A couple years ago, California Western School of Law started a traffic court clinic . The program would help defendants who can’t afford an attorney to challenge traffic infractions, and let students gain some practical experience in a relatively low-stakes setting.
But it could be the city of San Diego that ends up learning the biggest lesson from the program: Many of the speeding tickets it’s doling out might be illegal.
Shortly after the program started, Coleen Cusack, the attorney who heads up the clinic, noticed a problem with some speeding-ticket cases. State law requires cities to conduct traffic surveys every five years to justify speed limits that aren’t already set by state statute (65 mph on freeways and 25 in a school zone are examples of statutory speed limits). The point of the surveys is to make sure cities don’t create speed traps — sections of road where a posted speed limit is lower than it should be and not justified by actual traffic safety data.
A survey’s life can be extended up to 10 years if certain criteria are met. Cusack noticed that on older surveys, a city traffic engineer was certifying, via a stamp, that there had been “no significant changes in roadway or traffic conditions” since the original survey.
If a traffic survey is introduced in court — which happens anytime someone challenges a non-statutory speed limit — that certification, Cusack said, equates to expert testimony, meaning a traffic court defendant should be allowed to cross-examine the engineer who certified the survey.
So, she subpoenaed the guy whose name kept showing up on the certifications, Ty Palusky, an associate engineer with the city’s Transportation Engineering Operations Division, summoning him to court to testify in a case that Cusack believed included an illegal traffic survey.
Palusky didn’t show up to court — something he’s not allowed to do without a judge’s approval. Cusack served him again and told him that he could be held in contempt of court if he kept ignoring the order. He scoffed at her, she said.
“I said, ‘You still have to show up to court. It’s not up to you to decide that you’re going to summarily quash this subpoena,’” Cusack said.
Again, he didn’t show up. In the first case, the police officer who issued the ticket admitted in court that the speed survey was invalid, Cusack said, and the case was dismissed. In the second case, the police officer didn’t show up at all, resulting in a dismissal.
But getting those cases dismissed wasn’t the only goal, Cusack said. She wants the city to conduct valid traffic surveys. If a traffic survey is more than 10 years old, the speed limit on that portion of road is considered unenforceable under state law — but most people don’t know that. The speed survey for Fairmount Avenue, between Meade Avenue and the I-8 East on-ramp, for instance, is almost a dozen years old.
“If you were charged with murder and you hadn’t committed murder, you wouldn’t say, ‘Oh, why bother fighting it?’ But because [a traffic infraction] is such a small crime, and people don’t want to take time out of their day … they’ll just pay it, and the police and everybody else makes money for something that they shouldn’t be making money from,” Cusack said.
“If they want to collect money from doing this, then they have to do the work required,” she said. “They can’t just collect money for something they haven’t really proven.”
Cusack has asked the San Diego Superior Court to hold Palusky in contempt, meaning he willfully defied her authority as an officer of the court. There’s a hearing scheduled for late May. If he’s found in contempt, Cusack said, he could be looking at a fine or possibly jail time.
Palusky didn’t respond to questions asked through a city spokesperson. A spokesperson for the city attorney’s office said city employees aren’t required to notify the office if they’re subpoenaed.
It might seem like a lot for a traffic ticket, but in any criminal proceeding — and traffic court is considered a criminal court — defendants have the constitutional right to subpoena and cross-examine witnesses. But since traffic attorneys handle such a high volume of cases, many simply count on the police officer who issued the ticket to not show up in court, which happens roughly half the time, said Rob Punta, an attorney who’s also challenged traffic surveys. When that happens, the ticket is dismissed.
Punta is currently appealing a case involving a 27-year-old traffic survey. The court commissioner should have dismissed the ticket, Punta said, but refused.
“There’s a feeling among some commissioners, ‘This isn’t a big deal, it’s $300, $400.’ That attitude sucks,” he said.
For some people, a $300 ticket is a big deal.
A number of recent reports have argued that traffic fines disproportionately impact  poor people and people of color. There’s also increasing scrutiny on so-called “penalty assessments” that fill state and local coffers but also drive up the cost of traffic tickets. If you were caught driving up to 15 miles over the speed limit in California 1993, you paid $29. Now, the same ticket costs $238. If you can’t afford to pay the full amount, it costs $30 to set up a payment plan, or $35 for a 90-day grace period. Failure to pay means a $300 fine and your license could get suspended.
Punta and Cusack have identified other problems with the city’s traffic surveys. Police can’t ticket people on a road that lacks a valid traffic survey, but they still do. Those tickets are unenforceable, Cusack said, but the only way to know that is to challenge the ticket in court. And if a speeding ticket is challenged in court, defendants are entitled to the entire traffic survey, but right now, all they’re getting is a two-page summary. This, by law, is insufficient. Without the full survey, there’s no way to tell whether it was conducted properly, Punta said.
Such information reveals exactly when and where the survey was conducted. It can’t be too close to a stop sign or traffic light, or anything else that might slow the flow of traffic. The traffic engineer can’t be visible to drivers. It can’t be conducted during peak hours when the road might be congested or late at night or on an incline. The engineer must measure the speeds of at least 100 vehicles and exclude the fastest 15 percent. The 85th percentile speed — the speed that the other 85 percent drive at or below — is rounded to the nearest five miles. The traffic engineer can adjust the speed limit down by five miles — but only five miles — if certain conditions are met: if accidents on that stretch of road are higher than average, or if there are other safety concerns, like heavy bike or pedestrian traffic. They can’t factor in accidents attributed to speed.
Punta acknowledges that these sorts of challenges might tie up an already overburdened court system. He calls it a “Pandora’s box.”
“But the code is clear and the standards are pretty clear,” he said. “I don’t like local government screwing people over, because that’s really what it’s about.”