5

I had a trial de novo today for a 22349(a), cited for 80 mph. At court when discussing the case, the officer gave his introductory statement and alleged that his radar clocked me at 90 mph but that he wrote me for 80 mph and even alleged that I said that I "usually go 80." We went back and forth with questions but I ultimately lost.

The judge then said that he finds me guilty for going 90 mph and that I owe another $150 but he'll offer me traffic school and suspend the extra amount pending I don't get another ticket within the year. The oficer never said anything about amending the ticket whatsoever. When I asked a question regarding what I was being found guilty of and stated that said ticket was for 80, the judge quickly stated "well I found you guilty of going 90 mph." Are judges allowed to do that?

I'm aware that officers are allowed to amend tickets even during the trial but is the judge allowed to independently create another/increase the charge?

The officer did nothing to prove that I was going 90 (aside from one statement), all of his defense was to prove that I was going 80 mph, which is what was cited for on the ticket. Is the judge allowed to act as prosecution?

  • In California if that answers your question – maylae Mar 21 '18 at 13:00
  • 2
    Probably not. But, you have a $150 problem with a $5,000 solution in terms of legal fees, time, effort to remedy it. Unless the points are going to cost you your license or livelihood, it may not be worth litigating. – ohwilleke Mar 21 '18 at 20:30
  • I would like to add that looking back, I had to sign some form prior to the trail and only me because I was the only one that day doing a trial de novo. The form appeared to be explaining some "rights." I've done 1 trial de novo in the past and don't remember having to sign anything beforehand. Has anyone else had to sign anything before the court starting? – maylae Mar 22 '18 at 17:38
4

Probably moot considering how much time has passed but here goes.

California 22349(a) states that no person may drive upon a highway at speeds of greater than 65 mph. So if you're going to be convicted under 22349(a), it doesn't matter if you're going 80 or 90. The charge is that you were doing greater than 65.

The judge found you were going 90. 90 > 65. Conviction secured.

The only sticky part is if the judge charged you the extra $150 because he alleges you went 90 instead of 80. You could appeal that, since even the officer argues you went 80, but since the officer testified that his radar clocked you at 90, you'd probably lose, especially since the officer's rationale for writing 80 was, by his testimony, your alleged admission at the scene, and you at the scene would have reason to downplay your speed.

TL;DR: Yes, the judge, as the trier of fact, can do that. Something came out during the trial (radar at 90) that contradicted the ticket (80) so the trier of fact (the judge) resolved this by going with the radar.

You might have been able to get out of it, if you asked the officer why he didn't write 90 when that's what the radar read. There was a reason the officer didn't trust that radar, and if he articulated it, then the judge would likely have stuck with 80.

1

I see two questions here.

Since it was a bench trial, the judge can find facts -- so he can find that you were going 90 (and if you were to appeal, that "one statement" would likely be considered adequate support.)

But I am troubled that you were charged with one thing, and convicted of another. That doesn't sound legal.

You might want to look into swearing out a complaint for Official Misconduct.

  • Any point in sending out a complaint for official misconduct and can I still do that? It’s been nearly a year. I’m sure any appealing or changing anything is out the window. – maylae Jan 14 at 7:41

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.