Benefits with County of San Diego

Fight Your Speeding Ticket: What Is the Law?

Speeding tickets are, by far, the most common moving violation. If you want to fight your ticket, there are two things you must find out.

• Were you charged under an “absolute,” “presumed,” or “basic” speed law? (Don’t worry, we’ll explain this jargon in this article.)
• How did the cop determine your speed?—through pacing, aircraft, radar, laser, VASCAR, or other means?

Three Types of Speed Limits

The 50 states basically use three types of speed limits. We call these “absolute,” “presumed” (or “prima facie” in legalese), and “basic” speed limits. Because each type of speed-limit violation often requires a unique defense, it is key to understand which you are charged with violating.

• Absolute. Most states have an “absolute” speed law. There is no trick to how this works: If the sign says 40 mph and you drive 41 mph or more, you have violated the law.
• Presumed. “Presumed” speed-limit violations are a little more complicated but give you far more flexibility in building your defense. In states that use this system for all or some of their roads—California and Texas, for example—it’s legal to drive over the posted limit as long as you are driving safely. For example, if you are driving 50 mph in a 40-mph zone, you are “presumed” to be speeding. But if it is 6 a.m. on a clear, dry morning with no other cars on a wide, straight road, and you can convince the judge that you were driving safely given those conditions, you should be acquitted. That’s because you present facts that “rebut the presumption” that by going over the limit you were driving at an unsafe speed. (We’ll give you more information about this below.)
• Basic. The concept of the basic speed law is even trickier. It works like this: In all states you can be charged with speeding by violating the “basic” speed law, even if you were driving below the posted speed limit. The ticketing officer must simply decide that you were going faster than you should have been, taking into account the driving conditions at the time. Or put another way, if you are driving 40 mph in a 45-mph zone on an icy road in heavy fog, a cop could sensibly conclude that by driving too fast for road conditions you are in violation of the “basic” speed law. This type of ticket is mostly handed out after an accident.

To find out which system your state or locality follows, start by looking up your state’s law. Unfortunately, it is sometimes hard to tell from simply reading your state speeding law whether it follows the “absolute” or “presumed” method. Here are a few things to keep in mind:

• If your state’s laws refer to a “maximum” speed limit, it is most likely “absolute,” so that it is illegal to exceed it by even 1 mph, period.
• If your state’s laws refer to a speed limit above which it is “unlawful to exceed,” or your state’s law says something like “no person shall drive in excess” of that posted or set speed limit, that speed limit is “absolute.”
• If the law sets speed limits but then just says it’s “lawful”—in the absence of a hazard—to drive below the speed limit, without flatly saying it’s illegal to exceed that limit, the speed limit is probably “presumed.”
• If the law says it’s merely “prima facie unlawful” to exceed the posted speed limit, without reference to “maximum” limits, and it doesn’t flatly forbid driving at a speed over the limit, the speed limit is likely “presumed.”

“Absolute” Speed Limits: Defenses

When you’re charged with exceeding a posted speed limit in an area where the limit is “absolute,” the law is simple. You are guilty if you drive over the speed limit.

Your only defenses are:

• Attacking the officer’s determination of your speed. To do this you must discover what method the officer used to cite you and then learn about the ways to attack that particular method.
• Claiming an emergency forced you to exceed the speed limit to avoid serious damage or injury to yourself or others.
• Claiming that the officer mistook your car for another car. With so many similar-looking cars, it is possible that a cop could see a speeding car, lose sight of it around a corner, and then wrongly pick out your car farther down the road.

You can learn more about how to challenge common speed-determining methods. These methods will work whether you were ticketed in an “absolute” or “presumed” speeding area.

“Presumed” Speed Limits: Defenses

In areas with “presumed” speed limits, the law usually reads something like this:

No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed that endangers the safety of persons or property. Unless conditions require a lower speed, the speed of any vehicle upon a highway below the limits established as authorized herein is prima facie lawful. The speed of any vehicle on a highway, in excess of the speed limits herein, is prima facie unlawful, unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation at the time, place, and under the road, weather, and traffic conditions then existing.

If you’re accused of violating a “presumed” speed limit, you have two possible defenses:

• Claim you weren’t exceeding the posted speed limit, just as you would if you were charged with violating an “absolute” speed law, or
• Claim that, even if you were exceeding the posted limit, you were driving safely given the specific road, weather, and traffic conditions at the time.

Occasionally an officer will incorrectly measure your speed. But even when that happens, it can be hard to convince a judge to accept your version of the story. In short, if you were ticketed in a “presumed” speed area, it is most sensible to rely on the argument that you may have been driving slightly over the posted speed limit, but it was safe to do so considering all the highway conditions at the time. For example, if you know you were driving 33 to 35 mph in a 25-mph zone, and the officer can probably prove it, you should concentrate your defense on showing that you were driving at a reasonable speed, considering the conditions at the time you were stopped.

Tailor Your Defense To What The Officer Says

Before you testify, you’ll have a chance to listen to what the officer says and to cross-examine him. If you work quickly, you’ll have the opportunity to tailor your testimony to his answers. For example, if the officer testifies to having paced your car for a very short distance or simply eyeballing you and concluding you were speeding, you could attempt to cast doubt on the accuracy of the officer’s determination of your speed. But if the officer’s testimony about establishing your speed seems foolproof (he or she carefully paced you at a constant distance for a quarter mile), you could concentrate on arguing that you were driving safely under prevailing conditions at the time you were ticketed.

As mentioned, being charged with violating a “presumed” speed limit means you are accused of driving at an unsafe speed, considering the conditions at the time you were ticketed. But most cops don’t look at it this way. They reason that if you are over the posted limit, you are a lawbreaker. That’s why you really do have a good chance of prevailing if you can show you were just slightly over the limit, and road, weather, and traffic conditions were good.

But be aware that the “presumed” speed limit law works both ways. On a pleasant summer morning on a wide, uncrowded highway, it may be safe to drive above the posted speed limit. However, on a wet day when visibility is limited by fog, it may not be safe to drive at the posted speed limit. In short, an officer can still ticket you for driving at or below the posted limit, if it is unsafe to do so. This is true in all states.

Now let’s focus on how you might successfully mount a defense to a “presumed” speed limit ticket. Start by understanding it is not like a typical criminal defense, where the prosecution must prove you committed an illegal act beyond a reasonable doubt. In a “presumed” speed law defense, you (the defendant) have the burden of proving your speed was safe and prudent. In other words, the speed law presumes the posted speed limit is the fastest safe speed. It is up to you to prove that going faster at the time you were ticketed is also safe.

No question, proving that your speed was safe becomes more difficult the more your speed exceeds the posted limit. Convincing a judge it was reasonable and prudent to go 38 mph in a 35-mph zone may not be too hard. (Which helps explain why police officers rarely write tickets for speeding less than 5 mph over the speed limit.) But proving that it was safe to go 65 mph in a 35-mph zone will be close to impossible.

But remember that there are many wide, straight roads designed for safe driving at 35 to 50 mph that have lower posted speed limits because of political pressure on public officials to crack down on speeding. Your testimony, backed by photographs, could show that your speed was safe on these broad, straight roads, even though you were driving faster than the posted limit. If you have weather, visibility, and traffic factors in your favor, a judge might find you not guilty, even if you exceeded a posted speed limit.

• Go back to the scene and take photos at the same time and day of the week you were cited. Also, take a photo from the driver’s viewpoint. It’s obviously to your benefit if you can establish the road was straight, with good visibility. It helps if you can show you were not in a residential area, where children might run out into the street or cars could back out of driveways. It could also help if you were pulled over at a time when few cars or people would normally be present.
• Diagram the road, showing the location of your vehicle, the officer’s vehicle, and any other traffic. It helps if you were not ticketed in a busy commercial district where cars enter and exit parking lots and businesses. And it will almost surely help if you can show you were ticketed on a wide, straight business street with a low posted speed limit early on Thanksgiving morning, when there was no vehicle or pedestrian traffic to justify the restricted speed. If you were going over the speed limit, it helps if there were few intersections along your route. If there were many intersections, be prepared to show that they were clearly controlled by lights and stop signs. (Sorry, uncontrolled intersections and speed don’t go well together.)
• Although proving traffic was light is best, all is not lost if the road was busy. Indeed, the presence of heavy traffic can sometimes be a plus if you present your case skillfully. With lots of other cars on the road, your argument could be that “everyone was exceeding the speed limit by about 10 mph, and I would have endangered myself and others by driving slower than the flow of traffic.” You might even want to argue that, had you driven more slowly, you would have violated your state’s law on illegally impeding traffic. (Make sure you look up the exact law in your state’s vehicle code and quote it to the judge.
• Get a copy of the officer’s notes so you’ll know what the officer is likely to say at trial. If he or she didn’t make any specific notes about other traffic or pedestrians, curves, hills, or obstacles, the officer probably won’t mention them at trial. This gives a good opening to cross-examine the officer on those issues to show that in fact the road was relatively wide, straight, and free of obstacles.

The “Basic” Speed Law

“Absolute” speed states set an upper limit, above which your speed is considered illegal. Drive one mile over the limit and you are a lawbreaker. But these states also have a way to ticket you when you are driving under the speed limit if the cop concludes your speed was unsafe. Called the “basic” speed law, it prohibits driving at an unsafe speed, even if that speed is below the posted limit.

“Presumed” speed limit states also have the same law, although it is usually written into the “presumed” law. Or put another way, since the posted speed limit is presumed to be safe only when road or traffic conditions are good, the presumption can be rebutted by the police officer and the safe speed can be much lower.

But technicalities aside, in all states, tickets for driving under the speed limit, but too fast to be safe, are often referred to as “driving too fast for conditions.”

For example, driving exactly at the 65‑mph posted limit on the freeway would be really dumb amidst slower and heavy traffic, in a dense fog, or in a driving rainstorm or blizzard. In commonsense terms, such unsafe driving is unlawful, regardless of higher speed limits. Police most often rely on the “basic” speed law after an accident. They reason that you were driving too fast, no matter how slow you were driving, because you were in an accident.

The difference between fighting one of these tickets and a speeding ticket for going over the speed limit is that here the prosecution has the burden of proving you were driving unsafely. (Again, that’s because the posted speed limit is presumed to be safe.) This means the officer must testify that given the unusual road, weather, or traffic conditions, your below-the-limit speed was still unsafe. This can be tough to do unless you were involved in an accident, because the cop may be hard put to come up with enough evidence to rebut the presumption established by the posted limit. If you were in an accident, the officer will probably try to show that it was evidence you were driving at an unsafe speed, and if your speed had been lower, you would have avoided the accident.

However, you do not have to despair even if you were in an accident and are charged with violating the “basic” law for driving at an unsafe below-the-limit speed. The fact that you’ve had an accident is not absolute proof that you were driving unsafely. Accidents, after all, are not always caused by your violating the law. Often, they are caused when another driver screws up.

If the police officer argues that the accident itself is evidence that you were driving at an unsafe speed, even though you were not technically speeding, you must be prepared to challenge that assertion. Your best bets are normally to claim, and hopefully prove, that the accident could have occurred for a number of reasons. For example, it could have been:

• entirely or partly another driver’s fault
• the result of a freak act of nature, in the form of a sudden wind gust, a tree falling, or other natural occurrence, or
• a defect in the highway, signs, or signals, which would happen if kids stole a stop sign or a stoplight failed.

Never plead guilty to a ticket issued to you following an accident.

Seek the advice of an attorney. Even if you don’t want to fight the ticket, you should enter a “nolo contendere” plea, which is a way of not fighting the charges. A guilty plea can be used against you if anyone involved in the accident sues you for damages. If you fight a citation and lose, a guilty verdict might be used against you in a civil lawsuit arising from the accident.