Sunday, February 17, 2002

Photo ticket challenges
face uphill road to win

Officials in several mainland cities
say most people end up paying the fines

By Treena Shapiro

Photo traffic enforcement citations have been overturned on appeal in several high-profile cases, but officials in mainland cities that use the traffic cameras say most people end up paying the fines and at least initially will lose in court when they challenge the tickets.

"This is a very complex type of case," said San Diego attorney Judith Litzenberger. When the defendant who gets a photo ticket for a red light violation tells the judge he thought the light was yellow, "the cop gets up and does magic math on the board and shows 'scientifically' that the light was red," she said.

"(The defendants) were being shot like fish in a barrel," she described. "That's why I got involved."

Litzenberger said she and two other attorneys gathered about 400 clients together and in September a California judge threw out 290 citations. The judge ruled that the per ticket fee that the company running the cameras collected was illegal.

A traffic photo van, parked last week on Pali Highway near the Pali Lookout, checked the speed of passing traffic even as controversy over the camera-ticketing system swirls.

In Hawaii, the first challenges to the photo speeding citations, will be heard in Honolulu District Court Tuesday afternoon. Only about 34 percent or 144 out of 420 citations issued with Tuesday's court date have been paid, the Judiciary announced Friday.

Six months since the photo enforcement program began in Washington D.C., people still go to court frequently to challenge the speeding tickets, said Lt. Patrick Burke, traffic coordinator for the metropolitan police. But at the same time he said 85 percent of the citations issued were paid last month.

"We haven't seen an onslaught of people contesting their tickets -- no class action lawsuits," said police spokesman Kevin Morison. However, the city is working to address public concerns by renegotiating the contract so that the vendor is paid a flat-rate rather than a per-ticket basis, he added.

Jim Thomas, an assistant city attorney in Denver, said after a flurry of initial challenges when the program was first introduced in 1998, people have gradually come to accept the photo citations.

"Initially there were challenges and we were prepared to argue the cases and we did so," Thomas said. "People found that just because they came to court to challenge it, it just didn't go away."

Like Hawaii, Thomas said, the public in Denver opposed the traffic radar program when it was first introduced in 1998, but revisions to the law and the program have led to general acceptance.

"When we focused traffic enforcement in neighborhoods and school zones, as opposed to arterial streets, the community is generally behind it," he added.

However, last month Denver attorney Gary Piroshko successfully argued that the city was giving too much police power and ticket revenue to the vendor, Affiliated Computer Systems, which also runs the Hawaii program.

Piroshko's appeal forced the Denver to put its photo radar program on hold. Piroshko also filed a class-action lawsuit on behalf of 150,000 people who say the program is operated illegally, which could cost the city $10 million to repay fines.

Piroshko said his major argument is for equal protection. Drivers who are caught speeding by police officers have points taken against their drivers' licenses, whereas drivers caught speeding on camera do not lose points.

"I believe that that's unconstitutional, there's a disparate treatment," Piroshko said.

"We haven't seen an incredible amount of contests," said Alberto Gutier, director of the Arizona Governor's Office Highway Safety, who estimated that only 1 or 2 percent of people challenge their citations. The program has been in effect in Arizona since 1997.

According to Gutier, people in Scottsdale initially complained about the photo-radar program, but "then the numbers of accidents and crashes started going down" and surveys now show a 70 percent acceptance rate of the program.

Scottsdale attorney Susan Kayler said it is hard to argue in court that you were not speeding when photographic evidence and your testimony can be used against you.

People stand a better chance of having their tickets dismissed if they hire a lawyer , but that costs about $500, Kayler said. About half of the tickets challenged by attorneys are dismissed. When the driver is found responsible, about 50 percent of those cases are overturned on appeal, she added.

However, Kaylor said most people tend to pay the ticket rather than going to court. The penalties in Arizona range between $100 and $175, with the option of taking a defensive driving course for $100, she said.

In Arizona, people have had their tickets dismissed by proving they were not driving the car, that the ticket was not signed by the complainant or that the ticket was not filed within 10 days or served within four months, Kayler said.

It is also possible to contest the ticket by proving that the speed they were traveling was reasonable and prudent, however, "we're not successful with that one very often," Kayler said.

Honolulu attorney Pat McPherson has yet to see what evidence he can use when he takes up the state's photo traffic citations in court on Tuesday.

McPherson will be representing two clients who received citations. "Any time you have a test case it's very difficult because you're going into the great unknown," he said.

Since Tuesday's hearings are just initial appearances, McPherson said, "I don't know exactly what we're going to be able to produce as evidence that is just based on the ticket itself."

McPherson sees several problems with the photo traffic enforcement system introduced in Hawaii last December. For instance, the photo radar is used on every vehicle that passes the cameras, instead of singling out a vehicle going faster than the others, as a live police officer would be required to do.

He also wonders whether the people contesting their tickets will have the opportunity to confront the person who cited them, who would have to prove that the vehicle that he shot a laser at was the same one as in the photo.

Finally, McPherson has seen no proof that the radar system is accurate. "Any time you have an instrument that is measuring something, you have to have some test to prove that it's accurate," he said. "How do we know whether these lasers and picture taking things are accurate?"

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