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#1 User is offline   SB1 

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Posted 23 February 2012 - 09:05 AM

Here's a link to the decision (pdf file): People v. Borzakian


This is pretty big and could lead to a state wide shutdown of red light traffic cameras (temporarily at least).

Red light camera companies just took a big hit in court. The 2nd District Court of Appeals down in Los Angeles just published a case (meaning it can be cited as precedent) where they overturned a red light camera conviction. The court held that the pictures, video and maintenance records (the only evidence against you) from the camera company are inadmissible hearsay unless the person who created them is in court to "authenticate" them. This is a biiiiig problem since the camera companies are located in Arizona and that is where the pictures and video are sent and processed by their technicians.

Courts in California had been getting around the hearsay argument by admitting the evidence under the "business" or "official records" exemption (California evidence code 1271 + 1280). They had also been admitting the pictures and video as "authentic" based on California evidence codes 1552 + 1553.

The DCA held that 1271 + 1280 could not be used since the person who was attempting to claim them as "business records" (a local police officer testifying as an expert witness) was not an employee of the camera company and thus not qualified to testify as to what was or wasn't a business record for the camera company (which is a private, for profit foreign company). They shot them down on 1552 + 1553 as well, stating the lower court had misinterpreted the meaning of those evidence codes.

I think this will work it's way to the State Supreme court since there is so much money at stake for the camera companies and all the cities who generate revenue from them. If it does get to that level I think this newest decision will hold.

The DCA did not post a decision regarding the Confrontation Clause issues with this case, they seemed content that they had resolved the case before reaching that argument (although they did address Confrontation in the footnotes). If it does make it to the State Supreme Court I think it will be addressed. There are two big Confrontation Clause cases from the US Supreme Court that relate directly to this matter and they've been argued all throughout this case (PDF links: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico)



If you are a California resident and you get one of these tickets you need to fight it and cite this case as precedent. With this case officially published, they can not use the photo, video and maintenance records as evidence if you raise the objection and base it on this case. The only way they overcome it is if the tech who created the documents is in court to "authenticate" them. If you don't live in California you won't be able to cite this case but you still need to read the decision and apply the arguments to your own case.
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#2 User is offline   SB1 

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Posted 23 February 2012 - 09:06 AM

A few articles that have been written about this case:


- Ruling May Unplug Red Light Cameras | NBCSanDiego.com

Quote

Ruling May Unplug Red Light Cameras
By Tony Shin - NBCSanDiego.com
updated 2/17/2012 10:15:19 AM ET
Posted Image

A Los Angeles court case could pull the plug on red light cameras in California - at least temporarily.

The 2nd District Court of Appeal in Los Angeles sided with a woman who argues that the red light camera system doesn't allow a fair fight.

Annette Borzakian, a former public defender, found a glitch in the legal system. After getting a red light camera citation in June 2009, she went to court and lost.

But on appeal, she argued that it is a defendant's right to question the actual company technicians who analyze the cameras.

Instead, traffic officers have been filling that role during trial.

"What the court says is the company that took the pictures.. that went out and maintained the lights that did everything, they've got to have somebody there," said San Diego Attorney Mitchell Mehdy, who also goes by the name "Mr. Ticket."

Mehdy said this case could lead to a temporary shut down of red light cameras in California until government agencies can find a way to comply with the ruling.

"The red light system is going to have to change or every case is going to be dismissed if you make the argument.. if you don't make the argument you send the ticket in, you're done," Mehdy said.

The tickets cost upwards of $530.

Mehdy is now working to shut down the cameras through the legal system in San Diego County.

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#3 User is offline   SB1 

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Posted 23 February 2012 - 09:06 AM

Another article


- California Court of Appeal Throws Out Red Light Camera Ticket

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California Court of Appeal Throws Out Red Light Camera Ticket
California Court of Appeal overturns red light camera ticket evidence as hearsay.
Thenewspaper.com - 2/13/2012

Posted Image


Red light cameras are coming under increasing legal fire in the Golden State. On Friday, California's second-highest court published a ruling that struck down red light camera evidence as insufficient to convict a motorist. On June 3, 2009, a camera belonging to the Australian firm Redflex Traffic Systems accused Annette Borzakian of entering the Beverly Hills intersection of Beverly Drive and Wilshire Boulevard 0.28 seconds after the light hand turned red.

Borzakian, a former deputy public defender, decided to fight the citation. During her January 2010 trial, Officer Mike Butkus provided the standard testimony that introduces Redflex evidence in all jurisdictions. Commissioner Carol J. Hallowitz ignored Borzakian's objections, admitted the evidence and found Borzakian guilty, imposing a $435 fine plus a twelve-hour traffic school. Borzakian immediately appealed, citing the US Supreme Court case Melendez-Diaz v. Massachusetts, which the traffic camera industry has feared since it was decided in 2009.

That case clarified that the Constitution's Confrontation Clause gave defendants the right to question the actual technicians responsible for analyzing forensic evidence. Here, Officer Butkus played no role in the operation or maintenance of the red light camera system. He merely read the sheet of paper that Redflex handed him. Borzakian argued that this made the photo ticketing evidence inadmissible hearsay. The superior court's appellate division insisted Melendez-Diaz did not apply.

"The people have never been required to have Redflex employees such as the custodian of records or the field service technicians present in court in order for the people's exhibits to be admissible," the three-judge appellate panel found. "Officer Butkus is perfectly capable of authenticating the documents and laying the necessary foundation for their admissibility and in the court's opinion had done both in this matter. It was explained to [Borzakian] that she could have filed a discovery motion or issued her own subpoenas, as many motorists do, had she cared to do so."

The three-judge Court of Appeal panel did not agree. Instead, it sided with the Orange County Superior Court's Khaled decision (view case). State law allows the use of red light camera evidence, but it does so only if certain standards are met. Among these is that the prosecution must establish the yellow light duration at the intersection meets the minimum state standards. Here, Officer Butkus concluded the light had been yellow for 3.15 seconds and that this was sufficient.

"Even assuming a 3.15 second interval meets the mandatory minimum yellow light interval as mandated by the legislature, according to Officer Butkus's testimony then, he relied upon text typed across the top of two photos, stating 'Amber: 3.15,'" Justice Fred Woods wrote for the Court of Appeal. "Accordingly, where the evidence was being presented to show the duration of the yellow traffic signal met the minimum interval mandated by the legislature -- measured to the hundredth of a second -- the record does not support the conclusion Officer Butkus was otherwise qualified to state that the representation was accurate."

The three-judge panel did not find credible the argument that the red light camera photographs and maintenance logs were merely routine governmental business records that did not require authentication. The court noted that the records were created by Redflex, not the government.

"Without the proper testimony, the maintenance logs (and therefore the photographs with text typed across the top) were not properly admitted," Justice Woods concluded. "Without these documents, as in Khaled, there is a total lack of evidence to support the Vehicle Code violation in question."

The Court of Appeal reversed Borzakian's conviction in a decision originally handed down on January 26. The three-judge panel on Friday decided that the decision should hold precedential value and ordered it to be published.

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#4 User is offline   SB1 

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Posted 23 February 2012 - 09:07 AM

The cities do not own the camera systems. The camera companies are contracted by the city to install, operate and maintain the cameras. They are a "for profit", privately held companies.



For those unfamiliar with the process, here's how these cases generally play out (I am not a lawyer, just sharing my experience and research on the matter):

You cross the limit line just after the light turns red and it activates the camera system (up to 90% of these violations are for making a right hand turn). The camera then takes 3 pictures and a 10 second video. It then sends the pictures and video via "secure/encrypted internet" to an ACS or Redflex office (those are the 2 most prominent camera companies that California cities do business with. They are both located in Arizona) where a technician processes the pictures and video. The tech then mails the pictures and video to the Sheriff / CHP / City Police (whichever law enforcement agency runs the red light camera program) in the town where the violation occured. The officer reviews the photos + video and verifies that someone violated section 21453 of the California vehicle code. He then looks up the license plate and issues a ticket to the registered owner. He may or may not compare the drivers license photo of the registered owner to the person photographed running the light.

Most people just pay the fine but a small percent fight the ticket. If you decide to fight it: At trial the officer will try to submit the photos + video into evidence. He will testify that he is an expert witness and has attended "X" hours of training concerning the use and operation of red light cameras. He'll testify that he's toured the camera company facility and has knowledge of the way the system works. He will attempt to lay the foundation to enter the photos and video into evidence. After he offers this evidence to the court the judge will ask if you have any objections. You should reply with "YES" and cite the Borzakian case in the first post as precedent.

The officer was not present when the alleged violation occurred and he did not create / process the photo or video evidence. He is attempting to submit documents that someone else created for trial (making the evidence testimonial in nature). This is classic hearsay and it also violates your 6th Amendment right to confront your accuser. Unless THE TECHNICIAN who created those documents is present in court to swear that they are a true and correct representation of what they purport to be, they must be excluded. And seeing that the photo and video evidence is the only evidence that a violation has occurred the case needs to be dismissed.


Another important thing with objecting to the pictures and video (citing hearsay / violation of the Confrontation Clause of the 6th Amendment) is that you are preserving legal argument for an appeal if you lose the case. If you don't object to the evidence then you are telling the court that you don't have any problem with the pictures and video and you can not raise the issue during an appeal. You would be waiving your rights.


A side note: if the pics and vid are admitted into evidence over your objection you need to pressure the officer to identify the person behind the wheel. I'm not telling you to purger yourself, but under no circumstance should you admit that it is you behind the wheel in the pictures or video. The "People" bear the burden of proving who was behind the wheel at the time of the infraction. There is even a specific section of the vehicle code that requires them to get a clear shot of the driver:

California Vehicle Code Section 210 states:

Quote

An "automated enforcement system" is any system operated by a governmental agency, in cooperation with a law enforcement agency, that photographically records a driver's responses to a rail or rail transit signal or crossing gate, or both, or to an official traffic control signal described in Section 21450, and is designed to obtain a clear photograph of a vehicle's license plate and the driver of the vehicle.


Furthermore, the registered owner of the vehicle is under no legal obligation to divulge the identity of the driver. That burden rests solely on the shoulders of the "People". This issue has been fought and won several times.
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#5 User is offline   SB1 

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Posted 23 February 2012 - 09:10 AM

- Lawsuit filed against red-light camera operator, Victorville

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Lawsuit filed against red-light camera operator, Victorville
By Mike Cruz, The (San Bernardino County) Sun
Updated: 02/21/2012 01:28:43 PM PST

A class-action lawsuit against Victorville and its red-light camera program alleges vehicle owners' due-process rights were violated and seeks millions of dollars in damages.

Barstow lawyer Robert Conaway filed the lawsuit on Feb. 14 in Victorville Superior Court on behalf of his client, Michael Curran, and others who received red-light tickets in Victorville from Phoenix-based Redflex Traffic Systems, according to court records.

The suit alleges misdemeanors and infractions have always been violations that must have occurred in an officer's presence and not making that a requirement violates the California Penal Code.

Declarations that appear in red-light camera tickets from the Redflex-Victorville program are subscribed under "information and belief," which the lawsuit alleges is akin to hearsay, not a police officer's personal knowledge.

"The problem here is there's a disconnect," Conaway said Monday by telephone. "You can't have two standards of evidence."

Conaway said his Curran, a Victorville resident, got a ticket after a Redflex computer signed the name of the officer, Barbara Hill, to a "Notice of Traffic Violation," despite the fact that Hill "did not contemporaneously observe the alleged infraction in California nor on an Arizona computer screen...."

Included with the ticket was a Redflex computer-generated proof of service, signed by a Redflex computer operator, and which was likely bulk-mailed on Oct. 4, 2011, the lawsuit states.

Red-light tickets raise other issues, too, according to the suit. Photographs and videos are not authenticated by an officer's testimony and defendants can't confront their accuser in court, the lawsuit alleges.

Neither Victorville nor a Redflex representative returned phone calls seeking comment. The city was closed Monday for the Presidents Day holiday.

On its website, Redflex cites a study by the Insurance Insitute for Highway Safety, which announced in February 2011, a 24 percent reduction in traffic fatalities in 14 U.S. cities with safety camera programs operating from 2004 to 2008.

In addition to the civil rights allegation, the lawsuit alleges that the defendants engaged in unfair competition under the state Business and Professions Code Sec. 17200, were unjustly enriched by their conduct, and face product liability through inherent design problems with the system.

Conaway estimated that about 5,000 people qualify for the class-action suit. The suit seeks $9 million in damages and more in punitive damages.

Curran and other class members have suffered damages from the red-light ticket at nearly $500 each, lost time from work as they go to court, have higher auto insurance premiums and had legal fees when lawyers were consulted, said Conaway.

"Defendants have reaped enormous fees by systematically violating the due-process rights of plaintiff and other class members," according to the lawsuit.

Red-light cameras have created headaches for other local jurisdictions.

The Grand Terrace Cioty Council voted in July to discontinue its agreement with Redflex when the contract ends in August. The city said the program, approved in 2007, costs city staff time and brought in no revenue.

In December 2010, the Loma Linda council voted to deactivate a contract it had with Redflex since 2006, saying the cameras neither improved public safety nor generated revenue.

However, the Highland council voted 4-1 in April to extend its contract with Redflex for another year. The city has contracted with Redflex since 2008.

The San Bernardino council voted 5-2 in September to fund red-light cameras operated by a different company, Arizona-based American Traffic Solutions, through July 2014.

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#6 User is offline   SB1 

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Posted 23 February 2012 - 09:11 AM

Here is another great case from California to study up on. This case is also published so it can be cited as precedent:

pdf file - People v. Khaled
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#7 User is offline   SB1 

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Posted 23 February 2012 - 09:14 AM

Again, I'm not a lawyer, just sharing my experience and research on the matter


The proper foundation can not be laid to enter into evidence the photos and video unless THE TECHNICIAN who processed the photo and video evidence is in court to testify that they are a true and correct representation of what they claim to be. The officer who runs the red light camera program is not qualified to do this. He is simply a receiver of information and would be trying to submit the statement of another at trial.


Here's a pile of evidence codes that relate to cases like this:

Quote

- California Evidence Code Section 1200

    (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
  • (b ) Except as provided by law, hearsay evidence is inadmissible.
  • (c ) This section shall be known and may be cited as the hearsay rule.




Often times the photo and video evidence will be admitted into evidence over objection because the court views them as a "business record" making them exempt from the hearsay rule.

Quote

- California Evidence Code Section 1271

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
    (a) The writing was made in the regular course of a business;
  • (b ) The writing was made at or near the time of the act, condition, or event;
  • (c ) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
  • (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.


This is incorrect though. The business record exemption does not apply to the photos and video evidence because the sole purpose of their existence is to be used for prosecution in a criminal case. They were created to prove a fact at trial and that makes them testimonial in nature and subject to confrontation.


The business records exemption talks about a "writing". Just to be clear, the red light photos and video do qualify as a "writing":

Quote

- California Evidence Code Section 250

    "Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.



And since they qualify as a "writing":

Quote

- California Evidence Code Section 1401

    (a) Authentication of a writing is required before it may be received in evidence.
  • (b ) Authentication of a writing is required before secondary evidence of its content may be received in evidence.


The only person who can "authenticate" them is the technician who viewed them in their original, unaltered form on the computer at the Redflex facility in Arizona and then printed them out and mailed copies to the police officer who runs the camera program where the alleged violation occurred.


Same thing goes for the maintenance records. The officer can not submit the maintenance records to prove that the system was working correctly unless the service technician who performed the service and filled out the logs is there to swear to it first hand.
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Posted 23 February 2012 - 09:15 AM

"Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty."


- Associate Justice of the United States Supreme Court Antonin Scalia - Crawford v. Washington
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Posted 23 February 2012 - 09:15 AM

Here's a pretty good website that breaks down all the flaws and potential defenses for camera cases:

- HighwayRobbery.net


That site also has a list of cases with tons of relevant documents, legal briefs, court decisions...

- HighwayRobbery.net - Case Index
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#10 User is offline   SB1 

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Posted 23 February 2012 - 09:21 AM

Dan Walters from the bee did a story about this case yesterday:


- California's red light cameras in jeopardy


Quote

California's red light cameras in jeopardy
Published: Wednesday, Feb. 22, 2012 - 12:00 am | Page 3A
By Dan Walters


The battle over the cameras that many California cities and counties use to nab motorists who blow through red lights or – more commonly – make rolling stops for right turns has raged in the Capitol for several years without resolution.

Critics of the cameras – which are installed and operated by private companies for shares of the resulting traffic fine revenues – say they are used primarily to generate income for local government coffers and serve little or no traffic safety purpose.

The critics found a friendly audience for their complaints in the Legislature. Two years ago, they finally won legislative approval of a bill that would have reduced fines for rolling red light turns caught on camera, overcoming stout opposition from lobbyists for local governments.

However, then-Gov. Arnold Schwarzenegger rejected the measure, saying that someone who makes a rolling turn on a red light "makes a very dangerous traffic movement that endangers the nearby motoring public, bicyclists, and pedestrians" and that lowering fines "sends the wrong message to the public that California is tolerant of these types of offenses."

The issue may be stalled in the Capitol, but red light cameras may go dark anyway, thanks to a new appellate court decision in Southern California.

While other courts have thrown out red light camera cases based on arguments of motorists that they were being convicted on hearsay testimony, the 2nd District Court of Appeal has provided legal heft for that contention with a published decision involving a motorist in Beverly Hills and Redflex Traffic System, the Arizona firm that is most aggressive in pitching cameras to local governments.

The court, in a unanimous decision (B229748), decreed that motorist Annette Borzakian could not be fined $425 because the policeman who signed the ticket, Mike Butkus, didn't actually see the incident but depended on the word of Redflex employees who maintained the system and reviewed pictures.

By contracting out traffic law enforcement at intersections to Redflex, the city violated a state law requiring "a witness to testify as to the identity of the record and its mode of preparation in every instance" and since Butkus was not involved in verifying the integrity of the system, the photographic evidence was inadmissible.

So now any driver who receives a red light camera ticket has a published appellate court decision to challenge its validity.

The appellate decision, moreover, provides legal weight for a class-action lawsuit that's been filed against Redflex and the city of Victorville, alleging that red light cameras violate the long-standing rule that an officer must witness a traffic infraction to issue a ticket.

Therefore, the suit contends, any tickets based on information from Redflex are invalid.

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Posted 23 February 2012 - 09:21 AM

Sorry for the info dump, just trying to spread the word.

Tell a friend!
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#12 User is offline   BasilPlus 

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Posted 23 May 2012 - 08:55 AM

What is so bad about putting up cameras on the rid lights. It will keep our streets much safer from alcololics and other kinds of criminals. Ask other people what they think of this.
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#13 User is offline   Rick B. 

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Posted 13 January 2013 - 04:31 PM

Hi SB1 ... And a BIG Thank You for such a great post on this. I recently had the pleasantry of receiving one of these Red Light Tickets and was doing some online research on how to fight it. This information gives me some hope!

I'd like to ask, if you or anyone else knows - Is the court case People v. Borzakian being used to challenge these types of tickets? And with success? I see that your post dates back almost a year (FEB 2012), and was wondering if our local governments have found a way to fight back at this. I will be sending my response in soon and requesting Trial By Mail and am seeking a little insight beforehand.

Thank You again!
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