Red Light Camera Systems Operational Guidelines

Dajani v. Governor of Md., No. CCB-00-713, 2001 U.S. Dist. LEXIS 982 (D. Md. Jan. 24, 2001) (unreported).

Facts: The defendant was charged with a photo red light violation and convicted. In this jurisdiction, photo red light violations are civil and not considered moving violations. Insurance companies may not consider the convictions.

Issue: The defendant appealed to the Federal district court, requesting the court declare the statute unconstitutional. The defendant alleged the photo red light statute violated the Sixth Amendment’s Confrontation Clause and the Fourteenth Amendment’s Due Process Clause.

The court upheld the conviction on procedural matters (lack of Federal jurisdiction and lack of standing) without comment on the constitutional issues. The Fourth Circuit Court of Appeals affirmed the District Court’s decision. (Dajani v. Governor of Md., No. 01-1179, 2001 U.S. App. LEXIS 17303 (4th Cir. 2001).

Kovach v. District of Columbia, 805 A.2d 957 (D.C. 2002).

Facts: The defendant paid, without contesting, a photo red light citation. Subsequently, the police department “decided to remove the camera because it was observing an inordinate number of people running the light, which was confusing to motorists.” Id. at 959. Outstanding fines were dismissed, but those motorists who had paid were not reimbursed.

Issue: The defendant appealed, alleging the District’s decision to forgive some, but not all, violations violated the Fifth and Fourteenth Amendments.

The court upheld the conviction because “in failing to contest the infraction, appellant effectively acknowledged liability for running the red light.” The court also rejected the defendant’s argument that the confusing placement of the stoplight created “manifest injustice.” The defendant “has no standing to challenge the decision unless...he was confused . . .” Id. at 962-63.

Structural Components Int., Inc. v. City of Charlotte, No.C0A102-200 (N.C. Ct. App., Nov. 19, 2002) (unreported – not final until expiration of rehearing period).

Facts: The president of Structural Components received a photo red light citation for one of its vehicles. In this jurisdiction, violations are civil. Structural Components contested the violation at a “review hearing.”

Issue: Upon conviction, Structural Components (plaintiff) filed suit in the superior court alleging negligence (by failing to establish reasonable guideline, failure to govern the program in a reasonable manner, and failure to provide a reasonable appeals process) and civil rights violations (State/Federal due process and equal protection).

Upon defendant’s (the City and Lockheed Martin) motion to dismiss, the court determined it lacked jurisdiction and dismissed the action. Structural Components appealed. The appellate court affirmed the trial court’s dismissal on procedural grounds (waiver of the negligence action for failure to properly state issue in appeals brief and, because one cannot recover monetary damage for a procedural due process violation involving a civil penalty, failure to state a claim). The court noted the proper avenue to challenge the constitutionality of the statute was by certiorari to the superior court (which Structural Components had not used) and the present statutory scheme provided an adequate method for challenging the legality of the program.

City of Commerce City v. Colorado, 40 P.3d 1273 (Colo. 2002).

Issue: Commerce City challenged whether the Colorado statute (Colo. Rev. Stat. § 42-4-110.5 (2002)), which authorized the photo red light program, infringed upon the City’s “home-rule” powers. Noting that the program involved a “mix” of state and local concerns and, where conflicts arose, State concerns prevail, the court affirmed the validity of the program.

People v. John Allen (In re Red Light Camera Cases), No. 57927SD (Cal. Super. Ct. Aug. 2001) (order denying motion to dismiss) . This case remains under appeal. This order is presented to illustrate issues that may arise with photo red light enforcement.

Facts: Defendants in a photo red light case filed a motion to dismiss alleging failure to comply with the authorizing statute (section 21455.5 of the California Vehicle Code). In this jurisdiction, the violation is criminal and a conviction is entered onto the driver’s license record.

Issue #1: The defendants contended the photo red light program was not operated by a government agency in cooperation with a law enforcement agency as required by the authorizing statute.

The court noted “once the construction process was begun, there was very little City involvement.” The City did not inspect the project when complete and the “entire process of installation and calibration of the camera equipment, putting film into the cameras, unloading the cameras, developing the film, maintaining the camera equipment, and reviewing the photographs to make the initial determination as to whether or not there was a violation and whether the alleged violator can be identified, is done by Lockheed Martin. Further, once Lockheed determines that a citation will not [be] issue[d], that decision is not reviewed by the City.

If Lockheed decides a citation should [be] issue[d], it reviews Department of Motor Vehicles’ information . . . prints the citation, including printing the signature of the sergeant in charge of the program on the citation. The first time the City becomes involved is when the police department receives the citation which has already been printed.” The police review copies of the photographs and the digital information to determine whether the citation should be issued. If a citation is issued, Lockheed mails it. . .”

The court found the City had “no involvement with, nor supervision over, with the ongoing operation of the system” and “[t]he Legislature did not contemplate such a lack of participation by the City” when it authorized a government agency to “operate an automated enforcement system.” Thus, the program violated the statute.

Issue #2: The defendants contended the signs were inadequate.

The statute required signs “clearly indicating the system’s presence, visible to traffic approaching from all directions.” The posted signs were 24” by 30.” Based upon testimony of police officers as to the signs visibility and the lack of evidence drivers were not able to see the signs, the court found the signs adequate.

Issue #3: A related statute (section 40520 of the California Vehicle Code) required photo red light violations to be accompanied by an affidavit of non-liability, information as to what constitutes non-liability, information as to the effect of executing the affidavit, and instructions for return. The defendants alleged this procedure was “unconstitutional because it requires innocent people to testify against each other.”

The court noted the section was a legislative attempt to prevent blanket immunity for corporate and rental agencies vehicles and provides a method for the registered owner who is not driving to avoid liability. Without elaboration, the court determined the statute compliant with due process and “a legitimate exercise of the police power in an attempt to issue citations to the actual driver who violated the red light.”

Issue #4: The California Penal Code (section 959.1) requires pleadings (citations) be sworn before an officer entitled to administer oaths. The defendants alleged that “no officer swears to the facts because the signature is affixed electronically before it is sent to the police and the officer who reviews the citation is not the sergeant whose signature appears on the citation.” The reviewing officer merely stamps his ID number below the signature.

The court noted that pleading defects (i.e., minor errors in the pleading document) that do not prejudice a substantial right do not justify dismissal.

Issue #5: The defendants argued that because the City did not comply with statutory provisions regarding the “operation’ of the program, all citations must be dismissed. In making its determination the court looked at the following issues.

Issue #5A: Was the delegation of authority constitutional?

Although, the City had delegated the tasks of evidence collection and determining who will not be cited to Lockheed Martin, the police retained the “ultimate authority to determine who will be prosecuted.” Thus, the delegation was not unconstitutional.

Issue #5B: Is the fee paid to Lockheed Martin a contingency fee and if so, what is the legal effect?

Because Lockeed’s payment was contingent upon a conviction, the fee was deemed a contingency fee.

The court indicated that Lockheed was “supposed to be a neutral evaluator of the evidence” and “should not have a financial interest in the outcome.” The court reasoned that because the statute mandated a government agency “operate” the program, the purpose was to guarantee, “information obtained from the red light cameras would be trustworthy. The potential conflict created by a contingent method of compensation further undermines the trustworthiness of the evidence which is used to prosecute the red light violations.”

Issue #5C: Does the delegation, without statutory authority, which operates on a contingent fee basis violate due process such that it requires a dismissal of pending actions?

The court noted that the threshold question in a due process challenge to executive action is whether the behavior is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” In this case, the court held the conduct did not rise to that level.

Issue #5D: Is the photo red light evidence admissible?

The court indicated that “where evidence is obtained from sources subject to legislative standards, there should be substantial compliance.” The court noted that “there is no authority in the Vehicle Code for unsupervised private operation of a red light camera system. Therefore, there is not substantial compliance with the safeguards required by the statute. Such a lack of authority, combined with the collection based compensation, result in evidence lacking foundation. Without foundation, the evidence is not relevant and is not admissible.”

Accordingly, the court did not grant the motion to dismiss, but rather granted a motion to exclude the evidence.

Office of the Attorney General of the State of Texas, Opinion No. JC-0460, 2002 Tex. Op. Atty. Gen. 20 (2002).

Issue: Could a city pass an ordinance authorizing a photo red light program and could violations be civil, rather than criminal?

Based on Texas law (which deemed red light violations criminal), the Attorney General opined a city could authorize a photo red light program to identify violators, but could not make violations civil.

Office of the Attorney General of the State of Tennessee, Opinion No. 01-004, 2001 Tenn. AG LEXIS 6 (2001) (available at http://www.attorneygeneral. state.tn.us/op/

2001/OP/OP4.pdf).

Issue: The Attorney General’s Office was tasked with determining whether, pursuant to inherent police power, a city had authority to enact ordinances allowing photo-enforcement.

Without addressing specific constitutional issues, the Attorney General’s opinion concluded that the use of photo-enforcement did not conflict with any State statute. In a footnote, the opinion noted photo-enforcement has “generally been viewed as a permissible exercise of State and local government police power which is not violative of Federal or State constitutional provisions.”

Office of the Attorney General of the State of Nebraska, Opinion No. 00001, 2000 Neb. AG LEXIS 1 (2000) (Available at http//:www.ago.state.ne.us/opinion/

index.html).

The Attorney General’s office was tasked with assessing the constitutionality of proposed legislation involving photo red light enforcement. The Attorney General offered the following opinions:

Issue #1: Procedural Due Process

The proposed legislation permitted a defendant to contest the violation in a county court and assumed that proper notice would be provided. Thus, the Attorney General opined the proposed legislation would comply with the procedural due process requirements of reasonable notice and an opportunity to be heard.

Issue #2: Substantive Due Process

Substantive due process guarantees individuals protection from arbitrary government action. The Attorney General noted that due process is satisfied if the government has the power to act on the subject matter, if they did not act capriciously or in a discriminatory manner, and if there was a reasonable relationship to a proper governmental purpose.

The Attorney General opined that the proposed legislation complied with substantive due process because protecting public safety is a proper subject matter and the legislation was rationally related to that interest.

As to the registered owner presumption, the Attorney General opined this was also a “proper exercise of the State’s police power” similar to holding the registered owner of a parked vehicle liable.

Issue #3: Equal Protection

The Attorney General noted the similarities of the Nebraska and U.S. Constitution in that equal protection challenges not involving a suspect class or fundamental right are tested only for rationality. A Nebraska Supreme Court decision (State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985)) had held that driving is not a fundamental right, and that drivers were not a suspect class.

The Attorney General opined that the classification would be between two types of drivers: (1) those individuals cited directly by an officer who receive a criminal penalty, and have the conviction recorded on their driver’s license; and (2) those individuals cited by the photo red light program who are subjected only to civil penalties and no recordation on their driver’s license.

The Attorney General noted that, although the purpose of the legislation was not set forth, the apparent purpose was to reduce the hazards of running red lights. Thus, the Attorney General concluded that, given the “wide latitude” and deference to the legislative process, the legislation met the rational basis standard and the proposed law would comply with Equal Protection rights.

Oregon v. Dahl, 57 P.3d 965 (Or. Ct. App. 2002).

Facts: An officer operating a photo radar unit photographed the defendant’s vehicle exceeding the posted speed limit. The defendant was the only registered owner. The officer observed the violation, but did not effect an enforcement stop and could not identify the driver. At trial, a witness commented that the defendant failed to provide a sworn certificate of innocence as permitted by statute.

Issue #1: The defendant contended the Oregon statute which establishes a presumption that the registered owner of a vehicle is the driver impermissibly shifts the burden of persuasion.

An Oregon statute (Or. Rev. Stat § 153.030.1) provides that unless excepted, criminal procedure laws apply to traffic violations. However, a different statute (Or. Rev. Stat § 153.076.2) provides that traffic violations must be proved by a preponderance of the evidence (a civil standard). Because this statute authorized a civil standard of proof, the court reasoned a civil standard also applied to the presumption. Therefore, the burden shift was permissible.

Issue #2: The defendant contended that, even if the violation is civil, the Oregon presumption statute violated due process standards.

The court noted that both U.S. Supreme Court (Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8 (1931)) and Oregon State court decisions required a “rational connection” between the fact proved and the ultimate fact presumed. The defendant argued that “vehicles usually have more than one key, licensed drivers outnumber registered vehicles, and vehicles commonly are borrowed or stolen, all of which indicate that vehicle are often driven by someone other than their owner.” The court, although acknowledging that vehicles are often driven by non-owners, found that “it is not irrational for the legislature to presume that vehicles are often driven by owners” and “we need not decide what facts are more likely to be true; the rational connection test does not require adoption of the best or most persuasive explanation.” Thus, the Oregon statute did not violate due process. Id. at 968-969.

Issue #3: The defendant contended a witness reference to her failure to submit a sworn certificate of innocence violated her statutory and constitutional right to remain silent.

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The court indicated that the defendant had failed to identify how she could have been exposed to any criminal responsibility. Thus, “her constitutional right was not implicated.” Id. at 969.

Section 810.439 provides a defendant in a traffic violation case an opportunity to avoid trial by submitting a certificate of innocence. The defendant may disregard that opportunity. The court “assumed without deciding” that the witness’s comment impermissibly infringed on the defendant’s statutory right, however, the court also stated “there was no indication that the trial court relied on that testimony in making its decision.” Thus, the court found the defendant was not prejudiced by the comment. Id.

McNeil v. Town of Paradise Valley, No. 01-17003, 2002 U.S. App. LEXIS 17306 (9th Cir. Aug. 12, 2002). Not Published – Check with Court Rules. The case is presented to illustrate issues that may arise with photo red light enforcement.

Issues: McNeil appealed the district court’s dismissal of alleged civil rights and Racketeer Influenced and Corrupt Organizations Act (RICO) violations premised on the issuance of an automated speed citation. The facts and basis for these contentions was not clearly set forth. However, it appears that McNeil contended the mailing of a traffic citation to the registered owner was a seizure and the process was in violation of due process.

Without elaboration, the court found municipalities cannot constitute a RICO enterprise. Further the court indicated that, because a seizure requires intentional physical control, the mailing of a citation is not a seizure. As for the due process claim, the court indicated that the challenge to the citation in municipal court was sufficient.

Oregon v. Clay, 29P.3d 1101 (Or. 2001).

Facts: An officer operating a photo radar unit photographed the defendant’s vehicle speeding. The officer did not effect an enforcement stop and did not know the identity of the driver in the radar photo. Subsequently, a citation was issued and mailed to the defendant. The defendant did not appear at trial, but rather was represented by counsel. No evidence was presented on behalf of the defendant. The State presented no direct evidence that the defendant was the registered owner, but rather relied on witness testimony and an “official duty” presumption to establish the defendant as the registered owner. Upon being found guilty, the defendant appealed, contending the State had failed to prove that she was the registered owner of the vehicle. The Oregon Court of Appeals upheld the conviction and the defendant appealed to the state supreme court.

In this jurisdiction, the registered owner is presumed to be the driver – see Oregon Law 1995, Chapter 579, sections 1-3 later codified to Oregon Revised Statutes §§ 810.438-810.439. Oregon statute section 811.123 requires proof that a particular person was speeding.

Issue: The defendant contended there was insufficient evidence to permit the trier of fact to find that she was the registered owner of the vehicle.

The court indicated that it did not “perceive any evidentiary basis . . . that would permit a trier of fact to find that the defendant was the registered owner of the speeding car.” Id. at 1103. The percipient witness could not identify the driver and there was no evidence to conclude the defendant was the registered owner (which would have invoked the presumption that the registered owner was the driver).

The court indicated that because an officer had the authority, not a duty, to send the citation, the presumption that an “official duty had been performed” was not applicable. Because they could not prove the notice had been mailed to the registered owner, they could not prove the defendant was the registered owner. Because they could not prove that the defendant was the registered owner, the presumption that the registered owner was the driver was not applicable.

Oregon v. Weber, 19 P.3d 378 (Or. Ct. App. 2001).

Facts: An officer operating a photo radar unit observed the defendant’s vehicle speed. The unit photographed the vehicle. Subsequently, the defendant was mailed a citation.

Issue #1: The defendant contended the inscription (indicating vehicle speed) on the photograph was impermissible hearsay.

The court indicated that, by statutory definition (Oregon Evidence Code 801), hearsay is a statement by a declarant and a declarant is a person who makes a statement. A machine, not a person, made the inscription on the photograph. Thus, the hearsay rule is inapplicable.

Issue #2: The defendant contended the court should have excluded the photograph on chain-of-custody grounds because the state offered no evidence as to “who picked up the film from the station, what happened to the film, how it was handled, or what was done to it prior to the citation and photograph being returned to the police station six days later.”

The court indicated that, “given the totality of circumstances, the trial court was well within its discretion in determining that there was no appreciable likelihood of alteration or tampering and that no further foundation was required.” Id. at 381-82.

Issue #3: The defendant contended the automated speed enforcement unconstitutionally shifts the burden of proof of the offender identity.

The court ruled the defendant had failed to use the proper judicial procedure to preserve this issue.

Issue #4: The defendant contended the time delay (between the occurrence of the violation and the mailing of the notice) violated her Fourteenth Amendment due process rights.

The court indicated that “for a precharging delay to give rise to a due process violation, a defendant must show both substantial prejudice to his right to a fair trial and that the delay was done intentionally to gain a tactical advantage.” The court found the defendant failed to establish the state intentionally delayed the notice to gain a tactical advantage. Id. at 385.

Bentley v. West Valley City, 21 P.3d 210 (Utah 2001).

Issue: Plaintiffs, who received automated speed enforcement citations, sought reimbursement of fines alleging the automated enforcement program violated Utah Code section 41-6-52.5. None of the plaintiffs had challenged the program during the criminal proceedings.

The court ruled on procedural grounds finding the plaintiffs failed to assert an “actionable civil theory under which criminal fines are recoverable . . . .”

Anchorage v. Baxley, 946 P.2d 894 (Alaska Ct. App. 1997).

Facts: The defendants received automated speed enforcement citations. At trial, numerous witnesses testified to the reliability of the speed enforcement device. However, the trial court found the witnesses’ financial interest in the acceptance of speed enforcement units tainted their credibility. The magistrates found that, absent independent corroboration as to the reliability of the device, results were not admissible.

Issue: The city appealed seeking a ruling that automated speed enforcement evidence was admissible without corroboration.

The court indicated the case was moot because “we would only review the magistrates’ decision to determine whether the evidence presented would allow a reasonable fact finder to conclude that the municipality had failed to prove its case.” And, given the magistrates’ dim view of the witnesses’ credibility, no reversible error occurred. Id. at 598-99.

West Valley City v. McDonald, 948 P.2d 371 (Utah Ct. App. 1997).

Facts: The defendant received an automated speed enforcement citation and requested a jury trial. The state amended the complaint to a lesser charge (which did not warrant a jury trial). Subsequently, the defendant was convicted.

Issue: The defendant appealed claiming that reducing the charge deprived her of her statutory right to a jury trial.

The court upheld the conviction.

Tonner v. Paradise Valley Magistrate’s Court, 831 P.2d 448 (Ariz. Ct. App. 1992).

Facts: An automated speed enforcement citation was mailed to General Motors Acceptance Corporation (GMAC), the registered owner. GMAC forwarded the notice to Tonner and mailed a copy of its transmittal letter to the court. The court reissued the notice to Tonner. Tonner failed to reply or appear. The court entered an order for a civil sanction (fine).

Issue: Tonner filed an action to vacate the sanction arguing lack of personal jurisdiction based upon improper service of notice.

The court indicated that under Arizona civil procedure rules (Ariz. R. Civ. P. 4.1c), service is not complete unless acknowledged. As Tonner failed to reply, service was not complete. Without service, the court lacked jurisdiction by which to sanction Tonner.

Office of the Attorney General of the State of South Carolina, (No Opinion No.) 2002 S.C. AG LEXIS 209 (2002).

The Attorney General re-evaluated¹ the use of automated traffic enforcement and concluded that “general case law and other authority reviewed herein support the conclusion that a properly drafted statute authorizing use of photo-radar or similar forms of automated traffic enforcement would pass constitutional muster. These authorities have reviewed automated traffic enforcement from a variety of constitutional perspective include the Due Process and Equal Protection Clauses, the Fourth Amendment’s protection against unreasonable searches and seizures, the Sixth Amendment’s right to present an adequate defense, as well as the federal and state constitution’s right to privacy. The general consensus is that automated traffic enforcement is constitutional.”

“Of course, the constitutionality of any statute authorizing automated traffic enforcement would depend, in part, upon a well drafted statute.”