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Monday, November 9, 2015

good advice for courtroom warriors . . .NMA E-Newsletter Issue #355

In our May 2014 ranking of states by how they treat motorists, Maryland didn’t fare well. It came in fifth worst – not counting the District of Columbia – behind only New York, Delaware, New Jersey, and Vermont.  Law Enforcement Tactics was the scoring category most instrumental to Maryland’s poor ranking. The state earned only 6 out of a possible 30 points primarily because of its pervasive use of photo enforcement and reliance on the resulting revenue stream.

Hundreds of thousands of photo tickets are issued across Maryland annually. It is enlightening to tell the story of an NMA member who recently contested his speed camera ticket in Prince George’s County and found out firsthand how the system is only a perfunctory attempt at justice.

Joe (not his real name) requested several documents in writing including the photographic/video evidence used to charge him, and service/maintenance records for the speed camera that produced those images.  None of that information was provided to him.

When Joe showed up in traffic court he was buoyed at the start by the fact that the judge had to dismiss the citations of most of the people there because the municipality involved failed to have a representative there. Joe was not so lucky. His town did send someone – a retired police officer who routinely testified on its behalf in photo ticket cases.

Although Section 21-809 of the Maryland Code (“Citations based on speed monitoring systems”) requires that a speed monitoring system shall undergo an annual calibration check performed by an independent laboratory and that a signed certificate of calibration “shall be admitted as evidence in any court proceeding for a violation of this section,” the officer said he didn’t bring it because he wasn’t formally subpoenaed.  The court accepted that explanation.

Defense strategy shifted to providing proof that Joe, the registered owner of the car tagged by the camera, was at work many miles away at the time of the violation and could not have been driving the car. Although there are stipulations in Section 21-809 that allow the court to consider this defense, the judge dismissed the argument by ruling that the charge was similar to a parking ticket where the owner of the car is responsible regardless.  Joe was found guilty and didn’t pursue the matter further because the cost to file an appeal was double that of the original fine.

In counterpoint to Joe’s case, we present a brilliant defense of a photo citation conducted in another region infamous for its ticketing policies. This account was detailed in the July/August 2010 cover story of Driving Freedoms:

A St. Louis man beat the red-light camera charge against him by raising reasonable doubt as to who was driving his car when it was photographed running a red light.  Gant Bloom is not an attorney, but he put on a marvelously succinct and logical defense. The court transcript of the Bloom trial is 36 pages long, with 33 of those pages taken up with questions, testimony and summations by Bloom and the prosecutor. Bloom’s defense, startling in its simplicity, was laid out in only nine pages, while the prosecutor labored through the other twenty-four.

The photo evidence from the city provided an image of Bloom’s car, but not of the driver. He testified that both he and his girlfriend drove his car at various times, and since the ticket came in the mail a month after the actual incident, Bloom could not remember which of the two was driving when the car went through the red light.

Gant called his girlfriend to the stand and elicited testimony that the two of them sat down after receiving the ticket and honestly tried to determine who was driving. They couldn’t. His opening statement included a summary of his strategy: “I decided it just wasn’t fair for me to admit guilt to something that I didn’t even know if I did or not. The only physical evidence that the prosecution is going to show you is that it was my car running through a red light. That I don’t deny.” Bloom continued, “I don’t believe the City can satisfy this court that it was me who was driving and who committed that crime. And furthermore, I intend to demonstrate reasonable doubt that it was me driving that day.”

The prosecutor called a representative of American Traffic Solutions (ATS) to the stand and proceeded to ask detailed questions for several minutes about the operation of its red-light camera. Bloom’s cross-examination consisted of a single question.

     Q: Sir, is there any way to tell who was driving the car at the time of the violation?
     A: No, there isn’t.

The prosecutor then questioned a police officer about the evidence for another extended period. When Bloom was given the opportunity to question the officer, he asked if, during a physical traffic stop for running a light, the officer would attempt to identify the driver. The answer was affirmative. Bloom then asked if the officer would issue a citation if he wasn’t able to identify the driver. The officer said, “No, if I couldn’t identify the driver, I wouldn’t issue a citation.”

Next question for the officer: “If you pulled a car over and found out it was a different driver than who was the registered owner of the car, would you issue a citation to the car, to the registered owner who is not driving, or would you issue the citation to whoever was driving the car.” The answer, of course, was that the officer would issue the citation to the driver.

The judge ruled, “The Court finds both witnesses (Bloom and his girlfriend) credible based on the testimony as well as common sense. Finding for Defendant. Costs to City of Saint Louis.”

Some of the lessons to be learned when contesting a photo ticket:
  1. Compare the local ordinances governing the photo enforcement program with actual operational details. Discrepancies are your ally.
  2. Understand the evidence. Does it depict what is being claimed by the prosecution? Most photo tickets violations have built-in reasonable doubt because the driver is rarely positively identified by the camera.  
Find a logical way to present this to the court and hope that the judge, unlike in Joe’s Prince George’s case, is there to serve justice.