People v. Goulet (1993) 13
Cal.App.4th Supp. 1 , 17
Cal.Rptr.2d 801
Appellate Department, Superior
Court, Ventura
[Crim. A. No. 3227. Dec 18, 1992.]
THE PEOPLE, Plaintiff and
Respondent, v. ------
GOULET, Defendant and Appellant.
(Municipal Court of Ventura County,
No. 91M112920,
Kenneth W. Riley, Judge.)
(Opinion by Osborne, P. J., with
McNally and Steele, JJ.,
concurring.)
COUNSEL
------ Goulet, in pro. per.,
for Defendant and
Appellant.
Michael Bradbury, District
Attorney, Kent Baker and
William Redmond, Deputy District Attorneys, for Plaintiff and
Respondent.
OPINION
OSBORNE, P. J.
A. Introduction
Several cases have clearly
explained the speed trap laws
adopted by the California Legislature, the policies behind them, the
burden
placed on the prosecution, and the general statutory requirements for
an
engineering and traffic survey to justify a speed zone reduced below 55
miles
per hour. In this case, we apply those requirements and determine that
a survey
did not justify the speed zone adopted by a local authority.
[1] The Legislature has declared a
strong public policy
against the use of speed traps. (People v. Halopoff (1976) 60
Cal.App.3d Supp.
1 [131 Cal.Rptr. 531].) The policy has been explained various ways. It
furthers
a policy of prevention by plain sight patrolling rather than punishment
after
the fact, and encourages observance of all the rules of the road.
(Fleming v.
Superior Court (1925) 196 Cal. 344, 349 [238 P. 88].) "Commentators
have
suggested that the Legislature was also motivated by a desire to
eliminate
clandestine methods of traffic enforcement designed to augment local
revenues
through exorbitant fines. [Citations.]" (People v. Sullivan (1991) 234
Cal.App.3d 56, 58 [285 Cal.Rptr. 553].)
Speed trap rules are not applicable
to evidence of speed
based on use of a speedometer without any use of radar. The Legislature
may
anticipate that [13 Cal.App.4th Supp. 4] when an officer is driving a
vehicle
and enforcing prima facie speed laws by observing traffic, roadside
conditions,
his and/or her own perceptions of safety under the circumstances, and
then
noting speed from the speedometer of the patrol vehicle, the judgment
is likely
to be similar to the reasonable and prudent majority of drivers, and
not be
determined merely by a speed limit which, for political, revenue, or
other
reasons, a local authority may have set below what is reasonable and
necessary
for safe and efficient movement of traffic.
Traffic rules account for most of
the contact by average
citizens with law enforcement and the courts. Enforcement of laws which
are
widely perceived as unreasonable and unfair generates disrespect and
even
contempt toward those who make and enforce those laws.
Whatever the motivation, the
Legislature has spoken clearly
and emphatically about speed trap laws.
B. Facts
Appellant was cited for violation
of section 22350 (fn. 1)
of the California Vehicle Code (fn. 2) , exceeding the basic speed
limit. The
citation states her approximate speed as 52 miles per hour, the prima
facie
speed limit as 35 miles per hour, and the safe speed as 35 miles per
hour. The
citation notes the use of radar.
Deputy Berg testified that he
visually estimated
appellant's speed at 50 to 55 miles per hour in a posted 35 miles per
hour
zone, the radar showed 52 miles per hour, he pursued and stopped her,
and he
cited her. (fn. 3) He stated she was traveling near a senior
citizens' complex
where there is often a lot of foot traffic and bicyclists.
In support of the 35 mph speed
zone, an engineering and
traffic survey was performed May 19, 1988. The road is a major artery
with a
raised median center divider, with two striped lanes in each direction.
For traffic in the direction
appellant was traveling, the
85th percentile critical speed was 48 mph. That is, 85 percent of the
surveyed
vehicles were traveling at a speed of 48 mph or less. The average speed
was 43
mph. The speed limit of 35 mph was exceeded by 95 percent of the
drivers.
The "Accident and Roadside Features
Review"
section of the engineering and traffic survey lists "Unusual Roadside
Features" as "1,000' radius curve, limited sight distance to
commercial driveways." The segment length is 3,300 feet. The 1987
average
daily traffic is stated as 12,300. The number of speed-related
accidents (1985,
1986, 1987) is zero. (fn. 4)
C. Issues
[2a] Appellant raises several
issues stated in different
ways. We find two issues to be dispositive and thus do not find it
necessary to
discuss the others in detail. She contends, and we conclude: (1) The
speed trap
laws required the prosecution to establish that the posted speed limit
was
justified by a valid engineering and traffic survey, and (2) The posted
speed
limit of 35 mph was not justified by the engineering and traffic
survey.
D. Overview
In this case, there is no issue
regarding timing a
vehicle over a measured distance, (fn. 5) an officer not wearing a
distinctive
uniform, or an officer using a vehicle not painted a distinctive color.
(fn. 6)
The only issue relates to the use of radar, and therefore the analysis
begins
with the provisions of subdivision (b) of section 40802.
Under subdivision (b) of section
40802, speed trap rules
do not apply, and radar can be used:
1. On "local streets and roads" as
defined by
section 40802, subdivision (b),
2. To enforce an absolute 60 or 65
mph speed limit set
pursuant to section 22356, and
3. To enforce the absolute 55 mph
speed limit established
by section 22349, unless a lower speed limit has been purportedly
established
pursuant to section 22354 or section 22358. (See fn. 7.)
None of these exceptions apply to
the present case.
Under subdivision (b) of section
40802, there can be no
prosecution of any charge involving the speed of a vehicle, (fn. 7)
where
enforcement involves the use of radar, except in compliance with speed
trap
rules, on a particular section of a highway with a prima facie speed
limit
decreased pursuant to section 22354, 22358, or 22358.3. (fn. 8)
This case involves a speed limit
decreased by local
authority pursuant to section 22358, and therefore the prosecution must
comply
with the speed trap rules.
E. Speed Trap Rules
Deputy Berg testified that he
visually estimated
appellant's speed at 50 to 55 mph in a posted 35 mph zone, and that his
radar
showed 52 mph.
Appellant argues that the
prosecution used radar evidence
to convict her, the radar evidence was illegally obtained by use of a
speed
trap, and therefore the court lacked jurisdiction. Appellant cites
People v.
Halopoff, supra, 60 Cal.App.3d Supp. 1 and People v. Sterritt (1976) 65
Cal.App.3d Supp. 1 [135 Cal.Rptr. 522], among other cases. Respondent
contends
that in those cases, the only evidence of guilt was a radar reading
with no
independent speed observations by the officers, whereas in this case
the
evidence includes an initial visual estimate of appellant's speed which
was
then confirmed by radar.
We are aware that, in unpublished
decisions, other panels
of this appellate department have distinguished Halopoff and Sterritt
on that
basis. We conclude that such a distinction is in error. Sections 40802,
subdivision (b) and 40803, subdivision (b) and both
apply "where enforcement involves the use of radar." (Italics added.)
These sections do not say that they apply only where enforcement is
exclusively
based on the use of radar.
Section 40801 prohibits use of a
speed trap in securing
evidence of the speed of a vehicle for prosecution under the Vehicle
Code. (fn.
9)
Section 40802 defines a "speed
trap." (fn. 10) It
includes a section of a highway with a prima facie speed limit provided
by
local ordinance pursuant to section 22358, which speed limit is not
justified
by an engineering and traffic survey conducted within the five years
prior to
the date of the alleged violation, and where enforcement involves the
use of
radar.
Section 40803, subdivision (a),
provides that no evidence
as to the speed of a vehicle shall be admitted in any court upon the
trial of
any person for an alleged violation of this code when the evidence is
based
upon or obtained from or by the maintenance of a speed trap. (fn. 11)
Section 40804 provides that in a
prosecution for a charge
involving speed, any officer shall be incompetent as a witness if the
testimony
is obtained by the maintenance of a speed trap. (fn. 12)
Section 40805 provides that a court
is without
jurisdiction to render a judgment of conviction for speeding if the
court
admits any evidence secured in violation of sections 40800 through
40808. (fn.
13) The only exception for a highway with a prima facie speed limit is
for
"local streets and roads" as defined in section 40802.
Thus, as noted above, section
40802, subdivision (b)
provides that a "speed trap" is a section of highway with a prima
facie speed limit which is not justified by an engineering and traffic
survey
conducted within five years and where enforcement involves the use of
radar.
Subdivision (b) of section 40803 provides that in a speeding
prosecution where
enforcement involves the use of radar, the prosecution shall establish,
as part
of its prima facie case, that the evidence is not based upon a speed
trap.
As in this case, People v. Peterson
(1986) 181 Cal.App.3d
Supp. 7 [226 Cal.Rptr. 544] and People v. DiFiore (1987) 197 Cal.App.3d
Supp.
26 [243 Cal.Rptr. 359] applied the speed trap sections to cases in
which
officers also testified to visual estimates. (See also
People v. Sullivan, supra, 234 Cal.App.3d at pp. 60-62.)
Section 40803, subdivision (b)
places on the prosecution
the duty to establish that the evidence or testimony is not based upon
a speed
trap, that is, that the speed limit is justified by an engineering and
traffic
survey. (fn. 14)
F. The Rules for a Survey (fn. 15)
In this case, there is a survey
which was made within
five years prior to the alleged violation. (fn. 16) Appellant contends
that the
survey does not justify the 35 mph speed limit.
Can there be a good speed trap when
there is a survey
within the specified five-year period? Yes. Evidence that there was a
survey
within five years is prima facie evidence that the evidence or
testimony is not
based on a speed trap. (§ 40803, subd. (c)). However, that is
merely a prima
facie case, and the speed limit must be justified by the survey. A
speed limit
is not justified by a survey unless the survey proves or shows the
speed limit
to be just and based upon a sufficient lawful reason.
What are the rules applicable to a
survey which can
justify a reduced speed limit for the purpose of radar speed
enforcement?
1. A local authority may, based on
a survey, set a prima
facie speed limit (less than 55 mph) which is most appropriate to
facilitate
the orderly movement of traffic and is reasonable and safe. (fn. 17)
This general
standard is given more specific meaning by the Department of
Transportation.
Section 627 provides that a survey must comply with
methods determined by the Department of Transportation, and shall
consider
prevailing speeds, accident records, and conditions not readily
apparent to the
driver. (fn. 18)
2. In the absence of other factors,
physical conditions
readily apparent to a driver do not require reduced speed zoning. (fn.
19)
3. Methods required by the
Department of Transportation
are published in a traffic manual. Chapter 8 provides traffic
regulations.
Sections 8- 03.1 through 8-03.4 deal with speed limits and zones.
Excerpts of
section 8-03.3 governing establishment of prima facie speed zones are
set forth
in the appendix.
The following except from the
traffic manual, section
8-03.3, subdivision B.1.b., provides a frame of reference:
"Speed limits should be established
preferably at or
near the 85 percentile speed, which is defined as that speed at or
below which
85 percent of the traffic is moving. ... Speed limits higher than the
85
percentile are not generally considered reasonable and safe and limits
below
the 85 percentile do not facilitate the orderly movement of traffic.
Speed
limits established on this basis conform to the consensus of those who
drive
highways as to what speed is reasonable and safe; and are not dependent
on the
judgement of one or a few individuals.
"The basic speed law states that no
person shall
drive at a speed greater than is reasonable or prudent. The majority of
drivers
comply with this law, and disregard regulations which they consider
unreasonable. It is only the top fringe of drivers that are inclined to
be
reckless and unreliable, or who have faulty judgement and must be
controlled by
enforcement. Speed limits set at or slightly below the 85 percentile
speed
provide law enforcement officers with a means of
controlling the drivers who will not conform to what the majority
considers
reasonable and prudent.
"Only when roadside development
results in traffic
conflicts and unusual conditions which are not readily apparent to
drivers, are
speed limits somewhat below the 85 percentile warranted."
For the purposes of this case, the
rules are well
summarized in the traffic manual, section 8-03.3, subdivision B.2.b.,
which
provides in part:
"The speed limit normally should be
established at
the first five mile per hour increment below the 85 percentile speed.
However,
in matching existing conditions with the traffic safety needs of the
community,
engineering judgement may indicate the need for a further reduction of
five
miles per hour. The factors justifying such a further reduction are the
same
factors mentioned above. Whenever such factors are considered to
establish the
speed limit, they should be documented on the speed zone survey or the
accompanying engineering report.
"The Engineering and Traffic Survey
should contain
sufficient information to document that the conditions of CVC Section
627 have
been complied with and that other conditions not readily apparent to a
motorist
are properly identified.
"The establishment of a speed limit
of more than 5
miles per hour below the 85 percentile (critical) speed should be done
with
great care as this may make violators of a disproportionate number of
the
reasonable majority of drivers."
G. Application of the Rules to the
Survey in This Case
Deputy Berg testified appellant was
traveling near a
senior citizens' complex where there is often a lot of foot traffic and
bicyclists. An officer's description of conditions at the time of the
alleged
violation would be relevant to whether there was a violation of section
22350,
if he were competent to testify. But his testimony is irrelevant to the
existence of a speed trap. The existence of a speed trap depends on
whether the
survey justified the action of the local authority in setting the speed
limit.
The survey was performed May 19,
1988, well within the
five-year requirement. The road is a major artery with a raised median
center
divider, with two striped lanes in each direction.
For traffic in the direction
appellant was traveling, the
85th percentile critical speed was 48 mph. Only 15 percent of drivers
exceed 48
mph, whereas 85 percent drove at that speed or
slower. As a general rule, that would support a prima facie speed limit
of 45
mph. The average speed was 43 mph. The speed limit was actually set at
35 mph,
a speed exceeded by 95 percent of the drivers.
Obviously the collective judgment
of the presumed
reasonable and prudent majority of drivers does not support the speed
limit
based on readily apparent conditions. To support such a reduced speed
limit,
the survey must contain sufficient information to document other
conditions not
readily apparent to a motorist.
The "Accident and Roadside Features
Review"
section of the survey lists "Unusual Roadside Features" as
"1,000' radius curve, limited sight distance to commercial
driveways." The segment length is 3,300 feet. The 1987 average daily
traffic is stated as 12,300. The number of speed-related accidents
(1985, 1986,
1987) is zero.
Section 22358.5 precludes
justifying reduced speed zoning
on physical conditions such as curvature or any other condition readily
apparent to a driver.
That leaves only the reference to
"limited sight
distance to commercial driveways" to justify the speed limit. It is
questionable whether, with that volume of daily traffic, a condition
not
apparent to drivers can justify a 10 mph speed reduction unless the
accident
rate is greater than would be statistically expected from the traffic
volume
and road type. Here, there were no speed-related accidents within three
years.
However, the stated condition fails to justify the speed for another
reason.
The survey does not state the sight distance or the location of the
driveways,
or explain how the condition affects the safe speed. This is not a mere
technical nicety. In this case, two licensed traffic engineers
testified there
are no driveways that affect safety for traffic traveling in the
direction of
appellant.
The
two traffic engineers gave compelling testimony
explaining the insufficiencies of the engineering and traffic survey in
this
case. We have not dwelt on their testimony for several reasons. A trier
of fact
may, at least under certain circumstances, reject the testimony of
expert
witnesses. (People v. Green (1984) 163 Cal.App.3d 239 [209 Cal.Rptr.
255].)
Most drivers cited for traffic violations post and forfeit bail,
feeling they
cannot afford the inconvenience or the time off work to contest even a
citation
they believe to be unfair. Conviction of common, frequent traffic
infractions,
with the attendant consequences of fines, points toward suspension of
driver's
licenses, and increased insurance rates, ought not depend on the
ability of a driver to obtain the assistance of a licensed traffic
engineer. The Legislature has carefully constructed the speed trap laws
to be
jurisdictional in nature. The prosecution ought not attempt to invoke,
and the
judiciary ought not attempt to exercise, jurisdiction contrary to the
clearly
expressed statutory limitation.
In the supplemental brief we
requested, respondent argues
that the survey states the opinion of the city traffic engineer that
the
accident or roadside features warrant additional speed zone reduction.
Respondent concludes: "The established speed limit of 35 miles per hour
was based upon a proper compliance with procedure and the law. Although
experts
in traffic engineering may disagree with a specific speed or
conditions, the
law requires only that a proper procedure be followed to establish a
given
speed in a given location."
Disagreement of experts will not
necessarily invalidate a
prima facie speed limit. But if respondent is arguing that an
engineer's stated
opinion is merely a procedural prerequisite not subject to judicial
review, we
disagree. A trial judge must first see if there is a timely survey that
purports to justify the speed limit. If so, the trial judge must
determine if
the facts stated in the survey justify the speed limit set. If the
judge
determines that the speed limit is not justified, the speeding charge
must be
dismissed. If the judge determines the speed limit is justified, the
judge will
then decide whether guilt is proved beyond a reasonable doubt, subject
to
review on both issues if there is a conviction. (fn. 20)
H. Effect of Proposition 8
Respondent contended (1) speed trap
rules were not
applicable because there was evidence of a visual estimate of speed,
and (2) the
speed trap rules, if applicable, were satisfied because there was a
survey
within five years. Respondent did not address the application of
Proposition 8.
[3] Having rejected those two arguments by respondent, we must address
Proposition 8.
The long-standing rule of section
40803, subdivision (a)
requiring exclusion of evidence obtained by use of a speed trap was
abrogated
June 8, 1982, by the adoption of the Proposition 8
"Right to Truth-in-Evidence" provision contained in article I,
section 28, subdivision (d), of the California Constitution. (People v.
Sullivan, supra, 234 Cal.App.3d 56.)
However, as discussed above in part
E, the sanction for
violation of speed trap prohibitions is not merely exclusion of the
offending radar
evidence. The officer is incompetent as a witness to a charge of
speeding (§
40804), and the court is deprived of jurisdiction (§ 40805). Some
have argued
that Proposition 8 also abrogated those provisions. People v. Munoz
(1992) 11
Cal.App.4th 1190, 1191 [15 Cal.Rptr.2d 21], footnote 1, indicates that
the
appellate department, following People v. Sullivan, supra, 234
Cal.App.3d 56,
held Proposition 8 eliminated exclusion of speed trap evidence in
speeding
cases. We question that conclusion. (fn. 21)
The question has been decisively
resolved by the adoption
of section 40808 by Statutes 1992, chapter 538, section 2. The measure
passed
the Senate 35 to 0 and the Assembly 57 to 3, both well in excess of the
two-
thirds majority required by Proposition 8. The new section, effective
January
1, 1993, provides: "Subdivision (d) of Section 28 of Article I of the
California Constitution shall not be construed as abrogating the
evidentiary
provisions of this article." People v. Munoz, supra, 11 Cal.App.4th
1190
held that the new statute should be applied retrospectively to all
cases not
final on the effective date of the statute. (Chapter 538 also amended
section
40803, subdivision (a) to make it, like sections 40803, subdivision
(b), 40804,
and 40805, applicable only in a prosecution upon a charge involving the
speed
of a vehicle, preserving the holding of Sullivan in prosecutions of
charges not
involving speed.)
In short, the speed trap rules
apply only to charges
involving the speed of a vehicle, and are not abrogated by Proposition
8.
I. Conclusion
The Legislature has spoken clearly
on the subject of
speed traps. Speed traps-reduced speed zones not justified by the
conditions-bring disrespect to law enforcement and
the courts. We have discussed the requirements and consequences at
length
because it must be clear to traffic engineers, local authorities, and
law
enforcement officers that if a prima facie speed limit is set without
being
justified in fact by the engineering and traffic survey, the speed
limit cannot
be enforced by any means involving the use of radar. Local authorities
must set
prima facie speed limits carefully, as justified by appropriate
factors, to
avoid making use of radar unavailable for speed enforcement.
When enforcing traffic laws by
plain sight patrolling,
officers should exercise their law enforcement discretion based on the
same
reasonable and prudent judgments as most other drivers, not influenced
by prima
facie speed zones which are not justified.
[2b] 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 judgment of conviction.
The judgment is reversed, and the
case is remanded to the
municipal court with directions to dismiss.
McNally, J., and Steele, J.,
concurred.
APPENDIX
TRAFFIC MANUAL
CHAPTER 8 - REGULATIONS [
Obsolete, use current manual. ]
Speed Limits and Zones 8-03
8-03.3 Establishment of Prima Facie
Speed Zones
A. Legal Authority
7. Speed Trap - Section 40802(b)
provides that prima
facie speed limits established under Sections 22352(b)(1), 22354,
22357, 22558
and 22358.3 may not be enforced by radar unless the speed limit has
been
justified by an engineering and traffic survey within the last five
years.
An "Engineering and Traffic Survey"
is required
where enforcement involves the use of radar or other electronic speed
measuring
devices, under CVC 40802(b). Local streets and roads, as defined in the
second
paragraph of CVC 40802(b), primarily serving abutting residential
property, are
exempt from this requirement ....
B. Engineering and Traffic Surveys
Section 627 of the Vehicle code
defines the term
"Engineering and Traffic Survey" and lists requirements therefor.
Following are two methods of conducting engineering and traffic surveys
to be
used to establish or justify prima facie speed limits. These methods
are
presented as required by the Vehicle Code.
1. State Highways - The engineering
and traffic survey
for State highways is made under the direction of the District Traffic
Engineer. The data shall include:
a. One copy of the Standard Speed
Zone Survey Sheet
showing:
. A north arrow.
. Engineer's station or post
mileage.
. Limits of the proposed zones.
. Appropriate notations showing
type of roadside
development, such as "scattered business", "solid
residential", etc. Schools adjacent to the highway should be shown, but
other buildings need not be plotted unless they are a factor in the
speed
recommendation or the point of termination of a speed zone.
. Accident rates for the zones
involved.
. Average daily traffic volume.
. Location of traffic signals,
signs and markings.
. If the highway is divided, the
limits of zones for each
direction of travel.
. Plotted 85 percentile and pace
speeds at location taken
showing speed profile.
b. A report to the District
Director shall:
. State the reason for the
initiation of speed zone
survey.
. Give recommendations and reasons
therefor.
. List the enforcement
jurisdictions involved and the
attitude of these officials.
. Give the stationing or mileage at
the beginning and at
the end of each proposed zone and any intermediate equations. Ties must
be
given to readily identifiable physical features.
In determining the speed limit
which is most appropriate
to facilitate the orderly movement of traffic and is reasonable and
safe,
important factors are prevailing speeds, unexpected conditions, and
accident
records.
Speed limits should be established
preferably at or near
the 85 percentile speed, which is defined as that speed at or below
which 85
percent of the traffic is moving. The 85 percentile is often referred
to as
critical speed. Pace speed is defined as the 10-mile increment of speed
containing the largest number of vehicles. The lower limit of the pace
is
plotted on the Speed Zone Survey Sheets as an aid in determining the
proper
zone limits. Speed limits higher than the 85 percentile are not
generally
considered reasonable and safe and limits below the 85 percentile do
not
facilitate the orderly movement of traffic. Speed limits established on
this
basis conform to the consensus of those who drive highways as to what
speed is
reasonable and safe; and are not dependent on the judgment of one or a
few
individuals.
The basic speed law states that no
person shall drive at
a speed greater than is reasonable or prudent. The majority of drivers
comply
with this law, and disregard regulations which they consider
unreasonable. It
is only the top fringe of drivers that are inclined to be reckless and
unreliable, or who have faulty judgment and must be controlled by
enforcement.
Speed limits set at or slightly below the 85 percentile speed provide
law
enforcement officers with a means of controlling the drivers who will
not
conform to what the majority considers reasonable and prudent.
Only when roadside development
results in traffic
conflicts and unusual conditions which are not readily apparent to
drivers, are
speed limits somewhat below the 85 percentile warranted.
Concurrence and support of
enforcement officials are
necessary for the successful operation of a restricted speed zone.
Section 22358.5 of the Vehicle Code
states that 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 the
driver, in the absence of other factors, would not require special
downward
speed zoning.
Speed zones of less than half a
mile and short transition
zones should be avoided.
2. City and County Through
Highways, Arterials, Collector
Roads and Local Streets.
a. Introduction - This is a short
method of speed zoning
based on the premise that a reasonable speed limit is one that conforms
to the
actual behavior of the majority of motorists, and that by measuring
motorists'
speeds, one will be able to select a speed limit that is both
reasonable and
effective. Other factors that need to be considered are the most recent
two
year accident record, roadway design speed, safe stopping sight
distance,
superelevation, shoulder conditions, profile conditions, intersection
spacing
and offsets, commercial driveway characteristics, pedestrian traffic in
the
roadway without sidewalks, etc. In most situations, the short form will
be
adequate, but the procedure used on State highways may be used at the
option of
the agency.
b. Determination of Existing Speed
Limits - These speeds
will either be verified, increased or decreased depending on the
results of the
investigation. Specific types of vehicles may be tallied by use of
letter
symbols in appropriate squares.
The speed limit normally should be
established at the
first five mile per hour increment below the 85 percentile speed.
However, in
matching existing conditions with the traffic safety needs of the
community,
engineering judgment may indicate the need for a further reduction of
five
miles per hour. The facts justifying such a further reduction are the
same
factors mentioned above. Whenever such factors are considered to
establish the
speed limit, they should be documented on the speed zone survey or the
accompanying engineering report.
The Engineering and Traffic Survey
should contain
sufficient information to document that the conditions of CVC Section
627 have
been complied with and that other conditions not readily apparent to a
motorist
are properly identified.
The establishment of a speed limit
of more than 5 miles
per hour below the 85 percentile (critical) speed should be done with
great
care as this may make violators of a disproportionate number of the
reasonable
majority of drivers.
c. Speed Zone Survey -
. The intent of the speed
measurements [is] to determine
the actual speed of the unimpeded traffic. The speed of traffic should
not be
altered by concentrated law enforcement, or other means, just prior to,
or
while taking the speed measurements.
. Only one person is required for
the field work. Speeds
can be read directly from a radar meter.
. Devices, other than radar,
capable of accurately
distinguishing and measuring the unimpeded speed of free flowing
vehicles
unaffected by platoon movement may be used. Special application of
devices
other than radar are particularly appropriate on low volume facilities.
. A location should be selected
where prevailing speeds
are representative of the entire speed zone section. If speeds vary on
a given
route, more than one speed zone section may be required, with separate
measurements for each section. Locations for measurements should be
chosen so
as to minimize the effects of traffic signals or stop signs.
. Speed measurements should be
taken during off-peak
hours on weekdays. If there is difficulty in obtaining the desired
quality,
speed measurements may be taken during any period with free flowing
traffic.
The weather should be fair with no unusual conditions prevailing. It is
important that the surveyor and his equipment be so inconspicuous as
not to
affect the traffic speeds. For this reason an unmarked car is
recommended, with
radar speed meter located as inconspicuously as possible. It should be
placed
so as to be able to survey traffic in both directions, and should not
make an
angle greater than 15 degrees with the roadway centerline.
. In order for the sample to be
representative of the
actual traffic flow, it is desirable to have a minimum sample of 100
vehicles
in each survey. In no case should the sample for any survey contain
less than
50 vehicles.
. Short speed zones of less than
half a mile should be
avoided, except in transition areas.
. Speed zone changes should be
coordinated with changes
in roadway conditions or roadside development.
. Speed zoning should be in 10 mile
per hour increments
except in urban areas where 5 mile per hour increments are preferable.
. Speed zoning should be
coordinated with adjacent
jurisdictions.
[Figures omitted.]
FOOTNOTES
FN 1. "No person shall drive a
vehicle upon a highway at a speed greater than is reasonable or prudent
having
due regard for weather, visibility, the traffic on, and the surface and
width
of, the highway, and in no event at a speed which endangers the safety
of
persons or property." (§ 22350.)
FN 2. Unless otherwise indicated,
all section references
are to the Vehicle Code.
FN 3. The abbreviation "mph" will
often be used
herein in place of "miles per hour."
FN 4. Since 95 percent of drivers
exceeded the prima
facie speed limit, it is evident that the excellent safety record on
that
segment of the roadway was not the result of any reduced speed limit,
but was
the result of the road conditions and safe driving uninfluenced by the
low
speed limit.
FN 5. Calculating speed of a
vehicle by timing it over a
measured distance is defined as a "speed trap" by section 40802,
subdivision (a). Enforcement is provided by sections 40801, 40803,
subdivision
(a), 40804, subdivision (a), and 40805.
FN 6. The uniform and vehicle
requirements are specified
in section 40800, with enforcement provided by section 40804,
subdivision (b).
FN 7. If radar is used in
conjunction with a prima facie
speed limit, the prima facie speed limit must be justified as required
by the
statute even if the driver is charged with violation of the 55 mph
maximum
speed limit under section 22349 and is not charged with violation of
the prima
facie speed limit. (People v. Flaxman (1977) 74 Cal.App.3d Supp. 16,
18- 19
[141 Cal.Rptr. 799].)
FN 8. It would be helpful to have
legislation clarifying
whether section 40802, subdivision (b)'s reference to a "section of a
highway with a prima facie speed limit provided by this code" includes
speed limits:
1. Set by section 22352,
subdivision (a) at 15 mph at
railway grade crossings with obstructed views, intersections with
obstructed
views, and alleys;
2. Set by section 22352,
subdivision (b) at 25 mph in a
business or residence district, when passing a school while children
are going
or coming during school hours, and when passing a posted senior center;
3. Increased pursuant to section
22357;
4. Made variable for a freeway
pursuant to section 22355;
5. Set pursuant to section 22357.1
at 25 mph adjacent to
a children's playground in a public park during particular hours; or
6. Reduced to 20 or 15 mph near a
school or senior
center, pursuant to section 22358.4.
FN 9. "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." (§ 40801.)
FN 10. "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) 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 22352, or established
pursuant to
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, and where 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.
"For purposes of this section,
local streets and
roads shall be defined by the latest functional usage and federal-aid
system
maps as submitted to the Federal Highway Administration. When these
maps have
not been submitted, the following definition shall be used: A local
street or
road primarily provides access to abutting residential property and
shall meet
the following three conditions:
"(1) Roadway width of not more than
40 feet.
"(2) Not more than one-half mile of
uninterrupted
length. Interruptions shall include official traffic control devices as
defined
in Section 445.
"(3) Not more than one traffic lane
in each
direction." (§ 40802.)
FN 11. "(a) No evidence as to the
speed of a vehicle
upon a highway shall be admitted in any court upon the 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 speedtrap.
"(b) In any prosecution under this
code of a charge
involving the speed of a vehicle, where enforcement involves the use of
radar
or other electronic devices which measure the speed of moving objects,
the
prosecution shall establish, as part of its prima facie case, that the
evidence
or testimony presented is not based upon a speedtrap as defined in
subdivision
(b) of Section 40802.
"(c) When a traffic and engineering
survey is
required pursuant to subdivision (b) of Section 40802, evidence that a
traffic
and engineering survey has been conducted within five years of the date
of the
alleged violation or evidence that the offense was committed on a local
street
or road as defined in subdivision (b) of Section 40802 shall constitute
a prima
facie case that the evidence or testimony is not based upon a speedtrap
as
defined in subdivision (b) of Section 40802." (§ 40803.)
Note: Section 40803 has since been
amended by Statutes
1992, chapter 538, section 1, effective January 1, 1993.
FN 12. "(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.
"(b) Every officer arresting, or
participating or
assisting in the arrest of, a person so charged while on duty for the
exclusive
or main purpose of enforcing the provision of Divisions 10 and 11 is
incompetent as a witness if at the time of such arrest he was not
wearing a
distinctive uniform, or was using a motor vehicle not painted the
distinctive
color specifically by the commissioner.
"This section does not apply to an
officer assigned
exclusively to the duty of investigating and securing evidence in
reference to
any theft of a vehicle or failure of a person to stop in the event of
an
accident or violation of Section 23109 or in reference to any felony
charge or
to any officer engaged in serving any warrant when the officer is not
engaged
in patrolling the highways for the purpose of enforcing the traffic
laws."
(§ 40804.)
FN 13. "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."
(§
40805.)
FN 14. People v. Halopoff, supra,
60 Cal.App.3d Supp. 1,
and People v. Sterritt, supra, 65 Cal.App.3d Supp. 1, 6, footnote 4,
held that
to avoid the consequences of a speed trap finding, the prosecution must
produce
the engineering and traffic survey. The requirements of Halopoff and
Sterritt
were codified in 1981 as subdivision (b) of section 40803. That
provision was
interpreted and applied in People v. Peterson, supra, 181 Cal.App.3d
Supp. 7.
FN 15. Subdivision (c) of section
40803 refers to a
"traffic and engineering survey." Subdivision (b) of section 40802
and other sections refer to an "engineering and traffic survey." They
obviously refer to the same thing, which we shall generally refer to as
a
survey.
FN 16. Appellant raises the issue
whether the existence
of the survey was sufficiently before the court. The officer testified
to a
survey, appellant produced two expert witnesses who testified to
details of the
same survey, and respondent has provided a certified copy of a survey
which is
obviously the same one relied on by the prosecution in trial and
attacked by
appellant at trial and on appeal. We elect to deal with the merits of
the
survey rather than remand for retrial merely to have the survey clearly
identified in the record.
FN 17. "Whenever a local authority
determines upon
the basis of an engineering and traffic survey that the limit of 55
miles per
hour is more than is reasonable or safe upon any portion of any street
other
than a state highway where the limit of 55 miles per hour is
applicable, the
local authority may by ordinance determine and declare a prima facie
speed
limit of 50, 45, 40, 35, 30, or 25 miles per hour, whichever is found
most
appropriate to facilitate the orderly movement of traffic and is
reasonable and
safe, which declared prima facie limit shall be effective when
appropriate
signs giving notice thereof are erected upon the street." (§
22358.)
FN 18. "(a) 'Engineering and
traffic survey', as
used in this code, means a survey of highway and traffic conditions in
accordance with methods determined by the Department of Transportation
for use
by the state and local authorities.
"(b) An engineering and traffic
survey shall
include, among other requirements deemed necessary by the department,
consideration of all of the following:
"(1) Prevailing speeds as
determined by traffic
engineering measurements.
"(2) Accident records.
"(3) Highway, traffic, and roadside
conditions not
readily apparent to the driver." (§ 627.)
FN 19. "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." (§
22358.5.)
FN 20. Review at trial or on appeal
will tend to fall
into patterns. Many speed limits will apparently be justified because,
in
accordance with the general rule, they are set at the 85th percentile
speed or
within 5 mph under that speed. Some speed limits may be justified
because they
are set five mph below the general rule, based on higher than expected
accident
rates or listed hidden hazards. Some speed limits may appear to be
unjustified
or questionable because:
1. The speed limit is set 10 or
more mph under the 85th
percentile speed;
2. The speed limit makes violators
of a large percentage
of drivers;
3. "Conditions" listed are not
hidden hazards,
that is, they are readily apparent to a driver;
4. There is no explanation how the
conditions listed
require the speed limit set; or
5. The accident rate is not higher
than would be expected
statistically.
FN 21. Sullivan involved only
section 40803, subdivision
(a) which excluded speed trap evidence in all Vehicle Code
prosecutions,
including driving under the influence of alcohol as alleged in that
case,
Sullivan, supra, 234 Cal.App.3d at page 63, held that "... section
40803,
subdivision (a), can only be characterized as a rule of evidence." The
court continued: "The Legislature could have selected other remedies or
penalties for violation of section 40801, but it clearly opted for the
exclusion of evidence." (Ibid.) That remedy was abrogated by
Proposition
8. But the court stated: "Sections 40803, subdivision (b), 40804, and
40805, which apply only when a defendant is charged with an offense
involving
the speed of a vehicle, do not apply in this case." (Id., at p. 60.)
Those
sections do provide other remedies or penalties for violation of
section 40801
besides exclusion of evidence. We doubt that Proposition 8 was intended
to
abrogate statutes making a person incompetent as a witness and limiting
the
jurisdiction of a court.
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