"Presumed" Speed Limits

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 reason able 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.

State statutes vary. The wording of each state's law will vary slightly, so be sure to read yours carefully.

If you're accused of violating a "presumed" speed limit, you have two possible defenses:

  1. Claim you weren't exceeding the posted speed limit, just as you would if you were charged with violating an "absolute" speed law, or
  2. 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. (We discuss how this happens and possible defenses in Chapter 6.) 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. (See Chapter 13 for an explanation.) 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.

EXAMPLE: Bill was clocked by radar driving 43 mph on a street where 35-mph signs were properly posted. The law of his state contains a presumption that the posted speed limit is reasonable or prudent. To fight this ticket based on a claim that it was prudent to drive 43 mph, Bill will have to overcome the presumption that 35 mph was the maximum safe speed at the time he was ticketed. He might do this by showing there was no traffic at the time he was stopped and that the weather was clear and dry.

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.

EXAMPLE: You are driving to work on Saturday morning at 7 a.m. (grumpy over having to work on the weekend). Realizing that you are running late (and not wanting the boss to chew you out), you are doing 35 mph in a 25-mph zone on a wide, two-lane arterial street when a cop nails you for speeding. You go to court and argue:

  1. Few other cars were on the road, and
  2. Traffic lights controlled traffic at all major cross streets, and
  3. Visibility was great, and the sun was shining.

Regardless of whether you were driving five or 25 miles per hour over the speed limit, the strategy for attacking a speeding ticket in a "presumed" speed state is usually the same. You should attempt to prove that good weather and visibility, road configuration, and lack of traffic combined to make a higher speed perfectly safe. But it's rarely enough to simply tell the judge that the road looked safe to you. Instead, you'll want to introduce convincing proof to back up your position.

Here are important ways to build your case:

  • 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 (see Chapter 10).
  • Diagram the road, showing the location of your vehicle, the officer's vehicle, and any other traffic. (See Chapter 10 on preparing your testi mony for trial.) 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. See Chapter 2.)
  • Get a copy of the officer's notes (see Chapter 9) 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 (see Chapter 11).

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