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alsadad · 06-13-2008, 03:48 PM

I may be wrong, but I believe that there is a slight misconception among some about the effect of the prima facie standard and burden of proof. For instance, Evenstar wrote that "speeds above the speed limit are automatically rated as 'not reasonable or prudent' and therefore are unlawful…the burden would be on the defendant to prove otherwise." [Emphasis added.] Others have written similarly.

I don't mean to quibble with anyone, but it is my understanding that the prima facie language in the law means that the prosecution has to prove that the defendant exceeded the established speed limit. The prosecution does not also have to prove that the defendant's speed was unreasonable or imprudent, the law already says that a speed in excess of the limit is by definition unreasonable or imprudent, as determined by the Legislature. Now, the defendant is certainly free to attempt to challenge the allegation that he was traveling at a particular speed, or to challenge the accuracy of the instrument used to measure his speed, or some other acceptable defense. But, and this is where I differ from Evenstar and others, if the fact of speed in excess of the established limit is proven to the satisfaction of the court, the defendant may not even attempt to prove that such speed was not unreasonable. He is guilty, period, end of story… except that he would be allowed to prove that there was some exigency that excused his violation, such as a medical emergency. Notice that there is a substantial difference between determining that the defendant violated the law but has a good excuse in that one instance, and saying that speed in excess of the limit is not unreasonable or imprudent under certain circumstances -- this is not even close to the same thing as "Well, it was a nice day, there were no other boats around, so no harm, no foul. Let's get lunch." That absolutely would not be accepted as a defense to the charge. Circumstances such as the absence of other boats in the vicinity may mitigate the punishment, but they are not a defense to the charge.

Contrast this with the situation where a boater was traveling at, say, 40 mph (assuming HB 847 were in effect) in rain and dense fog. The MP may cite that boater for speeding, because 40 mph was not reasonable or prudent under those circumstances (or whatever the articulated standard is). In that case, because the boater has not committed a violation of the prima facie speed limit, the burden would be on the prosecution to prove that his speed was not reasonable or prudent and the defendant would be permitted to submit evidence and/or argue otherwise.

I am, as always, willing to be educated if I am mistaken.

06-13-2008, 03:48 PM	#133
alsadad Member Join Date: Sep 2007 Posts: 45 Thanks: 8 Thanked 41 Times in 10 Posts	I may be wrong, but I believe that there is a slight misconception among some about the effect of the prima facie standard and burden of proof. For instance, Evenstar wrote that "speeds above the speed limit are automatically rated as 'not reasonable or prudent' and therefore are unlawful…the burden would be on the defendant to prove otherwise." [Emphasis added.] Others have written similarly. I don't mean to quibble with anyone, but it is my understanding that the prima facie language in the law means that the prosecution has to prove that the defendant exceeded the established speed limit. The prosecution does not also have to prove that the defendant's speed was unreasonable or imprudent, the law already says that a speed in excess of the limit is by definition unreasonable or imprudent, as determined by the Legislature. Now, the defendant is certainly free to attempt to challenge the allegation that he was traveling at a particular speed, or to challenge the accuracy of the instrument used to measure his speed, or some other acceptable defense. But, and this is where I differ from Evenstar and others, if the fact of speed in excess of the established limit is proven to the satisfaction of the court, the defendant may not even attempt to prove that such speed was not unreasonable. He is guilty, period, end of story… except that he would be allowed to prove that there was some exigency that excused his violation, such as a medical emergency. Notice that there is a substantial difference between determining that the defendant violated the law but has a good excuse in that one instance, and saying that speed in excess of the limit is not unreasonable or imprudent under certain circumstances -- this is not even close to the same thing as "Well, it was a nice day, there were no other boats around, so no harm, no foul. Let's get lunch." That absolutely would not be accepted as a defense to the charge. Circumstances such as the absence of other boats in the vicinity may mitigate the punishment, but they are not a defense to the charge. Contrast this with the situation where a boater was traveling at, say, 40 mph (assuming HB 847 were in effect) in rain and dense fog. The MP may cite that boater for speeding, because 40 mph was not reasonable or prudent under those circumstances (or whatever the articulated standard is). In that case, because the boater has not committed a violation of the prima facie speed limit, the burden would be on the prosecution to prove that his speed was not reasonable or prudent and the defendant would be permitted to submit evidence and/or argue otherwise. I am, as always, willing to be educated if I am mistaken.