Focus on Photo Radar
by Susan J. Kayler
They that can give
Politicians love it. Speeders hate it. Police offer mixed reviews. There are web sites that tell how to avoid it, and, once caught, how to beat it. Whatever you think of photo radar, it is here and it affects how you travel around our growing metropolis. Put politics aside, however, and hold up a magnifying glass to the process...
It is a typical day in Scottsdale’s photo radar court as the hearing officer calls the court to order. State’s witness Thomas Molloy shuffles his paper, clears his throat and announces ready when the first case is called. The defendant seats himself at the defense table and Molloy hands a copy of a State’s Motion to Amend Complaint to him and the hearing officer. Hearing no objection from the pro per defendant, the court grants the motion, effectively adding a notarized signature to the original complaint some 68 days after it was first signed. Next, Mr. Molloy hands the defendant a packet called "discovery" that includes the following:
Mr. Molloy testifies about the posted speed and alleged speed of the defendant. He requests that the items provided in the discovery packet be admitted into evidence. None are authenticated or certified. Hearing no objection from the pro per defendant, the packet is admitted.
Pursuant to A.R.S. § 28-701A the State must prove that the defendant violated the law, which reads, "A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances, conditions and actual and potential hazards then existing." Referring to the item entitled Traffic Speed Distribution During Deployment, Mr. Molloy testifies that of the 1,150 vehicles that passed the photo radar device during two hours including the time of violation, 54 percent drove at or below the posted limit. Referring to the item entitled Traffic at Time of Violation, Mr. Molloy testifies that during the five minutes preceding and five minutes following the time of the alleged violation, 84 vehicles were traveling at a speed below the defendant’s. Only the defendant drove at or in excess of the violation speed, he states. The court treats these two items as evidence of a reasonable and prudent speed.
According to case law, evidence of driving over the posted speed limit merely creates a rebuttable presumption that the speed was greater than reasonable and prudent. See Gibson v. Boyl (1). The defendant can overcome the presumption by providing evidence that the speed was reasonable and prudent under the circumstances. Most defendants are unprepared to rebut the evidence used to create the presumption, having seen it for the first time at the start of the hearing.
Now that the State has proven its case, the defendant’s turn arrives. Usually the pro per defendant will argue that the speed limit was inappropriate or that the photo radar device must have picked up another car in its field, but those arguments fall flat. As part of the defense, the defendant has proven the identification issue just by showing up at the hearing.
A defendant who is represented by counsel avoids the incriminating appearance unless the State has had the foresight to issue a subpoena. Without the defendant’s appearance in court, the case cannot go forward. The State does not subpoena the driver’s license photograph and so is without any evidence concerning identification unless the defendant has been good enough to show. For the out-of-state defendant represented by counsel, this is a sure win.
Photo radar is the latest technology for traffic citation generation in the name of traffic safety. The system is operated by a technician in a vehicle containing the photo radar equipment. The technician follows a checklist when setting up the equipment. A speeding citation is automatically generated by the computer when a vehicle passes it going at or above a predetermined speed.
Once the photo radar camera has taken a picture of the defendant’s vehicle, the license number is determined and records of some kind (which are not offered or introduced into evidence at the hearing) provide the name of the registered owner. Apparently no driver’s license photo comparison is made to determine whether the registered owner’s face matches the photo from the radar camera. This minor identification issue aside, a citation is issued, previously with the computer generated signature, and the defendant is charged with violating the law. The enforcement agency does not determine whether the person on the radar photo and the person named on the citation are one and the same. Instead, the burden of showing the named defendant did not violate the law shifts to the defendant.
A.R.S. Section 28-1561 (formerly 28-1062) provides:
"Uniform traffic complaint forms need not be sworn to if they contain a form of certification by the issuing officer in substance as follows: "I hereby certify that I have reasonable grounds to believe and do believe that the person named herein committed the offense or civil violation described herein contrary to law." The hearing officer makes no inquiry into the validity or basis of the certification required by A.R.S. Section 28-1561. Whether it was known on the date the complaint was issued that "the person named herein committed the offense or civil violation described herein contrary to law" is apparently immaterial at the hearing.
The defendant who erroneously receives a citation must appear at court and prove that he or she is not the one pictured. When a defendant approaches Molloy just prior to the hearing with proof that he or she is not the one in the photo radar picture, Mr. Molloy responds by announcing that the state is not ready to proceed. The apparent defect in the original complaint is not mentioned.
Cases addressing the legality of photo radar are limited. Issues of service of process or verification of the complaint are the focus of Arizona challenges. The most recent Arizona case is State of Arizona vs. Kathleen T. Riehl, decided in the Maricopa County Superior Court by Judge James Padish. In that case, Riehl’s attorney, James T. Hickey challenged the validity of a computer-generated signature as verification of the complaint.<p>
For its holding that the complaint was neither certified as required by statute nor reviewed by the testifying officer, the court relied on Villas At Hidden Lakes Condos. Assoc’n v. Geupel Construction Co., Inc.(2), which says:
Judge Padish found Mr. Molloy’s certification at the hearing inadequate. Molloy’s review of the affidavit of the vehicle technician and the setup checklist was found insufficient without his review of the actual citation in the case. The validity of a computer-generated signature of a person who had not reviewed the citation was the narrow issue upon which the case was decided. The court found Mr. Molloy incompetent to certify a document that he had not reviewed.
The only other reported Arizona case dealing with photo radar centered on a service of process issue, Tonner v. Paradise Valley Magistrate Court.(3) Relying on Rule 4.1(c), Arizona Rules of Civil Procedure, the Town had mailed a citation by first-class mail to the defendant and then entered a default judgment when the defendant failed to appear or defend. Holding that service was not complete, the court said, "If the acknowledgment of receipt is not executed, service is not complete under this method even if there is evidence that the summons and complaint were received." The court advised that when a defendant fails to execute the acknowledgment of receipt sent with the citation, the court must continue the hearing and serve the complaint by some other method authorized by the Rules of Civil Procedure. Without proof of service or a waiver, the court lacks personal jurisdiction and therefore, has no power to enter an order of civil sanction against a defendant.
Scottsdale’s response to the Riehl decision has been to file Motions to Amend as suggested by Riehl’s attorney in his appeal memorandum. Although Rule 9, Rules of Procedure in Civil Traffic Violation cases allows amendments, the question remains whether a complaint can be amended on the date of the hearing to add a certification that is necessary before the complaint can even be filed. Although amendments are to be liberally allowed, an amendment of the verified signature is truly novel.
The court decided the Riehl case on narrow grounds and never got to another issue raised by Riehl’s attorney; the personal knowledge requirement. In his brief, attorney Hickey argues,
"Vehicle ownership alone should be insufficient to satisfy the requirements for reasonable grounds...the City of Scottsdale sends the complaint to the vehicle’s registered owner regardless of who was actually driving the car...Before such a complaint is certified, there should be some human verification, such as having city staff cross-check Motor Vehicle Division records that the person driving the car is actually the individual accused in the complaint."
As Hickey points out in his brief, "A false certification under the provisions of subsection A is perjury."
What’s wrong with this picture? Are there so many situations where citations are wrongly generated? How about the employee driving the company car? Under the current system, if a person driving a vehicle registered to a corporation passes a photo radar camera at a speed that would trigger a ticket, the corporation receives a Traffic Violation Notice. It instructs the corporation to provide the name of the driver, the driver’s address, the driver’s license number, social security number and phone number. The completed form is to be signed "under penalty of perjury" and returned by a specified date. A Traffic Citation is then sent to the person named by the corporation along with a waiver of service.
So long as you aren’t the registered owner, you’re okay, right? Wrong. A car that had been sold a year earlier generated a ticket to its former owner when it passed the camera at a high speed. It contained the sworn statement, "I believe that each of the defendants complained against on this date upon the basis of the traffic camera committed the act described contrary to law." The same thing happens to those who lend their cars to others.
In addition to legal defenses, there are practical defenses to a photo radar ticket.
The slightest movement by the defendant apparently affects the picture taken by the photo radar camera. Turning to talk to a passenger can be enough to blur the picture beyond identification. One man beat a ticket because he was drinking from a huge plastic cup at the time the photo was taken. Still another earned a dismissal when his baseball cap, pulled down low, foiled the machine.
If you are not the person pictured you have a slam-dunk win, however, a trip to court is necessary for you to prove your innocence. If you fail to do so, the identification issue, never raised, will go unnoticed and you will have a tangled mess to unweave.
New industries have attempted to cash in on the avoidance of a photo radar ticket. Stores sell clear plates to attach over the license plate that allegedly make the plate unreadable to the camera, but not to the officer following the car. To some police officers, this defensive move goes against A.R.S. Section 28-2354 which provides for the attachment of license plates and contains the following: "A person shall maintain each license plate so it is clearly legible." This section is used to issue citations to people who attach that clear plastic deflecting plate over their license plate. Title 28 contains no definition of "clearly legible" so those who use the plates are at the officer’s mercy.
Why criticize photo radar? The privacy argument — that taking a picture of us in our autos somehow invades our privacy — really is an argument for a uniformed police officer to stop vehicles and personally issue a ticket. This is actually a much greater invasion of privacy, especially to those with suspended licenses, blood alcohol levels over .10 percent, or those carrying illegal weapons, drugs, etc. Most people are law-abiding citizens who respect their government. If the public perceives that the process is not scrupulously fair, it can erode their faith in government — a high price to pay for the sake of traffic safety.
The statistics are in for the first year of photo radar and it did not perform as expected in the ticket-generation department. Citizens who are happy with photo radar point to the undisputable fact that it has slowed down traffic to a much safer and easier speed. While most people are happy with the impact of photo radar, the naysayers will still ask whether it is being administered fairly. When cities follow the law scrupulously, the complaints will lessen and photo radar will do only what politicians claim is its focus — keeping the streets safe.
Susan J. Kayler is a partner with the law firm of Iacovino and Kayler in Scottsdale.