Attacking a survey it doesn’t “justify” posted speed
In most trials involving radar speed violations, the prosecution must produce an engineering and traffic survey that complies with VC §627 and engineering standards used by the State Department of Transportation to justify the posted speed limit. Frequently, however, such surveys do not adequately justify the posted speed.
In other words, if the survey does not properly justify the posted speed limit, the survey is inadequate, and the street is considered an illegal “speed trap” if radar is used. (People v. Goulet (1992) 13 Cal. App. 4th Supp. 1, 17 Cal. Rptr. 2d 801)
Photo-Radar – Radar Unit with Cameras
In 1988, the city of Pasadena because the first city in California to use a “Zelleweger-Ulster Photographic Doppler Unit” (a fancy name for an unmanned radar unit linked to a camera) to detect speeders, Not happy with the fact that live police officers may legally hide in the bushes with radar guns, Pasadena figured on raising revenue without having to pay police officers. Typically, an unmanned radar unit is set to activate a camera when it detects a vehicle traveling at a pre-set speed. The unit registers the vehicle’s speed and takes a picture of the front of the vehicle, including the front license plate and driver. A notice to appear in court is mailed to the vehicle’s registered owner. Many cities followed suit, but “photo radar” has fallen out of favor in recent years, partly because of the high cost.
No law specifically authorizes or prevents the use of such Big Brother technology, and some city attorneys, therefore, believe it’s legal for their cities to sue these devices. However, all the speed trap laws definitely apply whenever radar is used – whether used by a live police officer or not. That means when photo-radar is used, the prosecution must still prove the road isn’t an illegal speed trap, as discussed above.
If you receive a notice to appear in court on a photo-radar speeding charge, there will be no police officer to (1) identify you or (2) testify to the road, wether, and traffic condition. However, the local police department will have obtained a driver’s license photograph of the person to whom the vehicle was registered, to compare with the photo that the photo-radar unit took.
Many judges believe photo radar is illegal because of the Vehicle Code doesn’t authorize it. There is no legal rule that says the owner of a speeding vehicle was necessarily the person who drove it and committed the offense. Also, you have a fifth Amendment right to refuse to admit you were the driver. This means that the photo taken must clearly identify you in the driver’s seat. If glare, darkness, tinted windows, or other factors prevent a clear photo of a driver, the case should be dismissed without you having to testify. If you choose to be represented by a lawyer, and don’t appear yourself (allowed per VC §40507), your lawyer can point out that even a clear photo of someone driving a car registered to you is not enough to convict you absent evidence of what you look like! This argument may work well if your driver’s license photo does not closely match the photo that the radar unit took. That being so, you should exercise your right to insist on seeing the photographs before you appear before the judge. The police department is required to let you see the photographs first.
Substantive Defense to Basic Speed Law Charge
The fact that the speed limit on a particular stretch of road has not been justified by an engineering and traffic survey does not mean that the speed limit is unenforceable. It just means that the radar can’t be used to enforce it. The police are free to use other methods of estimating the speed of a fast moving vehicle, including “pacing” or following it while observing the patrol car’s own “calibrated” (certified as accurate) speedometer. When faced with this type of law enforcement, you will need to prove that the officer’s estimate of your sped was mistaken.
The Morales Law Firm would like to thank NOLO – Fight Your Ticket and Win in California for sharing this article with us.
