1. Same story, different day...........year ie more of the same fiat floods the world
    Dismiss Notice
  2. There are no markets
    Dismiss Notice
  3. Week of 6/24/2017 Closing prices & Chg Over Last Wk---- Gold $1256.40 Silver $16.64 Oil $43.01 USD $96.94
  4. "Spreading the ideas of freedom loving people on matters regarding high finance, politics, constructionist Constitution, and mental masturbation of all types"
    Dismiss Notice

What are the statutory elements required to actually ALLEGE and PROVE a “speeding” offense in Texas?

Discussion in 'U.S. Constitution & Law' started by Goldhedge, May 12, 2016.



  1. Goldhedge

    Goldhedge Modal Operator/Moderator Site Mgr Site Supporter

    Joined:
    Mar 28, 2010
    Messages:
    27,125
    Likes Received:
    29,862
    Trophy Points:
    113
    Occupation:
    Tech
    Similar laws in every State.


    What are the statutory elements required to actually ALLEGE and PROVE a “speeding” offense in Texas? Believe it or not, there are actually 21 individual statutory elements. Yes, that is a two (2) and a one (1). And it is my experience that the STATE knowingly and intentionally avoids providing the required due process Notice of more than two thirds of them in the criminal complaint and other charging instruments.

    Which also means that they are denying the Accused in his/her due process right to Notice and defense of those elements, while also making their job as prosecutor unconstitutionally and illegally easier by not having to prove those that they fail or refuse to allege.

    This article is intended to teach you how to perform legal analysis and observation in a “connect the dots” fashion. Read the statutes below and make your own conclusions about the necessary elements as I have listed them. But, while you do so, be sure to ask yourself how both the court and the prosecution can meet their individual burdens of ensuring that the Accused’s right of due process, including the right of proper, sufficient and timely Notice, are properly met under the statutes, as well as how they are not according to how they actually file the complaint. And I’ll preface that by pointing out this example.

    The STATE cannot rely solely upon the elements asserted in Sec. 545.351(a) OR Sec. 545.352 as the basis for the allegation.

    The exercise here is for you to figure out and recognize WHY that is and use it to make a defense according to the remaining statutory provisions.

    Here are the individual elements required to be proven in a Texas “speeding” allegation according to the various interrelated statutes that follow.

    • Who (your name),
    • Where (within the geographical boundaries of the city/county of…),
    • When (on April 1, 2016),
    • Did then and there,
    • What (specific regulated subject matter (while engaging in “transportation”)),
    • While [allegedly] acting as an “operator,”
    • Did [allegedly] “drive” (not “operate” like most complaints allege),
    • A[n alleged] “motor vehicle,”
    • Upon a highway of this state,
    • At a[n alleged] speed of xx,
    • Where the posted speed limit was xxx,
    • Which was [allegedly] greater than reasonable and prudent,
    • Under the circumstances and,
    • Conditions then existing,
    • And [allegedly] without regard for actual and potential hazards then existing,
    • Did [allegedly] fail in his duty to exercise due care,
    • By [allegedly] failing to avoid a collision,
    • With another
      1. Person, or
        1. To wit (the injured person’s name),
      2. Vehicle
        1. To wit (the vehicle year, make and model),
    • That was [allegedly]
      1. Traveling on the highway, or
      2. Entering the highway
    • In compliance with law.
    =============================================================================
    =============================================================================

    TRANSPORTATION CODE

    TITLE 7. VEHICLES AND TRAFFIC

    SUBTITLE C. RULES OF THE ROAD

    CHAPTER 545. OPERATION AND MOVEMENT OF
    VEHICLES

    SUBCHAPTER
    A. GENERAL PROVISIONS​


    Sec. 545.351.MAXIMUM SPEED REQUIREMENT.

    (a)An operator may not drive
    at a speed
    greater
    than is reasonable and prudent
    under the circumstances then existing.

    (b)An operator:

    (1)may not drive a vehicle at a speed
    greater
    than is reasonable and prudent
    under the conditions and
    having regard for actual and potential hazards then existing;and

    (2)shall control the speed of the vehicle
    as necessary to avoid colliding with another person or vehicle
    that is on or entering the highway in compliance with law
    and the duty of each person to use due care.

    (c)An operator shall, consistent with Subsections
    (a) and (b), drive at an appropriate reduced speed if:

    (1)the operator is approaching and crossing an
    intersection or railroad grade crossing;

    (2)the operator is approaching and going around
    a curve;

    (3)the operator is approaching a hill crest;

    (4)the operator is traveling on a narrow or
    winding roadway;and

    (5)a special hazard exists with regard to
    traffic, including pedestrians, or weather or highway conditions.

    =============================================================================
    =============================================================================

    Sec. 545.352.PRIMA FACIE SPEED LIMITS.

    (a)A speed in excess of the limits established
    by Subsection (b) or under another provision of this subchapter is prima facie
    evidence that the speed is not reasonable and prudent and that the speed is
    unlawful.

    (b)Unless a special hazard exists that requires
    a slower speed for compliance with Section 545.351(b), the following speeds are lawful:

    (1)30 miles per hour in an urban district on a
    street other than an alley and 15 miles per hour in an alley;

    (2)except as provided by Subdivision (4), 70
    miles per hour on a highway numbered by this state or the United States outside
    an urban district, including a farm-to-market or ranch-to-market road;

    (3)except as provided by Subdivision (4), 60
    miles per hour on a highway that is outside an urban district and not a highway
    numbered by this state or the United States;

    (4)outside an urban district:

    (A)60 miles per hour if the vehicle is a school
    bus that has passed a commercial motor vehicle inspection under Section 548.201 and is on a highway numbered by the United States or
    this state, including a farm-to-market road; or

    (B)50 miles per hour if the vehicle is a school
    bus that:

    (i)has not passed a commercial motor vehicle
    inspection under Section 548.201; or

    (ii)is traveling on a highway not numbered by the
    United States or this state;

    (5)on a beach, 15 miles per hour; or

    (6)on a county road adjacent to a public beach,
    15 miles per hour, if declared by the commissioners court of the county.

    (c)The speed limits for a bus or other vehicle
    engaged in the business of transporting passengers for compensation or hire,
    for a commercial vehicle used as a highway post office vehicle for highway post
    office service in the transportation of United States mail, for a light truck,
    and for a school activity bus are the same as required for a passenger car at
    the same time and location.

    (d)In this section:

    (1)“Interstate highway” means a
    segment of the national system of interstate and defense highways that is:

    (A)located in this state;

    (B)officially designated by the Texas
    Transportation Commission;and

    (C)approved under Title 23, United States Code.

    (2)“Light truck” means a truck with a
    manufacturer’s rated carrying capacity of not more than 2,000 pounds, including
    a pick-up truck, panel delivery truck, and carry-all truck.

    (3)“Urban district” means the
    territory adjacent to and including a highway, if the territory is improved
    with structures that are used for business, industry, or dwelling houses and
    are located at intervals of less than 100 feet for a distance of at least
    one-quarter mile on either side of the highway.

    (e)An entity that establishes or alters a speed
    limit under this subchapter shall establish the same speed limit for daytime
    and nighttime.

    =============================================================================
    =============================================================================

    TRANSPORTATION
    CODE

    TITLE
    7. VEHICLES AND TRAFFIC

    SUBTITLE
    B. DRIVER’S LICENSES AND PERSONAL IDENTIFICATION CARDS

    CHAPTER
    522. COMMERCIAL DRIVER’S LICENSES

    SUBCHAPTER A. GENERAL PROVISIONS​


    Sec.
    522.003.DEFINITIONS.In this chapter:



    (3)“Commercial driver’s license” means
    a license issued to an individual that authorizes the individual to drive a
    class of commercial motor vehicle.

    (4)“Commercial learner’s permit” means
    a permit that restricts the holder to driving a commercial motor vehicle as
    provided by Section 522.011(a)(2)(B).

    (5)“Commercial motor vehicle” means a
    motor vehicle or combination of motor vehicles used to transport passengers or
    property that:

    (A)has a gross combination weight or a gross
    combination weight rating of 26,001 or more pounds, including a towed unit with
    a gross vehicle weight or a gross vehicle weight rating of more than 10,000 pounds;

    (B)has a gross vehicle weight or a gross vehicle
    weight rating of 26,001 or more pounds;

    (C)is designed to transport 16 or more
    passengers, including the driver; or

    (D)is transporting hazardous materials and is
    required to be placarded under 49 C.F.R. Part 172, Subpart F.



    (8)“Department
    means the Department of Public Safety.

    (9)“Disqualify” means to withdraw the
    privilege to drive a commercial motor vehicle, including to suspend, cancel, or
    revoke that privilege under a state or federal law.

    (10)“Domicile” means the place where a
    person has the person’s true, fixed, and permanent home and principal residence
    and to which the person intends to return whenever absent.

    (11)“Drive”
    means to operate or be in physical control of a motor vehicle.


    (12)“Driver’s
    license
    ” has the meaning assigned by Section 521.001, except the term does not include a commercial learner’s
    permit unless otherwise provided by this chapter.

    (13)“Drug” has the meaning assigned by
    Section 481.002, Health and Safety Code.

    (14)“Employer” means a person who owns
    or leases a commercial motor vehicle or assigns a person to drive a commercial
    motor vehicle.

    (15)“Federal act” means the Commercial
    Motor Vehicle Safety Act of 1986 (49 U.S.C. App. Section 2701 et seq.).

    (16)“Foreign jurisdiction” means a
    jurisdiction other than a state.

    (17)“Gross combination weight rating”
    means the value specified by the manufacturer as the loaded weight of a
    combination or articulated vehicle or, if the manufacturer has not specified a
    value, the sum of the gross vehicle weight rating of the power unit and the
    total weight of the towed unit or units and any load on a towed unit.

    (18)“Gross vehicle weight rating” means
    the value specified by the manufacturer as the loaded weight of a single
    vehicle.

    (19)“Hazardous materials” has the
    meaning assigned by 49 C.F.R. Section 383.5.

    (20)Repealed by Acts 2001, 77th Leg., ch. 941,
    Sec. 43, eff. Sept. 1, 2001.

    (21)“Motor
    vehicle
    ” means a vehicle, machine, tractor, trailer, or
    semitrailer propelled or drawn by mechanical power and used on a highway.The term does not include a vehicle, machine,
    tractor, trailer, or semitrailer operated exclusively on a rail.

    (22)“Non-domiciled commercial driver’s
    license” means a commercial driver’s license issued by a state to an
    individual who is domiciled in a foreign jurisdiction.

    (22-a)“Non-domiciled commercial learner’s
    permit” means a commercial learner’s permit issued by a state to an
    individual who is domiciled in a foreign jurisdiction.

    (23)“Out-of-service order” means:

    (A)a temporary prohibition against driving a
    commercial motor vehicle issued under Section 522.101, the law of another state, 49 C.F.R. Section 383.5,
    386.72, 392.5, 392.9a, 395.13, or 396.9, a law compatible with those federal
    regulations, or the North American Standard Out-of-Service Criteria; or

    (B)a declaration by the Federal Motor Carrier
    Safety Administration or an authorized enforcement officer of a state or local
    jurisdiction that a driver, commercial motor vehicle, or motor carrier
    operation is out of service under 49 C.F.R. Section 383.5, 386.72, 392.5,
    392.9a, 395.13, or 396.9, a law compatible with those federal regulations, or
    the North American Standard Out-of-Service Criteria.

    (23-a)“Person”
    includes the United States, a state, or a political subdivision of a state.


    (24)“Secretary” means the United States
    secretary of transportation.

    (24-a)“Seed cotton module” means
    compacted seed cotton in any form.

    (25) “Serious traffic violation” means:

    (A)a conviction arising from the driving of a
    motor vehicle, other than a parking, vehicle weight, or vehicle defect
    violation, for:

    (i)excessive speeding, involving a single charge
    of driving 15 miles per hour or more above the posted speed limit;

    (ii)reckless driving, as defined by state or
    local law;

    (iii)a violation of a state or local law related
    to motor vehicle traffic control, including a law regulating the operation of
    vehicles on highways, arising in connection with a fatal accident;

    (iv)improper or erratic traffic lane change;

    (v)following the vehicle ahead too closely;or

    (vi)a violation of Sections 522.011 or 522.042;or

    (B)a violation of Section 522.015.

    (26)“State” means a state of the
    United States or the District of Columbia.

    =============================================================================
    =============================================================================

    Sec. 201.904.SPEED SIGNS.The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).

    =============================================================================
    =============================================================================

    TRANSPORTATION CODE

    TITLE 7. VEHICLES AND TRAFFIC

    SUBTITLE C. RULES OF THE ROAD

    CHAPTER 541. DEFINITIONS

    SUBCHAPTER
    A. PERSONS AND GOVERNMENTAL AUTHORITIES​


    Sec.
    541.001.PERSONS.In this subtitle:

    (1)“Operator” means, as used in reference to a vehicle, a person who drives or has physical control of a vehicle.

    (2)“Owner” means, as used in reference
    to a vehicle, a person who has a property interest in or title to a
    vehicle.The term:

    (A)includes a person entitled to use and possess
    a vehicle subject to a security interest;and

    (B)excludes a lienholder and a lessee whose
    lease is not intended as security.

    (3)“Pedestrian” means a person on
    foot.

    (4)“Person” means an individual, firm, partnership, association, or corporation.

    (5)“School crossing guard” means a responsible
    person who is at least 18 years of age and is designated by a local authority
    to direct traffic in a school crossing zone for the protection of children
    going to or leaving a school.

    =============================================================================
    =============================================================================

    Sec. 24.013.AIRCRAFT FUEL CONTAINERS;OFFENSE.

    (a)A person commits an offense if the person
    operates or intends to operate an aircraft equipped with:

    (1)a fuel container that the person knows does
    not conform to federal aviation regulations or that has not been approved by
    the Federal Aviation Administration by inspection or special permit;or

    (2)a pipe, hose, or auxiliary pump that is used
    or intended for transferring fuel to the primary fuel system of an aircraft
    from a fuel container that the person knows does not conform to federal
    aviation regulations or that has not been approved by the Federal Aviation
    Administration by inspection or special permit.

    (b)An offense under Subsection (a) is a felony
    of the third degree.

    (c)A peace officer may seize an aircraft
    equipped with a fuel container that is the subject of an offense under
    Subsection (a).

    (d)An aircraft seized under Subsection (c) may
    be forfeited to the Department of Public Safety in the same manner as property
    subject to forfeiture under Article 18.18, Code of Criminal Procedure.

    (e)An aircraft forfeited under Subsection (d) is
    subject to Chapter 2205, Government Code.

    (f)In this section:

    (1)“Federal aviation regulations”
    means the following regulations adopted by the Federal Aviation Administration
    as those regulations existed on September 1, 1985, except a regulation in
    existence on September 1, 1985, that is inconsistent with a regulation adopted
    after that date:

    (A)certification procedures for products and
    parts, 14 C.F.R. Part 21;

    (B)maintenance, preventive maintenance,
    rebuilding, and alteration regulations, 14 C.F.R. Part 43;and

    (C)general operating and flight rules, 14 C.F.R.
    Part 91.

    (2)“Operate” means to use, cause to use, or authorize to use an aircraft for air navigation and includes:

    (A)the piloting of an aircraft, with or without
    the right of legal control;

    (B)the taxiing of an aircraft before takeoff or
    after landing;and

    (C)the postflight or preflight inspection or
    starting of the engine of an aircraft.

    =============================================================================
    =============================================================================

    Sec.
    541.002.GOVERNMENTAL AUTHORITIES.In this subtitle:

    (1)“Department” means the Department
    of Public Safety acting directly or through its authorized officers and agents.

    (2)“Director” means the public safety
    director.

    (3)“Local authority” means:

    (A)a county, municipality, or other local entity
    authorized to enact traffic laws under the laws of this state;or

    (B)a school district created under the laws of
    this state only when it is designating school crossing guards for schools
    operated by the district.

    (4)“Police officer” means an officer
    authorized to direct traffic or arrest persons who violate traffic regulations.

    (5)“State” has the meaning assigned by
    Section 311.005, Government Code, and includes a province of Canada.

    =============================================================================
    =============================================================================

    TRANSPORTATION CODE

    TITLE 7. VEHICLES AND TRAFFIC

    SUBTITLE J. MISCELLANEOUS PROVISIONS

    CHAPTER 724. IMPLIED CONSENT

    SUBCHAPTER
    A. GENERAL PROVISIONS​


    Sec.
    724.001.DEFINITIONS.In this chapter:

    (1)“Alcohol concentration” has the
    meaning assigned by Section 49.01, Penal Code.

    (2)“Arrest” includes the taking into
    custody of a child, as defined by Section 51.02, Family Code.

    (3)“Controlled substance” has the
    meaning assigned by Section 481.002, Health and Safety Code.

    (4)“Criminal charge” includes a charge
    that may result in a proceeding under Title 3, Family Code.

    (5)“Criminal proceeding” includes a
    proceeding under Title 3, Family Code.

    (6)“Dangerous drug” has the meaning
    assigned by Section 483.001, Health and Safety Code.

    (7)“Department” means the Department
    of Public Safety.

    (8)“Drug” has the meaning assigned by
    Section 481.002, Health and Safety Code.

    (9)“Intoxicated” has the meaning
    assigned by Section 49.01, Penal Code.

    (10)“License” has the meaning assigned
    by Section 521.001.

    (11)“Operate” means to drive or be in actual control of a motor vehicle or watercraft.

    (12)“Public place” has the meaning
    assigned by Section 1.07, Penal Code.

    https://taooflaw.wordpress.com/2016...own-of-speeding-allegation-elements-in-texas/
     
  2. Usury

    Usury Gold Chaser Platinum Bling

    Joined:
    Apr 1, 2010
    Messages:
    3,776
    Likes Received:
    2,798
    Trophy Points:
    113
    And.....so what? The officer will just testify as to all those points, so what difference does it make? Either you were speeding or you weren't. Either way if the officer testifies that you were, then you're screwed.
     
  3. michael59

    michael59 heads up-butts down Platinum Bling

    Joined:
    Apr 1, 2014
    Messages:
    5,863
    Likes Received:
    2,514
    Trophy Points:
    113
    Gender:
    Male
    Occupation:
    20 years logging
    Location:
    on the low side of corporate Oregon
    It is a matter of commercial terms. Are you a worm, were you worming your way through Tex-@$$? All you have to do is throw up your hands and say "yess masser." And, the commercial terms apply. But, better to do this away from the roidtricken cop.....usually about two weeks later.

    I'm telling you now that I went up on two of the same day tickets of no tags and no license. Told the administrative law judge that the municipality of Forest Grove did not have vehicle law and as such was barred from using the STATE OF OREGON vehicle laws because she and the two Bozos had sworn to uphold the oregon constitution which in arrival ten section nine states the word "whatever." This whole article/section is about corporations and how municipalities cannot help them. And, I signed my name and did write "without prejudice title 18" above my mark.

    Now, as of late I have r-searched my name and that day is not in the anus of lists. But a speeding ticket 13/15 years prior is.

    My advice? Objection, when asked why, hearsay. Then it's O, O, O, O......

    Never let the fiction lay testimony, ever.
     

Share This Page