Unsafe Speed to Reversible Error
By Jack A. Fleischli, Esq.
On Tuesday, April 18, 2011, in the City of Irvine, California, at 4:55 p.m.,18-year old Spencer Scott Adams drove a BMW down University Avenue approaching Rosa Drew and Ridgeline streets. The posted speed was 50 miles per hour. Irvine Police Department, Motor Officer G. Gales , I.D. No. 444, activated a hand-held Lidar device (essentially, the laser equivalent of radar) and thereafter proceeded to issue Adams a citation for an alleged violation of California Vehicle Code Section 22350, Unsafe Speed. The Citation indicates that the road conditions were dry, the traffic was light and the weather was clear. The face of the Citation indicated that the “Safe” speed was 50 and that Adams’ “Speed Approx.” was “70.”
A court trial in the matter commenced on September 1, 2011 in the Department H14 of the Harbor Justice Center, Orange County Superior Court, the Honorable Sue Braswell, Judge Pro Tem Presiding. Defendant Adams was represented at trial (and later, on appeal) by Attorney Jack A. Fleischli. When Officer Gales attempted to testify as to the lidar results, defense objections were repeatedly made, and rulings from the Court repeatedly requested, as to lack of foundation of an appropriate traffic and engineering survey to support the posted speed limit and as to certain calibration and training prerequisites for the admission of lidar evidence. In virtually every instance of defense objections, the objections were overruled by the Court. In regards to the traffic surveys (two different surveys, as discussed below), the Court purported to take “Judicial Notice” of such reports which were supposedly somewhere in the Courthouse, albeit elsewhere than Department H14 during the trial. Nevertheless, Officer Gales elected not to testify directly as to the lidar speed reading (and in fact never testified as to the actual speed reading from his lidar device, nor even as to any “visual estimate” of defendant’s speed ), but instead testified simply – and with no particular explication as to how he arrived at this conclusion — that from his observation of defendant’s driving on University Avenue, defendant’s speed was unsafe, in violation of CVC Section 22350 . This testimony was objected to as lacking foundation, as a legal conclusion and as incompetent unless and until the foundation for the lidar use was established at trial, but these objections too were overruled by the Court.
In fact, there were two engineering and traffic surveys pertinent to this stretch of roadway. The first was just over five years old on the date of the Citation and this survey (flawed in many respects concerning the statutory requirements for a lawful traffic survey) stated that the 85% speed was approximately 50 miles per hour. The second such survey was very recent and stated that the 85% speed was approximately 55 miles per hour. The newer survey was so recent in fact that the new speed limit which was recommended in the survey – 55 miles per hour – had not been implemented as of the date of the Citation. Certified copies of neither of the surveys were brought to Court by Officer Gales but the Court purported to admit each into evidence through the use of the Judicial Notice gambit which I consider in these matters to be, in effect, the Phantom Document Gambit.
Here’s the Phantom Document Gambit works in practice: The officer brings in nothing or a piece of paper that purports to be a copy of a Certified Copy of an otherwise qualified traffic and engineering survey and begins to testify about a radar or lidar or unsafe speed result. If defendant does not object, the issue of the foundation for that otherwise incompetent testimony never arises. If defendant objects, the officer holds up the copy of the copy. If defendant does not object, the issue passes. If defendant objects as to certification that this copy is an actual copy of an actual Certified Copy of the pertinent record, the Court volunteers to have the Court take “Judicial Notice” of the purported “actual” Certified Copy” of the pertinent survey. If defendant does not object, the issue passes. Also, the issue passes if the Court simply does not rule on any such objections, since on appeal this will probably be deemed a waiver by defendant for not receiving a ruling on the given objection. If defendant objects to the Court taking Judicial Notice of the purported Certified Copy of the survey, then the Court simply says that the survey is “on file” (somewhere, but typically not in the Courtroom) in the Courthouse. The case proceeds, the evidence of speed is admitted and your client is, commonly, convicted.
Officer Gales further testified that University Avenue in this location had been the site of numerous traffic accidents over the years. Officer Gales then added that Adams volunteered to him when receiving the citation that he (Adams) was rushing home to turn in a college assignment. This testimony was, in turn, objected to by the defense as lacking the foundation of corpus delicti and the objection was overruled. A motion for a directed verdict of Not Guilty was made by counsel for Adams at the close of the prosecution case, and this motion was denied by the Court. Defendant Adams (who was not present for the trial) did not testify in his defense. Officer Gales was asked some additional questions in the defense case concerning the stop and he then noted that he had stated to defendant while issuing the citation that Adams had been traveling at “freeway speeds” during the incident and that defendant Adams needed to slow down.
At the conclusion of the trial, counsel for defendant argued that evidence of unsafe speed was incompetent and insufficient as a matter of law, that no corpus delicti foundation had been established as to defendant’s purported admission of “rushing home,” that driving a “freeway speeds” is not an incriminating statement insofar as many vehicles travel at 50 miles per hour or less on various freeways in California, and that at any event the evidence of unsafe speed was insufficient as a matter of law. The Court issued a Judgment of Guilty and Adams thereafter timely filed a Notice of Appeal. On January 9, 2012, appellant filed his 26-page APPELLANT’S OPENING BRIEF .
On appeal, in this case, no prosecutorial agency filed any opposition whatsoever to appellant’s appeal. No representative of the People showed up for oral argument on April 26, 2012 in Department C01 of the Orange County Superior Court, Central District, Honorable Geoffrey T. Glass, Judge Presiding. Attorney Fleischli appeared at oral argument for appellant and highlighted to the Court that the evidence of unsafe speed was insufficient as a matter of law, that all of the evidence of unsafe speed was, moreover, incompetent as lacking foundation as set forth in Appellant’s Opening Brief, and that the most recent pertinent traffic survey did not, in any event, support the posted speed limit of 50 miles per hour.
On May 9, 2012, Judge Glass issued the Superior Court’s opinion in a JUDGMENT ON APPEAL. The full, three-page NOTICE OF FILING OF JUDGMENT/ORDER and associated JUDGMENT ON APPEAL… is attached to this article. In summary, however, Judge Glass reversed the trial court’s judgment with direction that the charge be dismissed. In support of the reversal, Judge Glass held that:
1. There was no evidence of the speed at which appellant was driving at the time of the Citation;
2. The citing officer’s testimony did not adequately establish that appellant’s unspecified speed was unsafe in light of conditions existing at the time;
3. The September 2010 survey (the second of the two surveys admitted into evidence at trial) only justified a posted speed limit of 55 miles per hour, not the 50 miles per hour limit in effect at the time of the Citation;
4. The officer did not establish full compliance with the foundational requirements of California Vehicle Code Section 40802(c) as would be required for the August 2005 survey (the earlier of the two surveys) to have been properly admissible in evidence; and, significantly,
5. The Court further ruled,
“In addition, the trial court’s apparent practice of maintaining the survey in the courtroom and making it available to facilitate the conviction of defendants such as appellant, who might otherwise obtain favorable judgments under the speed trap laws, creates an appearance of partiality and impropriety. Further, maintaining the survey requires the court to lay foundation for its admission, which is the obligation of the prosecution.” (JUDGMENT ON APPEAL…, p. 1, ln. 28 and p. 2, lns. 1-7; bold added)
Concluding observations from Counsel for Defendant/Appellant
In reflection on this case: This case presents a virtual textbook example of the prosecutorial pitfalls and defense opportunities for successfully defending an unsafe speed or speeding prosecution in which the citing officer utilized lidar or radar in the case leading to issuing the citation. In order to win or to create an adequate record for an eventual appeal, it is essential to not only make the appropriate objections and associated motions to strike, but also to insist upon rulings by the trial court on those posed objections and motions. It always makes sense to make a discovery request in these cases to determine what calibration records, officer training records and traffic survey records may be pertinent to the case. Also, it may behoove you and your client to independently check the specific city records for the most recent traffic and engineering survey. Finally, the process of the Court sua sponte or otherwise taking Judicial Notice of traffic surveys inside the courtroom or elsewhere in the Courthouse should be vigorously resisted by defense counsel.
Jack A. Fleischli was admitted to the California Bar in December 1975 and served as a Deputy Public Defender for the County of Orange, California from December 1975 through mid-1981 when he started his private practice of law. His law office is located in Long Beach, California and he can be contacted for further information at: firstname.lastname@example.org