This is an outline to a defensive legal strategy which can be used to beat a basic speed law violation, CA VC 22350, when Radar or LIDAR has been used against you and the facts of the case are not in your favor. It relies upon technicalities and errors by the prosecution and thus it is intrinsically not as reliable as a defense that relies upon facts that are in your favor. This should be used when other defenses such as the normal speed trap argument will not work. This is an outline and is not a comprehensive guide. For information on other 22350 defenses and to see how to do each step in detail see David Brown's book "Fight Your Ticket & Win in California" and helpigotaticket. Also a good discovery template (one that is less formal) can be found on highwayrobbery. The strategy outlined here is not guaranteed to work but theoretically and legally it can. I have successfully used a similar strategy myself. This defense should be combined with other defenses although be careful modifying the process as it may decrease its effectiveness.
This strategy takes advantage of the fact that prosecuting attorneys are often very busy and do not respond to requests for discovery for traffic violations, especially from people representing themselves. Basically, you send a very casual but entirely legal and satisfactory request to view a specific document the prosecution must use against you. The prosecution will likely ignore your request. When the prosecution tries to present this evidence to the court you object to its admittance. You claim trial by surprise and the judge strikes it. Without the document the radar evidence cannot be admitted and your case will be dismissed based upon lack of evidence.
If Radar or LIDAR is used VC 40802 requires that the prosecution present a valid engineering and traffic study to show that the particular section of road you were cited on is not a speed trap. Since the prosecution must submit an original or certified copy of this document as part of their evidence against you (Sterritt 1976, Earnest 1995) you have the right to review it well before trial (pen 1054).
Here are the steps:
1. Plead not guilty and ask for a trial in front of a judge either by attending an arraignment or if you've lost your TBD by submitting a trial de novo.
2. Contact the court clerk and find out who the prosecuting attorney is. It is likely the DA but could be the City Attorney or someone else.
3. Serve, via certified US mail return receipt requested, a very simple letter that asks the prosecuting attorney to allow you to view or for a copy of any traffic and engineering study the prosecution intends to use in court. Write this request in business letter format as this is more non-chalant than the legal format attorneys usually use. There is no rule which requires your discovery request to look like an attorney's. Do not serve the issuing agency! By law (Pen 1054) you are not required to do so and if you do you will likely receive a response. The goal here is to receive no response. Also send a copy of the proof of service and the document (doesn't have to be served) to the court to add to your file. This process needs to be done at least 20 days before your trial (15 days if you choose to personally serve the DA) but ideally should be done 30 days before or more.
4. Before trial begins motion for any and all traffic and engineering studies to be precluded from evidence on the grounds that these were requested as part of your discovery and the prosecution has failed to produce them. If your motion is granted allow the trial to continue.
5. If your motion is denied motion for a continuance and motion that the court compel the documents. This will almost certainly be denied because you didn't compel the documents correctly but it shows the judge that you are trying and you genuinely want to see the evidence to be used against you.
6. Let the prosecution present their case. When the officer presents information about the prima facie speed, tell the judge that pursuant to 40802 you would like to see a copy of the traffic and engineering study justifying the posted speed limit. If the court takes judicial notice of the study object and insist that in People V Earnest the higher court found that an original or certified copy of the actual survey be presented in court.
7. The prosecution will have to present the survey. As soon as they present it ask to see it. Once you see it object to its admittance and ask the judge to strike it. This is trial by surprise and is not allowed. You specifically requested to see this document well before trial and the prosecution did not produce it. You should not be required to review under the time constraints and pressure of trial. The judge should strike it. If he/she doesn't you have excellent grounds for appeal.
8. The judge will probably ask the prosecution if they have any other evidence which relates to your speed besides radar/lidar evidence. They likely will not.
9. Your case should be dismissed but if not motion for dismissal based on insufficient evidence.
10. If it comes down to a closing argument explain that the prosecution has not shown that the stretch on roadway you were cited on is not a speed trap yet they have this burden if they wish to use radar/LIDAR speed evidence. Since no traffic and engineering study was presented (or if it was it shouldn't have been) the prosecution is not allowed to use radar evidence against you. Without this evidence there is insufficient evidence for you conviction and therefore your case should be dismissed.
This strategy takes advantage of the fact that prosecuting attorneys are often very busy and do not respond to requests for discovery for traffic violations, especially from people representing themselves. Basically, you send a very casual but entirely legal and satisfactory request to view a specific document the prosecution must use against you. The prosecution will likely ignore your request. When the prosecution tries to present this evidence to the court you object to its admittance. You claim trial by surprise and the judge strikes it. Without the document the radar evidence cannot be admitted and your case will be dismissed based upon lack of evidence.
If Radar or LIDAR is used VC 40802 requires that the prosecution present a valid engineering and traffic study to show that the particular section of road you were cited on is not a speed trap. Since the prosecution must submit an original or certified copy of this document as part of their evidence against you (Sterritt 1976, Earnest 1995) you have the right to review it well before trial (pen 1054).
Here are the steps:
1. Plead not guilty and ask for a trial in front of a judge either by attending an arraignment or if you've lost your TBD by submitting a trial de novo.
2. Contact the court clerk and find out who the prosecuting attorney is. It is likely the DA but could be the City Attorney or someone else.
3. Serve, via certified US mail return receipt requested, a very simple letter that asks the prosecuting attorney to allow you to view or for a copy of any traffic and engineering study the prosecution intends to use in court. Write this request in business letter format as this is more non-chalant than the legal format attorneys usually use. There is no rule which requires your discovery request to look like an attorney's. Do not serve the issuing agency! By law (Pen 1054) you are not required to do so and if you do you will likely receive a response. The goal here is to receive no response. Also send a copy of the proof of service and the document (doesn't have to be served) to the court to add to your file. This process needs to be done at least 20 days before your trial (15 days if you choose to personally serve the DA) but ideally should be done 30 days before or more.
4. Before trial begins motion for any and all traffic and engineering studies to be precluded from evidence on the grounds that these were requested as part of your discovery and the prosecution has failed to produce them. If your motion is granted allow the trial to continue.
5. If your motion is denied motion for a continuance and motion that the court compel the documents. This will almost certainly be denied because you didn't compel the documents correctly but it shows the judge that you are trying and you genuinely want to see the evidence to be used against you.
6. Let the prosecution present their case. When the officer presents information about the prima facie speed, tell the judge that pursuant to 40802 you would like to see a copy of the traffic and engineering study justifying the posted speed limit. If the court takes judicial notice of the study object and insist that in People V Earnest the higher court found that an original or certified copy of the actual survey be presented in court.
7. The prosecution will have to present the survey. As soon as they present it ask to see it. Once you see it object to its admittance and ask the judge to strike it. This is trial by surprise and is not allowed. You specifically requested to see this document well before trial and the prosecution did not produce it. You should not be required to review under the time constraints and pressure of trial. The judge should strike it. If he/she doesn't you have excellent grounds for appeal.
8. The judge will probably ask the prosecution if they have any other evidence which relates to your speed besides radar/lidar evidence. They likely will not.
9. Your case should be dismissed but if not motion for dismissal based on insufficient evidence.
10. If it comes down to a closing argument explain that the prosecution has not shown that the stretch on roadway you were cited on is not a speed trap yet they have this burden if they wish to use radar/LIDAR speed evidence. Since no traffic and engineering study was presented (or if it was it shouldn't have been) the prosecution is not allowed to use radar evidence against you. Without this evidence there is insufficient evidence for you conviction and therefore your case should be dismissed.
Strategy to Beat a Radar/LIDAR VC 22350 Violation in California
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