Posts in category Photo Radar

Denial of Photo Radar Defendant’s Confrontation and Due Process Rights

Apr18
2011 Written by Michael

The right to confront witnesses by cross-examination is essential to due process. Forman v. Creighton School Dist. No. 14, 87 Ariz. 329, 333, 351 P.2d 165, 168 (1960); Harries v. United States, 350 F.2d 231 (9th Cir. 1965); Pointer v. Texas, 380 U.S. 400 (1985).

In traditional traffic violation cases, the statutes provided that the Rules of Evidence need not apply because a trained, experienced police officer’s testimony carries significant credibility and reliability. See A.R.S. §§ 28-1596 and 28-1597.

An automated traffic violation system generating a traffic ticket is different. Where an officer is involved, an accused can meaningfully cross-examine the officer about their personal observations. The officer may also be cross-examined regarding their experience and training.

With a computer-generated ticket, no such witness is available for cross-examination. Typically the government is permitted to introduce generated records and photographs through a civilian, as opposed to a police officer. In almost every case, this employee has no personal knowledge of the events at issue (because they were not present at the time and place of the alleged violation).

No foundation to establishing the reliability or authenticity of any introduced evidence, except the civilian employee’s hearsay, will be offered. Without foundation, a defendant is unable to effectively challenge the accuracy or authenticity of the evidence, as the employee has neither personal knowledge of the events in question, nor any personal knowledge of the state of the automated traffic equipment on the day of the alleged violation.

The due process right to test the reliability of the government’s evidence through cross-examination is effectively denied when a trial court permits a witness without personal knowledge to introduce hearsay evidence. In most photo radar civil traffic trials, the equipment cannot be cross-examined (nor is it available for testing or inspection), the actual equipment operator does not appear, nor does anyone from the equipment operator’s company appear.

Nobody with personal knowledge as to the calibration, maintenance, operation, and accuracy of the equipment testifies, although often enough the civilian employee tries to introduce hearsay evidence which cannot be cross-examined. The government’s only testifying witness, a civilian employee, has no personal knowledge of the facts of the events or the state of the equipment on the day of the alleged violation.

Under such circumstances, defendants are routinely denied their confrontation and due process rights to cross-examine any proper witnesses against them, and denied due process in that evidence will be admitted, despite objection, without proper foundation.

The government could easily cure the problem by calling a representative from the equipment operator, who possesses personal knowledge of the facts in the case. In all other settings, where the government attempts to introduce evidence generated by the means of technology, they are required to lay proper foundation, by an appropriate witness with the requisite personal knowledge, before such evidence may be admitted.

None of the government’s evidence should be admitted under such circumstances. Without such fatally flawed evidence, no credible evidence against a defendant would be admitted, and the case would have to be dismissed.

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Judge says Due Process does not apply in Photo Radar cases

Apr04
2011 Written by Michael

This was a photo radar case, CT2009-511612, in the West McDowell Justice Court, Maricopa County, Arizona. This is from the video recorded by the court for the trial on December 16, 2009, starting at about 9:00 am.

I’m the one on the left, the judge is facing the camera at the top, and the guy on the right is an employee of Redflex (not an attorney), who is appearing as the witness (or representative) for the state.

Right at the start (clipped), judge mentions that she saw me interviewed on TV the night before. The news clip that was broadcast can be viewed here: http://www.kpho.com/video/21979630/

About the interview, the judge says “you were wrong about almost everything.” I found that strange because I really didn’t say much, and couched everything in typical legal equivocation — “it might”.

Later, judge says that due process does not apply to these types of cases (I’m not sure whether she meant only Photo Radar or any Civil Traffic Case), “either procedural or substantive”.

Procedural due process means the right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. Goldberg v. Kelly, 397 U.S. 254, 267 (1970).

That makes me wonder if the judge meant that defendants in these hearings are not entitled to notice, to learn the allegations, to review the evidence, or to an impartial judge to decide.

She let me continue (reschedule) the case, and it was ultimately dismissed at the next hearing.

At the urging of other attorneys, I filed a complaint with the Arizona Commission on Judicial Conduct, which conducted its own investigation and issued this order.

UPDATE: In a (mostly) unrelated matter, and as reported in the media, the Arizona Supreme Court has censured this judge for misconduct in office. The full text of the stipulated resolution is public. It makes reference to the judge’s conduct in this video:

Subject Matter Jurisdiction in Photo Radar Cases

Mar03
2011 Written by Michael

A court must have both personal and subject matter jurisdiction to render a valid judgment. Peterson v. Jacobson, 2 Ariz.App. 593, 595, 411 P.2d 31, 33 (App. 1966). Subject matter jurisdiction may never be waived. State ex rel. Baumert v. Municipal Court of Phoenix, 124 Ariz. 543, 545, 606 P.2d 33, 35 (App. Div.1 1979). Moreover, challenges to subject matter jurisdiction may be raised at any stage of the proceedings. Rojas v. Kimble, 89 Ariz. 276, 279, 361 P.2d 403, 406 (1961).

In a civil traffic case, subject matter jurisdiction is established by means of a valid citation, certifying that the signing individual has reasonable grounds to believe, and does believe, that the named individual committed the violation.
The law sets this requirement in the Arizona Revised Statutes. A.R.S. § 28-1561(A) 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 problem with photo radar tickets is that they are computer generated, with a computer generated signature, attached to language that seems to meet the requirements of the statute. The courts have held that this is not enough.
“Clearly, the rules … do not contemplate a computer certifying its own documents. While Barckley does suggest that a ‘pen-and-ink’ signature may be superfluous, it is only in circumstances where some human involvement in the certification process can be inferred from the face of the document. Where, as here, the record is barren of facts from which we may infer that the intent to certify is contemporaneous with and unique to the production of the specific record and is independent of computer control, additional foundation is required to establish the requisite ‘human involvement’.” State v. Johnson, 184 Ariz. 521, 911 P.2d 527 (App. Div.1 1994), internal citations omitted.

The court in Johnson makes clear that merely having language that matches the statute along with a computer generated signature is not enough to make a ticket valid. There must be evidence of human involvement and choice, before the ticket is issued, where a human has evaluated the facts specific to the circumstances, and after consideration of these facts, intends to issue the citation.

The reality is that, in many cases, the tickets are in fact computer generated, mass-mailed, and, only upon the setting of a hearing, does anyone actually evaluate the evidence. Such a process necessarily deprives the court of subject matter jurisdiction, as the ticket itself was never valid.

Many issuing agencies attempt to address the problem of a computer certifying its own documents, by having the computer routinely assert that the human whose signature is affixed by the computer was involved before it was generated. You can see that, logically, that doesn’t actually meet the requirements of the law.

At a civil traffic hearing, there must be testimony that the citing officer was involved contemporaneously in the review of the evidence, and the exercise of independent judgment, before the signature was affixed and the ticket issued. A rote, naked, and automatically generated assertion to the contrary on the face of the ticket cannot cure this defect, as there is no extrinsic evidence that the requirement that there be human involvement and independent judgment prior to its issuance was met. Without such evidence on the record, good grounds exist for the case to be dismissed for lack of subject matter jurisdiction.

A process which generates complaints in assembly-line fashion, without the human involvement and independent judgment required by our statutory scheme and rules, necessarily deprives the court of subject matter jurisdiction. That the court has lacked subject matter jurisdiction may be raised at any time, and lack of subject matter jurisdiction cannot be waived. During a civil traffic hearing, it would typically be at the close of the case that this issue would be raised, for a lack of evidence on the record that the citation was generated with the required human involvement, and therefore, the absence of the court’s subject matter jurisdiction.

Personal Jurisdiction in Photo Radar Cases

Mar03
2011 Written by Michael

Under Arizona law, in order for the court to have “power” over an individual, the court must obtain personal jurisdiction. In the case of a “civil traffic” citation, that means you must have been personally served with what amounts to a “ticket”. This means, a copy of the ticket was handed to you personally, or at least, personally delivered to a responsible adult in your home.

Specific rules of court (the Arizona Rules of Civil Procedure [Ariz.R.Civ.P.], which apply to civil traffic cases) reflect this requirement: Rule 4.1(d), Ariz.R.Civ.P. requires personal service upon an individual.

Alternatively, Rule 4.1(c) provides for another process by which the State may obtain from a defendant, and file with the court, a waiver of service. This has certain additional requirements. A careful review of the violation notice commonly received by defendants in photo radar cases will quickly show that it is, in fact, a request for a waiver of service.

In order to properly waive service, defendants must sign the waiver under penalty of perjury. “If the acknowledgment of receipt is not executed [signed], service is not complete under this method even if there is evidence that the summons and complaint were received. Until service is complete, no personal jurisdiction is obtained, and any judgment entered is void.” Tonner v. Paradise Valley Magistrate’s Court, 171 Ariz. 449, 451, 831 P.2d 448, 450 (App. Div.1 1992) (internal citations omitted).

Whether a defendant fails or refuses to execute a waiver is immaterial. “[A]ctual service is not complete under Rule 4.1(c) when the party to whom service is directed either fails, refuses, or is never given the requisite opportunity, to execute a formal ‘notice and acknowledgment of receipt … under oath or affirmation.’ The fact that [the party's] attorney may have advised [the party] not to respond does not cure the defect.” Postal Instant Press, Inc. v. Corral Restaurants, Inc., 186 Ariz. 535, 538, 925 P.2d 260, 263 (1996), opinion supplemented on reconsideration 187 Ariz. 487, 930 P.2d 1001.

Without completed service, the court does not obtain jurisdiction. “The incomplete service left the trial court without jurisdiction, i.e., without authority to enter the judgment.” Id., Supplemental Opinion, 187 Ariz. 487, 488, 930 P.2d 1001, 1002.

It is important for a defendant to bring this defect to the attention of the court at the first practical opportunity (in civil traffic cases, this usually means at the first hearing), because a failure to raise a lack of personal jurisdiction due to a defect in the service of process is deemed waived if not timely raised.

Importantly, once a defendant has timely raised the personal jurisdiction issue, the prosecution bears the burden of proof. “Once the existence of personal jurisdiction is challenged, the party asserting jurisdiction has the burden of establishing it.” Lycoming Division of Avco Corp. v. Superior Court of Maricopa County, Ariz.App. 150, 152, 524 P.2d 1323, 1325 (App. Div.1 1974). It would blur the lines between prosecutor and judge, once this issue has been raised, for the court to argue for the existence of personal jurisdiction in place of the prosecutor, and if this should happen, a timely objection should be made on the record.

Rule 12(b)(5), Ariz.R.Civ.P., allows for a dismissal of the complaint when service of process is not complete, and without jurisdiction, dismissal is really the only proper cure.

Rule 12(b)(2), Ariz.R.Civ.P., sets forth that lack of personal jurisdiction is a separate basis upon which the matter must be dismissed. Moreover, lack of jurisdiction renders any judgment entered legally void, and the court, when apprised of the lack of personal jurisdiction, should immediately terminate the proceedings and prohibit the prosecution from continuing without personal jurisdiction.

A court abuses its discretion if it reaches a conclusion without considering the evidence, or it commits a substantial error of law, or “the record fails to provide substantial evidence to support the trial court’s finding.” Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). It would be an abuse of discretion for a court to continue hearing a case, and enter a judgment for the prosecution, once the lack of personal jurisdiction has been clearly established in the record.

A careful review of the applicable laws and rules can guide you in deciding how to proceed if you receive a notice of violation and request for waiver of service. If you do not waive service, the agency issuing the notice would have to send out an officer or a process server to complete proper service of process (which typically will happen, and the additional costs of service, about $26-$45, will be added to the fine, if there is a conviction, and sometimes even without a conviction).

If you do not sign the waiver of service and return the request for waiver, should the court set a hearing by mistake, raising the issue of lack of personal jurisdiction at the earliest opportunity should result in a dismissal. In some cases, individuals have specifically noted their refusal to waive service and demanded strict compliance with the applicable rules and laws on the request for waiver of service. This should preserve this objection, should the court set a hearing by mistake.

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