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Can a defendant in a criminal prosecution file a motion to dismiss based on insufficient evidence?

Vacaville, CA |

The prosecution is claiming that a motion to dismiss a case for Insufficient Evidence is a prosecution motion and not a defense motion. The case involves an infraction for violating California's Vehicle Code § 22349(a) Maximum Speed. The CHP officer is claiming they paced me. But I recorded her telling me that I was going "about 80" and then another time "up around 85". When I asked how she determined those speeds she said she paced me. Now I'm no expert on pacing, but when you conduct a pace the purpose is to determine the speed. If the officer cannot accurately determine the speed based on the pace then she's guessing as to how fast I was traveling and her pace testimony should be tossed...thus a motion to dismiss for insufficient evidence.

I filed a motion to dismiss for insufficient evidence based on the fact that there is no proof beyond a reasonable doubt and none will be presented. The court took my trial off calendar for a hearing on the motion. I'll present my evidence then and hope to get the case dismissed. Failing that I'll raise a Melendez-Diaz objection to the certified speedometer calibration certificate asserting it is a testimonial statement and not business record. *Infractions enjoy the same rules as misdemeanors save for in-court prosecutors, jury trials and public defenders. Proving my speed is the issue. A pace is not about guess work. You cannot convict on a guess, but facts. Phrases like "up around" or "about" are not found in factual statements. Is the motion a prosecution only motion? *Cops have to prove speeding and visual estimates are unreliable. I'm testifying to doing 65. Speedometers calibrations are testimonial statements as there is a reasonable expectation they'll be used in court to prove a fact.

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Attorney answers 3


This is a traffic infraction. Although traffic infractions are criminal, they are not afforded the same proceedures as misdemeanors and felonies.

Set the case for trial. After the officer testifies, you can question the officer. Present your evidence./tape. You may want to bring in a transcription of the tape to that the judge and officer can read along with it while you are playing it. Then you can argue that the officer is not credible and that the evidence of your speed has not be proven beyond a reasonable doubt.


An infraction is not a crime; it is a public offense. That's why you get to have a commissioner hear your case instead of a real judge and have no right to counsel or to a jury.

As far as the substance of your question goes, 80 or 85 either one is speeding. This will get you nowhere.


There is no statutory provision for defendant to file a motion to dismiss in a criminal case, however, there is a history of these motions honored in California based upon the common law which is the collective body of law established in cases throughout the legal history of our courts.