They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
Politicians love it. Speeders hate it. Police departments 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. If Ben Franklin (the first Postmaster and inventor of the odometer) were here, would the photo radar process hold up under his magnifying glass?
On a typical day in Scottsdale, more than 200 hundred people will receive an envelope from the city's Focus On Safety department with a Summons, Traffic Ticket and Complaint, Waiver of Service and options form contained on one page. It will be the first time the driver realizes that she was the focus of the photo radar device sometime during the previous four months. She will search her memory, hoping to recall the event that led to the ticket.
Oh, the enclosed picture might help. Or maybe it will be the wording on the Summons that "if you fail to appear as directed in this complaint on a civil traffic violation, a default judgment may be entered against you, a civil sanction may be imposed, and your license may be suspended." And then there's the notice telling the recipient that the Rules of Civil Procedure "require defendants living within the United States to cooperate" and "to avoid further action and additional costs including a $25.00 default fee, $20.00 time payment fee, and a minimum $20.00 costs if personal service is required..."
It's pretty intimidating stuff and most people will send in the fine and accept the notation on their driving records and possible increase in their insurance. But what would Ben do? Imagining that we could talk to him, the conversation might go something like this:
Mr. Franklin: I've checked your law books on this subject. Arizona law requires that all complaints, including traffic tickets, be personally served. Your appellate court has thrown out cases where a photo radar ticket was mailed. Your courts have no power to assess fines or sanctions unless the complaint was served or service was waived. In other words, a ticket is just like a lawsuit. It has to be served the same as if it were a personal injury suit, breach of contract suit, or any other lawsuit.
So, looking again at that ticket that came in the mail, if the driver signs and returns it, the driver is waiving the legal requirement that the city serve the complaint personally. What about that duty to cooperate?
Mr. Franklin: I must go back to my original premise. Those who give up liberty in the name of safety will have neither. We must hold our government to the same standards and rules that we are expected to obey. I would argue that the duty is fulfilled upon payment of the process fee. In the meantime, the driver does not have to give up the right to require the city to serve the documents. If the driver does not sign and return the form, which he or she does not have to do, then the city is put to the test to have it served.
If the city does not serve the document, then the driver avoids the fine. Simple as that. Quite American, really.
To go forward, the court must have proof the driver signed and returned the waiver form or that she was served by a process server. When a driver is properly served, she can pay the fine or ask for a hearing. Mr. Franklin watched a case in a local court and here's how it went:
It is a typical day in photo radar court. The hearing officer calls the court to order. The state's witness, a privately hired photo radar company employee, announces ready and hands some forms to the driver. The forms, called "discovery," include a deployment form, photographs of a vehicle, traffic distribution forms, and a driving record. The state's witness testifies about the posted speed and driver's speed. He requests that the forms be admitted into evidence, although none are authenticated or certified.
The hearing officer compares the photograph to the driver who is sitting in the courtroom. The driver doesn't object, so the forms become evidence.
Mr. Franklin: Arizona law requires that the State prove the driver's speed was unreasonable under the circumstances, conditions and actual and potential hazards then existing. I wonder how a camera can do that. And it appears that this gentleman wasn't present to see the driver.
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Guest Author Susan Kayler, a former prosecutor, defense attorney and judge, has more than 20 years of legal experience. Susan currently represents clients in DUI/DWI cases, traffic cases, appeals, photo radar cases, criminal cases and more. She can be contacted at: firstname.lastname@example.org
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The State's witness reads from a form that 1,150 vehicles passed the photo radar van during two hours including the time of violation with 54% at or below the posted limit. He then reads from another form that for the five minutes before and after the driver sped by the van, 84 vehicles were traveling at a lower speed. In fact, he says, only this driver drove above the speed limit.
- Mr. Franklin: Interesting statistics, but I would expect that anyone who sees the photo radar van, or sees other cars slowing down, would look around and slow down, too. I hardly think your legislature intended that a reasonable speed be defined this way.
According to case law, driving faster than the posted speed limit is presumed to be unreasonable. A driver can provide evidence that her speed was reasonable under the circumstances, but she is unprepared to do so, having seen the forms for the first time at the start of the hearing. The State rests its case and it's the driver's turn. She argues that the speed limit was artificially low, then says she believes the photo radar device picked up another car in its field. The hearing officer yawns.
Just by showing up, the driver proves she was the one in the car.
- Mr. Franklin: If this driver had an attorney who appeared for her, the case would be dismissed. There would be no proof she was driving because the State's witness does not have a driver's license photograph. By showing up, she proved it for them.
Photo radar is being used in more Arizona cities for catching both speeders and red-light runners. Phoenix, Mesa, Paradise Valley, Tempe, and Scottsdale have used the traffic citation technology to generate tickets automatically when a vehicle drives above a predetermined speed. A camera takes a picture of the speeding or red light running vehicle and the license number is used to track the owner. A ticket is issued and mailed later to the unsuspecting owner.
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. Arizona courts have thrown out cases where the signature of the complainant was computer-generated or where it was clear that the facts hadn't been reviewed before the complaint was filed.
- Mr. Franklin: One of the problems I see with photo radar is that when a vehicle is registered to a corporation, I imagine it would get the ticket in the mail. If that corporation provides the name of the driver, it is off the hook, but the driver can expect a ticket. If the corporation does nothing, there's no consequence.
As long as you aren't the registered owner, you're okay, right? Wrong. Since there's no comparison of the photo with a license or registration, you could get a ticket if you lend your car to a friend. One man received a ticket a year after he sold his car.
In addition to legal defenses, there are practical defenses to a photo radar ticket. The slightest movement 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.
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 and make it unreadable by the camera. A police officer following the car can see it, and some will issue a ticket for an illegible plate. The Arizona law requiring a license plate reads: "A person shall maintain each license plate so it is clearly legible." Without a definition of "clearly legible" those who use the deflecting plates are at the officer's mercy.
- Mr. Franklin: I've heard the argument that photo radar is an invasion of privacy. Obviously it wasn't the kind of privacy we had in mind when we wrote the Constitution. In fact, the argument could be made that photo radar actually provides a higher level of privacy than if one were stopped by a police officer and perhaps subjected to questioning. It's a question of fair play, really. As long as the public thinks the government uses different rules, their trust will erode. That's a price none of you can afford, not even for safety.
Citizens who are happy with photo radar point to the indisputable fact that it has slowed down traffic to a much safer, more comfortable speed. While most people are happy with its impact, 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.