The District of Columbia's Automated Traffic Enforcement System: Efficiency at the Expense of Due Process
Jeffrey
Downey
-
September
2010
If you drive through the District of Columbia, you may have received a ticket under
DC's automated traffic enforcement system (ATE System). This system, established by DC Code Section 50-2209-01, delegates traffic enforcement to a private company, Automated Computer Systems Inc. ACS uses automated cameras and radar devices to enforce traffic laws. Since its inauguration in August of 1999,
DC's ATE system has become a reliable income generator for the District. After a vehicle is caught on radar or camera, a draft ticket is prepared by ACS personnel, which is then reviewed by the Metropolitan Police Department, who determines whether the ticket should be prosecuted. The
driver's license plate, which is captured on video, is tracked through DMV to find the owner, who is then issued notice of infraction through the mail.
There is a legal presumption under District law that the registered owner of the vehicle was the individual driving the vehicle at the time of the alleged infraction. See D.C. Code § 50-2209.02;
Agomo v.
Fenty, 916 A.2d 181 (D. C. Court of Appeals 2007). Upon receipt of the notice of the infraction, the owner of the vehicle can contest the charge or admit to it and pay the fine. If the owner denies responsibility, a form requests that he identify the actual driver at the time of the infraction.
While in practice
DC's photo enforcement may be a big boom when it comes to generating revenue for the city, in reality it sacrifices the due process rights of its residents. In fact, because the photo enforcement scheme is characterized as a civil infraction, the normal due process rights associated with a criminal prosecution do not even apply. There is no presumption of innocence, right to confront your accusers or right not to incriminate yourself.
As the District bypasses the normal procedural due process requirements that should apply to traffic infractions, prosecutions have never been easier. One never gets an opportunity to confront the witnesses against him or avoid the introduction of hearsay evidence. This, combined with the use of a private company that is financially motivated to issue tickets because they are paid on a per fine basis, creates a great potential for financial exploitation. Moreover, unlike police officers who may exercise discretion in giving tickets, the photo enforcement system will issue tickets for relatively minor infractions, i.e., travelling 3 to 5 miles per hour over the speed limit. Given the non-application of points and the fact that it is time consuming to contest these tickets, most people simply decide to pay.
When I received notice of my infraction through my leasing agency, almost two months had expired since date of the actual violation. The District had already doubled my fine (from $200 to $400 dollars), and I had no recollection of the circumstances surrounding the actual incident. Because a driver is not stopped and charged at the scene of a photo enforcement ticket, it is very unlikely that he will remember the details or mitigating circumstances of a particular offense. I certainly had no memory of my speed as I passed the 600 block of Michigan Avenue. I decided to contest my ticket and request a hearing.
I would urge anyone who receives a photo enforcement ticket in the District of Columbia to consider contesting their ticket. The purpose of this article is to outline a possible strategy for fighting the prosecution of such infractions. Please keep in mind that every citation or criminal infraction is unique, and this suggested course of defense should not be construed as legal advice with respect to your particular infraction or offense. You should evaluate the facts of your case in light of the principles discussed below and consider for yourself whether you wish to retain legal counsel. Case law often changes, so you should update any legal citations contained in this article. I am also happy to discuss your case with you for free, if you have questions.
Fighting A Photo Enforcement Ticket –
it's not a waste of time
One may wonder how the District proves that one speeded through an intersection with no live witness to establish the foundation for the admissibility of any evidence. While normally there would be hearsay and other evidentiary restrictions in a criminal case, in an administrative traffic hearing, the hearing examiner may consider hearsay. The examiner may also review photographic and radar evidence that is presented at the hearing, even though there would is no actual witness to explain this incriminating evidence.
The first step in defending a photo enforcement ticket is to request a hearing and file a motion for production of exculpatory and other evidence.
A sample motion is
attached. Filing this motion is critical. You must, of course, change this motion to reflect the facts and circumstances of your particular charge, including your name and ticket number. It is also important that you serve this motion not only upon the Bureau of Traffic Adjudication Services, but upon the DC Police Department and include their addresses on the certificate of service on the last page of the form. Bring an extra copy of the motion with you to the hearing.
The DC Police Department does not generally send police officers as witnesses to support these photo enforcement tickets. Once you have filed your motion for exculpatory and other evidence (including the request that they produce a police officer to support the charges) you will be in a position to argue at the hearing that the case must be dismissed for the
District's failure to produce a witness to substantiate the reliability of the photographs or radar readings at issue.
The hearing itself will take place in a small hearing room before a hearing examiner. It is an informal process, not as intimidating a courtroom. When the hearing begins, you will be asked to sit at a table in front of a computer screen. Politely inform the hearing examiner that you object to him reviewing any photographs or radar information without proper foundation. You should also object on hearsay grounds, although the hearing examiner will likely tell you that the hearsay rules do not apply to this proceeding. However, you should argue that whether hearsay rules apply or not, it is still the
District's burden to prove the accuracy of the radar device along with the circumstances surrounding the citation. For example, the District would have to establish the actual speed limit on the road at issue to show any speeding violation. A notation of the speed limit on the citation is not evidence of the actual the speed limit on the road in question.
In addition, you must look at the Rules on Automated Traffic Enforcement and Radar Devices. Specifically, regulations at 48 DCR 1035.2 require that a radar device be calibrated and contain a certificate that the device was working. In any case where radar is at issue, you must object to the hearing examiner considering any evidence of the radar readings without the foundation being established that the radar used for your citation was calibrated properly. The District is supposed to supply the calibration reports at the hearing, but they rarely do. Argue that you filed this motion for exculpatory and other evidence to obtain the radar calibration certificate and that the
District's failure to produce such certificate or complaining witness merits dismissal of their case against you. Even if you do not file the motion, object to any evidence of radar if the District does not have the certificates of calibration and move to dismiss the case on that basis.
As there is no prosecuting attorney present at these hearings, there will be no one to move for a continuation of the hearing date to obtain this information. If the hearing examiner proposes a continuance, it is important that you oppose such a request on the grounds that the District was well aware of this hearing date, as they set it. Point out that you served this motion both on the traffic bureau and the DC police, who chose to ignore it. Explain to the examiner that you have already had to take the afternoon off to defend this ticket and lost money and time, regardless of the outcome of this proceeding. If fact, in the time that it has taken you to defend this ticket, the District has likely cited you for a parking violation outside the courthouse.
When arguing before the hearing examiner, it is important that you be polite, and keep your arguments focused on your legal defenses. These examiners hear a large number of traffic cases and have heard every excuse in the book. They will be much more receptive to short, focused legal arguments and objections that are supported by legal citations than any excuse you can come up with.
It is important when you defend these traffic enforcement tickets not to divulge information that would incriminate yourself. For example, it is the
District's burden to prove that you were the operator of the vehicle at the time of the alleged offense. Under the statutory scheme applicable to these citations, there is a rebuttable presumption that the owner of the vehicle was the person driving it at the time of the infraction. D.C. Code 50-22-02 states that the owner of a vehicle "shall be liable for payment of the fine assessed... unless the owner can furnish evidence that the vehicle was, at the time of the infraction, in the custody, care or control of another person." So much for the presumption of innocence. This provision is arguably unconstitutional. You should deny the charge generally and make the District prove each element of their case. If the hearing examiner asks whether you were the
driver, you should object on the grounds that you have a right not to incriminate yourself and that this is part of the District's burden of proof. However, as this is more like a civil case, the hearing examiner will likely disregard your right not to incriminate yourself, and conclude based on your failure to answer the question that you were the operator of the vehicle at the time.
It is vitally important that people assert their rights in defense of these cases before such automated systems are universally accepted in all cities and communities. Imagine what it would be like to drive in a city where at every intersection the slightest infraction would be instantly recorded and result in a ticket that you have neither the time nor ability to contest. With video surveillance pervading almost every aspect of our public life we must safeguard the rights we still have, or one day we will wake up without them.
Note about the
author: Jeffrey Downey is a trial attorney in the District of Columbia, although he practices in Virginia, DC, Maryland, West Virginia and New York. He handles a wide variety of civil ligation matters including personal injury, medical malpractice and complex litigation. If you have a question about a possible case, call for a
free
consultation.
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