By Gary Biller, President, National Motorists Association
This article originally appeared in the July/August 2010 issue of the NMA’s Driving Freedoms magazine.
The odds in traffic courts are already stacked against defendants. But when there is only an inanimate “witness” to the alleged violation, one that can’t be questioned, the chances of getting the charges dismissed go down astronomically.
Or do they?
There have been several recent instances of motorists beating photo tickets outright, and to make you aware of some defense options should you be unfortunate enough to receive a red-light or speed camera ticket, many are presented here.
Those receiving a photo ticket will be well-served by reading the Dennis Eros Motion in Limine posted by the NMA. In fighting a red-light camera ticket in Seattle (WA) Municipal Court, Mr. Eros laid out 55 distinct issues in challenging the constitutionality of photo tickets. (His case was dismissed on a technicality, allowing the judge to dodge the need to rule on his motion.).
Among the points made by Eros were a) the denial of the right to confront and cross-examine adversarial witnesses, b) the presumption that the registered owner of the vehicle is guilty, regardless of who was actually driving, thereby destroying the presumption of innocence, c) an unverified chain of control of the alleged (photographic) evidence, and d) the lack of scientific reliability of the cameras to warrant unquestioned acceptance into evidence.
That last point leads to the first example of beating a highway speed camera ticket. Peggy Lucero of Bethesda was cited in Gaithersburg, MD for exceeding the limit in a 30 mph zone. The fine was only $40, but she fought the charge on principle. Ms. Lucero did two things that are routinely suggested by the NMA to drivers who are contesting speeding tickets based on electronically gathered evidence: She examined the maintenance records of the device used in order to question its accuracy, and she asked for validation of the posted speed limit.
Peggy hit paydirt on both counts. Maryland law requires police to test ticket cameras daily for functionality, but the camera that flashed her wasn’t checked the day of the citation. Records also showed several days between testing for other cameras in the Gaithersburg program. A traffic engineering study had not been performed on the 30 mph road in five years. When the study was done at Lucero’s request, highway officials determined that the limit should have been increased to 40 mph. Andrew Bossi, a Maryland state traffic engineer, suggested that keeping the zone at 30 mph posed a danger to drivers because of sudden braking and then accelerating around the speed cameras.
The judge looked at the camera maintenance logs and the recommendations of traffic engineers in the traffic study, and dismissed Peggy Lucero’s ticket.
A defendant in a red-light camera case in Palm Beach, Florida found a loophole in a city ordinance that required the cited vehicle’s model, year, and registration number to be shown on the photographic evidence. The city’s enforcement program doesn’t utilize a database that has that information. While Palm Beach officials scrambled to change the ordinance, several other motorists had their speeding tickets dismissed.
Then there is Portland, OR attorney Mark Ginsberg, who used logic and math to pick apart the evidence against him. The first photo from the red-light camera showed Ginsberg’s car just behind the intersection crosswalk with a red light time of 24.9 seconds indicated on the photo. The second photo, taken two seconds later and stamped “red,” had the car mid-intersection with a red light time code of 00.0 seconds, which is the indication that the light is green. Ginsberg checked with the city signal engineer and found that the red light duration was 25.0 seconds. Based on the car speed of 15 mph noted on the second photo, the attorney was able to prove that his car wouldn’t have even reached the crosswalk in the one-tenth of a second between 24.9 and 25.0 seconds. Case dismissed. Said Ginsberg, “If they’re issuing tickets and they don’t know how accurate their cameras are, that’s frightening.”
In one of my favorite cases, a St. Louis man beat the red-light camera charge against him by raising reasonable doubt as to who was driving his car when it was photographed running a red light.
Gant Bloom is not an attorney, but he put on a marvelously succinct and logical defense. The court transcript of the Bloom trial is 36 pages long, with 33 of those pages taken up with questions, testimony and summations by Bloom and the prosecutor. Bloom’s defense was laid out in only nine pages, while the prosecutor labored through the other twenty-four. (For an entertaining read, take a look at the entire transcript.)
Bloom’s defense was startling in its simplicity. The photo evidence from the city provided an image of his car, but not of the driver. He testified that both he and his girlfriend drove his car at various times, and since the ticket came in the mail a month after the actual incident, Bloom could not remember which of the two was driving when the car went through the red light.
Gant called his girlfriend to the stand and elicited testimony that the two of them sat down after receiving the ticket and honestly tried to deter¬mine who was driving. They couldn’t.
His opening statement included a summary of his strategy. “I decided it just wasn’t fair for me to admit guilt to something that I didn’t even know if I did or not,” Bloom said. “The only physical evidence that the prosecution is going to show you is that it was my car running through a red light. That I don’t deny.”
He continued, “I don’t believe the City can satisfy this court that it was me who was driving and who committed that crime. And furthermore, I intend to demonstrate reasonable doubt that it was me driving that day.”
The prosecutor called a representative of American Traffic Solutions (ATS) to the stand and proceeded to ask detailed questions for several minutes about the operation of the red-light camera. Bloom’s cross-examination consisted of a single question:
Q: Sir, is there any way to tell who was driving the car at the time of the violation?
A: No, there isn’t.
The prosecutor then questioned a police officer about the evidence for another extended period. When Bloom was given the opportunity to question the officer, he asked if, during a physical traffic stop for running a light, the officer would attempt to identify the driver. The anwer was affirmative. Bloom then asked if the officer would issue a citation if he wasn’t able to identify the driver. The officer said, “No, if I couldn’t identify the driver, I wouldn’t issue a citation.”
Next question for the officer: “If you pulled a car over and found out it was a different driver than who was the registered owner of the car, would you issue a citation to the car, to the registered owner who is not driving, or would you issue the citation to whoever was driving the car.” The answer, of course, was that the officer would issue the citation to the driver.
The judge ruled, “The Court finds both witnesses (Bloom and his girlfriend) credible based on the testimony as well as common sense. Finding for Defendant. Costs to City of Saint Louis.”
Some of the lessons to be learned when fighting a photo ticket (other than having Gant Bloom represent you):
- Compare the local ordinances governing the photo enforcement program with actual operational details. Discrepancies are your ally.
- Understand the evidence. Does it depict what is being claimed by the prosecution?
- Most photo tickets violations have built-in reasonable doubt because the driver is rarely positively identified by the camera. Find a logical way to present this to the court.