VC 40801 – California Law Prohibiting Speed Traps

California Law prohibiting Speed Traps – Table of Contents

• VC 40801 Overview
• VC 40801 Prosecuting
• VC 40801 Sentencing
• VC 40801 Defending
• California Law prohibiting Speed Traps – Hire Us

VC 40801 – Overview

What is the definition of the prohibition against speed traps as defined under California Vehicle Code 40801?

No peace officer shall use a speed trap to arrest or participate in the arrest of any person for any violation of the California Penal Code.

Is this considered an affirmative defense in criminal law?

Yes – because it is statutory. This statute operates to prevent a conviction even when the prosecution has proof beyond a reasonable doubt as to a violation of every element of the crime.

VC 40801 – Prosecuting

What is the definition of a Speed Trap as defined under California Vehicle Code 40801?

The calculation of the speed of a vehicle that is achieved by timing it over a measured distance is a speed trap. Case law further states that a speed trap includes a portion of the highway that is not commissioned by a state or local ordinance to provide an engineering survey to place a designated speed limit or by way of a subsequent survey to promote a decision to reduce the speed, and such survey has not been provided or renewed for a period of five years- but on the occasion of the citation, a peace officer utilized a radar gun or laser gun to ascertain the speed.

How should speed be determined on a stretch of road that would enable a peace officer to utilize a radar gun to avoid the designation of a speed trap?

A State or local authority can establish a speed limit. The Department of Transportation (DOT) defines the standards for doing so. The State or local authority must comply with the methods of the DOT. The DOT determines speed limits, which utilize prevailing speeds, accident records, and general weather conditions of the area. The Department of Transportation has a general manual that provides traffic regulations and their methods for establishing speed zones. Typically speed limits are established under the 85th percentile of speed movement about the traffic in the area and distance for which a speed limit is created. Anything within these rangers is considered a reasonable and prudent speed.

What is the definition of a vehicle as described under California Vehicle Code 40801?

A vehicle is any device that enables a person or property to be moved or drawn on a highway. A vehicle is further defined as a device with a self-propelled motor or a device with a motor or mechanism that can convert their own energy supply into power used for propulsion. A vehicle also includes: a motor home, travel trailer, truck camper, and camping trailer- all of which are designated for human habitation, recreational, emergency, or other occupancy.

What is not considered a vehicle as defined under California Vehicle Code 40801?

A motor vehicle or self-propelled vehicle does not include a propelled or motorized wheelchair, a motorized tricycle, or a motorized quadricycle if the device is operated by a person who utilizes it due to a physical disability and cannot move about as a pedestrian.

What is considered speeding as defined under California Vehicle Code 40801?

Speeding is a conclusion attributed to engineering conclusions by design from patented machinery such as a radar gun. All radar guns must be approved by the California Highway Safety Patrol. All police officers or peace officers operating a radar gun must undergo 24 hours of POST training to acquire competency to utilize the radar gun. In terms of speeding or unsafe speeds, the officer must specify this determination in terms of speeding violations. The basic violation is California Vehicle Code 22350. Under California Vehicle 22350, the following fines must be allotted if there is a valid determination or conclusion that the driver sped at the date and time alleged: (1) 1-15 MPH over the base speed limit of $238; (2) 16-25 MPH over the base speed limit $367; (3) 25+ MPH over the base speed limit $490.

How can I determine that an officer is operating a radar gun accurately to quantify my speed as a violation if being cited for a violation of California Vehicle Code 40801?

To assess the competency of a peace officer’s assessment of a driver’s speed. The competency must be attained by course training. The California POST radar police certification course is required to be completed by all officers who operate a speed radar gun. The class is a 54-hour class with 24 classroom hours and 30 hours of field or onsite training. Then after graduation from the course, the peace officer must be certified in lidar enforcement in a subsequent 8 hour class. Lidar training is the training required for Light-Detection-and Ranging; it is a measure to target a vehicle’s speed using light energy generated by a laser device.

How can I be assured that the radar gun or laser gun utilized by an officer at the time of citing a violation of California Vehicle Code 40801 is functioning properly?

California Vehicle Code 40802(c)(1)(D) states that all radar and laser guns used to detect speeds, including any other electronic devices, which police officers operate to assess whether or not the speeds exceed the minimum standards of the National Traffic and Highway Safety Administrations, must be calibrated within the 3 years of any violation of California Vehicle Code 21755 by an approved State Calibration facility. Further, California Vehicle Codes 40802(c)(1)(D) and 40802(c)(1)(A) provides responsibilities to a citing peace officer: at the beginning and end of each shift the officer should perform tests on their devices by running a self-check and verify that all portions of the LCD screen are functioning, and the results are positive to ensure that the calibrations are correct. Again, these principals are required to be instructed to the citing police officer by the Commission of Peace Officer Standards and Training (POST) under California Vehicle Code 40802(c)(1)(A).

VC 40801 – Sentencing

What are the penalties for a violation of California Vehicle Code 40801?

This statute operates to prevent a conviction even when the prosecution has proof beyond a reasonable doubt as to a violation of every element of the crime.

Is there an exception to this affirmative defense as defined under California Vehicle Code 40801?

Yes- local streets and roads that serve adjacent or abutting residential properties do not qualify under the statute.

VC 40801 – Defending

What is the burden of proof of an affirmative defense under California Vehicle Code 40801?

1. An Engineering and Traffic Survey mandated by the Department of Transportation is required where the enforcement involves using radar or laser guns to enforce or calculate a speed limit.
2. An “Engineering and Traffic Survey” is required where enforcement involves the use of radar or other electronic speed measuring devices under CVC 40802(b). As defined in the second paragraph of CVC 40802(b), local streets and roads primarily serving abutting residential property are exempt from this requirement.
3. No evidence pertaining to the speed of a vehicle shall be admitted in any court during a trial or hearing upon a person for an alleged violation of the vehicle code from the maintenance of a speed trap.
4. During the prosecution of a vehicle code violation involving speed, any peace officer’s declarant shall be determined to lack personal knowledge and competence as a witness when the testimony or evidence of their declaration stems from a speed trap.
5. Any court or administrative hearing has no jurisdiction to render a judgment or conviction for speeding if the court admits evidence that was secured by way of a speed trap.

VC 40801 – Hire a Lawyer

If you are charged with a violation of California Vehicle Code 40801, call Kelmansky Law, APLC. Contact Los Angeles criminal defense attorney Yuliya Kelmansky, principal attorney of Kelmansky Law, APLC.

Call Us for a FREE Case Review: 213-932-8922