Speeding T. Followup (Need Comparable Muni Code)

[Roback]

What is the name of your state? CA
i want to thank everybody for your feedback re my recent speeding ticket. I have established through research that I was not in a speed trap and that I may have a dificult time establishing that the radar equipment was faulty or the cop was not certified on it. I also do not want to run the risk that the judge will not allow traffic school if I lose, as I know it is discretionary in California. It is my first ticket, so there is no motivation for me to go for broke. I could go to traffic school, but I need information on one thing first. I have to decide by 12/17. I was told I could ask for the speeding ticket 45/30 to be changed to a muni code infraction which would not add a point to my DMV, nor be visible to insurance companies, nor count as a traffic school within 18 months remedy. I understand that I can ask the cop if he would go for it, but I would need the comparable Muni Code Infraction in Los Angeles county, and so far I cannot find it. Is it "failure to obey a traffic control device"? I cannot find the exact secion number for this yet, however. Does anyone have it, and has anyone seen how judges or cops respond when this is requested with just the explanation of trying to avoid a safety point on the DMV and prefering not to go to traffic school. If the cop agrees, is it likely that the judge would not. I was instructed to call the cop at the station and ask him prior to asking for a trial, so that if he refuses I do not have to wait until the date of the hearing and then run the risk he will say no, and even if before testimony the judge refusing to issue traffic school (that is discretionary too) and I am screwed. Any feedback on this code switch would be enormously beneficial. No one has responded to is as of yet, and I know that attorneys use it all the time, but probably more often on first tickets??? Thanks.

 

[CourtClerk]

First off, please keep all of your questions to 1 thread.

Second, I have answered your question to the best of my ability and no police officer I know is going to change your violation to a muni-code violation as they are almost never used on city streets. Carl, a police officer himself also answered your thread. What more do you want us to say?

Attorneys don't use it all the time. In fact, in all my years of working in a traffic courtroom, I've never seen it used where it worked.

 

[CdwJava]

It is doubtful you will be permitted to plead to a local muni code ... that may then require filing through a city or county attorney, and it also effects where the fines and fees go.

I doubt they will consider such a plea.

- Carl

 

[JIMinCA]

1. How do you know you were not in a speed trap?

2. It is the burden of the prosecution to prove that you were not in a speed trap, not yours to prove that you were.

 

[>Charlotte<]

2. It is the burden of the prosecution to prove that you were not in a speed trap

No it's not. The only burden on the prosecution is to prove OP was speeding. If "speed trap" is his defense, it certainly is his burden.

 

[CdwJava]

1. How do you know you were not in a speed trap?

2. It is the burden of the prosecution to prove that you were not in a speed trap, not yours to prove that you were.

The defense needs to bring it up, the prosecution does not have to show that it was not a speed trap on the presentation of their case. The speed trap defense makes the witness "incompetent" to testify as to the speed if a "speed trap" is found to have existed because of a lack of a proper survey or proper training or maintenance of the device used. But, the state does not generally have to pile all that stuff in to the initial case in chief.

- Carl

 

[JIMinCA]

Sorry guys... you are not right on this one.

40803 (b) 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
speedtrap as defined in paragraph (2) of subdivision (a) of Section
40802.


I agree that the courts generally do not require the prosecution to prove a speed trap did not exist unless the defense brings it up... but that is simply out of practice and not in compliance with the law.

 

[>Charlotte<]

Oops, mea culpa.

Still, I do find a difference between the concept of preemptively rebutting a defense, and establishing a prima facie case as a matter of course, but I know I'm just arguing semantics.

 

[CdwJava]

As a practical matter, this is not generally established up front. Unless brought up in discovery, it seems that it is not brought up very often up front. Perhaps it should be, but it rarely seems to be. But, as an administrator, I rarely go to traffic court these days.

However, some officers DO establish it by inclusion of language in their pro-forma preamble to testimony including language that a valid survey (if needed) exists, that the device used has been properly maintained, and they have proper training in the use of the device. The court generally takes judicial notice of this information.

Also, a speed survey does not have to exist on every stretch of road, so there are many circumstances where one is NOT necessary.

- Carl

 

[JIMinCA]

Most cops do testify to most elements of a speed trap (i.e. full uniform, marked car, etc) However, my experience is that they do not bring up traffic surveys unless specifically asked. I have beaten one speeding ticket in particular where I knew that the speed survey was not justified. However, instead of producing my copy of the survey in court, I asked the cop to produce his. Since he couldn't I asked for a dismissal based on the prosecution's failure to comply with 40803(b)... and I was granted the dismissal.

There are situation where a speed survey is not necessary (i.e. max speed and "local roads"). However, as per 40803, it is the prosecution's burden to show that one is not necessary. It is not the defense's burden to show that it is. But, that being said, judges tend to have a natural bias towards cops and will likely ignore that part of the law unless the defense points it out.