The element of the offense and burden of proof
Violation of the basic speed law – driving over the speed limit, but less than the 65 mph or 70 mph maximum speed limit (55 mph on two lane undivided highways)- is an offense for which most people have been ticketed at one time or another. (However surprising as it may seem, a person traveling over the speed limit- but less than the usual 65 mph maximum speed limit (55 mph for two-lane undivided highways) – isn’t necessary violating the law. On the other hand, in some rare circumstances, usually during a heavy fog or a driving rainstorm you can actually be in violation of this law even though you were driving below the speed limit. Why? Because in these circumstances it may imprudent and unreasonable to drive faster than a crawl.
What you are really being charged with is driving “at a speed greater than is reasonable or prudent . . .” the posted or otherwise defined sped limit is only presumed to be the “reasonable or prudent” speed. When you are ticketed for exceeding the posted speed, the offices is taking advantage of a legal “presumption” that anything above the posted speed is taking advantage of a legal “presumption” that anything above the posted in unsafe.
Now, let’s look at the elements of §22350, the offense:
1. You must be driving a vehicle;
2. Upon a highway (defined as a “way or place of whatever nature, publically maintained and open to the use of the public for purposes of vehicular travel”) including a “street” (VC §360); and
3. Your speed either must be “greater than is reasonable or prudent” or must “endanger the safety of persons of property.”
This last element is obliviously the one most open to interpretation. Those readers who have recently moved to California may unfamiliar with this concept, as opposed to the law in many others states that says that “if you were going over the limit, you’re guilty, and that’s it.” In California, this is only true if you exceed 65 mph (70 on certain freeways, or 55 on two-lane undivided highways), a different violation- see the section entitled, “Exceeding Speed Limits.”
Section 22351 goes on to state the law presumes that the reasonable or prudent speed is the one posted on the speed limit signs. This is called the “prima facie” speed limit.
If you were going over the posted speed limit, you have an opportunity to defeat the “presumption” that you were going over a reasonable and prudent speed. You might do this by proving that weather, visibility, road, width, etc., did not make a higher speed unsafe. You should realize that even though you’re presumed not guilty, you bear the burden of proving that a speed in excess of the posted limit was safe. You are saying, essentially, “even if Your Honor finds that I was exceeding the speed limit, I’m still not guilty because my speed was reasonable and prudent in light of the circumstances.
Note: It is entirely proper to advance inconsistent arguments, that is, to argue that (1) you didn’t exceed the speed limit, and (2) even if you did, it was still safe to do so.
“Technical” Defense to Basic Speed Law Charge
There are two basic types of defenses to a speeding charge under the Basic Speed Law. One type – the technical defense- is that the police used impermissible methods to catch you. The other- the substantive defense- is that the police were wrong in their conclusions. We discuss the technical defense first, in this part, because you normally raise them first in a trial, when the police officer testifies before you do.
Illegal Use of Radar or Laser – “Speed Trap” Laws
There are certain rules restricting when a traffic officer may or may not use radar to detect violations of the Basic Speed Law. You’ll soon discover that these rules don’t make much logical sens. But they’re great for fighting tickets. They contain lots of “technicalities” that can result in your ticker being dismissed.
The Morales Law Firm would like to thank NOLO – Fight Your Ticket and Win in California for sharing this article with us.
