Geo. McCalip's Traffic Ticket Site

SPEED TRAP DEFENSE
OUT OF DATE SURVEY

On March 3, 1990 I received a ticket for doing 54 mph in a posted 40 mph zone on Willow in Signal Hill. I did not spend a lot of time worrying about this particular ticket because:

• I knew that I had a valid Basic Speed Law defense.
• The officer noted (in writing at the bottom of the ticket) that he had warned me about following too close (proof that he had the other car on the radar, not mine).

The Judge Pro Tem, Debra Findley, would not recognize the legitimacy of either of my defenses, and found me guilty. This, combined with five other bad decisions I had seen her make that morning caused me to say, as I left the courtroom, "I think there's been reasonable doubt presented in a number of cases this morning. I think you are an extremely poor judge." (from the transcript)

When I ran into Ms. Findley about five weeks later at the Strawberry Music Festival, I had the opportunity to tell her exactly why I thought she had erred in each case. Do not even begin to doubt that I took advantage of the opportunity. She ended the discussion of the cases with her statement, "Yes, but if the officer takes the time to write the ticket, I assume you have to be guilty." I had never heard any lawyer ever say anything so contemptuous of the fundamental concept of Justice in this country: You are innocent until proven guilty beyond a reasonable doubt.

I informed Ms. Findley that I had appealled her decision in my case. She replied, "That's your privilege." I responded, "No. That's my right."

I knew that I had a fair chance of proving that the case had rested on the radar reading of the other car's speed.

I got the transcript of the trial when I returned from my vacation. I noticed in reviewing it that the officer testified that the survey had been conducted on April 23, 1990, over six weeks after the date of the alleged violation. The survey must be conducted within five years prior to the date of the alleged violation. If the survey is either too old or too new, it is out of the date range required and not admissible.

My Opening Brief for my Appeal listed four points:

• There was reasonable doubt that I had actually violated the Basic Speed Law.
• There was proof that the officer had a different car than mine on his radar.
• The survey was not admissible per CVC 40802(b) (now changed to 40802(a)(2); see below) because it was conducted after the citation was issued.

The LA County D.A.'s Response Brief conceded the case on the third point and requested that the lower court be reversed. The Superior Court noted their request and reversed Judge Pro Tem Findley.

Oh, and the fourth point was:

• "IGNORANCE OF THE LAW -- While I realize that ignorance of the law is no excuse, I find the Judge Pro Tem's ignorance of the law inexcusable."

Neither the D.A.'s office nor the Superior Court challenged that point.

FYI:

40802. (a) A "speed trap" is either of the following:
(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.
(2) A particular section of a 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 five years 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. This paragraph does not apply to a local street, road, or school zone.

© 2001 Geo. McCalip