Citation ID. NO. PR103933/01

BRIEF IN SUPPORT OF MOTION TO DISMISS

INTRODUCTION

On the 24th day of September, 1996 the defendant was traveling North bound on Thornhill Drive. The defendant was cited via mail by the City of Oakland as a direct result of their operation of a Photo Radar “speed trap” as defined under the California Vehicle Code (VC) 40802 subsection (b), and upheld in (13 Cal,App.4th Supp. I 1992 the People vs. Goulet) and furthermore, with complete disregard for California”s long standing Prima Facie “Safe for Conditions” principles and precedence.

The city contends they used photo radar to enforce this alleged violation of VC 22350; to wit, exceeding an illegally posted 25 mph maximum prima facie speed limit, in a zone where state law and the findings “engineering and traffic survey” established that this section of highway should be posted with a 35 mph prima facie limit if radar is going to be used for enforcement.

This case is simple: The 85th percentile speed at the point where the citation was issued is in excess of 35 mph. State law says that the limit should be posted at the 85th percentile speed rounded down to the next 5 mph increment. This means that the speed limit should have been 35 mph not 25 mph as posted.

The 85th percentile speed is also the safest speed as determined by the actions of the motorists that use Thornhill Drive. Moreover, the safest speed as determined by the survey was 36 mph and the defendant was cited for 37 mph. Under the prima facie standard the defendant was traveling at the safest speed, therefore “safe for conditions” as determined by the traffic engineering study under the prima facie rules.

Definition and rationale for traffic engineering studies: Each motorist by their actions drives at a speed they feel comfortable with while taking into account all the apparent visual clues. A traffic engineering study is the measurement of the public’s consensus as to what a safe speed is for a particular road, rather than the opinion of a few.

California’s speed trap law recognizes this principle, and the appellate court upheld this principle in the Goulet case cited. What’s more, all of the reasons the transportation manager cited for lowering the limit below the findings are already included in the drivers’ speed choice and readily apparent; therefore they are not a valid reason for lowering the limit. Speed limits are supposed to be set using free–flowing traffic under optimum conditions, therefore his weather comments are also irrelevant.

Compounding this improper posting, the only section of the 4 sections monitored that could possibly support a 25 mph zone had insufficient traffic to obtain the recommended 100 vehicles for a survey, and is located on a curvy hilly section of roadway; ITE guidelines (Institute of Traffic Engineers) and the FHWA (Federal Highway Administration) advise not to take measurements within 500 feet of a curve. Current ITE guidelines say that regardless of secondary considerations you should never post below the 67th percentile. Studies have clearly shown that this strategy will and does increase accident rates contrary to what the engineering report claims.

Worse yet, this engineering study also contains another grievous safety hazard. To wit, mid block marked cross walks. Primary victims are children under 14 and the elderly. Marked crosswalks have double the fatality rates of unmarked crossings. Reason: when pedestrians use due caution rather relying on the security of the painted lines to protect them from approaching vehicles before crossing a street, accident rates go down. This is a well established fact, and the supporting studies were conducted here in California.

This engineering study contains the proper wording but is woefully absent of the sound engineering judgement found in the “engineering body of knowledge”. The city, in their use of a high volume photo radar ticket writing machine, is being rewarded for the illegal use of traffic control devices by turning this improperly engineered and posted section of highway into a profit center. In short, they have set up an illegal “speed trap” as defined by California law and upheld by the appellate courts for financial gain.

POINTS AND AUTHORITIES

For whatever reason the City may claim for setting this unreasonably low limit is not relevant; what is, is the fact the posted limit is not supported by the study and the enforcement involves radar. Therefore, the City is operating an illegal “speed trap” and their officer used this illegal “speed trap” to cite the defendant.

The most current California appellate decision that affirms these principles in regards to a “speed trap”: Superior Court of the State of California, for the County of Ventura, Appellate Department, case no.: 13 Cal.App.4th Supp.1, opinion dated 12/31/92 and filed for publication 1/5/93, California vs. Judith Ann Goulet. Conclusion;

“The survey in this case did not justify the prima facie speed limit. Enforcement involved the use of radar. Thus, a speed trap existed. The officer was therefore not competent as a witness and the court was without jurisdiction to render the judgement of conviction.”
     “The judgement is reversed, and the case is remanded to the municipal court with directions to dismiss.”

In view of the fact that the defendant was issued a speeding citation by the City of Oakland who was operating a photo radar ‘speed trap’, as defined, in VC 40802 subsection (b); in clear violation of VC 40801; and VC 40803, 40804, 40805 clearly state that the evidence against the defendant can not be used, because the officer can not testify nor can the Court render a judgement on evidence obtained from the use of a ‘Speed Trap’. The case must be dismissed and here are the relevant VC codes;

I. Speed Trap VC 40802 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 a known distance.
      (b) A particular section of a highway with a prima facie speed limit provided by this code or by local ordinance pursuant to paragraph (1) of subdivision (b) of section 22354, 22357, 22358, or 22358.3, which speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, where the enforcement involves the use of radar or other electronic devices which measure the speed of moving objects. This subdivision does not apply to local streets and roads.

Exhibit A; attached is a copy of the most current City of Oakland “engineering and traffic survey” showing that on this particular section of highway the speed limit should be a 35 mph prima facie limit, not the posted 25 mph prima facie limit the defendant allegedly violated. Thornhill is a feeder arterial and the existence of an engineering study supports that fact and is subject to the speed trap statutes. Again, enforcement of a speed limit not supported by a “engineering and traffic survey” and this enforcement involves the use of radar and constitutes a “speed trap” as defined in VC 40802, subdivision (b).

II. Speed trap prohibition VC 40801.
      No peace officer or other person shall use a speed trap in arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code.

III. Speed Trap Evidence VC 40803.
     (a) No evidence as to the speed of a vehicle upon a highway shall be admitted in any court upon trial of any person for an alleged violation of this code when the evidence is based upon or obtained from or by the maintenance or use of a speed trap.

IV. "Testimony Based on Speed Trap VC 40804.
     (a) In any prosecution under this code upon a charge involving the speed of a vehicle, any officer or other person shall be incompetent as a witness if the testimony is based upon or obtained from or by the maintenance or use of a speed trap.

V. "Admission of Speed Trap Evidence VC 40805.
      Every court shall be without jurisdiction to render a judgment of conviction against any person for a violation of this code involving the speed of a vehicle if the court admits any evidence or testimony secured in violation of, or which is inadmissible under this article.

CONCLUSION

The defendant has presented competent evidence that the City of Oakland was operating a “speed trap” as defined by law in VC 40802, subsection (b), in clear violation of VC 40801; and VC 40803, 40804 clearly states that the evidence against the defendant is inadmissible, and VC 40805 states that the Court is without jurisdiction to render a Judgment of Conviction.

Furthermore, the defendant has presented competent evidence in the form of the City’s own traffic engineering study that she was operation at a “safe for conditions” speed under the prima facie rule.

Therefore, I ask that the case be dismissed.

Signed, ___________________________
            Nancy Ellen Levine, Defendant

Attorney in pro per, Date __________

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