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The State's witness reads from a form that 1,150 vehicles passed the photo radar van during two hours including the time of violation with 54% at or below the posted limit. He then reads from another form that for the five minutes before and after the driver sped by the van, 84 vehicles were traveling at a lower speed. In fact, he says, only this driver drove above the speed limit.
Mr. Franklin: Interesting statistics, but I would expect that anyone who sees the photo radar van, or sees other cars slowing down, would look around and slow down, too. I hardly think your legislature intended that a reasonable speed be defined this way.
According to case law, driving faster than the posted speed limit is presumed to be unreasonable. A driver can provide evidence that her speed was reasonable under the circumstances, but she is unprepared to do so, having seen the forms for the first time at the start of the hearing. The State rests its case and it's the driver's turn. She argues that the speed limit was artificially low, then says she believes the photo radar device picked up another car in its field. The hearing officer yawns. Just by showing up, the driver proves she was the one in the car.
Mr. Franklin: If this driver had an attorney who appeared for her, the case would be dismissed. There would be no proof she was driving because the State's witness does not have a driver's license photograph. By showing up, she proved it for them.
Photo radar is being used in more Arizona cities for catching both speeders and red-light runners. Phoenix, Mesa, Paradise Valley, Tempe, and Scottsdale have used the traffic citation technology to generate tickets automatically when a vehicle drives above a predetermined speed. A camera takes a picture of the speeding or red light running vehicle and the license number is used to track the owner. A ticket is issued and mailed later to the unsuspecting owner.
Cases addressing the legality of photo radar are limited. Issues of service of process or verification of the complaint are the focus of Arizona challenges. Arizona courts have thrown out cases where the signature of the complainant was computer-generated or where it was clear that the facts hadn't been reviewed before the complaint was filed.
Mr. Franklin: One of the problems I see with photo radar is that when a vehicle is registered to a corporation, I imagine it would get the ticket in the mail. If that corporation provides the name of the driver, it is off the hook, but the driver can expect a ticket. If the corporation does nothing, there's no consequence.
As long as you aren't the registered owner, you're okay, right? Wrong. Since there's no comparison of the photo with a license or registration, you could get a ticket if you lend your car to a friend. One man received a ticket a year after he sold his car.
In addition to legal defenses, there are practical defenses to a photo radar ticket. The slightest movement apparently affects the picture taken by the photo radar camera. Turning to talk to a passenger can be enough to blur the picture beyond identification. One man beat a ticket because he was drinking from a huge plastic cup at the time the photo was taken. Still another earned a dismissal when his baseball cap, pulled down low, foiled the machine.
New industries have attempted to cash in on the avoidance of a photo radar ticket. Stores sell clear plates to attach over the license plate and make it unreadable by the camera. A police officer following the car can see it, and some will issue a ticket for an illegible plate. The Arizona law requiring a license plate reads: "A person shall maintain each license plate so it is clearly legible." Without a definition of "clearly legible" those who use the deflecting plates are at the officer's mercy.
Mr. Franklin: I've heard the argument that photo radar is an invasion of privacy. Obviously it wasn't the kind of privacy we had in mind when we wrote the Constitution. In fact, the argument could be made that photo radar actually provides a higher level of privacy than if one were stopped by a police officer and perhaps subjected to questioning. It's a question of fair play, really. As long as the public thinks the government uses different rules, their trust will erode. That's a price none of you can afford, not even for safety.
Citizens who are happy with photo radar point to the indisputable fact that it has slowed down traffic to a much safer, more comfortable speed. While most people are happy with its impact, the naysayers will still ask whether it is being administered fairly. When cities follow the law scrupulously, the complaints will lessen and photo radar will do only what politicians claim is its focus--keeping the streets safe.