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  • California - Validity of Speed Citation from an Unmarked Police Car

    My question is specific to California...

    I have heard that California VC does not allow any evidence/testimony by a police officer for a speeding offense, if the officer made the traffic stop from an unmarked car (or without uniform)...

    Apparently, all LEOs enforcing traffic laws, including CHP, are required by CVC to be in a marked car for any traffic stops. A non-traffic LEO - e.g. a detective - can make a traffic stop from an unmarked car and is able to cite/arrest for other offenses but not for speeding (as an unmarked car may constitute a "speed trap")?

    If you are a current/former officer from California and are aware of the above, could you kindly confirm and/or clarify the above?

  • #2
    Not so. California law is pretty clear on this one but often misunderstood.

    An officer whose primary purpose is traffic enforcement must be in uniform and operating a conspicuously marked vehicle. The key words here are primary purpose. So, if the main function of an officer is to be out there writing traffic tickets and investigating accidents, then the rules applies.

    But if it is a detective, narcotics investigator, juvenile officer, supervisor, regular (non-traffic) patrol officer, or just about anyone else whose primary purpose is something other than traffic enforcement, they do not have to be in uniform and they do not have to be operating a marked vehicle to write a traffic citation.

    BTW, marked units do not have to be black and white. They can be all white or some other color I can't remember at the moment.
    Going too far is half the pleasure of not getting anywhere

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    • #3
      I worked plain clothes in an unmarked car that was not really recognizable as a police car until the happy lights came on. I wrote numerous tickets in that car though it was not my PRIMARY function to do traffic enforcement.

      A few people fought the ticket in court believing the same thing you stated and all lost. I was not equipped with radar or any other special traffic enforcement equipment, paced speed using my cars speedo and that was good enough for the judge.
      Originally Posted by VegasMetro
      maybe it’s me but I think a six pack and midget porn makes for good times?????

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      • #4
        Thank you, Lt L-1 for your prompt and helpful response.

        I understand that a detective in an unmarked car could write a speeding citation, but wouldn't the evidence for speeding violation from an unmarked car qualify as a "speed trap"?

        Comment


        • #5
          No, the legal definition of "Speed Trap" in California has nothing to do with the marking of a car or the hiding of the officer. A speed trap is calculating an average speed over a measured distance.
          Today's Quote:

          "The difference between stupidity and genius is that genius has its limits."
          Albert Einstein

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          • #6
            Originally posted by DrVC View Post
            Thank you, Lt L-1 for your prompt and helpful response.

            I understand that a detective in an unmarked car could write a speeding citation, but wouldn't the evidence for speeding violation from an unmarked car qualify as a "speed trap"?
            Speed Trap(s) as defined by Section 40802 of the California Vehicle Code:

            Speed Traps

            40802.

            (a) A "speed trap" is either of the following:

            (1) 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.

            (2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

            (b) (1) For purposes of this section, a local street or road is defined by the latest functional usage and federal-aid system maps submitted to the federal Highway Administration, except that when these maps have not been submitted, or when the street or road is not shown on the maps, a "local street or road" means a street or road that primarily provides access to abutting residential property and meets the following three conditions:

            (A) Roadway width of not more than 40 feet.

            (B) Not more than one-half of a mile of uninterrupted length. Interruptions shall include official traffic control signals as defined in Section 445.

            (C) Not more than one traffic lane in each direction.

            (2) For purposes of this section "school zone" means that area approaching or passing a school building or the grounds thereof that is contiguous to a highway and on which is posted a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. "School zone" also includes the area approaching or passing any school grounds that are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children if that highway is posted with a standard "SCHOOL" warning sign.

            (c) (1) When all of the following criteria are met, paragraph (2) of this subdivision shall be applicable and subdivision (a) shall not be applicable:

            (A) When radar is used, the arresting officer has successfully completed a radar operator course of not less than 24 hours on the use of police traffic radar, and the course was approved and certified by the Commission on Peace Officer Standards and Training.

            (B) When laser or any other electronic device is used to measure the speed of moving objects, the arresting officer has successfully completed the training required in subparagraph (A) and an additional training course of not less than two hours approved and certified by the Commission on Peace Officer Standards and Training.

            (C) (i) The prosecution proved that the arresting officer complied with subparagraphs (A) and (B) and that an engineering and traffic survey has been conducted in accordance with subparagraph (B) of paragraph (2). The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D).

            (ii) The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406.

            (D) The radar, laser, or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility.

            (2) 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) (i) A particular section of a highway or state highway with a prima facie speed limit that is provided by this code or by local ordinance under subparagraph (A) of paragraph (2) of subdivision (a) of Section 22352, or established under Section 22354, 22357, 22358, or 22358.3, if that prima facie speed limit is not justified by an engineering and traffic survey conducted within one of the following time periods, prior to the date of the alleged violation, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects:

            (I) Except as specified in subclause (II), seven years.

            (II) If an engineering and traffic survey was conducted more than seven years prior to the date of the alleged violation, and a registered engineer evaluates the section of the highway and determines that no significant changes in roadway or traffic conditions have occurred, including, but not limited to, changes in adjoining property or land use, roadway width, or traffic volume, 10 years.

            (ii) This subparagraph does not apply to a local street, road, or school zone.

            Added Sec. 2, Ch. 315, Stats. 1995. Effective January 1, 1996. Operative January 1, 1999.
            Amended Sec. 2, Ch. 104, Stats. 1996. Effective January 1, 1997.
            Amended Sec. 1, Ch. 1037, Stats. 1998. Effective January 1, 1999.
            Amended Sec. 18, Ch. 1008, Stats. 1999. Effective January 1, 2000.
            Amended Sec. 3, Ch. 521, Stats. 2000. Effective January 1, 2001.
            Additionally, here is my reply to your similar post in CHPForums:

            Quote:
            Originally Posted by DrVC
            In response to the Original Poster's questions, here is the specific CVC section regarding usage of unmarked cars for traffic enforcement:

            40804(b) An 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 provisions of Divisions 10 (commencing with Section 20000) and 11 (commencing with Section 21000) is incompetent as a witness if at the time of that arrest he was not wearing a distinctive uniform, or was using a motor vehicle not painted the distinctive color specified by the commissioner.

            It appears that courts have disallowed evidence when an unmarked car was used in citations for speeding only, but have allowed evidence for prosecution of other violations, e.g. DUI.

            If in your experience, the above observation about inadmissibility of evidence for speeding citations is incorrect, would you please respond and clarify?
            The area I have highlighted is the key. It does not prohibit an unmarked unit with an officer in civilian clothes from taking enforcement action for an observed violation. It prohibits the use of non-uniformed officers in unmarked units from patrolling specifically for the purposes of enforcing the vehicle code.

            Years ago (back in the 60s), the City of Signal Hill PD had a customed out, all black Ford that a uniformed officer would drive to catch traffic violators. There were no marking what-so-ever. They were challenged in court and had to install decals on the doors identifying the vehicle as a police vehicle for Signal Hill. The decals they installed were visible, but subdued in contrast and they were once again challenged. They finally resorted to regular patrol units and used the black Ford for an undercover, detective unit.

            I am quite certain there were other agencies in the state that attempted the same thing over the years.
            Last edited by SgtCHP; 09-04-2008, 07:51 AM.
            Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

            [George Washington (1732 - 1799)]

            Comment


            • #7
              Thank you, mtxpro752, mdrdep, and SgtCHP, for your helpful responses!

              It is certainly crystal clear that an officer in an unmarked car can make a traffic stop and cite for any offense observed, per California VC.

              However, for speed related offenses, my research of the CVC and case law over past 24 hrs seems to indicate that the officer's testimony may not be admissible if the citation is contested.

              A very recent Dyer vs DMV case (5/22/08) (http://www.thenewspaper.com/rlc/docs...ca-dyerdui.pdf - see last para on page 12), states that:

              In any prosecution of a person charged with an offense involving the "speed of a vehicle,” the testimony of the arresting officer is inadmissible unless that officer was in uniform and driving a marked patrol car. The Legislature has thus created a specific and limited remedy for a violation of section 40800--the exclusion of the noncomplying officer’s testimony in a prosecution for speed-related offenses. These sanctions further the chief goal of speed trap legislation, i.e., to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel.

              Based on the first sentence in bold above, do you agree that the speeding citations from an unmarked car will be difficult to prosecute if it is contested appropriately? It seems that any other other offenses that are NOT "Speed" related can be prosecuted even if the officer is not primarily/exclusively assigned for traffic enforcement, as everyone has pointed out, however, speed may be seen in a different light based on the above (and similar prior) case(s)?

              I know that most of the officers here have more experience in these matters than most lawyers, so I would appreciate your take on the above!

              Comment


              • #8
                Originally posted by DrVC View Post
                Thank you, mtxpro752, mdrdep, and SgtCHP, for your helpful responses!

                It is certainly crystal clear that an officer in an unmarked car can make a traffic stop and cite for any offense observed, per California VC.

                However, for speed related offenses, my research of the CVC and case law over past 24 hrs seems to indicate that the officer's testimony may not be admissible if the citation is contested.

                A very recent Dyer vs DMV case (5/22/08) (http://www.thenewspaper.com/rlc/docs...ca-dyerdui.pdf - see last para on page 12), states that:

                In any prosecution of a person charged with an offense involving the "speed of a vehicle,” the testimony of the arresting officer is inadmissible unless that officer was in uniform and driving a marked patrol car. The Legislature has thus created a specific and limited remedy for a violation of section 40800--the exclusion of the noncomplying officer’s testimony in a prosecution for speed-related offenses. These sanctions further the chief goal of speed trap legislation, i.e., to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel.

                Based on the first sentence in bold above, do you agree that the speeding citations from an unmarked car will be difficult to prosecute if it is contested appropriately? It seems that any other other offenses that are NOT "Speed" related can be prosecuted even if the officer is not primarily/exclusively assigned for traffic enforcement, as everyone has pointed out, however, speed may be seen in a different light based on the above (and similar prior) case(s)?

                I know that most of the officers here have more experience in these matters than most lawyers, so I would appreciate your take on the above!
                No! I do not agree with your assessment.

                The section that you have quoted is incomplete. It says that such an action will be inadmissible only if the "...person so charged while on duty for the exclusive or main purpose of enforcing the provisions of Divisions 10 (commencing with Section 20000) and 11 (commencing with Section 21000)..." That means an officer who has the duty to patrol solely for TRAFFIC RELATED offenses. If the stop is incidental to and observed by a plain clothes officer in an unmarked unit who is performing primary duties other than TRAFFIC RELATED enforcement, then the testimony is acceptable.

                The courts have no obligation to dismiss the testimony of an officer just because the officer is not in uniform or in a marked unit. I reiterate: If not assigned to traffic duty, the described officer may take enforcement action!

                Now, having said that I will point out that unless the observed act of speeding is egregious - excess of 100 MPH or reckless in nature - I am certain that the majority of undercover officers will overlook the offense or call for a marked unit.

                If you are devoted to continuous debate concerning the issue and are looking for an out because you were cited, I am certain you will not get any sympathy from within this forum or the CHPForums.
                Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

                [George Washington (1732 - 1799)]

                Comment


                • #9
                  The others have stated it very clearly.....

                  Traffic unit - primary duty is writing tickets/working wrecks, etc needs to be in uniform and marked unit.

                  All other units - can write tickets for any offense and it is admissable in court

                  Speed trap - one of the most misunderstood and misquoted terms in history. Running radar without a speed survery, using time/distance calculations,etc.... NOT working at the bottom of a hill, NOT sitting out of sight, NOT being in an unmarked unit.


                  Be careful when you research your info.... you are confusing it and not quoting the entire source when you say testimony will be thrown out.


                  In other words.....if you go flying by an unmarked unit at 90mph they can give you a ticket. They werent there primarily to write tickets, but they still can when people do stupid things right in front of them.

                  Comment


                  • #10
                    DrVc you need to read that entire opinion, the original trial court ruled 40800 was violated, the dmv appealed the case and had it overturned. The appelant court ruled 40800 was NOT violated (while trial courts make rulings it dosen't count as case law unless it came from at least the appeals level).

                    In part their decision reads:

                    "Regardless of it's purpose section 40800, by it's plain language, applies only to "traffic offier[s]" whoose "exclusive or main purpose" is to enforce traffic laws on the public highways.

                    They also refrence People V. Tuck that also ruled the law only applied to traffic officers and even then only to violations of speed.

                    So in summation, just like Miranda, you need two things to bring 40800 to bear. In the case of 40800 you need a (1)traffic officer and (2) a speed offense.
                    Today's Quote:

                    "The difference between stupidity and genius is that genius has its limits."
                    Albert Einstein

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