To fight or not to fight your speeding ticket?

This article will focus on speed enforcement of the Basic Speed Law in California, Vehicle Code § 22350 ¹.  This is the most common traffic infraction for “speeding” that drivers are cited.  This article will not discuss speed enforcement of maximum speed limits under Vehicle Code §§ 22349 and 22356.  

It may surprise most drivers that posted speed limits on streets and highways² are mere suggested speeds and not strict maximum speed limits.  The “prima facie” or the presumed speed limit on streets and highways in California are established in Vehicle Code § 22352.  Basically, under this section, the presumed speed is either 15 miles per hour (alleys, going over a rail crossing with obstructed view of about 100 feet, and crossing unmarked intersections where view is obstructed for 100 feet)  or 25 miles per hour (school zones, business and residential district unless the local traffic agency sets a different speed limit, and “senior” zones).

So if the presumed speed on streets in California is 25 mph, why are there posted speed limits of 35 or 40 miles per hour?  This is because the law allows local traffic agencies to set different speed limits on streets as long as they follow certain procedures.  This means that a local traffic agency must justify the posted speed by a engineering and traffic survey within 5 years of the traffic citation and the police must have used either a radar, laser or other “electronic device” which is used to measure the speed of vehicles (LIDAR).  The electronic device used to measure the speed of vehicles does not include the police officer’s speedometer ³

The engineering and traffic survey can be extended to 7 or 10 years and a speed trap will not apply if all of the following are proved by the testifying officer at trial⁴:

Extension to 7 Years:

• If radar was used, the officer has successfully completed a radar operator course of at least 24 hours on the use of police traffic radar, and this course has been approved and certified by the Commission on Peace Officer Standards and Training.
• If laser or any other electronic device (e.g. LIDAR) was used, and the officer has successfully completed a 24-hour POST-certified radar course, plus at least two hours of additional POST-certified training on use of the device;
• Before the officer issued the notice to appear, the officer established that the radar, laser, or other electronic device used to measure the speed meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated by an independent certified laser or radar repair and testing or calibration facility within three years before the date of the alleged violation; and
• The speed was unsafe for the conditions present at the time of the violation.  Vehicle code section 22350 requires the officer to offer “substantial evidence to support the conclusion that” the  that the speed was unsafe and not reasonable due to the weather, visibility, traffic condition, width of the street or that the speed was such that it endangered the safety and property of others. If the officer does not establish this element, the judge must dismiss the speeding citation.

• All of the above for 7-year survey AND a registered engineer evaluated the section of the highway and determined 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.

So, if a radar is used to measure a vehicle’s speed and the posted speed limit is not justified by a recent engineering and traffic survey, the police officer cannot testify about the speed of your vehicle because the speed of your vehicle was based on an illegal speed trap.  

The testifying officer in a speeding trial must provide an original or a certified copy of the engineering and traffic survey because the officer has the burden to prove that his/her citation was not based on an illegal speed trap.  The defendant driver does not have to demand to see the engineering and traffic survey.  

An engineering and traffic survey is not required if the violation happened on a “local” street or road.  A “local” street or road is defined in Vehicle Code § 40802(b)(2).  The California Road System map website’s Functional Classification page identifies “local” roads.  An engineering and traffic survey is also not required if the alleged violation occurred in a posted school zone while children are present, a senior zone, and on highways with posted maximum speed limits⁵. 

An engineering and traffic survey has to measure the speed of vehicles in a particular section of a street or highway and set the posted speed at or near the closest 5 mile per hour increment of the “critical speed” or the “85th percentile”.  ⁶ 

The 85th percentile speed is determined by plotting the speed of 100 vehicles in a particular period of time on a stretch of a street from fastest to slowest.  The speed of the 15th vehicle from the top is the critical speed.  This means the top 15 cars were driving faster than the critical speed and the bottom 85 cars were driving below the critical speed.  The posted speed must then be set at the “nearest 5 mph increment” using traditional mathematical rounding rules (with some exceptions of course).  So if the 85th percentile speed is 37 mph, the posted speed limit should be set at 35 mph because this is the closest 5 mph increment.  If the 85th percentile speed is 33 mph, the posted speed limit should be set at 35 mph.  Any downward departures from these rules must be documented in the engineering and traffic survey and approved by a civil or traffic engineer.

A Typical Trial Involving a Speeding Ticket (VC 2235)

Since the police officer has the burden of proving each element of the speeding offense, he/she (acting as the prosecutor since there are no prosecutors in traffic matters) will testify first.  The following is essentially what the officer will testify about:

• Occupation and experience
• Visual estimate training and certification (if any)
• Radar/LIDAR training and experience and certification.
• Date/time/place of the alleged speeding violation.
• Visual estimate of your vehicle’s speed (this established probable cause to use the radar or LIDAR device)
• Radar or LIDAR serial number
• Your speed as shown on radar or LIDAR device
• Posted speed limit
• Engineering and traffic survey
• Whether the alleged violation occurred in a business or residential district, road conditions, weather conditions, visibility, pedestrians, number of lanes, street width, presence of bicyclists, joggers, traffic flow, and any other unusual conditions.
•  Calibration of the radar/LIDAR device by certified independent testing facility within 3 years prior to the citation
• Actions taken before using the radar/LIDAR that it was working properly. This is usually done by testifying about an “internal test” to make sure the device was working properly and test using a “tuning fork”.

Once the officer is done testifying and submitting his evidence to the Court, it is the defendant’s opportunity to cross-examine the officer either to challenge the officer’s credibility or to use this time to establish certain “facts” so that the defendant may use them in his defense.

Once cross-examination is over, the judge will ask the defendant if he wishes to present a defense.  The defendant may chose to remain silent and ask the court to dismiss the citation if the officer did not prove some element or elements of the speeding offense. Otherwise, it is every defendant’s right to present a defense.  

It is wise to concentrate on the evidence (or lack of evidence) rather than attacking the officer without any basis in fact when presenting a defense.  Since a radar/LIDAR device is used in most speeding trials, concentrate your defense on the following:

• If the officer did not submit an engineering and traffic survey in his testimony, do not ask anything about the survey.  It is not your job to remind the officer to go back in his testimony and introduce the survey.  By asking him questions about the missing survey, you will jog his memory and most likely cause him to admit the survey into evidence.  
• If the officer did not submit proof of calibration of the laser or LIDAR device within 3 years of the citation date, do not ask anything about calibration certificate. Remember, it is not your job to make the officer’s case.  
• If the officer submitted the calibration certificate for the laser or LIDAR device, make sure the serial number on the certification matches the one listed on your citation.  If no serial number was listed on your citation, a request to dismiss should be made because you cannot match the laser/LIDAR device to the calibration certificate and there is lack of evidence that the laser/LIDAR device was indeed calibrated.
• If an engineering and traffic survey is submitted, make sure to read it carefully and see whether the survey covers the road you were using and the direction you were travelling.  Also check to see when the survey was conducted.  If it was more than 5 years before your citation, look for the 7 or 10 year justifications for extending the survey.
• Do not ask whether the officer knows about the internal workings of the laser or LIDAR device.  They are not required by law to know how the device functions.  They are only required to testify that they did a “check” prior to starting their shift to see whether the device was operating correctly.
• Make sure the 85th percentile or critical speed in the survey is set to the nearest 5 mph increment.  Errors are often made in setting the posted speed.  Examine this very carefully.
• Try to establish facts that show it was reasonable and prudent for you to be travelling over the posted speed limit because of the time, weather, visibility, road conditions, traffic conditions and etc.  If you use your cross-examination correctly, you can establish these facts by asking leading questions like “isn’t it true that at the time right before you stopped me, there was no vehicles on the road?” or “isn’t it true that at the time right before you stopped me, there were no pedestrians on the street?”
• If you can establish that your speed, even though faster than the posted speed limit, did not endanger the safety and property of others, then you have a chance to get a “not guilty” verdict.

• The defendant is a physician who was responding to an emergency call in an appropriately marked vehicle. ⁷
• The defendant was convicted or acquitted of the same act or omission in a criminal trial in another state court or a federal court. ⁸
• The defendant’s violation of the Vehicle Code was required by federal law, rule, regulation, directive, or order. ⁹, and
• The defendant’s violation was necessary to comply with an order of the Governor under the California Emergency Services Act. ¹⁰

With a little research and preparation and focus on the important parts of your case, you can have a fighting chance.

Good luck and slow down out there!