22349(a) on a highway with P.F. 55 mph

[claytons]

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

My question is related to a speed trap law. The officer clocked me using lidar on a 6-lane highway that has a posted speed limit of 55 mph. He asked me if I saw the sign and wrote P.F. 55 on the ticket. I got a copy of the traffic survey - it is almost 10 years old and does not provide any speed observations (it just states 55 mph is appropriate.) If I read the law correctly, it is a speed trap according to VC 40802 (c)(1). Moreover, citation for 22349 is explicitly mentioned in that subdivision. However, I came across the following tutorial for pro tems that gives a similar example but says for 22349(a) the traffic survey is not required even though a posted speed limit is below statutory max:
§5.03 Speed Trap Evidence || Traffic Cases

I wanted to use speed trap defense. I would greatly appreciate your advice.

 

[JIMinCA]

I'm assuming you were cited for driving over 65.

There is conflicting case law. In 1987, in People v. Difore (People v. DiFiore [197 Cal.App.3d Supp. 26]), the court stated:

a defendant who drives at speeds in excess of 55 miles per hour has necessarily violated the maximum speed law, and should not escape punishment because he speeded on a road which might constitute a "speed trap" as to speeds less than 55 miles per hour.

However, in 1996, in People v. Studley (People v. Studley (1996) 44 Cal.App.4th Supp. 1 [52 Cal.Rptr.2d 461]), the court contradicted DiFore when it stated:

This case presents the following question: where a motorist is cited, by the use of radar, for speed in excess of the state maximum speed limit on a nonlocal road with a prima facie speed limit of 50 miles per hour, and where a traffic and engineering survey is not proved at trial, do California's speed trap laws apply to compel exclusion of all evidence of speed? We hold the answer is "yes."

There are other cases out there that go back and forth. The point is... you pick your case for precedence and go with it. The court will likely pick the one that supports a conviction. However, this state is due for a higher court, even the CA Supreme Court, to put the issue to bed.

 

[I_Got_Banned]

However, I came across the following tutorial for pro tems that gives a similar example but says for 22349(a) the traffic survey is not required even though a posted speed limit is below statutory max:
§5.03 Speed Trap Evidence || Traffic Cases

I wanted to use speed trap defense. I would greatly appreciate your advice.

Thank you for posting that tutorial... Sure puts things in a different perspective!

 

[claytons]

Thanks a lot, JIMinCA, for your reply.
I found the full text of People vs DiFiore here:
Legality of Speed Limits

In summary: If an officer testifies only that he clocked a defendant on radar at a specified speed in excess of 55 miles per hour, no "speed trap" is [197 Cal.App.3d Supp. 30] involved, and the anti-speed-trap laws do not apply. 3 If, however, that officer relies on a prima facie or posted speed limit, that officer is incompetent as a witness and any evidence concerning the vehicle's speed is inadmissible unless an adequate survey is introduced.
...

In this case, the officer testified that he clocked defendant on radar driving 64 miles per hour on a road posted for 40 miles per hour. The officer thus testified to an apparent speed trap and evidence of defendant's speed was inadmissible unless the prima facie or posted speed limit was justified by a current engineering and traffic survey.

It appears that if the officer testifies that there was a P.F. speed limit, then speed trap law kicks in. But if he doesn't say anything about posted speed limit, he is fine... unless a defendant brings it in during cross examination???

 

[JIMinCA]

I don't think that's what the case as a whole says. I believe it says that if you are charged with 22349, then you were charged with violating a max speed and the officer did not have to rely on a prima facie speed limit sign which has to be justified. However, if you are charged with 22350, speed trap laws do kick in.

With all this in mind, Studly contradicts this in saying that ALL evidence of speed is excluded as per 40802.

 

[claytons]

I don't think that's what the case as a whole says. I believe it says that if you are charged with 22349, then you were charged with violating a max speed and the officer did not have to rely on a prima facie speed limit sign which has to be justified. However, if you are charged with 22350, speed trap laws do kick in.

The discussion in People vs DiFiore is about 22348 and 22350.
Anyway, in the current edition of the statute a violation of 22349 is explicitly mentioned [VC 40802 (c)(1)(C)(ii) ] in the definition of a speed trap. If the Legislature considered speed trap law not applicable to 22349, why should 22349 be mentioned there?

40802. (a) A "speed trap" is either of the following:
...
(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:
...
(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.

 

[JIMinCA]

It says that the speed has to be shown as unsafe UNLESS charged with 22349

 

[claytons]

It says that the speed has to be shown as unsafe UNLESS charged with 22349

40802 (c)(1) provides a list of pre-requisites that allow the prosecution to use outdated traffic surveys (up to 10-years old). One of these pre-requisites, as mentioned in 40802 (c)(1)(C)(ii), is not required in case the citation was for violation of 22349. However, no such exclusion for the other pre-requisites, meaning they *are* required if the prosecution intends to use outdated surveys for 22349 violations. If traffic surveys are considered irrelevant in 22349 violations as per People v Singh (2001) 92 CA4th Supp 13, 17, what was the reason to specifically state that something is not required in case the citation was for 22349 in order to allow outdated surveys?