Metropolitan News-Enterprise


Tuesday, March 23, 2004


Page 1


Speed Trap Law Does Not Require Excluding Evidence In Drunk Driving Prosecution, Court of Appeal Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A state law that limits the admissibility of evidence obtained as the result of a speed trap had no effect on a prosecution for drunk driving, the Sixth District Court of Appeal ruled yesterday.

“[T]he Legislature has expressed its intent, in clear and unequivocal language, that evidence obtained from an illegal speed trap is only inadmissible in cases involving speeding violations,” Justice William Wunderlich wrote for the court.

The justices overturned a Santa Cruz Superior Court commissioner’s ruling suppressing evidence obtained in a traffic stop in Highway 9 in Felton. Jeffrey Hardacre was charged with driving under the influence and driving with an excessive blood alcohol level.

Commissioner Stephen S. Siegel ruled that the evidence was obtained as a result of a speed trap and excluded it under Vehicle Code Secs. 40803 and 40804.

The code defines a speed trap as a section of highway with a posted and radar-enforced speed limit that is not supported by a traffic and engineering survey that is no more than five years old.

Sec. 40803 provides that evidence obtained by the use of  a speed trap shall not be admitted “upon a charge involving the speed of a vehicle,” while Sec. 40804 provides that in a prosecution “upon a charge involving the speed of a vehicle,” a witness is incompetent to testify “if the testimony is based upon or obtained from or by the maintenance or use of a speed trap.”

Siegel based his decision on testimony by the arresting officer that the posted speed limit in the area where Hardacre was stopped was 25 mph, while traffic studies less than five years old indicated that the proper limit would be 35 mph. The officer testified that Hardacre was driving between 40 and 44 mph.

The Santa Cruz Superior Court Appellate Department reversed, but certified the appeal as involving a substantial question of law, and the Court of Appeal agreed to hear the case.

Wunderlich said the commissioner was in error because the language and history of the statutes eliminate all doubt that lawmakers intended to limit the statutory exclusionary rule to speeding cases.

The justice explained that California’s original 1923 speed trap laws were passed ostensibly to encourage police agencies to station uniformed officers in plain sight as the most effective means of traffic enforcement. Another purpose, although the legislation did not say so, may have been to prevent local governments from making excessive use of traffic fines as a revenue source, Wunderlich observed.

Prior to 1992, Wunderlich explained, Sec. 40803(a) provided that evidence obtained as a result of a speed trap was inadmissible “as to the speed of a vehicle upon a highway...upon the trial of any person for an alleged violation of this code.”

The law, the justice explained, was amended in 1992 in response to People v. Sullivan (1991) 234 Cal.App.3d 56.

The Sullivan court held that because Sec. 40804 was limited to speeding cases, all of the evidence obtained in a speed trap, apart from evidence of the speed of the defendant’s vehicle, was admissible in a prosecution for drunk driving. The court further held that evidence of the speed of the vehicle was admissible under Proposition 8’s “Truth-in-Evidence” provision, which repealed rules providing for the exclusion of illegally obtained evidence where exclusion was not required by the U.S. Constitution.

Proposition 8 allows the Legislature to enact new exclusionary rules with the approval of the voters or by a two-thirds majority of the Senate and Assembly. The 1992 amendment, Wunderlich explained, adopted the current language of Sec. 40803 and readopted the previous speed trap laws.

But legislative reports accompanying the legislation, the justice said, explicitly stated that speed trap evidence would only be excluded in “prosecutions of speeding violations” and that the bill was not intended to “change the result” in Sullivan “or to protect people who drive under the influence.”

Wunderlich went on to reject the defense contention that a drunk driving charge resulting from a stop for speeding is “a charge involving the speed of a vehicle” for purposes of the speed trap laws. He distinguished a 1930 case applying the anti-speed trap laws to a charge of reckless driving.

The court in that case, the justice explained, held that a reckless driving conviction necessarily required proof of excessive speed, which is not required for a drunk driving conviction. In any event, Wunderlich wrote, the decision in that case cannot take precedence over the clear intent of the 1992 amendment.

The case is People v. Hardacre, H025867.


Copyright 2004, Metropolitan News Company