Radar Speed Trap Defense
Step by Step
Many (if not most) radar tickets can be beaten using a speed trap defense. While slightly more work than most defenses, the speed trap defense is among the strongest you can offer. To successfully use the speed trap defense:
- Decide whether the road qualifies.
- It must have a prima facie speed limit (i.e., not a maximum limit of 70 mph, 65mph, 55 mph on a two lane undivided road or 25 mph in a school zone).
- It cannot be a "local street or road" (see 40802(b) below). To determine whether or not the road is a local road, you can use the California Road System Maps provided by CalTrans. If the road is shown on the map and does not have a classification 09 or 19 it is not a local road.
NOTE: In People v. Difiore (243 CalRptr 359, 197 CalAp 3d Supp. 26) the court ruled that you can use the speed trap defense against a Basic Speed Law (CVC 22350) ticket even if you are exceeding the 65 mph or 70 mph maximum limit. (See also, People v. Studley (44 Cal.App.4th Supp. 1 , 52 Cal.Rptr.2d 461))
- If the road qualifies, get the Engineering and Traffic Survey.
- Check the date on the survey. It must be done within five years prior to the date of your alleged violation; this may be extended for up to an additional five years under certain circumstances (CVC 40802(c) below). As you can see, the prosecution must prove a number of things to get the extension beyond five years.
- Determine the "critical speed" for the section of highway where you were allgedly speeding. The survey may show this as the 85th percentile speed. This should be within 9 mph of the posted speed limit. If it is 10 mph or more above the posted limit, the survey does not justify the speed limit per the Caltrans Manual, and you have a speed trap ticket per People v. Goulet (17 CalRptr 2d 801).
NOTE: The CalTrans Traffic manual has been replaced by the Manual on Uniform Traffic Control Devices (MUTCD) 2003 as amended by the MUTCD 2003 California Supplement. (see Chapter 2B: Regulatory Signs; pages 51 - 54)
- If the critical speed is 5 mph to 9 mph above the posted limit, you will need to examine the reason why the engineer recommended lowering the limit an additional 5 mph. See CVC 22358.5 (below) for condtions which the engineer cannot use. If the engineer does not have a valid and legal reason for lowering the limit the survey does not justify the limit and you have a speed trap ticket per People v. Goulet.
- If it looks like the condition cited may justify dropping the limit, check the actual accident rate against the expected accident rate. I have documentation of a case in which the actual rate was less than 27% of the expected rate. This pretty much destroyed the arguement that the limit had to be lowered.
- Look at one more thing; what percentage of drivers in the survey are made violators by the posted limit? You can find this out by looking at the Vehicle Speed Survey Sheet (Figures 8-3 and 8-4 in the CalTrans Traffic Manual). If the posted limit makes violators of "a disproportionate number of the reasonable majority of drivers," you have an illegal speed trap.
The CalTrans manual requires the Adobe Acrobat Reader (it's free).
- Even if the survey was conducted within the required time frame and it justifies the speed limit, the prosecution must provide the court with either the original survey or a certified copy per People v. Earnest (40 CalRptr 2d 304), otherwise the survey is "hearsay" and not admissable.
If you can prove that your case involves the use of a speed trap, then the officer is "incompetent as a witness" per CVC 40804, and the court is "without jurisdiction to render a judgment of conviction" per CVC 40805. The law can be your friend.
If you get a case dismissed because the court rules that it was an illegal speed trap, you have an interesting option.
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.
(b) (1) For purposes of this section, a local street or road is defined by the latest functional usage and federal-aid system maps submitted to the federal Highway Administration, except that when these maps have not been submitted, or when the street or road is not shown on the maps, a "local street or road" means a street or road that primarily provides access to abutting residential property and meets the following three conditions:
(A) Roadway width of not more than 40 feet.
(B) Not more than one-half of a mile of uninterrupted length. Interruptions shall include official traffic control signals as defined in Section 445.
(C) Not more than one traffic lane in each direction.
(c) (1) When all of the following criteria are met, paragraph (2) of this subdivision shall be applicable and subdivision (a) shall not be applicable:
(A) When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.
(B) When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.
(C) (i) The prosecution proved that the arresting officer complied with subparagraphs (A) and (B) and that an engineering and traffic survey has been conducted in accordance with subparagraph (B) of paragraph (2). The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D).
(ii) The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.
(D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.
(2) A "speed trap" is either of the following:
(A) 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.
(B) (i) A particular section of a highway or state 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 one of the following time periods, 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:
(I) Except as specified in subclause (II), seven years.
(II) If an engineering and traffic survey was conducted more than seven years prior to the date of the alleged violation, and a registered engineer evaluates the section of the highway and determines 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, 10 years.
(ii) This subparagraph does not apply to a local street, road, or school zone.
22358.5. It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions.