U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Agent, K.R. and D. Wagner, Evaluation of red-light Running Campaign, Report KTC-96-29, Kentucky Transportation Center, December 1996, pp. 1-39.
Automated Enforcement in Transportation, Institute for Transportation Engineers, Washington, DC, December 1999.
“Beep, Smash, Thud: Traffic Engineering Methods to Reduce Urban Crashes,” Status Report, Insurance Institute for Highway Safety, Vol. 33, No. 4, May 2, 1998, pp. 1–7.
Blackburn, R.R. and D.T. Gilbert, “Photographic Enforcement of Traffic Laws,” National Cooperative Highway Research Program: Synthesis of Highway Practice 219, Transportation Research Board, Washington, DC, 1995, pp. 1-68.
Bonneson, J. and Zimmerman, K. “Effect of Yellow Interval Timing On Red-Light Violation Frequency at Urban Intersections,” Texas Transportation Institute, The Texas A & M University, Transportation Research Record, Washington, D.C., 2004.
Burris, M. and R. Apparaju, Assessment of Automated Photo Enforcement Systems for Polk County Signalized Intersection Safety Improvement Project, Center for Urban Transportation Research, University of South Florida, Tampa, Florida, September 25, 1998.
Butler, J.A., “Another View on Vehicle Change Intervals,” ITE Journal, Vol. 53, No. 3, March 1983, pp. 44-48.
California State Auditor, Red-light Camera Programs: Although They Have Contributed to a Reduction in Accidents, Operational Weaknesses Exist at the Local Level, Bureau of State Audits, Sacramento, California, July 2002.
Chin, H. C., “Effect of Automatic Red-light Cameras on Red-Light Running,” Traffic Engineering and Control, Vol. 30, No. 4, April 1989, pp. 175–179.
City of Charlotte, North Carolina, http://www.charmeck.org/Departments/transportation/special+programs/city+ordinance.asp.
City of Toledo, Ohio. http://safety.fhwa.dot.gov/fourthlevel/srlr/pdf/Leg_Ohio.pdf
Curry, James, “Enforcement and Technology Innovations”,Proceedings of the 1997 International Highway-Rail Grade Crossing Safety Conference, Conference, Seattle, Washington, July 1997.
Datta, T. K., K. Schattler, and S. Datta, “red-light Violations and Crashes at Urban Intersections,” Transportation Research Record 1734, Paper No. 00-0480, January 2000, pp. 1-26.
Erickson, G., “Digital Traffic Cameras,” Traffic Technology International, 1996, pp. 332–336.
Fleck, J. L., and B. B. Smith, “Can We Make red-light Runners Stop? red-light Photo Enforcement in San Francisco, California,” Transportation Research Record 1693, Transportation Research Board, National Research Council, Washington, DC, 1999, pp. 46-49.
Frisch, Al, “LA’s Metro - Innovations In Grade Crossing Safety”, Transit Policing, Volume 3, Number 2, Fall 1993.
Gilbert, Daniel T., Nina J. Sines, and Brandon E. Bell, “Photographic Traffic Law Enforcement,” National Cooperative Highway Research Program Legal Research Digest, Number 36, Transportation Research Board, Washington, DC, December, 1996.
Hansen, G. A., “Human Factors in Transportation: Use of Automated Traffic Enforcement Technology to Modify Driving Behavior,” In Transportation Research Board 78th Annual Meeting. Transportation Research Board, National Research Council, Washington, DC, January 1999, pp. 1–15.
Hasson, P., “red-lights Mean Stop,” Midwest Resource Center, Federal Highway Administration, 2000, http://mrc.fhwa.dot.gov/articles/redlight.htm.
Hill, S. and Lindly, J. “Speed red-light Running Prediction And Analysis.” Department of Civil and Environmental Engineering, The University of Alabama, Transportation Research Record, Washington, D.C., 2004.
Houston-Galveston Area Council, Greater Houston Metropolitan Safety Planning Program: 2004 Status Report, February 17, 2004, pp.1-37.
Hubaud, Lou and Linda Meadow. “Los Angeles Metro Blue Line Enforcement Program”, FinalReport, Safety of Highway-Railroad Grade Crossings, Research Needs Workshop, Report Number DOT-VNTSC-FRA-95-12.2, January 1996.
Insurance Institute for Public Safety, "red-light Cameras Yield Big Reductions in Crashes and Injuries", Status Report, Volume 36, No. 4, April 28, 2001.
Kendall, S. “Is Automate Enforcement Constitutional?”, Insurance Institute for Highway Safety, 2004.
Kraus, E., and Quiroga, C. “red-light Running Trends In Texas,” Texas Transportation Institute, The Texas A & M University, Transportation Research Record, Washington, D.C., 2004.
Lawson, S.D., “Automatic Surveillance and Red-Light running: Potential for Camera Use and Accident Reduction at High-Risk Light-Controlled Junctions,” Traffic Engineering and Control, January 1992, pp. 10-12.
Lawson, S.D., H.T. Morris, R.W. Hardy, and A.C. Howard, red-light Running and Surveillance Cameras – Policy Issues Related to Accident Reduction and Enforcement.
Meadow, Linda, “Los Angeles Metro Blue Line Grade Crossing Safety Improvement Program,”Proceedings of the 1993 National Conference on Highway-Rail Safety, St. Louis, Missouri. July 11-14, 1993.
Meadow, Linda, “Los Angeles Metro Blue Line Grade Crossing Safety Improvement Program”,Paper Presented at 1993 Rapid Transit Conference, American Public Transit Association, Washington, DC, June 1993.
Meadow, Linda, “Los Angeles Metro Blue Line Light Rail Safety Issues”, Transportation Research Record 1433, Transportation Research Board, National Research Council, Washington, DC, pp. 123-133.
Meadow, Linda and James Curry, “New Technologies for Highway-Railroad Grade Crossing Safety”, Proceedings of the Seventh National Conference on Light Rail Transit, Volume 2. Baltimore, Maryland, November, 1995.
Meadow, Linda and James Curry, “Light Rail Transit Safety Issues”, Compendium of Technical Papers, Institute of Transportation Engineers, 47th District 6 Annual Meeting, Portland, Oregon, July 1994.
Mitretek Systems, Automated Enforcement of Traffic Signals; A Literature Review, Prepared For U.S. Department of Transportation, Federal Highway Administration, Contract Number DTFH61-00-C-00001, Washington, DC, August 13, 2001.
Mohamedshah, Y. M., L. W. Chen, and F. M. Council, Association of Selected Intersection Factors with red-light Running Crashes, Federal Highway Administration, U.S. Department of Transportation, Washington, DC, May 2000, pp. 1–21.
National Campaign to Stop red-light Running,http://www.stopredlightrunning.com.
“Officials Nationwide Give a Green Light to Automated Traffic Enforcement,” Status Report, Insurance Institute for Highway Safety, Vol. 35, No. 3, March 2000.
O’Laughlin, John, “ITS Technology and Law Enforcement”, ITS Quarterly, Volume 5, Number 2. Intelligent Transportation Society of America, Washington, DC, Summer 1997, pp. 51-55.
PB Farradyne, Photo Enforcement System Review, Prepared for the City of San Diego Police Department, January, 2002, http://www.sandiego.gov/police.
Passetti, K. A., and T. H. Hicks, Use of Automated Enforcement for red-light Violations, Department of Civil Engineering, Texas A&M University, College Station, Texas, pp. 1–60.
Photocop Home Page. Photocop, Cedar Park, Texas. http://www.photocop.com.
Polk, A., “Electronic Enforcement of Traffic Laws: The Devil is in the Details,” ITS Quarterly, Summer 1998, pp. 12–27.
Redelmeier, D. “Traffic-Law Enforcement and Risk of Death from Motor-Vehicle Crashes: Case-Crossover Study,” The Lancet, Vol. 361, June 28, 2003, pp. 2177-2182.
red-light Cameras Q&A: General, Insurance Institute for Highway Safety, Arlington, Virginia, http://www.hwysafety.org/qanda/qarlc.htm.
red-light Literature, Photocop, Cedar Park, Texas. http://www.photocop.com/red-light.htm. Accessed August 4, 1999.
Retting, R. A., and A. F. Williams, “Characteristics of red-light Violators: Results of a Field Investigation,” Journal of Safety Research, Vol. 27, No. 1, Spring 1996, pp. 9–15.
Retting, R. A., A. F. Williams, C. M. Farmer, and A. F. Feldman, “Evaluation of red-light Camera Enforcement in Fairfax, Virginia,” ITE Journal, October 1998, pp. 30–34.
Retting, R. A., A. F. Williams, C. M. Farmer, A. F. Feldman,Evaluation of red-light Camera Enforcement in Oxnard, California, Insurance Institute for Highway Safety, Arlington, Virginia, March 1998, pp. 2–12.
Retting, R. A., and A. F. Williams, “Public Opinion Regarding red-light Cameras and the Perceived Risk of Being Ticketed,” In Transportation Research Board 79th Annual Meeting (Preprint CD-ROM), Transportation Research Board, National Research Council, Washington, DC, January 2000, pp. 1–5.
Retting, R. A., A. F. Williams, and M. A. Greene, “red-light Running and Sensible Countermeasures: Summary of Research Findings,” Transportation Research Record, No. 1640, Transportation Research Board, Washington, DC, 1998, pp. 23-26.
Retting, R.A., Robert G. Ulmer and Allan F. Williams, “Prevalence and Characteristics of red-light Running Crashes in the United States,” Accident Analysis and Prevention, Vol. 31, No. 6, 1999, pp. 687-694.
Retting R.A., and S. Ferguson, “Effects of red-light Cameras On Violations and Crashes: A Review of the International Literature,” Traffic Injury Prevention, 2003, pp. 17-23.
Ruby, D and A. Hobeika, Assessment of red-light Running Cameras in Fairfax County, Virginia, Department of Civil and Environmental Engineering, Virginia Polytechnic Institute and State University, Presented at 82nd Annual Meeting of the Transportation Research Board, Washington, DC, January 2003.
SafeLight First-Year Report. City of Charlotte, North Carolina, 1997.
Sisiopiku, V. Assessment of red-light Running Camera Enforcement Technologies, Department of Civil and Environmental Engineering, Michigan State University, Presented at 81st Annual Meeting of the Transportation Research Board, Washington, DC, January 2002.
Smith, D. M., J. McFadden, and K. A. Passetti, “Review of Automated Enforcement of red-light Running Technology and Programs,” In Transportation Research Board 79th Annual Meeting (Preprint CD-ROM), Transportation Research Board, National Research Council, Washington, DC, January 2000, pp. 1–20.
State of North Carolina, http://www.charmeck.org/Departments/transportation/special+programs/state+legislation.asp.
State of Maryland, http://safety.fhwa.dot.gov/fourthlevel/srlr/pdf/Leg_Maryland.pdf
Stop red-light Running Program, Federal Highway Administration, U.S. Department of Transportation, Washington, DC, http://safety.fhwa.dot.gov/intersection/redlight/outreach/", Accessed October 18, 1999.
Stop red-light Running Literature, Federal Highway Administration, U.S. Department of Transportation, Washington, DC, http://safety.fhwa.dot.gov/intersection/redlight/outreach/marketing/. Accessed November 1999.
Supriyasilp, T, D. Turner, J. Lindly, E. Mansfield, and J. Howell, Speed Sensitivity of a red-light Camera Enforcement System, Department of Civil and Environmental Engineering, The University of Alabama, Presented at 84th Annual Meeting of the Transportation Research Board, Washington, DC, January 2004.
Swali, L. N., and P. L. Belcher, “The Use of Cameras to Reduce Casualties in London,” In International Conference on Road Traffic Monitoring and Control, Institution of Electrical Engineers, London, England, 1992, pp. 28–31.
Turner, S. and A. E. Polk. “Overview of Automated Enforcement in Transportation,” ITE Journal, June 1998, pp. 20–28.
U.S. Department of Transportation, Accidents That Shouldn’t Happen, A Report of the Grade Crossing Safety Task Force to Secretary Federico Pena, March 1, 1996, pp. 4.
Wissinger, L. M., J. E. Hummer, and J. S. Milazzo II, “Using Focus Groups to Investigate the Issues Surrounding red-light Running,” Transportation Research Board 79th Annual Meeting (Preprint CD-ROM), Transportation Research Board, National Research Council, Washington, DC, January 2000, pp. 1–28.
World Report on Road Traffic Injury Prevention, World Health Organization/The World Bank, Washington, DC, April 2004, pp. 132-133.
Vinzant, J. C., and B. J. Tatro, Evaluation of the Effects of Photo Radar Speed and red-light Camera Technologies on Motor Vehicle Crash Rates, Department of Police, City of Mesa, Arizona, March 1, 1999, pp. 2–7.
Yamada, A., and P. Salzberg, A Review of Automated Traffic Enforcement Systems: A Report to Washington State Legislature, Washington Traffic Safety Commission, December 1999.
Yee, B. M., “San Francisco’s red-light Camera Enforcement Program,” In Compendium of Technical Papers: The 67th ITE Annual Meeting. Institute of Transportation Engineers, Washington, DC, 1997.
Zador, P., H. Stien, S. Shapiro, and P. Tarnoff,” Effect of Clearance Interval Timing on Traffic Flow and Crashes at Signalized Intersections,” ITE Journal, November 1985, pp. 36-39.
The National Highway Traffic Safety Administration (NHTSA) and the Federal Highway Administration (FHWA) has compiled and distributed this information as a legal guide only. This material is not intended to be a complete treatment of every jurisdiction’s laws and court decisions related to photo red-light enforcement. Instead, this material includes highlights and examples of court decisions, and discusses issues that users engaged in photo red-light enforcement should consider.
Due to the dynamic nature of law enforcement and the evolution of technology, it is important that each department review this information to verify that it is consistent with applicable, current State and local law and regulations, and with department policy and procedure. This information is NOT intended to substitute for the advice of legal counsel. You should speak with your legal advisor, and/or local prosecutor, about the sufficiency of your department’s manual, policy, curriculum, and training program on this subject. This material should not be used as the sole basis for compliance with any law or regulation, anddepartments should NOT rely on this material as a legal defense in any civil or criminal action. Remember that new court decisions and amendments to the law could change the material in this appendix.
Photo red-light enforcement is a relatively new law enforcement tool. Thus, case law is not well established. Although the few cases involving photo red-light raised constitutional issues, the decisions were based upon procedural grounds, never answering the ultimate question – is it constitutional? The ruling on the Motion to Dismiss citations issued under San Diego, California’s photo red-light program (under appeal as of the preparation of this report), found the program constitutional. However, this ruling is not binding and only provides insight into the court’s reasoning.
Automated speed enforcement, a relatively new enforcement tool as well, shares common legal issues with photo red-light enforcement – such as the registered owner presumption, notice, procedural, constitutional issues, etc. Most automated speed cases have also tended to avoid constitutional questions. Some issues (e.g., chain of custody, service of process issues, registered owner presumption) have been addressed, but these decisions tend to be highly fact-dependent and/or are based on State statutes.
Many questions remain. The answer to these questions may be gleaned from cases not specific to automated enforcement. Existing case precedent dealing with evidentiary issues of older enforcement techniques will shape the use of automated enforcement evidence in the future. Law enforcement will use the same criminal procedures as are applicable to the collection (search and seizure), preservation (chain-of-custody), and discovery of other types of evidence.
It is most important to note that although the courts will borrow from established case law to determine case law regarding automated enforcement, the path will most likely be contorted. The law is known for nuances. Thus, subtle distinctions between photo red-light programs may affect a court’s decision and produce seeming inconsistencies.
Most importantly, the classification of the photo red-light violation, as either a civil or criminal violation, will dramatically effect decisions. Similarly, as in the San Diego photo red-light program, the enabling statute may impact the admissibility of the evidence (see page 51 for enabling statutes). A State’s surrounding body of law and the manner in which the program is conducted will also impact the viability of the photo red-light program and the success or failure of challenges to the program. Without assessing merit, the following are some of the procedural and substantive issues that may be generated by photo red-light enforcement.
The above are all issues that are likely to continue to be the subject of legal review and refinement. Monitoring their long-term clarification through legal proceedings is to be advised for all jurisdictions adopting red-light camera enforcement systems. The remainder of Appendix A reviews current relevant case law examples and in doing so illuminates the types of issues that have been raised.
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/
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/
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.”
National Committee of Uniform Traffic Laws and Ordinances, Automated Traffic Law Enforcement Model Law – www.ncutlo.org/autoenforce622.htm.
1 See Office of the Attorney General of the State of South Carolina, 1996 S.C. AG LEXIS 54 (1996).