Friday, June 11, 2010

Automatic photos of drivers running red lights are hearsay, say California appeals judges

In a huge victory for citizens throughout California,
automatic photos of drivers running red lights are
hearsay, an Orange County Superior Court appellate panel held.

Cities like San Diego with the red-light cameras would have to
do much more to win fines from red-light tickets, cutting deeply into
their promising but controversial source of revenue.

The published decision from the Superior Court Appellate Division
comes as interest in the issue of red light cameras mounts in
Sacramento and elsewhere. Last week, the state Senate passed and sent
to the Assembly a bill to increase due-process protections for people
ticketed after their vehicles were captured running red lights on
camera. In January, Gov. Arnold Schwarzenegger proposed raising close
to $300 million in fines for the cash-strapped state by outfitting the
cameras to also nab speeders.

Meanwhile, the state Supreme Court has pending a group of consolidated
cases challenging the contracts between cities and the companies that
provide the cameras.

In the new decision, the Orange County appellate division ruled a
court commissioner was wrong to admit photos and a declaration seeming
to show Tarek Khaled run a red light in Santa Ana on Aug. 2, 2008.
Without those pieces of evidence, Khaled should not have been
convicted of violating the Vehicle Code, the court said.

Khaled paid a fine of $423. Most red-light tickets range between $420
and $480, sources said. But it added that the case "involves an issue
far too often presented to this court, namely the admissibility of
evidence and the statutory compliance with the procedures employed by
several municipalities in the county in what have come to be known as
'photo enforcement' citations." People v. Khaled, 30-2009-304893
(Orange Super. Ct., Ap. Div., filed May 25, 2010)

R. Allen Bayliss, the Huntington Beach lawyer who represented the
driver, praised the ruling. "I had become very frustrated that a lot
of courts were not applying the Evidence Code to these cases," he

Santa Ana City Attorney Joseph W. Fletcher, however, said he believes
the appellate division was wrong. Fletcher said he intends to ask the
4th District Court of Appeal to take up the decision and order it

The lawyers who specialize in traffic tickets, and their many clients,
hope the ruling stands. "It's a wonderful decision for the little
guy," said David M. Nisson, a Tustin general practitioner who handles
many ticket cases.

The decision "is huge because it would change the way the money
works," said John R. Farris Jr., who with partner Mark D. Sutherland
runs the Santa Ana law firm Traffic Ticket Lawyers. "If [cities] have
to produce witnesses on all of those violations, it's not as efficient
as it was."

According to the opinion and the defense lawyers, most
"photo-enforcement" cameras in California and the nation are installed
and operated by one of three companies, and those companies issue and
mail citations to red light-running drivers. If a driver takes his
ticket to trial, it's a local police officer who shows up to testify
in support of the photo.

The appellate division, however, ruled that a police officer who did
not see the violation or operate the camera could not provide the
legally necessary foundation to support admitting the photos into

In a typical trial involving photo evidence, the photographer or
someone at the scene when the photo was taken can testify that the
photo is accurate. "Here, the officer could not establish the time in
question, the method of retrieval of the photographs, or that any of
the photographs or the videotape was a 'reasonable representation of
what it is alleged to portray,'" the opinion held.

The appellate panel also rejected arguments by the city that the
photos could be admitted under standard hearsay exceptions for public
records or business records. The Arizona-based camera company, Redflex
Traffic Systems, is not a public entity, the panel said.

No witness from the company testified in the ticket trial to establish that the
photos were business records.

The opinion was signed by Orange County Superior Court Judges Gregg L.
Prickett, Gregory H. Lewis and Karen L. Robinson.

Bayliss said he has had Redflex employees testify in some
red-light-camera cases, but they haven't helped convict drivers. "They
don't have any knowledge about the specific violation," he said.

The new legislation dealing with the cameras, SB 1362, by Sen. Joe
Simitian, D-Palo Alto, would require sworn police officers to testify
in the trials and would make it easier for someone misidentified as
the errant driver to fight the ticket.

He got the idea for the legislation from a constituent who had
received red-light tickets three times from Southern California
jurisdictions even though she had never been to those areas.

It is hard to know how much money cities make from
the tickets and that some may even lose money. But some make a lot of

Plaintiffs in one of the consolidated cases now with the Supreme Court
have alleged that West Hollywood alone had collected $8,812,439 from
its camera tickets.

Other cities, including San Diego and Fullerton, have run into
problems with courts over their contracts with Redflex and other
vendors. A judge in 2001 threw out hundreds of San Diego tickets
because the city was paying its vendor a commission on each ticket.
Fullerton has shut down its cameras because of similar problems.