Will this defense work?

[gkisystems]

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

I was issued a citation for speeding in the Town of Turtle by the Turtle PD, but the alleged violation was in the City of Beloit.

Google Map Link of Alleged Violation Spot:

http://maps.google.com/maps/ms?ie=UTF&msa=0&msid=117128166963802316099.000492bc9a19c91cca179

Town of Turtle Map:

http://199.233.45.158/images/web_documents/departments/planning_development/zoning_maps/tturtlezoning.pdf

City of Beloit Map (see Grid Coordinates 13F):
http://www.ci.beloit.wi.us/vertical/Sites/{4AECD64A-01FA-4C24-8F53-D3281732C6AB}/uploads/{2464C6D8-C827-4FF4-BEAC-4CEE190BF159}.PDF

I asked the cop for a break and he said he would write me up for violating a local ordinance instead of the state statute - which is a savings of $120 ($210 vs. $89). While this was nice of the cop to do, I disagree with the ticket because I think the road is unfairly under posted (its 4 lanes wide with a 35 mph speed limit...which in most places in this state is 55-65 mph). The citation says "Defendant Violated Ordin. No. 14.01. Adopting State Statute No. 346.57(5)."

Section 14.01 Traffic.
(a) State Traffic Laws Adopted. The statutory provisions of Chapters 340 to
348 of the Wisconsin Statutes describing and defining regulations with respect to vehicles and traffic, exclusive of any provisions therein relating to penalties to be imposed and exclusive of any regulations for which the statutory penalty is a fine or term of imprisonment, are hereby adopted and by reference made a part of this ordinance as if fully set forth herein. Any act required to be performed or prohibited by any statute incorporated herein by reference is required or prohibited by this ordinance. Any future amendments, revisions or modifications of the statutes incorporated herein are intended to be made a part of this chapter in order to secure uniform statewide regulation of traffic on the highways, streets and alleys of the State of Wisconsin.

(b) Forfeitures. Forfeitures of violations of any traffic regulations set forth in the Wisconsin Statutes adopted by reference in section (a) shall conform to the forfeiture penalty permitted to be imposed for violations of comparable Wisconsin Statutes including any variations or increases for subsequent offenses. However, this ordinance shall not be construed to permit prosecution for any offense described in Chapters 340 to 348 of the Wisconsin Statutes for which an imprisonment penalty or fine may be imposed
upon the defendant.

http://www.tn.turtle.wi.gov/docview.asp?docid=6071&locid=172

And 1.02(b) states that:
Code and Code of Ordinances. The words “Codes,” “Code of
Ordinances” and “Municipal Code” when used in any Section of this Code
shall refer to this Code of Ordinances of the Town of Turtle unless the
context of the Section clearly indicates otherwise.

346.57(5)
Zoned and posted limits. In addition to complying with the speed restrictions imposed by subs. (2) and (3), no person shall drive a vehicle in excess of any speed limit established pursuant to law by state or local authorities and indicated by official signs.

Strategy Idea #1:

Plea Not Guilty and say that I cannot have possibly violated 14.01 because that law only applies in the Town of Turtle and the alleged violation did not occur in the Town of Turtle.

Strategy Idea #2

Plea Not Guilty and say that the 35 mph speed limit is not authorized by the state because it is a county trunk (CTH) road and the fixed speed limit for county trunk roads is 55 mph...which can only be changed by local authorities if a traffic engineering study is done...and the likelihood that the study was both done AND that the DA has a copy of it during the trial is very low. Assuming a traffic study was done, the speed limit is still illegal, because the local jurisdiction can only reduce the limit by a maximum of 10 mph (down from 55 to 45).

See Page 2 of Wisconsin Transportation Bulletin No. 21
http://safety.fhwa.dot.gov/speedmgt/ref_mats/fhwasa09028/resources/Setting speed limits on local roads.pdf

Which strategy sounds better? Will either/both work?

 

[ecmst12]

Or you could go to court and snub your nose at the favor the cop did you and find yourself charged with the state statute instead, and pay much higher fines and court costs.

 

[BOR]

Or you could go to court and snub your nose at the favor the cop did you and find yourself charged with the state statute instead, and pay much higher fines and court costs.

They can't recharge as you indicate.

 

[gkisystems]

Or you could go to court and snub your nose at the favor the cop did you and find yourself charged with the state statute instead, and pay much higher fines and court costs.

Yes, I am a little concerned about the charge being amended...but if they do that...would it have to be before I plea not guilty? If not, it would have to be at least before the prosecution rests...and I'm not presenting any arguments or evidence until they rest. What are the double jeopardy laws?

Even if they did charge me under the state statute, my 2nd defense above would still apply, right?

 

[BOR]

Yes, I am a little concerned about the charge being amended...but if they do that...would it have to be before I plea not guilty? If not, it would have to be at least before the prosecution rests...and I'm not presenting any arguments or evidence until they rest.

State law sets the MAXIMUM fines for offenses. A local ordinance/court can have a set fine schedule at or below state law. If the court has a set fine schedule, that is it, the officer was probably acting like he was doing you a favor when in essence he was not.

What are the double jeopardy laws?

Amending a complaint before entering a plea is not double jeopardy. As I said though, and I am probably right about a SET fine, DJ is moot.

 

[gkisystems]

State law sets the MAXIMUM fines for offenses. A local ordinance/court can have a set fine schedule at or below state law. If the court has a set fine schedule, that is it, the officer was probably acting like he was doing you a favor when in essence he was not.

Amending a complaint before entering a plea is not double jeopardy. As I said though, and I am probably right about a SET fine, DJ is moot.

Ok - so based on my 2 defense strategies...will both of them work, neither of them, or one or the other? If both work, which one is more likely to be successful? Also, how do you feel about strategy #3?

Strategy #3
I will argue that my case should be dismissed for the prosecution failing to charge me with violating any speeding laws. 346.57(5) is not a state statute establishing a fixed speed limit (like the statutes in 346.57(4)), instead it is a state statute that creates 2 restrictions on state/local authorities such that if they do not meet those requirements, the motorist is not required to comply with the speed limit. A motorist only has to comply with the speed limit laws if and only if:

1. The limit established is pursuant to law by state or local authorities AND
2. Indicated by official signs

The statute in and of itself does not create a chargeable offense.

 

[Maestro64]

My feeling is that it becomes much hard to argue a case and win when the officer gives you a roadside discount, because the courts and officer can pretty much do what they want unless you willing to take it to the next level or walk in with a lawyer who will definitely make sure they do not stop on your rights.

However, if you plan to fight, your strategy is to go after everything, thinking you could win on a single point if difficult at best, you are no Perry Mason (1950's to 1960's Lawyer show) if you not that old.

On your Strategy #2, yes the road speed may not be properly set, however, what the judge will only look at is the fact that it had a posted speed limit and if it did that is all he will care about. Attempting to show it was not properly set, is an up hill battle to say the least. You will have to show that the town did not do the proper engineering studies. The reason I say this is because i bet the officer is not required to show it was properly set. Also you have to consider that speed limit was set prior to the law being put in place, therefore it was grandfathered. These kind of case are only won in a higher court, unless a state has laws like CA where is specially says tickets are invalid unless the proper engineering studies were done on certain roads.

I am not saying not to attempt this tactic I am saying do not assume you can solely win on this. I would go after how did he measure the speed and did he follow proper procedures and the such. The more doubt you can put in front of the court the better off you are going to be.

 

[demurringdude]

I think Strategy #3 is flawed. That statute you quote applies to a person, not to the state/local authorities. A person has to comply with the limit if it is properly established. A state/local authority could not violate this statute, only a driver could. Strategy #1 seem better.

Double jeopardy only applies if you are acquitted of something on the evidence. Having a charge dismissed on some technicality (like it's the wrong code section) would not prevent you from being tried later if those problems were corrected. Having said that, I don't think it's likely.

Good luck!