Fight Your Speeding Ticket: What Is the Law?

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Absolute, Presumed, or Basic Speeding Law?

Speeding tickets are, by far, the most common moving violation. If you want to fight yourticket, there are two things you must know.

• 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.     In     this article, we explain the methods of speed detection.
  

Three Types of Speed LimitsThe 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 requiresa unique defense, it is key to understand which you are charged with violating.

• Absolute. Most states have an “absolute” speed law. There is notrick 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 morecomplicated but give you far more flexibility in building your defense. Instates that use this system for all or some of their roads—California andTexas, for example—it’s legal to drive over the posted limit as long as you aredriving safely. For example, if you are driving 50 mph in a 40-mph zone, youare “presumed” to be speeding. But if it is 6 a.m. on a clear, dry morning withno other cars on a wide, straight road, and you can convince the judgethat you were driving safely given those conditions, you should be acquitted.That’s because you present facts that “rebut the presumption” that by goingover the limit you were driving at an unsafe speed. (We’ll give you moreinformation about this below.)
• Basic. The concept of the basic speed law is even trickier. Itworks like this: In all states you can be charged with speeding by violatingthe “basic” speed law, even if you were driving below the posted speedlimit. The ticketing officer must simply decide that you were going faster thanyou 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 roadin 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. (This articleexplains how to researchstate laws.) Unfortunately, it is sometimes hard to tell from simply readingyour 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 whichit is “unlawful to exceed,” or your state’s law says something like “no personshall 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, withoutflatly saying it’s illegal to exceed that limit, the speed limit is probably“presumed.”
• If the law says it’s merely “prima facie unlawful” toexceed the posted speed limit, without reference to “maximum” limits, and itdoesn’t flatly forbid driving at a speed over the limit, the speed limit islikely “presumed.”
  

“Absolute” Speed Limits: DefensesWhen you’re charged with exceeding a posted speed limitin an area where the limit is “absolute,” the law is simple. You are guilty ifyou drive over the speed limit.
Your only defenses are:

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

Inthis article we will help you build your defense by showing you how tochallenge all common methods used to determine whether you were speeding. Thesemethods will work whether you were ticketed in an “absolute” or “presumed”speeding area.

“Presumed” Speed Limits: DefensesIn areas with “presumed” speed limits, the law usuallyreads something like this:
No person shalldrive a vehicle upon a highway at a speed greater than is reasonable or prudenthaving due regard for weather, visibility, the traffic on, and the surface andwidth of, the highway, and in no event at aspeed that endangers the safety of persons or property. Unless conditionsrequire a lower speed, the speed of any vehicle upon a highway below thelimits established as authorized herein is prima facie lawful. The speed of anyvehicle 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 excessof said limits did not constitute a violation at the time, place, and under theroad, weather, and traffic conditions then existing.
If you’re accused of violating a “presumed” speed limit, youhave two possible defenses:

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

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

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Tailor Your Defense To What The Officer SaysBefore you testify, you’ll have a chance to listen towhat the officer says and to cross-examine him. If you work quickly, you’llhave the opportunity to tailor your testimony to his answers. For example, ifthe officer testifies to having paced your car for a very short distance orsimply eyeballing you and concluding you were speeding, you could attempt tocast doubt on the accuracy of the officer’s determination of your speed. But ifthe officer’s testimony about establishing your speed seems foolproof (he orshe carefully paced you at a constant distance for a quarter mile), you couldconcentrate on arguing that you were driving safely under prevailing conditionsat 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, consideringthe conditions at the time you were ticketed. But most cops don’t look at itthis way. They reason that if you are over the posted limit, you are alawbreaker. That’s why you really do have a good chance of prevailing if youcan show you were just slightly over the limit, and road, weather, and trafficconditions were good.
But be aware that the “presumed” speed limit law worksboth ways. On a pleasant summer morning on a wide, uncrowded highway, it may besafe to drive above the posted speed limit. However, on a wet day whenvisibility is limited by fog, it may not be safe to drive at the posted speedlimit. In short, an officer can still ticket you for driving at or belowthe 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 typicalcriminal defense, where the prosecution must prove you committed an illegal act beyond a reasonable doubt. Ina “presumed” speed law defense, you (the defendant) have the burden of provingyour speed was safe and prudent. In other words, the speed law presumes theposted speed limit is the fastest safe speed. It is up to you to prove thatgoing faster at the time you were ticketed is also safe.
No question, proving that your speed was safe becomesmore difficult the more your speed exceeds the posted limit. Convincing a judgeit was reasonable and prudent to go 38 mph in a 35-mph zone may not be toohard. (Which helps explain why police officers rarely write tickets forspeeding less than 5 mph over the speed limit.) But proving that it was safe togo 65 mph in a 35-mph zone will be close to impossible.
But remember that there are many wide, straight roadsdesigned for safe driving at 35 to 50 mph that have lower posted speed limitsbecause of political pressure on public officials to crack down on speeding.Your testimony, backed by photographs, could show that your speed was safe onthese broad, straight roads, even though you were driving faster than the postedlimit. If you have weather, visibility, and traffic factors in your favor, ajudge might find you not guilty, even if you exceeded a posted speed limit.

• Go back to the scene and take photos at the same timeand day of the week you were cited. Also, take a photo from the driver’sviewpoint. It’s obviously to your benefit if you can establish the road wasstraight, with good visibility. It helps if you can show you were not in aresidential area, where children might run out into the street or cars couldback out of driveways. It could also help if you were pulled over at a timewhen 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 ticketedin a busy commercial district where cars enter and exit parking lots andbusinesses. And it will almost surely help if you can show you were ticketed ona wide, straight business street with a low posted speed limit early onThanksgiving morning, when there was no vehicle or pedestrian traffic tojustify the restricted speed. If you were going over the speed limit, it helpsif there were few intersections along yourroute. If there were many intersections, be prepared to show that theywere 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 notlost if the road was busy. Indeed, the presence of heavy traffic can sometimesbe a plus if you present your case skillfully. With lots of other cars on theroad, your argument could be that “everyone was exceeding the speed limit byabout 10 mph, and I would have endangered myself and others by driving slowerthan the flow of traffic.” You might even want to argue that, had you drivenmore slowly, you would have violated your state’s law on illegally impedingtraffic. (Make sure you look up the exact law in your state’s vehicle code andquote it to the judge.
• Get a copy of the officer’s notes so you’ll know whatthe officer is likely to say at trial. If he or she didn’t make any specificnotes about other traffic or pedestrians, curves, hills, or obstacles, theofficer probably won’t mention them at trial. This gives a good opening tocross-examine the officer on those issues to show that in fact the road wasrelatively wide, straight, and free of obstacles.
  

The “Basic” Speed Law“Absolute” speed states set an upper limit, above whichyour speed is considered illegal. Drive one mile over the limit and you are alawbreaker. But these states also have a way to ticket you when you are drivingunder 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 belowthe posted limit.
“Presumed” speed limit states also have the same law, althoughit is usually written into the “presumed” law. Or put another way, since theposted speed limit is presumed to be safe only when road or traffic conditionsare good, the presumption can be rebutted by the police officer and the safespeed can be much lower.
But technicalities aside, in all states, tickets fordriving under the speed limit, but too fast to be safe, are often referred toas “driving too fast for conditions.”
For example, driving exactly at the65‑mph posted limit on the freeway would be really dumb amidstslower and heavy traffic, in a dense fog, or in a driving rainstorm orblizzard. In commonsense terms, such unsafe driving is unlawful, regardless ofhigher 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 weredriving, because you were in an accident.
The difference between fighting one of these tickets anda speeding ticket for going over the speed limit is that here the prosecutionhas the burden of proving you were driving unsafely. (Again, that’s because theposted speed limit is presumed to be safe.) This means the officer must testifythat given the unusual road, weather, or traffic conditions, yourbelow-the-limit speed was still unsafe. This can be tough to do unless you wereinvolved in an accident, because the cop may be hard put to come up with enoughevidence to rebut the presumption established by the posted limit. If you werein an accident, the officer will probably try to show that it was evidence youwere driving at an unsafe speed, and if your speed had been lower, you wouldhave avoided the accident.
However, you do not have to despair even if you were inan accident and are charged with violating the “basic” law for driving at anunsafe 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 isevidence that you were driving at an unsafe speed, even though you werenot technically speeding, you must be prepared to challenge that assertion.Your best bets are normally to claim, and hopefully prove, that the accidentcould 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 asudden wind gust, a tree falling, or other natural occurrence, or
• a defect in the highway, signs, or signals, which wouldhappen 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 theticket, you should enter a “nolo contendere” plea, which is a way of notfighting the charges. A guilty plea can be used against you if anyone involvedin the accident sues you for damages. Bycontrast, if you fight a citation and lose, a guilty verdict might beused against you in a civil lawsuit arising from the accident.

by: David Brown