It seems that Maricopa County Attorney Andrew Thomas says photo radar is unconsititutional for these two reasons:
-- The U.S. Constitution allows defendants in criminal cases to be confronted with witnesses against them. “In photo-radar cases, there are no witnesses, and defendants are not permitted to confront their accuser,”
-- Arizona's constitution gives defendants a right to meet witnesses against them face to face. “There is no opportunity to question or cross-examine the camera”
Thomas won't prosecute some speeders caught on camera
by JJ Hensley - Feb. 23, 2009 07:05 PM
The Arizona Republic
Criminal speeders caught through photo-enforcement cameras in Maricopa County won't face criminal charges if their cases wind up in Andrew Thomas' office for prosecution, the county attorney announced Monday.
Thomas said his office has received a “handful” of violations that would qualify for prosecution under the state's “criminal speeding” laws- defined as going 20 mph or more over the speed limit. But after going through the statute authorizing the Department of Public Safety to deploy the enforcement cameras, and other relevant legal issues, Thomas determined Maricopa County prosecutors can't pursue criminal charges against speeders when photo-enforcement evidence is all that exists.
“Civil violations are another matter,” Thomas said.
The vast majority of photo-enforcement citations are civil violations, but supporters of the controversial program have cited reduced speeds on highways and a decreasing frequency of criminal speeders as evidence of the program's success.
Through mid-January, the Department of Public Safety had used photo enforcement to issue more than 1,200 complaints to motorists on Arizona highways.
DPS officials, who weren't aware of Thomas' pending decision, declined to comment until consulting with Attorney General Terry Goddard's office to “seek guidance” on Thomas' determination.
A legal opinion from Goddard's office could clear up some of the increasingly murky issues related to the photo-enforcement program, including Thomas' announcement on Monday and a January declaration from a West Valley justice of the peace that the program is unconstitutional. That justice, Judge John Keegan, has thrown out more than 400 photo-enforcement tickets since December.
A spokeswoman for the Attorney General said no state agency or legislator had requested an opinion before Monday.
Thomas' decision would affect the “handful” of those cases that have come to his office, and others forwarded for prosecution in the future- all of which would be dismissed.
The decision would not affect potential criminal-speeding prosecutions in other Arizona county's or in city's around the state that operate their own photo-enforcement programs.
Thomas said he based the decision on three factors:
-- Because legislators who wrote the statute didn't allow photo-enforcement tickets to impact whether the driver's license is suspended or revoked, the legislators “could not have intended for such evidence to be used in the even more serious context of criminal charges”
-- The U.S. Constitution allows defendants in criminal cases to be confronted with witnesses against them. “In photo-radar cases, there are no witnesses, and defendants are not permitted to confront their accuser,” Thomas said.
-- Arizona's constitution gives defendants a right to meet witnesses against them face to face. “There is no opportunity to question or cross-examine the camera,” the county attorney said.
Thomas' determination is not a formal legal opinion, he said, but a decision the Maricopa County Attorney's Office had to make after DPS began forwarding tickets for prosecution and “pressing” the office for an answer, Thomas said.
To effectively fight criminal speeders, DPS needs more troopers on the road with radar guns, so the officers can identify the drivers in court, Thomas said.
“You have to have a witness, and that's what the Constitution requires,” he added.
DPS officials released a statement late Monday evening that indicated Thomas' decision caught the agency off-guard, but would not serve as a deterrent in the department's efforts to use the cameras to prosecute-and-deter speeders.
There is still movement at the Lgislature to amend or dismantle the program as it currently exists, including a bill that would prohibit photo-enforcement on state highways. That legislation from committee late last month, but was stricken from the House calendar last week.
Drivers have activated photo-enforcement cameras around the state more than 500,000 times through Jan. 21. DPS has issued about 150,000 tickets based on those activations and received payments on nearly 25,000 citations.
Those numbers translate to about $435,000 in fees for Redflex, the contractor that provides, maintains and operates the cameras, and more than $4 million in revenue for the Photo Enforcement Fund, money subject to legislative appropriation.