Hopefully by now, you know how opposed I am to the capricious, ineffective and outright illegal photo traffic enforcement that polices petty traffic offenses. In light of that, I have attracted many people who ask me (or tell me) about their photo traffic offenses and seek my guidance. From plenty of past experience, I want to do a public service and help guide you into navigating the maze put on by local governments to try to squeeze additional revenue from taxpayers. This is all stuff you can do on your own – it’s simple once you understand the steps involved.
In response to the comments and emails I’ve received, I’m posting this. I had it sitting in draft for a while before publishing. Sorry for the delay and I hope you enjoy this!
First, I should point out that I’m not a lawyer. I don’t claim to be and I highly suggest you seek counsel from a professional who invests their entire career to navigate the laws for your protection and representation. My experience is in how Arizona laws are applied for photo enforcement and it’s assumed the laws will vary by jurisdiction.
Here’s how the photo radar scam works:
- Innocent driver speeds beyond a given threshold acceptable by a camera.
- Speed (velocity) is measured either (or in combination of) the time it takes to travel between two magnetic loops in the ground (Velocity = Distance/Time), or via low-range RADAR (virtually undetectable until speed acquired).
- Camera registers a time-stamp and flashes at the expected front and rear view of vehicle.
- Computer transmits the timestamps and data on speed to a private company, probably the company who leases the cameras to the state.
- In a call-center environment, employees review the +/- 5 seconds of footage to allege a violation took place. Basics like making sure the plate is readable and making sure at least 50% of faces appear for conviction.
- Violation is signed by computer (illegal) with either an officer’s badge number, employee ID or a generic disposition code meaning a private employee.
- Private corporation taps into the local MVD for vehicle registration data including name, address, vehicle information and registered driver information (DOB, MVD restrictions, etc).
- Driver receives a so-called “Traffic Complaint” to their address of the registered owner of the vehicle. They are supplied with a civil traffic complaint, threatening language and photos of their violation.
- Driver is provided three options to respond: Pay the fine (usually about $200), Request a hearing (court) or Complete traffic school if eligible.
- Any response to the letter constitutes waiver of process service – a legal right that all people have. Threatening language infers that non-response will result in a suspended license (false).
- Driver pays (or hell, they go to court) and a judge orders them to pay the fine regardless of the so-called defense. Either way, a conviction was achieved, a fine was paid.
There are minor steps in there that I omitted for efficiency.
I always tell people do not respond in anyway to these “traffic complaints.” They are garbage and hold no legal weight. They are not worth the postage they are sent with. Assume that if you do not respond, the “case” is in limbo for 120 days (4 months) in Arizona.
At worst, you may be served by an officer of the court (not usually a uniformed officer). No warrants, no jail time or any of that scare-tactic business. Remember, it’s your constitutional right to be properly served for crimes one alleges against you. These court officers are not bad or evil; they are doing their job by notifying people they have been subpoenaed to court – whether that’s divorce, traffic or any other civil dispute.
In a majority of photo radar cases, the case does not reach a process server due to caseload and bandwidth the courts commit to. In simple terms, there are so many violations, it’s not worth chasing down everyone. They will more likely try to serve repeat offenders more than one-time violators. The last statistic I read was that Arizona courts were handling 14,000 cases monthly related to photo radar. Not a pretty picture for a state in debt.
Oh, and keep this in mind. The first court appearance made is NOT your formal appearance for your defense. It’s an arraignment. In simple terms, it’s your formal acknowledgement of the charges against you and it’s when you set a future appearance (or presume guilt and pay a fine). You will not need to know anything to go to your arraignment. This is a simple in-and-out process to appear before a judge to plea “not responsible” and request a hearing. Don’t be surprised to wait a good few hours for all the other people to get called up before you.
If you do not appear to your arraignment, yes, a warrant may be issued for you.
Overall, your strategy to beat a photo radar ticket looks like this:
- Avoid being served, do not respond for four months.
- If served, set a hearing, pleading “Not responsible.”
- Disprove the plaintiff (private company) in court; win.
Now that I got the basics out of the way, I’ll get into the tactics to beat your photo radar ticket. The following details are only for people who have been successfully served. If you did not get served, you’re all good. If it’s been four months since the violation date, pass Go and collect your now-saved $200!
Once you are served, you have a legal obligation to respond either by hearing or admitting responsibility and paying the fine (plus cost of service). Being served is not a bad thing – it’s a normal part of civil court procedure.
Now is your chance to formulate your defense strategy. In Arizona, this is quite easy because of the few defenses listed below. The real way to beat the system is to invest time to understand the laws and how they are applied in your jurisdiction. (In this context, state laws.) Arizona has all the current laws on the books known as Arizona Revised Statutes – a complete library of all the statutory laws. Title 28 relates to driving. Read up on it.
Research the violation. This is critical to formulating your defense. The standard issue violation for photo radar in Arizona is A.R.S. 28-701a which speeding beyond reasonable and prudent. Another violation that I’ve seen (and won against) was A.R.S. 28-702.04, which is speeding in an urbanized area with a population of 50K or more. The former violation is more vague and difficult to get out of, but it’s not rocket science. The latter violation was relatively easy to research and defend. Knowing the precise charge is crucial to defending against it.
A Civil Cause of Action Requires Four Elements to Have Standing. Civil violations require four elements to even have standing (corpus delicti) in court. I’ve never seen a criminal traffic violation result from photo radar, so I assume that doesn’t happen. Without even debating about the case itself, the first question to pose to the plaintiff is if they even filed a valid cause of action, meaning, do they have all the elements necessary for a court to take action on. They might answer “yes,” but you follow that by “how many elements are there in a valid cause of action?” They might object to relevance or worse yet, a judge might interject and state it has no relevance.
Those three elements are (memorize these so you don’t look like a newb):
- Existence of a duty
- Breach (of that duty)
- Proximate cause (by that breach)
- Damages incurred/requested
Because no injured party exists and the private company representative is only a “witness,” the court must dismiss because no injured party is present. Assuming the state is the injured party is nonsense. Then the plaintiff must provide actual damages of the said violation. Non-existent.
This is ammunition for your motion to dismiss. Judges don’t like being told that cases have no standing, so rehearse and don’t waver to their intimidation.
Examine the ‘Reasonable and Prudent’ Speeding Clause. By its nature, 28-701a is broad and covers a majority of speeding violations. However, courts must consider the evidence on it’s own merit (prima facie). In court, the plaintiff will have access to a high-resolution image (12MP) and you’ll have your images on paper. These are the questions you should ask the plaintiff and consider their take on it:
- Where there any circumstances supporting your speed?
- Was the condition of the roadway safe?
- Are there any actual and potential hazards then existing?
- Did you control the speed of a vehicle as necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway?
- Have you exercised reasonable care for the protection of others on the roadway?
Do you see anything about a posted speed limit? Exactly. There is none. In Arizona, the maximum speed limit is 85MPH.
If you have to defend this, go through and use the evidence admitted to court and pose questions to the judge and plaintiff as to all the points above. This will in effect absolve you of violating the law. The goal of this, to prepare your motion to dismiss that you did travel in a safe and prudent manner.
Here’s how to roll up into court and win:
- Dress nice. It’s not a wedding, but not a Saturday morning, either. Dress to show you take the matter seriously. Keep in mind that 90% of the people the judge sees are in jeans and a t-shirt.
- Bring evidence, pictures, Google Maps or ANYTHING that has some bearing on your defense. Remember, if it isn’t available during your case, it doesn’t exist.
- Swear in and remember to tell the truth.
- Proactively ask what the charges are against you citing you are not aware.
- Ask if it’s a civil or criminal traffic charge. This only is a setup for later on. It will be civil.
- The plaintiff will speak …
- Object to ANY slightly inaccurate or blatantly inaccurate statement. Do this by politely saying, “Objection!” and support it with your reason why you object to it.
- Object to, “certified by” … ask if records of that certification are available today.
- Object to, “qualified” … ask by whom or what regulatory body.
- Object to, “in my opinion,” unlike character-related statements, you’re here to dispute the facts and opinions are not fact.
- Object to, “I believe” … on what grounds do they believe.
- Object to, “I was a [former officer]” … are they currently a peace officer?
- Object to, “[you] said” … did you actually say that or is it paraphrased?
- (You get the idea…)
- When it’s your turn to cross-examine the witness (as instructed by the judge), you get the opportunity to sell your defenses. In your line of questioning, ask questions to assassinate credibility of the plaintiff’s statements. For instance, if you forgot to object earlier, you can neutralize their boasting about experience by asking when their peace officer certification expired, ask about the type of company they work for, ask their relationship to the police. Basically, the truth will distance them from perceived relevance. Ask them to describe how they personally reviewed the footage. The more you make them appear like a drone than a qualified officer, the better.
- Calmly walk through the details of your defense. Unlike the principal’s office, no one is judging your character and there’s no stopwatch. It’s your job to persuade a judge to make the decision in your favor.
- Remember, you’re selling your defense, not reading it. It’s a presentation.
- You’re allowed to inflate the facts provided the other party doesn’t object … but don’t lie.
- At any moment refer to an exhibit of your evidence and submit it to the judge and the plaintiff to view.
- Once you’ve made all your points, bring it to a close with a Motion to Dismiss. Simply, that means you want the judge to dismiss the case (meaning, you win) in your favor based on a legal conclusion.
- Not all motions will be accepted. Often you go at it with the judge to hear the motion and honor it.
- If the judge refuses, politely ask for his Conclusion of Law. (This alerts them that you’re paying attention.)
- If you feel the judge is rail-roading you without hearing your defenses, politely interject stating the you have additional defenses you would like to provide on the record for the Appellate court’s consideration. This is a huge red-flag for the judge because they don’t want to have their decision reversed because of their interference on a defendant’s rights. The judge will often ask/intimidate you to finish up. Remember, there is no time limit.
- Repeat your motions to dismiss once you have explained them on rebuttal. This seems redundant but it makes it crystal-clear what you want the judge to do.
- Assuming it continues, the judge will ask the plaintiff more questions from the information you provided. It’s usually at this point, you’ve got the case in the bag because you’re paying careful attention to every step.
- The judge makes his decision to dismiss. Request to be dismissed with prejudice – which means the plaintiff can’t re-open the case later for appeal. This cherry on top is nice, but not a big deal. I’ve never had my cases re-opened.
The biggest thing’s I’ve learned is you control the court. While the judge will move things along, it’s up to you to close the deal and request a dismissal based on facts. The judge is like a referee – but you need it call the referee when the other side isn’t playing fair. Finally, traffic court has very relaxed rules, meaning the order of questioning will be whatever moves things along the quickest. The judge maintains discretion to ask questions – but can’t act on behalf of the plaintiff.
If you don’t know the answer or don’t understand the question, say so. It’s not a crime to rebuttal with, “I’m not sure if I fully understand the question, can you give me an example?” This relieves you of understanding the intent of a question and to see what they’re looking for. Don’t admit to anything.
But… I’ve got bad news for you.
The system is stacked against you. (Prepare to lose, but lose with dignity that you defended yourself.) In civil cases, the plaintiff only has to prove 51% of the case to win (preponderance). Unlike criminal cases, there isn’t “reasonable doubt” … unless that happens to be 51% on your side. Remember that judges retirement funds are based on the number of convictions they achieve – they don’t want to dismiss cases unless they have to. At worst, you’ll pay the fine and the state has expended much more resources in achieving that conviction. At best, you’ll not pay anything and know that you brought the house down at their game.
I hope this information helps. It’s all based on my experience and a couple hypothetical defenses. I’ve had success by defending against speeding in an urbanized area – which was false. I submitted an almanac for the day, a Google Map of the street view and satellite view and expanded it to about 25 miles to show plenty of rural land. I also objected quite a bit of the plaintiff who worked for Redflex.
This might not help everyone, but if it helped or intrigued you, let me know by leaving a comment below.
[Image modified from Robert Couse-Baker]