Charlottesville Lawyer – Traffic Ordinance Challenge Fails
Published: March 27, 2012
Six traffic defendants all charged with driving 50-55 mph in a 35 mph zone on the Route 250 Bypass in Charlottesville cannot avoid conviction by mounting a challenge to how the city of Charlottesville adopted the local ordinance that lowered the speed limit in what would ordinarily be a 55-mph zone, and the Charlottesville Circuit Court denies defendants’ motions to dismiss.
In Virginia, the maximum speed limit on limited access highways is typically 55 mph, under Va. Code § 46.2-870. A local ordinance passed by the city of Charlottesville, however, sets the maximum speed limit for the relevant portion of the Route 250 Bypass at 35 mph. Under Code § 46.2-878, the Commissioner of Highways or other authority having jurisdiction over highways has the power to decrease, but not increase, the maximum speed limit on limited access highways within its jurisdiction. Any such change is to be effective only when prescribed after a traffic engineering investigation and when indicated on the highway by signs.
For highways under the control of the Commissioner, such decreases in speed limit shall be effective only when prescribed in writing by the Commissioner of Highways and kept on file in the Department of Transportation’s central office. Section 46.2-878 provides there shall be a rebuttable presumption that the change in speed was properly established in accordance with that statute, whenever such speed decrease has been properly posted.
Defendants raise several constitutional and statutory challenges: 1) Code § 46.2-878 violates the Due Process Clauses of the Fifth and 14th Amendment by establishing an unconstitutional mandatory presumption that posted speed limits are validly established; 2) the commonwealth violated their due process and Sixth Amendment rights to confront testimonial evidence by failing to produce certain documents; 3) the city failed to follow the necessary procedures outlined in Code §§ 46.2-878 and -1300 when it established the 35 mph maximum speed limit and the ordinance is without legal efficacy; and 4) speed limits established pursuant to Code §§ 46.2-878 and -1300 are void in the absence of approval by the state Transportation Commission.
According to defendants, to charge someone for violating Charlottesville’s speeding ordinance, the commonwealth must prove beyond a reasonable doubt that the ordinance was passed pursuant to a traffic and engineering investigation as required by §§ 46.2-878 and -1300. But because § 46.2-878 creates a rebuttable presumption that the law is valid when signs have been properly posted, defendants argue that § 46.2-878 unconstitutionally relieves the burden of proof from the commonwealth.
But it is the Charlottesville ordinance which establishes the elements of the crime, not § 46.-2-878. Each defendant is charged with traveling 50 or more mph on the Bypass’s 35 mph zone. According to the plain language of the city ordinance, these acts are violations of Section 15-99 and are unlawful. Due process does not require the commonwealth to prove the ordinance was itself properly established.
As to defendants’ statutory challenge, the rebuttable presumption at issue is not related to the elements of the offense; rather, it only presumes the validity of the decreased maximum speed limit. Further, all available evidence points to the fact that the Charlottesville City Council did exactly what was required of them. The city’s speed limit ordinance is not invalidated simply because a 45-year-old traffic survey cannot be produced.
Finally, the statutory requirements found in Va. Code §§ 33.1-39 and 33.1-46 subjecting the location, form and character of signs on bypasses to be approved by the Commissioner of Highways are not relevant to this case.
Commonwealth v. Tocci (Hogshire) No. 22-217, et al. March 12, 2012; Charlottesville Cir.Ct.; Nina-Alice Antony, Ass’t Comm. Att’y; Richard H. Milnor, James E. Treakle, Graven W. Craig, William W. Tanner, George M. Coles Jr. for defendants. VLW 012-8-045, 8 p
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