Wednesday, February 25, 2009

Andrew Thomas says photo-radar is no basis for criminal charges

In the latest hit to the credibility of automated traffic enforcement, Andrew P. Thomas, County Attorney in Arizona's Maricopa County, says he won't pursue criminal charges against motorists tagged by photo-radar speed cameras for exceeding the speed limit. In an announcement on Monday, Thomas cited concerns about legislative intent in authorizing the use speed cameras, as well as serious constitutional issues resulting from relying on machines as witnesses in the prosecution of criminal charges.

According to Thomas (PDF):

Subsection D of the statute specifies that “the department of transportation shall not consider the violation for the purpose of determining whether the person’s driver license should be suspended or revoked.” The County Attorney concluded that because the legislature prohibited the use of photo-radar evidence for suspension or revocation of driver’s licenses, the legislature ipso facto could not have intended for such evidence to be used in the even more serious context of criminal charges.

Thomas also pointed out that, "The Sixth Amendment to the U.S. Constitution provides that 'in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.'In photo-radar cases, there are no witnesses, and defendants are not permitted to confront their accuser."

Arizona's Constitution is equally clear on the issue, requiring that any criminal defendant be allowed to "meet the witnesses against him face to face.” That's a challenge when the sole source of evidence is a box of electronics with a glass lens.

The plain language of the law, as well as other legal and constitutional principles, disallows criminal prosecution of motorists based on photo-radar evidence.

While the Maricopa County County Attorney's decision means that nobody will face criminal charges based on tickets issued by speed cameras, civil fines remain in place.

The Arizona Department of Public Safety (highway patrol) has declined to respond to Thomas's announcement.

Thomas's decision is only the latest move by an Arizona public official to join growing grassroots opposition to the use of photo-radar speed cameras. Just last month, Judge John C. Keegan of the Arrowhead Justice Court issued an order (PDF) declaring the speed camera program unconstituional. He cited the different penalties attached to tickets issued by the machines vs. those issued by police officers as a violation of the equal protection guarantees of both the federal and Arizona Constitutions.

Given the not uncommon set of circumstances where two drivers are traveling on the same highway, at the same speed in excess of the speed limit, at the same time, in essentially the same location and are cited by the same agency into the same court, ARS § 41-1722 creates a distinction whereby one class of defendant is subjected to a significantly different array of penalties than another class of defendant based solely on the use of photo enforcement.

Now, therefore, it is the determination of this court that the provisions of ARS § 41-1722 are unconstitutional and unenforceable within the jurisdiction of this court.

This Sunday, look to the Arizona Republic where I go head-to-head with the Department of Public Safety in dueling OpEds over the wisdom of speed cameras.

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