I recently received a ticket on two lane highway on which the posted speed limit is 55mph. I decided to fight the ticket based on the fact that I live in a state with Prima facie or "presumed" limits. In my research I was able to speak directly with the designer of the road and found that the posted limit was given based strictly on political reasons and that the road was designed for 70 mph. In addition to this, the code I'm charged with clearly states that the limit must be based on a traffic engineering and safety study which was never conducted on this road. My question to you guys is should I file an order of dismissal or do I need to wait until the trial date to present my case?
Grounds for Order of Dismissal?
- Thread starter TDUB003
- Start date
You are claiming to have a defense. You should be able to file a motion for dismissal at any time but typically it wont be heard until the date of the trial unless you request an earlier hearing. Additionally, you must present the proof you are claiming to have and it cant just be you stating it is true.
How do you know for certain that there was no traffic engineering and safety study done?
I could probably give more accurate advice if I knew the state you were talking about.
Pm sent. :thumbsup:
California is one such state, however there are several applicable cvc sections, designed to fit different roadways and speed postings.
There really is only one, "basic speed law" in California, and it is designed for inclimate weather conditions, or is used in accident reports where speed was a primary/contributing collision factor.
There really is only one, "basic speed law" in California, and it is designed for inclimate weather conditions, or is used in accident reports where speed was a primary/contributing collision factor.
I'm not sure I know what you're saying on this, can you clarify? The state I'm in is Utah. I know I was pretty vague in the original post, as I don't want to put the person's name out there as he was pretty worried that I was a reporter when I called. Let me rephrase what I was trying to get at with this question: My original planned defense to this ticket was to beat it on the terms of the prima facie or "presumed" speed limit. I initially filed an order of discovery for all of the information relevant to my case, including the engineering report for the road I was pulled over on. The city gave me most of my requested information but told me I needed to contact the Department of Transportation for the report. At this point, I filed for a continuation of my original trial date until next month. I contacted them on the matter and was told the report would be e-mailed to me but never received it. After calling back I was told it was found that no report was even done for this road and was given the contact information for the head designer/engineer for the state highways. I was able to contact him and he told me that there was never one issued because a lawsuit was filed due to environmental reasons, so the speed limit was set based on that fact and the surrounding cities have been using it as a cash cow ever since. He sent me an e-mail stating the reason for the limit as well as the fact that the road was designed for 70mph but no study was ever done. The code I'm charged with breaking is code 41-6a-601, which in the second section states that it's subject to section 41-6a-602 which states that, "each speed limit shall be based on a traffic engineering and safety study consistent with the requirements and recommendations in the most current version of the "Manual on Uniform Traffic Control Devices." It goes on to state the requirements for the study. It is my understanding that based on this law and because this limit is not based on a study, it can not be upheld in court and therefore should be thrown out. I feel I have all the evidence I need in order to beat this based on the prima facie but obviously I would much rather get it dismissed based on the law rather than have to deal with a trial. So my question is: do I need to wait until the trial that I just had extended or do I have grounds to file an order of dismissal beforehand?
DudE! this is awesome. can't answer your question but PLEASE let us know if this works. sounds like you got it worked out .....
I agree.
However, I am willing to bet there is a little more to this than the statute alone. I would wager there is some case law defining this vague area of the statute. It will be interesting to hear how a judge interprets it.
Well, considering the road was opened in 2008 and the law was last amended in 2005 I don't believe there is anything on the books yet. Here's the links to the three relevant codes:
This is 41-6a-601 in which I'm charged with, and states that it is subject to sections 602 and 603: Utah Code
This is 41-6a-602 which stipulates that speeding limits must be based on a traffic & engineering study: Utah Code
And this one is 41-6a-603 which states that a county or municipality may determine the reasonable and safe speed limit for each highway or section of highway under its jurisdiction BUT also states that each speed limit shall be established in accordance with the provisions of Subsections 41-6a-602(1), (2), (3), and (5): Utah Code
From everything I have found there is nothing on the books that states that a speeding limit may be set based on anything other than what is stipulated in section 602, of which a lawsuit for environmental reasons is not mentioned lol. I'm going to try and present this to the judge today and see if he is willing to throw it out based on these grounds.
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Like posted above, what you found out in talking or email is NOT evidence in the courtroom sense. Hence it isn't admissible as it's hearsay and violative of the best evidence rule. Since it's apparant you like to read- I will leave solving your problem to you.
I am aware of this, however I know that ban on the use of hearsay testimony isn't absolute. One thing I feel that helps is the fact that this e-mail has all of the information regarding this guys position and is from a government address. If the judge is not willing to accept this, I also have the actual lawsuit which stipulated the speed limit. Again, if he's not willing to dismiss it I'll move on and prepare my defense for the trial date. Either way I feel like I have a solid case considering I was within the speed that this road was originally designed, there was very light traffic, and the weather was clear.
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You are incorrect- hearsay is not admissible unless it falls within the clearly defined exceptions. Your issue has no exception. By law the judge cannot accept an email regardless who it's from..including the attorney general. However there is a way in order to avoid hearsay- but you still have best evidence rule and authentication as hurdles..but then again you know all about that too....
I am not a lawyer nor do I claim to be and obviously don't know everything about the law, which is why I posted here for advice. I was actually worried about the fact that my main source of evidence was e-mail which is why I looked up the actual lawsuit in which the limit was stipulated. This post caused me to look up best evidence and if I understand it correctly and the definition is correct it states that modern evidentiary rules usually permit the use of mechanical, electronic, or other similar copy instead of the original. If I need to file an order of information in order to get an "official" document stating that there was no limit I will do so. Other than that I really don't know of a way in which I can prove that there was no study done unless you have any suggestions?
I was poking at you earlier but since you asked- yes I do have suggestions.
First of all you remain innocent UNTIL the state proves the case beyond a reasonable doubt. i.e. the burden of proof is on the govt.
Does this court have a govt attorney assigned to it?
What generally happens when one raises such a defense, the court will continue the case in order to bring in a prosecuting attorney and/or research the issue- especially since this will effect quite a few people ticketed.
As to speed limits, you are correct-- they must be determined by certified engineers in accordance with the uniform manual you cited.
You will need to subpoena that person who told you and/or subpoena the appropriate highway engineer AND subpoena for production of documents- specifically "certified" records relating to certification of speed for that roadway. Courts can take "judicial notice" of some rules, regulations, etc. but without a lawyer, you cannot rely- and I can not tell you, without researching it.
Your govt. engineer will testify from his knowledge of the requirements for certification and whether that was followed for that particular road. His certified records are the highest and best evidence without producing the originals- and the engineer can tell you where the original documents are maintained. Some states allow govt. documents to be "self authenticating" eliminating the foundation requirement.
I can tell you the issue you raise with this roadway will bring a LOT of attention as again, all the tickets written on that road MAY be affected as there may not be ANY enforceable speed limit. Therefore, the judge may quickly dismiss the ticket and hope nobody picks up on it...or [what I would do ] bring in lawyers to review this.
I would like to know the outcome of this. :beer:
First of all you remain innocent UNTIL the state proves the case beyond a reasonable doubt. i.e. the burden of proof is on the govt.
Does this court have a govt attorney assigned to it?
What generally happens when one raises such a defense, the court will continue the case in order to bring in a prosecuting attorney and/or research the issue- especially since this will effect quite a few people ticketed.
As to speed limits, you are correct-- they must be determined by certified engineers in accordance with the uniform manual you cited.
You will need to subpoena that person who told you and/or subpoena the appropriate highway engineer AND subpoena for production of documents- specifically "certified" records relating to certification of speed for that roadway. Courts can take "judicial notice" of some rules, regulations, etc. but without a lawyer, you cannot rely- and I can not tell you, without researching it.
Your govt. engineer will testify from his knowledge of the requirements for certification and whether that was followed for that particular road. His certified records are the highest and best evidence without producing the originals- and the engineer can tell you where the original documents are maintained. Some states allow govt. documents to be "self authenticating" eliminating the foundation requirement.
I can tell you the issue you raise with this roadway will bring a LOT of attention as again, all the tickets written on that road MAY be affected as there may not be ANY enforceable speed limit. Therefore, the judge may quickly dismiss the ticket and hope nobody picks up on it...or [what I would do ] bring in lawyers to review this.
I would like to know the outcome of this. :beer:
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Like I said before there is likely case law which defines these statutes.
Best Evidence Rule aside, how will you authenticate the document for admission into evidence?
Here's the case law that I found, again nothing mentioned that would apply to my particular situation: http://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=6
This is a small town that I'm going to court in so I don't know whether or not there is a government attorney assigned to this court but there are obviously some public defenders if that's what you're talking about? The prosecutor is the prosecutor for the city, who I would be going up against at the trial unless I'm totally misunderstanding what you're saying here. What I'm looking to do today is to simply go in and see if I can get it dismissed, if not I'm going to prepare for the trial. If it comes to this I will make sure to have this guy subpoenaed for the trial. From what I've been told there wasn't any documentation done for the speed limit on this road because the environmentalists were absolute nazis about it's effect on the wetlands and wouldn't allow it to open without it being the 55mph.
The link you posted contains statute/state code, but not case law.
LOL you remind me of me.
I had an accident and got a ticket for not yielding coming out of a driveway of my daughters day-care in Virginia. There was parking allowed in front of the day-care and they had been fighting to get no parking signs posted there but the city would not cooperate. I did a little checking around and there was a thing called "inevitability" that I figured I could use to get out of the ticket. I took pictures of the area as it was, including a big ass van that was parked there that blocked the view, and went to court and argued that due to the cities unwillingness to put up no parking signs they created the situation and it was inevitable that the accident would happen. I even had statistics showing the number of accidents there.
In the end I lost and was found guilty but afterwards I has a couple of lawyers and a few cops come up and tell me they thought I had the thing in the bag and were surprised at how the judge ruled. They put up no parking signs up a few months later LOL!
Good luck on it man, I would def. take it all the way with what you have, just don't forget to subpoena the guy lol
I had an accident and got a ticket for not yielding coming out of a driveway of my daughters day-care in Virginia. There was parking allowed in front of the day-care and they had been fighting to get no parking signs posted there but the city would not cooperate. I did a little checking around and there was a thing called "inevitability" that I figured I could use to get out of the ticket. I took pictures of the area as it was, including a big ass van that was parked there that blocked the view, and went to court and argued that due to the cities unwillingness to put up no parking signs they created the situation and it was inevitable that the accident would happen. I even had statistics showing the number of accidents there.
In the end I lost and was found guilty but afterwards I has a couple of lawyers and a few cops come up and tell me they thought I had the thing in the bag and were surprised at how the judge ruled. They put up no parking signs up a few months later LOL!
Good luck on it man, I would def. take it all the way with what you have, just don't forget to subpoena the guy lol
Interesting article in Friday's Detroit News describing how communities who have set up "speed traps" by lowering speed limits in certain areas without performing the legally mandated traffic studies are being challenged - even by some police officers. Big problem is that some cash-strapped communities don't have the funds to perform the traffic studies.
Bills put brakes on speed traps | detnews.com | The Detroit News
Bills put brakes on speed traps | detnews.com | The Detroit News
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