a collision with the pedestrian is not imminent or close enough to make the pedestrian think he's about to be struck by your vehicle, you have not violated the statute.

You'll want to cite to the case of People v. Hahn, 98 Cal.App.2d Supp. 841 http://law.justia.com/cases/california/calapp2d/98/supp841.html

This case contains the court's interpretation of the law. The most relevant quote that you'll want to use in your statement is: "He is entitled not to just as much space as his body, clothes and buttons require, but to as much as will afford him a safe passage, one that can be taken without either physical interference or such a threat of interference that will reasonably cause him to step back or hesitate in his going."

I would recommend arguing this matter in a trial by written declaration. You'll find instruction on your ticket or on the notice that will be arriving by mail shortly. I've argued two of these now and I've won both. If you need any assistance you can send me a PM.

 

[asiny]

Court interpretation of this statute has been very liberal, which gives you a good shot at winning.

Many police are under the mistaken impression that if a pedestrian is in the crosswalk, the driver must come to a complete stop until the crosswalk is completely clear. This is incorrect. According to the courts, you just need to leave enough space so that the pedestrian has safe passage. As long as a collision with the pedestrian is not imminent or close enough to make the pedestrian think he's about to be struck by your vehicle, you have not violated the statute.

You'll want to cite to the case of People v. Hahn, 98 Cal.App.2d Supp. 841 http://law.justia.com/cases/california/calapp2d/98/supp841.html

This case contains the court's interpretation of the law. The most relevant quote that you'll want to use in your statement is: "He is entitled not to just as much space as his body, clothes and buttons require, but to as much as will afford him a safe passage, one that can be taken without either physical interference or such a threat of interference that will reasonably cause him to step back or hesitate in his going."

I would recommend arguing this matter in a trial by written declaration. You'll find instruction on your ticket or on the notice that will be arriving by mail shortly. I've argued two of these now and I've won both. If you need any assistance you can send me a PM.

Very interesting Sloop- I had read People v McLachlan (which regarding the death of a pedestrian- however it was determined the pedestrian was shocked enough to jump back, caused by another vehicle not yielding, into the lane of traffic of McLachlan)... however reading People v Hahn and, consequently, Noland, Hawkins and a few others, they all seem to relate to the driver being at a traffic control device. In my circumstance I was at neither, but in the regular flow of traffic with the pedestrian in an unmarked crosswalk.

The statement from People v Hahn seems poignant and may help bolster a 21950(c) argument. I am not asking the court to dismiss charges, only the point infraction (without the traffic school requirement). Either way, it will be interesting to experience CA traffic court and how this plays out.

Any further thoughts gratefully accepted and I look forward to responding and/or posting an update (court date December 16th, 2013).

 

[CdwJava]

As a note, the COURT cannot remove the point. The point is incurred when the transcript of the conviction is reported to the DMV.

So, if you want to avoid the point, you have to go to trial and prevail. But, if you lose at trial, the option of traffic school may not be made available to you. So, consider all your options carefully.

 

[asiny]

As a note, the COURT cannot remove the point. The point is incurred when the transcript of the conviction is reported to the DMV.

So, if you want to avoid the point, you have to go to trial and prevail. But, if you lose at trial, the option of traffic school may not be made available to you. So, consider all your options carefully.

A very important point CDW. I appreciate you adding this to the thread.

I found an online traffic school, that is accepted by the local City, which runs the course and exam. Seems reasonable too.

Well, today I file my request for discovery so that I may ascertain what their perspective of the distance between the pedestrian and my passing by were.

 

[Jim_bo]

Let me guess... Your discovery request was either ignored or you got a letter from the LA DA stating that they have nothing to do with traffic infractions.

 

[asiny]

Let me guess... Your discovery request was either ignored or you got a letter from the LA DA stating that they have nothing to do with traffic infractions.

To date- ignored- so I am filing a 2nd request. Going to wait until 30 days have passed since the 1st request whilst I ponder whether a motion to compel would be prudent.

 

[Jim_bo]

Discovery is an issue that is begging for an aggressive person to challenge in appellate court. DAs routinely ignore discovery requests and if they do respond, they will simply say that case law (usually cited is People v Carlucci) says that they have no involvement with traffic cases. This is wrong. Carlucci only says that the absence of the prosecutor at trial does not in itself create a due process violation for the defendant. It does NOTHING towards absolving the DAs of their prosecutorial responsibilities. To the contrary, there are MANY examples of case law and statutory law that specifically call out responsibilities of the prosecution. So… if the DA claims that he is not the prosecution… then who is? The cop? No… he is a witness. The judge? No… he is a member of the judiciary and prosecution is an executive function. The ticket itself? I don’t know… maybe that is the argument that the little piece of paper is the prosecution. But that’s absurd. The truth is, the DA is the prosecutor. Period. But DAs get away with this bull crap because no one has taken the effort to call them on it. I have even seen judges admonish defendants because they didn’t serve a discovery request upon the police!! This is despite the fact that the penal code specifically makes discovery an obligation of the prosecution… and the cops are NOT the prosecution. In fact, there is NO legal obligation of the cops to provide you with any discovery… or they can provide you with inaccurate information without. Even worse, if they have in their possession exculpatory evidence (i.e. evidence that a radar gun was not properly calibrated), they have NO DUTY to provide that information to you since they are NOT the prosecution. So, when you hear someone here… or in court… tell you that you should send your discovery request to the ticket issuing agency, that is a product of common practice… NOT a practice that conforms to the law.

If you have the discovery request done, that should be sufficient. Another request is a waste of time and a motion to compel may add some credibility. But the question is… what do you do with an ignored request. Since you likely have requested all the notes of the ticket from the arresting officer, I believe that you would be within your rights to ask that the arresting officer’s testimony be excluded unless he can swear under oath and convince the court that his testimony will be based solely upon his recollection of the event and he has NOT consulted his notes. In other words, if you are going to be denied access to the officer’s notes, the prosecution should NOT be allowed to benefit.

 

[Sloop John D]

To date- ignored- so I am filing a 2nd request. Going to wait until 30 days have passed since the 1st request whilst I ponder whether a motion to compel would be prudent.

A motion to compel normally has a "meet and confer" requirement. This means you must make an effort to meet with the opposing counsel and confer as to why discovery is not being propounded. Filing a motion to compel without first attempting a meet and confer can be grounds for sanctions.

 

[Jim_bo]

Sloop,

I think you are partially correct. A defendant need not “meet and confer” with opposing counsel, rather they must make the informal request. PC1054.5 requires that a party make an informal request upon opposing counsel… not “meet and confer”. The discovery request IS the informal request used to comply with PC1054.5. Therefore, there is nothing further required of the OP that should obligate the DA. However, in LA… as in most CA counties, the DA will state that he is NOT opposing counsel!! This is the issue that must be resolved.



1054.5. (b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.

 

[asiny]

Well, I did (after my 2nd request) receive discovery- a copy of my ticket and audio recording from the officer (albeit not all the conversation was present [either not recorded or edited]).

I submitted my TBWD and specified that I followed 21950(c), included street and birds-eye-view photographs indicating the lanes with number idents... that was December.

To all, thank you for your words - I was open to pay the fine for the education (it did cost man-hours to arrange), but never expected an outright dismissal... which is what I received.

 

[Jim_bo]

Outstanding! I'm glad you gota dismissal even if you didn't get the opportunity To argue the discovery issue.