CVC22349(b), multiple errors on ticket, is demurrer an option?

[nstymatt]

What is the name of your state? California

I received speeding ticket in Santa Clara county:

http://imgur.com/a/ahRBYVw

Looking at the ticket, I believe there are multiple errors which I hope would be enough to dismiss the case. I'm wondering if a demurrer at the arraignment would be the best way to do this? My worry is that judge will deny the demurrer if they think these are clerical errors:

1. Typo: My speed and speed limit are swapped. The officer wrote "speed approx.: 30" and "p.f / max speed: 63". If I understand correctly these should be swapped.
2. Incorrect infraction. 22349(b) is a violation of maximum speed (55mph). But since he wrote down a speed limit of 30mph, this should be 22350, which makes 22349(b) the incorrect infraction. If he wants to charge me with 22349(b), then he did not write the correct maximum speed of 55mph.

I'm hoping that these are errors are serious enough that the judge cannot dismiss as simply clerical errors. Would a demurrer be the best strategy going forward, and does anyone have experience with this?

 

[quincy]

You were ticketed for going 63 in a 30 mph zone?

Errors of the sort you point out on your ticket are generally not enough to get the ticket dismissed. A judge generally will let the officer amend the ticket.

 

[nstymatt]

You were ticketed for going 63 in a 30 mph zone?

Errors of the sort you point out on your ticket are generally not enough to get the ticket dismissed. A judge generally will let the officer amend the ticket.

Yes, 63 in a 30 zone. That is what I was worried about. How about the 2nd error? I would think that citing me for the wrong infraction would be more significant

 

[quincy]

Yes, 63 in a 30 zone. That is what I was worried about. How about the 2nd error? I would think that citing me for the wrong infraction would be more significant

This forum has a California police officer as a member and perhaps he can provide a better answer for you than I.

My understanding is that an officer does not have to have memorized the entire traffic code book, although officers who write out a lot of the same tickets may have memorized a few code numbers. The officer’s notes and the information on the ticket should, however, describe the incident well enough to support the issuance of a ticket.

The gist of your ticket is correct. Radar indicated you were going faster than the posted speed limit.

I don’t think you can expect the ticket to be dismissed.

 

[nstymatt]

This forum has a California police officer as a member and perhaps he can provide a better answer for you than I.

My understanding is that an officer does not have to have memorized the entire traffic code book, although officers who write out a lot of the same tickets may have memorized a few code numbers. The officer’s notes and the information on the ticket should, however, describe the incident well enough to support the issuance of a ticket.

The gist of your ticket is correct. Radar indicated you were going faster than the posted speed limit.

I don’t think you can expect the ticket to be dismissed.

Interesting, thanks for the input. I'm not familiar these details either so hopefully the CA police officer will chime in here.

I don't expect officers to memorize the entire traffic code book either. But when you are camping on a straight and empty road with a 30mph speed limit trying to pull people over, I expect you to be able to differentiate between the few speeding violations. As well as writing the vehicle speed and speed limits in the correct boxes. I wish I was granted this level of patience at my job for careless errors like this. Sorry if this is rude, but it is frustrating that we are to take officer's at their word in convicting someone of a crime when they are free to make simple errors like this.

 

[FlyingRon]

Nothing on a California ticket means anything in court. Most likely you'll see it amended before you have your appearance (they'll notice the field errors when they thing is entered in the system).

You're wrong about the section being wrong. Since you were going 63 MPH, you were in violation of 22349(b). That doesn't require anything about speed limit posting. It says you can't drive faster than 55MPH ANYWHERE (unless the stuff in (a) applies).

 

[CdwJava]

What is the name of your state? California

I received speeding ticket in Santa Clara county:

http://imgur.com/a/ahRBYVw

Looking at the ticket, I believe there are multiple errors which I hope would be enough to dismiss the case. I'm wondering if a demurrer at the arraignment would be the best way to do this? My worry is that judge will deny the demurrer if they think these are clerical errors:

1. Typo: My speed and speed limit are swapped. The officer wrote "speed approx.: 30" and "p.f / max speed: 63". If I understand correctly these should be swapped.
2. Incorrect infraction. 22349(b) is a violation of maximum speed (55mph). But since he wrote down a speed limit of 30mph, this should be 22350, which makes 22349(b) the incorrect infraction. If he wants to charge me with 22349(b), then he did not write the correct maximum speed of 55mph.

I'm hoping that these are errors are serious enough that the judge cannot dismiss as simply clerical errors. Would a demurrer be the best strategy going forward, and does anyone have experience with this?

While I am not entirely knowledgeable of the ins and outs of traffic ticket demurrers, I have seen many pursued, and few successful. You have to understand what the demurrer is, and what it is not. It IS a method used to challenge the Notice to Appear for some insufficiency in form or law ... it is NOT a means to challenge or dispute the offense (arguably what you would be doing by claiming the speeds were swapped). Those that were successful tended to be for issues involving outdated Notice to Appear forms (TR-130). Arguing that the notes on the cite are in error are probably beyond the scope of a demurrer. You MIGHT be able to argue that the swapped speeds dd not grant you sufficient information to assist you in defending yourself by confusing the offense you were charged with, but, I suspect that's a "hail Mary" and may well fail ... or, you argue that and get a continuance.

Keep in mind that a demurrer does not mean you'll get away with the speeding, it simply means that the District Attorney may be compelled to file a verified complaint with the court as opposed to utilizing the notice to appear as permitted under the law. If the DA has to get involved in a traffic matter, they won't be happy. And, if you lose, you can probably expect them to request the max. penalties. Ultimately, you'd have to defend yourself and argue that the officer was wrong ... by a LOT! Can you make the argument that you were not exceeding the max. speed limit? And, if the officer had a camera in the car, will that hurt you?

You are free to try anything you want. Keep in mind that should you challenge this and lose, the option of traffic school may not be available to you. Typically, TS is available prior to trial if you are otherwise eligible. At 25+ over the limit, you're not automatically eligible, anyway. But! If you do not tick off the court (i.e. the judge) you may be permitted to take Traffic School anyway.

 

[nstymatt]

Nothing on a California ticket means anything in court. Most likely you'll see it amended before you have your appearance (they'll notice the field errors when they thing is entered in the system).

You're wrong about the section being wrong. Since you were going 63 MPH, you were in violation of 22349(b). That doesn't require anything about speed limit posting. It says you can't drive faster than 55MPH ANYWHERE (unless the stuff in (a) applies).

Right I'm aware that 63mph in a 55 zone is speeding under 22349(b). But the officer cited me for going 63mph in a 30mph zone. 22349(b) specifically applies to 55mph 2-lane highways. By citing a speed limit of 30mph, I believe the officer incorrectly used 22349(b)., and should have used 22350 instead.

Why do I believe this? Purely anecdotal, but EVERY 22349(b) citation I've seen was specifically on a 55mph 2-lane highway, with a P.F. / Max speed limit of exactly 55mph, and not 1mph higher or lower. And every non-55mph or 65mph citation I've seen was done with 22350. Is this just a coincidence?

 

[nstymatt]

While I am not entirely knowledgeable of the ins and outs of traffic ticket demurrers, I have seen many pursued, and few successful. You have to understand what the demurrer is, and what it is not. It IS a method used to challenge the Notice to Appear for some insufficiency in form or law ... it is NOT a means to challenge or dispute the offense (arguably what you would be doing by claiming the speeds were swapped). Those that were successful tended to be for issues involving outdated Notice to Appear forms (TR-130). Arguing that the notes on the cite are in error are probably beyond the scope of a demurrer. You MIGHT be able to argue that the swapped speeds dd not grant you sufficient information to assist you in defending yourself by confusing the offense you were charged with, but, I suspect that's a "hail Mary" and may well fail ... or, you argue that and get a continuance.

Keep in mind that a demurrer does not mean you'll get away with the speeding, it simply means that the District Attorney may be compelled to file a verified complaint with the court as opposed to utilizing the notice to appear as permitted under the law. If the DA has to get involved in a traffic matter, they won't be happy. And, if you lose, you can probably expect them to request the max. penalties. Ultimately, you'd have to defend yourself and argue that the officer was wrong ... by a LOT! Can you make the argument that you were not exceeding the max. speed limit? And, if the officer had a camera in the car, will that hurt you?

You are free to try anything you want. Keep in mind that should you challenge this and lose, the option of traffic school may not be available to you. Typically, TS is available prior to trial if you are otherwise eligible. At 25+ over the limit, you're not automatically eligible, anyway. But! If you do not tick off the court (i.e. the judge) you may be permitted to take Traffic School anyway.

Yes that's a good point, I originally assumed that traffic school was not an option anyways since the violation is 25+ over. And hence might as well try to fight since I have nothing to lose But if the judge does have discretion to grant traffic school, then I agree that my best outcome will be to play nice for traffic school.

But let's discuss the case where traffic school isn't an option. I would be charged the max fine anyway, DA or no DA. So IMO pissing off the court doesn't matter to me. Might as well try to fight with the demurrer.

If the court does grant the demurrer, then under section 1007 the defect must be fixed within 10 days. Obviously hoping this doesn't happen.

But if it does get fixed, section 1009 states that the original offense cannot be changed:

"1009: ... An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint."

This means that I would be charged with 22349(b), which is 63mph in a 55mph zone in this case. This is much better than the original 63mph in 30mph citation, so would still be a win.

 

[CdwJava]

Right I'm aware that 63mph in a 55 zone is speeding under 22349(b). But the officer cited me for going 63mph in a 30mph zone. 22349(b) specifically applies to 55mph 2-lane highways. By citing a speed limit of 30mph, I believe the officer incorrectly used 22349(b)., and should have used 22350 instead.

You can try and argue that, but the trial will be based upon the officer's testimony, not the notes on the cite. Ergo, VC 22349(b) will apply. We both know the officer will testify that he will testify that you were traveling 63 in a 30. If so, THAT is outrageous on your part! He's not going to argue that you were traveling 30 in a 63 MPH zone.

22349 (b) Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following apply:

(1) A two-lane, undivided highway is a highway with not more than one through lane of travel in each direction.

(2) Passing lanes may not be considered when determining the number of through lanes.

 

[CdwJava]

But let's discuss the case where traffic school isn't an option. I would be charged the max fine anyway, DA or no DA. So IMO pissing off the court doesn't matter to me. Might as well try to fight with the demurrer.

It's your time to waste, and the court's to get miffed.

As I mentioned, this just means the DA or City Attorney files the case with the court using the complaint process.

And note that the section does NOT state that the area must be POSTED at 55 MPH, only that you cannot travel faster than 55 MPH in the designated type of roadway.

 

[nstymatt]

It's your time to waste, and the court's to get miffed.

As I mentioned, this just means the DA or City Attorney files the case with the court using the complaint process.

And note that the section does NOT state that the area must be POSTED at 55 MPH, only that you cannot travel faster than 55 MPH in the designated type of roadway.

Oh, looks like I completely misinterpreted then. Thanks for clarifying!

 

[nstymatt]

Ok the more reading I do, the more confused I am. 22349(c) seems to indicate that 55MPH IS the speed limit in 22349(b):

(c) It is the intent of the Legislature that there be reasonable signing on affected two-lane, undivided highways described in subdivision (b) in continuing the 55 miles-per-hour speed limit, including placing signs at county boundaries to the extent possible, and at other appropriate locations.

If this is the case, then I would need to exceed 55MPH AND be in a 55MPH speed limit zone for 22349(b) to be valid

 

[FlyingRon]

Right I'm aware that 63mph in a 55 zone is speeding under 22349(b). But the officer cited me for going 63mph in a 30mph zone. 22349(b) specifically applies to 55mph 2-lane highways. By citing a speed limit of 30mph, I believe the officer incorrectly used 22349(b)., and should have used 22350 instead.

Again you miss the point. The statute you were cited with doesn't have anything to do with the speed limit where you were cited. It's a MAXIMUM SPEED law. It is illegal to drive over 55 anywhere, be it on a 55 zone or a school zone or a 30 MPH zone. The only exception is the case in (a).

Why do I believe this? Purely anecdotal, but EVERY 22349(b) citation I've seen was specifically on a 55mph 2-lane highway, with a P.F. / Max speed limit of exactly 55mph, and not 1mph higher or lower. And every non-55mph or 65mph citation I've seen was done with 22350. Is this just a coincidence?

Well, your belief is wrong. The law means what it says.

 

[nstymatt]

Again you miss the point. The statute you were cited with doesn't have anything to do with the speed limit where you were cited. It's a MAXIMUM SPEED law. It is illegal to drive over 55 anywhere, be it on a 55 zone or a school zone or a 30 MPH zone. The only exception is the case in (a).


Well, your belief is wrong. The law means what it says.

Can you address post #13?

22349(c) clearly indicates that highways in (b) have a 55mph speed limit