VIEWS: 6 PAGES: 8 POSTED ON: 4/19/2010
The following information may be of interest to any Arizona driver that has been violated by the revenue machine known as photo radar. What are the consequences of receiving a photo radar citation? Pay, go to school or fight it in court? Can I just ignore it? How will it affect my insurance rates? Can I win? The questions may differ but one thing is universal: people feel violated, helpless and in almost every case do not feel like they were driving in an unsafe manner. Photo radar is wrong on so many fronts that I barley know where to begin. It has Constitutional/legal issues and moral issues in equal proportions. This paper is focusing on basic information for traffic citations in AZ. Disclaimer: This information is general in nature and not specific to any one person‟s circumstances. It is written for the lay person who wants to know more about how the system works. It is not legal advice- consult an attorney if you want legal advice. The governing statute on traffic citations is the Arizona Revised Statutes (A.R.S), title 28. Every citation will have the relevant A.R.S statute listed on the citation. This is what you are accused of doing. One very common citation for example is A.R.S 28-701.a which is “speed greater than reasonable and prudent” but commonly referred to as “speeding”. Most traffic citations are civil violations. This is different than a criminal charge. You can not be arrested for a civil violation alone. A civil violation is basically the State filing a civil suit against you and the fine is the financial judgment. In every civil lawsuit the plaintiff (state) must a legal cause of action against the defendant (you). With a traffic ticket the cause of action is the alleged violation of the relevant ARS title 28 statue. It is important you understand this. On a civil matter, the burden of proof is less that with criminal. On a civil matter, who ever has the preponderance (51%) of the evidence wins. You should also understand the legal language of your case- on a civil traffic citation you are either “responsible” or “not responsible”. Try not to use the terms guilty or not guilty, that is only for criminal matters and the court will correct you if you use those terms. This is a great advantage to the state because all the state has to do is prove by 51% of the evidence that they are right. Yeah right…in reality, the judge will always give the traffic cop or reflex employee the advantage. OK- if you do not get this next part re-read it until it sinks in: You need to start thinking about your citation as a civil matter. Lose the idea that you have done something wrong, or that the police are involved. To most law abiding people this is a hard thing to do. Let me give you an example: Your next door neighbor files a small claims suite against you alleging your motorcycle makes too much noise and is disturbing his peace. He wants you to pay $180 to him. Would you just go write him a check? More than likely you would be outraged and you would certainly go to court over it. So why then would you allow the state to just send you a letter telling you to send them $180? I will tell you why; most people think of it as a police matter (very scary) and have no idea of how civil traffic citations work in Arizona. So- if you think that you were driving in an unsafe manner and need to pay $180 or spend four hours in traffic school and pay higher insurance rates; then read no further. However, if you are ready to stand up and fight the revenue machine known as photo radar this information will be helpful. Let‟s get started. The first thing you need to be familiar with is what are you accused of doing! It is amazing that very few people actually look up the legal language of the statute. How can you expect to make an informed decision without this? It‟s free; find it at http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=28 On every traffic complaint you will see the statute you are accused of violating. Since this is a traffic citation, it will be the Arizona Revised Statutes or A.R.S title 28. As I said earlier, a very common one is A.R.S. 701a commonly referred to as “speeding”. On your citation is will read “Speed greater than reasonable and prudent.” This is important because it defines what you are accused of doing. Notice it does not say exceeding the posted speed limit. There is a reason for this. In AZ, expect certain area like school zones and residential areas you are responsible for keeping your own speed at a reasonable and prudent manner. Receiving the ticket in the mail: If you have received a photo radar citation in the mail, go ahead and open it, but do not respond or call the court. When you open the letter you will see a very scary and official looking "NOTICE OF VIOLATION." You will see words like “your license may be suspended” and your options are to pay the fine, tell the court you are going to fight or go to traffic school. They leave out the fact that mailing is not legal service and this is a “violation” not a “traffic complaint.” There is a big legal difference. A.R.S. 28- 1593d defines the difference. I want you to understand is that the notice of violation has a different legal definition than a traffic complaint (a ticket). Basically, the violation allows you to voluntarily respond but will not confer jurisdiction onto the court until you do. Once you do not show up for the suggested court date, ( 30 days by statute) they can/will issue a complaint. This is now "Filed" with the court, but YOU STILL HAVE TO BE PROPERLY SERVED FOR THE COURT TO TAKE ANY FURTHER ACTION! Now they have up to 120 days to personally serve you. The date that the citation is "filed" with he court starts the clock. You can see the date filed and if you are set up for personal service by looking at AZ public access to court information. Only a few cities do not put it on the web, Paradise Valley for one. If you got the citation in Scottsdale, you will be there. Please be aware that some cities (PV for one) may actually send you the traffic summons and skip the violation first step. This gives them less time to serve you because the citation has been filed with the court. Currently they seem to be on waiting the statutory 30 days to let you respond before they set you up for personal service. Legal service: So what is legal service and why is it important? Because the only way the court has jurisdiction over a matter is if you have been properly served. Therefore even if the citation is filed with the court, if you are not properly served, they can take no further action. Mailing a civil traffic citation is not legal service! Why? Because on May 12. 1992, Jeffery P Tonner sued to have his civil sanction reversed by the AZ Superior Court. (No. 1, ca-cv 90-429) The town of Paradise Valley tried to claim first class mailing was legal service and was shot down. If you do not voluntarily respond, you must be personally served or the court CAN NOT take jurisdiction. It is settled case law. Personal service: You may be chosen for personal service. The state has 120 days from the date of filing with the court to get you served. A process server would then come to your home and personally give you the citation and new court date. If/when this happens: NOW YOU HAVE TO DO SOMETHING- you have been legally served. So you have been served…you are still entitled to your day in court and the court can not hold personal service against you. If you are found responsible, they will add the cost of personal service on to your fine. (small price to pay for supporting freedom) One last thing to know about your personal service- on it you will have a new court date assigned. This is not the date you go loaded for bear. It is only a civil arraignment where you enter a plea of not responsible- that‟s it. You can even skip this step if you call or go to the court and enter your plea of not responsible in advance. Then they will set the actual date to fight it out. Educate-respond-defend: First let me tell you- it is very hard to beat a photo radar ticket. Quite frankly, the system is so well stacked against you and usually the hearing officer (judge) will roll you right over you, often acting as the plaintiff, not a neutral entity. However, if you are willing to put some time into the fight you might just prevail. You have a right to be heard and cross examine the state. If nothing else you fought back and learned something about the legal system while you‟re at it. You may think you are alone, but picture every citizen aggressively making the state prove its allegations…the system would collapse. The system depends on the majority of the public NOT understanding how to fight the system with the system. Educate: Read what you are charged with. It is right there on the ticket. Look it up the ARS statute. Look up and read the AZ rules for civil traffic procedure. It will tell you exactly what the court must do and in what order. You have statutory rights- for example- you have a right to see the officer‟s notes. But you must know enough to ask because they will not volunteer. The state goes first then you get a chance to ask questions of the state (the photo radar employee) Then you get to put on your defense. Then the judge will rule. If you are going to fight your citation, you need to plan in advance what your legal defense is. You can of course go in and wing it, then you will wing your way out the door to pay your fine! One very helpful thing to do would be to attend a traffic hearing in advance. Find out when the court is hearing photo radar citations and go sit in the audience. Listen to how the cases are presented and how the judge rules. You will see many mistakes as well as good points made by the plaintiffs. Take notes, learn from their mistakes. Just before the start of your hearing, the redflex guy will hand you a packet. This will have all the information he is going to use against you. You will see official looking logs, and the dreaded scatergram. The scatergram can be very depressing because it will show that you were the only one going over the speed limit. It is basically a bar graph with little boxes representing all the other cars that came before and after. There you will be; a red box above the rest. It is a great visual against you. Study the information- look it over for any and all errors. You will only have about ten minutes to do this. Take notes on what you see. When you get up in front of the judge, it is very easy to lose your train of thought. There are many ways to challenge you citation, these are just a few: Is the picture clear? Was the radar device properly tuned to factory specs? Was the tuning forks used the ones that came with that radar device? Here is a big one: Look at the paperwork from redflex. Are there inaccuracies? Do they say it was raining and it was not? Are there missing dates? Are the certificates signed? This in fact is one of the few ways to actually beat them at their own game. There are many ways to challenge your citation, but you must do your research. This paper is not a strategy to win, just basic information on the system of photo radar. I will give you some excellent web sites later on that will help with the strategy of winning. Next, you must learn some basic court procedure and lingo. If you do not, you are just along for the ride. Learn basic court terminology and you can stop and control the court‟s movement. For example, if the officer (or ATS/redflex) employee says something that you do not agree with, learn to object! When you object you do two things, you stop the conversation and the judge will ask what your objection is. Secondly if you do not object to testimony being given, you can not challenge it later on appeal! Let‟s say the plaintiff testifies that he is an expert in radar technology. If you do not object and ask him for his credentials it stands as fact. Later if you find out it was his first day on the job you can not use that in your appeal. Here is an example: Plaintiff: “I work for Redflex and I am an expert in the use of this radar system….” Defendant: Objection! Court: What is you objection? Defendant: What qualifies this man as an expert? Court: Mr. Plaintiff, what are your credentials? Plaintiff: I have a PHD in physics and…blah blah blah…” Court: Overruled, the plaintiff is qualified to give testimony” So you see, you were able to stop the court and challenge the testimony. If this idea comes to you at a later point, you are out of luck- you must object to maintain the issue on appeal. If not, you (and the court) have accepted the states testimony as fact. I once saw a citation dismissed because the redflex guy stated that the form was signed- it was not! The plaintiff simply objected and said “where is it signed?” Case dismissed. It happens. Another good thing to know is how to make a “Motion”. Objecting is how you get the courts attention, but you must also know how to tell the court what you want done. Remember, the court is an unbiased trier of the facts (ha!) and can not form conclusions on it own. Let‟s continue with the above example and let‟s say the objection was sustained; which means the court agrees with you. Court: Objection sustained. Defendant: “Judge, I make a motion for a directed verdict, the plaintiff is not qualified to give testimony on this matter.” Court: “Agreed, I rule that the state has not met its burden.” In this example, court would have continued on had you not objected and then made a “Motion”. To summarize, learn basic terms: You are the Defendant, the state is the Plaintiff. You object to stop the court and preserve your appeal rights on the issue. You make motions to tell the court what you want it to do. While you‟re at it, remember that you can enter items as evidence- if you have something you think helps your case, ask the judge to enter it as evidence. You need this on appeal. There are some important aspects to civil traffic court that you need to know about. Traffic court is different from a “real” civil court. Here are two big ones: Rules of civil procedure are less formal. For example, hearsay evidence is allowed. Hearsay is when evidence presented can not be cross examined. A written note from someone (not in the court) stating what they saw- that is hearsay! You can not ask questions or cross examine a note. However in traffic court it is allowed! In fact photo radar is all about hearsay! Just think about this…a redflex employee (not even a cop) shows up to give testimony! He was not there, he is using documents prepared by God knows who and showing graphs that there is no way to validate. You just have to take him at face value. The second big difference is that the judge is allowed to interact and ask probative questions with all parties. The judge can even give testimony if they want to. This gives the court wide latitude and most of the time the traffic judge winds up testifying on behalf of the state! If you challenge the plaintiff to prove something, it is normally up to the plaintiff to respond and defend their position. It is always great when you catch the plaintiff off-guard! In traffic court the judge might jump in and rescue the plaintiff by giving them the answer. Example: Defendant: “Mr. Plaintiff, where in the law does it say that?” Plaintiff: “ Uh…well…I think…maybe…uh…” Court: “I think what the plaintiff was really trying to say is...” Judge to the rescue! This is another way that photo radar wins in court. It is two vs. one. Respond If this has held your interest so far and you‟re not getting cross-eyed; keep reading. This next part is for those that really, and I mean really, want to use every tool at their disposal to fight a photo radar citation. It is the written motion to the court! Remember a motion is when you are trying to “move” the court to do something. While it is not mandatory in traffic court, this motion should follow certain guidelines. Briefly you will need to put your name vs. (city/state), the case number and state the reason for the motion. You might use something like „motion to dismiss for lack or jurisdiction‟. You will be stating the facts and law that support your argument. Obviously, do not file a written motion unless you have done the research. Warning: the chances of the court giving you a favorable ruling on your motion is slim to none. As I said, this is not for everyone; you are “in their face”. And really, that is too bad the court looks at it that way, because you are really challenging the plaintiff in this case, not the court…but the two are so intertwined they act as one. After your court date and if you lose, If you are ready to take it to the next level, go to: http://www.photoradarlaw.com/cases.html This is by far, in my opinion, the best web site around on photo radar. It is Arizona attorney Susan Kayler‟s free website. You should buy her book as well and support this site. There is not a better place on the web to get accurate information on how to fight an Arizona photo radar citation. FYI- I have no association with this site, but this is by far, the best website around. Also check out the web site camerafraud.com, a good place for citizen activist that want to work for a common cause- to end photo radar in AZ. You can also post messages and ask questions if you wish. Lastly, if you want a place to get familiar with courtroom procedures you might look at jurisdictonary.com. This is a great resource for the lay person. There are many free topics there but invest a few hundred dollars and you get full access. In 2009 it appears that the citizens of Arizona have had enough. On January 5th, 2009 a citizen‟s petition was filed to ban the use of photo radar traffic enforcement devices in AZ. (initiative # I-02-2010) If 153,000 + valid signatures are obtained, it will be put to a vote of the people in November of 2010. There are a number of state legislators that are introducing bills to restrict and regulate photo radar. (there was…) A Judge in the Peoria Justice Court has tossed over 400 citations so far this year saying that they violate the 14th amendment (equal protection clause). So, until November 2010 when the people speak….good luck with your fight- even if you lose, you made them earn it.
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