They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
Politicians love it. Speeders hate it. Police departments offer mixed reviews. There are web sites that tell how to avoid it and once caught, how to beat it. Whatever you think of photo radar, it is here and it affects how you travel around our growing metropolis. If Ben Franklin (the first Postmaster and inventor of the odometer) were here, would the photo radar process hold up under his magnifying glass?
On a typical day in Scottsdale, more than 200 hundred people will receive an envelope from the city's Focus On Safety department with a Summons, Traffic Ticket and Complaint, Waiver of Service and options form contained on one page. It will be the first time the driver realizes that she was the focus of the photo radar device sometime during the previous four months. She will search her memory, hoping to recall the event that led to the ticket.
Oh, the enclosed picture might help. Or maybe it will be the wording on the Summons that "if you fail to appear as directed in this complaint on a civil traffic violation, a default judgment may be entered against you, a civil sanction may be imposed, and your license may be suspended." And then there's the notice telling the recipient that the Rules of Civil Procedure "require defendants living within the United States to cooperate" and "to avoid further action and additional costs including a $25.00 default fee, $20.00 time payment fee, and a minimum $20.00 costs if personal service is required..."
It's pretty intimidating stuff and most people will send in the fine and accept the notation on their driving records and possible increase in their insurance. But what would Ben do? Imagining that we could talk to him, the conversation might go something like this:
Mr. Franklin: I've checked your law books on this subject. Arizona law requires that all complaints, including traffic tickets, be personally served. Your appellate court has thrown out cases where a photo radar ticket was mailed. Your courts have no power to assess fines or sanctions unless the complaint was served or service was waived. In other words, a ticket is just like a lawsuit. It has to be served the same as if it were a personal injury suit, breach of contract suit, or any other lawsuit.
So, looking again at that ticket that came in the mail, if the driver signs and returns it, the driver is waiving the legal requirement that the city serve the complaint personally. What about that duty to cooperate?
Mr. Franklin: I must go back to my original premise. Those who give up liberty in the name of safety will have neither. We must hold our government to the same standards and rules that we are expected to obey. I would argue that the duty is fulfilled upon payment of the process fee. In the meantime, the driver does not have to give up the right to require the city to serve the documents. If the driver does not sign and return the form, which he or she does not have to do, then the city is put to the test to have it served. If the city does not serve the document, then the driver avoids the fine. Simple as that. Quite American, really.
To go forward, the court must have proof the driver signed and returned the waiver form or that she was served by a process server. When a driver is properly served, she can pay the fine or ask for a hearing. Mr. Franklin watched a case in a local court and here's how it went:
It is a typical day in photo radar court. The hearing officer calls the court to order. The state's witness, a privately hired photo radar company employee, announces ready and hands some forms to the driver. The forms, called "discovery," include a deployment form, photographs of a vehicle, traffic distribution forms, and a driving record. The state's witness testifies about the posted speed and driver's speed. He requests that the forms be admitted into evidence, although none are authenticated or certified. The hearing officer compares the photograph to the driver who is sitting in the courtroom. The driver doesn't object, so the forms become evidence.
Mr. Franklin: Arizona law requires that the State prove the driver's speed was unreasonable under the circumstances, conditions and actual and potential hazards then existing. I wonder how a camera can do that. And it appears that this gentleman wasn't present to see the driver.