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Point By Point

I received an email from Rob:

I WAS ARRESTED YESTERDAY FOR DRIVING MY BIKE ON THE FREEWAY DOING 102 MILES PER HOUR WHICH I DIDN'T HEAR THE SIRENS NOR DID I SEE A REFLECTION OF THE LIGHTS OF THE POLICE CAR. WHEN I DID SEE IT, IT WAS 5 MILES LATER AND I PULLED OVER. THEY PUT GUNS TO MY HEAD AND I WAS ARRESTED FOR RECKLESS DRIVING AND AVOIDING ARREST. MY QUESTION IS WHAT'S GOING TO HAPPEN TO ME IN COURT AND WILL I GET MY BIKE BACK?

I responded by asking, "What are the specific code sections you are charged with violating?"

He wrote back, "codes: 2800. 2vc , 21806(a) vc , 22348(b) vc".

After reading the Vehicle Code sections, I sent an email saying:

I don't see where they can take your vehicle. Contact the police or CHP, whichever has your vehicle and ask for it back. If they refuse, ask which section of which code allows them to keep it, and let me know.

As for what will happen in court, please see (now this site).

You will qualify for a public defender if you cannot afford an attorney. Discuss this with them. I am not a member of the bar, and will not give you legal advice, only tell you what I would do in a similar case.

In either case I would try to plea bargain away the first two counts:

  • 2800.2 depends on them establishing motive (i.e., attempting to flee) I could state that I simply did not see or hear the light and/or siren until immediately before I pulled over. (What is the wind noise at 95+ mph with my helmet on? At 95+ mph, am I concentrating on my rear view mirror? 5 miles at 95+ mph is only a little over 3 minutes).
  • As for 21806, please define "immediate approach". Just how immediate was the officer's approach if I was doing 95+ mph? Once again, I would point out that as soon as I saw the light, I pulled over.

I used 95+ mph advisedly in the questions above. Once the prosecutor agreed to drop the first two counts, I would agree to plead guilty on a 22349 or 22356 as may be appropriate (depends on posted speed limit on the freeway -- look them up). The charge is only 2% over the 100 mph necessary for a 22348(b), and the prosecutor should recognize that that could be a tough case to make (when was the speedometer calibrated at 100+ mph?).

I doubt I would get off of this with a traffic school, but I think I could drop this down to a much more reasonable response on behalf of the court.

Alternatively, if I wanted to fight the entire thing (or if they would not bargain), I think I could probably beat the first count, have better than even odds on the second count (given that I won the first one), and might beat the third by arguing the accuracy of 2% at 100+ mph is not beyond a reasonable doubt (this is analogous to their going for murder when they have a very strong case for manslaughter).

Personally, if my lawyer could get me out of this one with a 22349(a) or 22356, I would probably go for it, pay the lawyer and consider myself lucky.

Best wishes,
  -- Geo. McCalip

Rob printed out the email and showed it to the Public Defender who showed it to the D.A. He then reported:

The case was not filed, I got my bike back, but they said that they could still file within a years timing.

My reaction was:

Congratulations! You walked. Their line about filing within a year sounds like BS to me; see section 40506 of the vehicle code.

I think they took one look and came to the same conclusions I did:
  they did not have a case on the first two counts.
  their case on your speed was way too weak.

Way to go.

  -- Geo.

FYI:

2800.2. (a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, by imprisonment in the county jail for not more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment.
(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.

21806. Upon the immediate approach of an authorized emergency vehicle which is sounding a siren and which has at least one lighted lamp exhibiting red light that is visible, under normal atmospheric conditions, from a distance of 1,000 feet to the front of the vehicle, the surrounding traffic shall, except as otherwise directed by a traffic officer, do the following:
(a) (1) Except as required under paragraph (2), the driver of every other vehicle shall yield the right-of-way and shall immediately drive to the right-hand edge or curb of the highway, clear of any intersection, and thereupon shall stop and remain stopped until the authorized emergency vehicle has passed.

22348. (b) Any person who drives a vehicle upon a highway at a speed greater than 100 miles per hour is guilty of an infraction punishable, as follows:
(1) Upon a first conviction of a violation of this subdivision, by a fine of not to exceed five hundred dollars ($500). The court may also suspend the privilege of the person to operate a motor vehicle for a period not to exceed 30 days pursuant to Section 13200.5.

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