In 2010, 3TV interviewed criminal defense attorney Michael Kielsky regarding a client, Elvis Saloom, who was arrested for receiving 55 photo radar violations for speeding, 12 of which were for criminal speeding. Mr. Saloom hired Mr. Kielsky to defend against the tickets and in the end, some of the tickets were never prosecuted and the rest were all dismissed. Regarding the evidence provided by the State, Mr. Kielsky says “They had nothing.” For all practical and legal purposes, “He [Elvis] didn’t do it,” said Mr. Kielsky.
Posts in category Photo Radar
Currently, the photo radar operators claim that the fixed photo radar devices are checked monthly and that the mobile units are checked at the beginning and end of each deployment, but none of the systems are ever calibrated, except perhaps when initially put into service.
All photo radar citations would be required to state when the photo radar device was last calibrated. As Mr. Kielsky points out though, “I don’t know that without a standard that explains what calibrated means in this instance [that] this bill is going to do very much.”
Most people I talk too don’t like taxes and would oppose any increase in taxes. Recognizing that, local governments across the country have country have come up with a clever way to tax you under the guise of “public safety:” Automated Traffic Photo Enforcement. This automated enforcement includes photo radar devices and red light photo devices. On its face, stopping people from speeding or running red lights seems like a plausible public safety concern. However, you don’t have to dig far to discover that these schemes have nothing to do with public safety.
For example, governments have shortened the duration of the yellow lights at some intersections with red light cameras so that driving behavior that would be okay at other intersections results in a violation at these intersections with “modified” light timing.
Studies have shown no measurable decrease in accidents due to photo enforcement programs and sometimes these automated enforcement systems increase accidents.
Governments make deals with the companies that manufacture and operate photo enforcement systems (Redflex and ATS) to ensure adequate revenue for the companies , who receive a significant percentage of every ticket. These deals can involve allowing the manufacturer to relocate the photo enforcement system to another area if the ticket volume is insufficient.
Much like the speed traps manned by live police, photo enforcement systems are often placed in areas where the speed limit abruptly drops for no apparent reason and the unwitting driver is flashed for simply maintain his or her speed on a road that has not changed. Confusing intersections are also a popular location of photo enforcement systems to trip up unfamiliar drivers.
The scam is so bad that a former judge from Missouri, Attorney Michael Carter, is seeking to ban red light cameras in his state. Carter explains, “[Politicians] are afraid to go on the record and vote taxes up… but [they] can couch this in a way where it comes across as public safety.” In a letter to Missouri’s Crime Prevention and Public Safety Committee, Carter wrote, “It is a money grab from our citizens/voters like none I’ve ever seen before – under the guise of safety.”
In reality, even though governments erect these photo enforcement devices to generate revenue, the typical result is the government loses money while the companies that manufacture and operate the devices make lots of money. Eventually, the contracts between the governments and the manufacturers expire and the government does not renew.
You may not have gotten that last speeding ticket for the reason you believe you did. Yes, you may have been speeding, but were you being unsafe? Probably not. The reality is speeding tickets are a revenue generation tool for police departments and local governments.
Speeding tickets constitute low-hanging fruit for policemen and are generally what we describe as victim-less crimes; driving 5 mph over the speed limit almost never harms anyone. In other words, issuing speeding tickets is a lot easier than solving real crimes involving a victim. Issuing speeding tickets also carries the extra benefit of generating income whereas catching criminals results in a net financial drain on the police department and government.
If catching dangerous drivers to protect the public was really the goal of issuing speeding tickets, the police would not use so many tricks to catch speeders; if you have to “trick” a person into breaking the law, that person probably is not doing anything wrong in the first place. One popular trick most drivers have experienced is the posting of several speed limit signs over a short distance, all with different speeds. This trick can be very effective because it is easy to miss a sudden speed limit drop when the road is the same and nothing has changed. The policeman simply sits past the speed limit sign with the reduced speed and picks off unwitting drivers. You probably have also noticed that policeman do not lie in wait in areas where drivers are naturally alert, such as a stretch of the highway where a lot of traffic is entering or exiting. Instead, the policeman will will on a deserted stretch of highway where the driver may not be as focused because there are few hazards or changes to the road.
Downhill speed traps are also popular with traffic police. Often, a driver can exceed the speed limit by simply coasting down the hill. You will notice that photo radar devices are often placed just after a drop in the speed limit, despite no change to road conditions, or that they are placed on roads where the speed limits seem artificially low for the road conditions. It has been documented that the timing of the traffic lights where red light cameras are placed has been changed to slightly shorten the yellow light in order to maximize red light violations.
If you do get a traffic citation, I encourage you to consider why you got it, consider if you feel you deserved it, and then call us if you want to fight it, because I know we would like to fight it.
Photo radar violations do not apply to all drivers equally and here’s why. When you get flashed by a photo radar camera, the government initially mails you a sternly worded notice asking you to voluntarily pay a fine. If you ignore the initial notice of violation, the government may serve a complaint on you to compel a response. The initial notice of violation is simply that – a notice. It cannot legally compel you to take action. A photo radar citation (complaint) has to be served upon the driver to have any legal impact.
Service is a formal process by which the defendant is provided notice of the alleged violation. Service is typically accomplished by a law enforcement officer or private licensed process server who delivers the complaint to the defendant. Arizona law requires that service of a photo radar complaint must be made upon an individual person. This is straight forward in most instances because most people drive vehicles registered in their own names. When that vehicle trips a photo radar camera, it is generally very easy for the government to locate the individual driver. If the violating driver ignores the initial notice of violation, it is easy to subsequently serve the complaint. When a vehicle is registered in the name of a corporation, LLC, partnership, municipality, or other entity besides an individual, it is much more difficult to identify an individual to serve. For example, if someone driving a car registered to APS is speeding and trips a photo radar camera, it is nearly impossible for the government to determine who to serve. When the government sends the initial notice of the violation to the corporation, it is typically ignored because there is no recourse. In other words, if the corporation ignores the notice of violation, no one will ever be served and the complaint will be dismissed.
Governments, the same governments that issue the photo radar citations, hypocritically enjoy this free pass on photo radar tickets too. Ray Stern of the Phoenix NewTimes wrote a great article on this topic entitled “Gotcha.” In the article, he presents information detailing how government employees speed without consequence while the everyday private citizen is stuck with fines, license suspension or worse. Stern states, “A detailed review of the violation data provided to New Times following a public records request showed that cities, Indian tribes, school districts, and federal and state government departments were among the ranks of those that ignored violation notices from Scottsdale. The cities of Phoenix, Tempe and Mesa — which use photo enforcement to nail drivers in their cities — each failed to respond to two or more notices mailed by Scottsdale. Chandler responded to one notice and blew off another. While some of these were police cars, most were city fleet vehicles.” Check out the full article in the Phoenix NewTimes here.
Fortunately, it is easy for the private citizen to enjoy the same protection from photo radar violations that the government and corporations enjoy. You can set up your own Limited Liability Company (LLC), name someone else as your statutory agent, and register your vehicle to your new LLC. You can set this up on your own, or Kielsky Rike PLLC can help you set up your LLC and even serve as your statutory agent.
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.
If you would like to have the assistance of experienced, affordable legal counsel for these matters, we are available, and for qualifying clients, at a significant discounted rate. Please see here for more details.
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:
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.
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.