Big City Shakedown – Times Publications, November 2009
Legal experts say the ever-expanding photo-radar enforcement program often violates citizens’ rights. Looks like they’re right. Just ask somebody who’s been hauled in for unknowingly driving on a suspended license.
For 53 years, Scottsdale grandmother Eleanor Johnson had a spotless driving record.
She was never once involved in a car accident and never received a single speeding ticket. In fact, since her husband retired she hardly drives at all; her 1999 Cadillac sits in the driveway with just under 20,000 miles on it.
Then last year, Johnson, 69, received a letter in the mail from the Arizona Motor Vehicle Division. At first she thought her license had expired or her registration was up for renewal, but when she opened the letter she discovered her license had actually been suspended.
“I was mortified,” Johnson says. “The letter said my license was suspended by default because I had some sort of speeding ticket I never paid. I didn’t understand how this was possible. I don’t ever speed. I never received a ticket, and then suddenly it’s like I’m a criminal.”
As Johnson soon discovered, she had been caught speeding by a photo-radar camera. However, Johnson, who spends her summers in Oregon, never received the citation for driving more than 11 miles over the speed limit on the Loop 101. When she didn’t respond to the notice or show up for a scheduled court date, the MVD automatically suspended her license without ever having properly notified her that she had a ticket to begin with. And according to Arizona law, it was perfectly legal.
Problems with the photo-radar ticketing process have resulted in numerous drivers unjustly losing their licenses; some have even been arrested and hauled into jail when police discovered, unbeknownst to the driver, that they were driving on a suspended license during a routine traffic stop. As the camera-enforcement program continues its rapid expansion, the number of default license suspensions shows no sign of slowing down, leaving photo-radar critics to question whether the unequal application of the program is actually serving justice or simply a well-disguised driving tax.
Many drivers who receive photo-radar tickets disregard them, which many legal experts contend is the best way to have the citation ultimately dismissed. According to Arizona law, photo-radar tickets that are mailed are not considered valid, no matter how many notices are sent. For a photo-radar ticket to be enforced, an officer of the court, also known as a process server, has to actually serve the ticket to the suspected speeder in person. If that is not done successfully within 90 days, the statute of limitations runs out and the ticket is dismissed.
“If you haven’t been served with a ticket, you have a choice not to respond to the ticket unless you’re legally served,” says Scottsdale attorney Susan Kayler, author of “Smile for the Speed Camera – Photo Radar Exposed!”, a how-to guide on understanding the ins and outs of photo radar in Arizona. “And once you’re legally served, you have the choice to challenge it,” says Kayler.
However, if and when a driver is served they are required to pay the fine plus a $25 surcharge for the “cost of personal service,” or show up for court to contest the ticket.
But here is where the process can get murky: The driver doesn’t actually have to be present to be served. Arizona civil rules of procedure allows process servers to simply leave the ticket with someone at the residence who appears to be 15 years or older. If the process server claims to see human activity at the residence, they can also attach the citation to the front door and move onto the next stop. This has resulted in a number of cases where drivers never actually receive notice of a citation.
“There is a requirement that you have to be served personally, but they don’t actually have to put it in your hand,” says Tait Elkie, a Valley attorney who specializes in photo-radar cases. “What happens if you fail to appear in court, there’s a statute that does allow for your license to be suspended until you’ve taken care of that default.”
Further, in other municipalities like Scottsdale, if the process server is unsuccessful in serving someone at their residence more than four times, they can get a court order for “alternative service,” which allows for the notice to be posted on the driver’s front door, with a copy mailed to their last known address.
“The courts are finding this to be sufficient service,” Elkie says. “There’s a difference in the way the photo-radar laws are being applied… It’s an unequal application of the law, in my opinion.”
Many legal experts say the problem with the process-service procedure is that there are a myriad of circumstances preventing drivers from ever being properly served. For example, if the driver is out of town or has recently moved, they may never know they have been served until their licenses are suspended, says Kayler.
“Here’s what happens to some people: They will have their registration registered at a particular address and then they may move and change the address on their license and registration. However, the photo-radar company may still have the former address and not see the change,” she says. “So they will go to what is now their former residence and leave the papers, and this person never becomes aware that they had a ticket at all.”
Some drivers have even been arrested for driving on a suspended license, when they weren’t even aware they had a ticket to begin with, Kayler says.
“Their cars are impounded on the spot; they’re taken to jail and their car may be impounded for 30 days. I had a client who had lost her job because she no longer had transportation,” Kayler says. “Not for a photo-radar (ticket) but for having not paid the ticket, defaulted and then having her license suspended because she didn’t pay. Then, unknowingly, she was driving on a suspended license.”
Sergeant Kim Cline of the Arizona Department of Public Safety Photo Enforcement Division says in the beginning many drivers thought if they ignored the tickets they would go away. Now that process servers are delivering tickets personally, that is no longer the case.
“If you get a photo-enforcement citation, you just can’t ignore it. You’re going to have to at least respond to the court, even if you feel it’s not you,” Cline says. “The process-serving companies are doing a good job getting all those people served.”
A few weeks after Al Golusin was snapped by a photo-radar camera while driving 51 mph in a 40 mph zone, a process server came to his home to deliver a speeding ticket.
It was 10:30 a.m. on New Year’s Day, and Golusin and his wife, Marla, were at the gym, busy getting a start on their resolutions. Back at their Phoenix home their friend John Shebanow was sleeping in.
The doorbell rang and Shebanow peered through the blinds and saw a man on the porch in a white shirt and tie. When he didn’t answer, the man became frustrated, started banging on the door shouting, “Albert, I know you’re in there!” Eventually, he shoved some papers under the door and left.
The Golusins came home and discovered that the visitor had been a process server, attempting to deliver a photo-radar ticket.
Golusin examined the ticket, and on the affidavit of service he noticed the server had wrote, “After knocking she came to the window and looked out but refused to open the door after seeing me and stating my purpose. I secured the papers to the door.”
Curiously, however, the sever had described the person who refused to answer the door as a Caucasian female about 56 years old, about 5-foot-7, and weighing 135 pounds, a description that matched Golusin’s wife’s license information. For the record, their house guest was 38 and had a full beard.
Golusin called the court to complain that he had been improperly served and learned that what had happened was indeed illegal.
“The process server illegally stuck the Scottsdale traffic court hearing papers and photo-radar ticket under my door and then signed an affidavit that he served me personally,” Golusin told The Times. “My reaction to the false affidavit signed by the process server was disgust and anger that an ‘officer of the court’ could lie without any checks and balances in the court system.”
Concerned that his license would be suspended, Golusin went to court, confident he would be able to clear up the mistake, but the judge was unsympathetic.
“The judge gave me a ticket for going 49 mph in a 40 mph zone but waived the service fees because of the illegal service,” Golusin says. “She also threatened to hold me in contempt of court for asking the Redflex (the private company that manages the photo-radar program) representative how much money his company received from every successfully collected ticket.” (Redflex receives approximately half of all fines collected on photo-radar citations generated using the company’s equipment.)
Golusin later took the process server who illegally served him to court, resulting in the server’s termination.
“I’m glad that he was fired,” Golusin says. “I hope that other Arizona residents will take action if necessary to protect our rights as citizens.”
“Process servers that deliver photo-radar tickets get paid on the average just $8 per accepted delivery, so they’ve got a built-in incentive to be very, very efficient,” says Michael Kielsky, a Mesa attorney who handles photo-radar cases. “There have been a number of instances where a process server has been found to be absolutely flat-out lying… Multiple process servers have lost their licenses for illegal services.”
Since its launch in September 2008, state highways have been infiltrated with nearly 100 photo-radar cameras—the most expansive automated traffic-enforcement program in the country.
Since the expansion of the program, the cameras have recorded more than 1.6 million incidents of drivers exceeding the posted speed limit by more than 11 mph, according to the most recent Arizona Department of Safety statistics obtained by The Times. However, more than 70 percent of those tickets are thrown out because the camera malfunctions or because drivers cannot be identified.
Sgt. Cline of Arizona DPS says the majority of tickets are thrown out due to poor picture quality, incorrect addresses or drivers intentionally trying to avoid tickets by blocking their faces.
“We do have a large percentage of people hiding their faces or blocking their faces with their hands – they put visors down to where you can’t see their entire face,” Cline says. “Our intent is not to issue a bad citation, so if we have any doubt, we dismiss it.”
Of the more than 500,000 fines issued in the past year, roughly only 20 percent of them were actually paid.
“A lot of people know how to work the system and aren’t paying the tickets as a form of protest,” says Greg Mauz, an expert at the Best Highway Safety Practices Institute. “There’s a definite public sentiment that the cameras are nothing but a scam. People are sick to death of these things.”
Despite issues with the ticketing process, Sgt. Cline lauds the photo-radar program and says it has greatly increased highway safety.
“People are slowing down,” he says. “Traffic has kind of calmed where pretty much everyone’s doing close to the same speed, which has a tremendous effect on collisions out there.”
However, Mauz pointed out several studies that show traffic accidents, especially rear-end collisions, have actually increased by up to 65 percent in photo-radar zones. The increase is attributed to motorists braking suddenly when they see a camera or a sign indicating the presence of one, and then speeding up again after driving past it. At night, the camera flashes can also be a distraction to drivers, increasing the danger.
“Cameras cause more crashes, injuries and fatalities,” Mauz says. “People panic when they see those things, hit the brakes and they run into cars.”
Next year Arizona residents may have the last word on whether the cameras stay or go. Two petitions for initiative measures have been filed by two separate citizen groups for the 2010 ballot, both of which would allow voters to ban photo-enforcement citations.
In the meantime, photo-radar critics continue to protest the program, often in creative ways.
Flight attendant Dave VonTesmar was at his job at Sky Harbor Airport in August, when suddenly he was approached by two uniformed Phoenix police officers.
After weeks of monitoring VonTesmar outside of his north Phoenix home, police were ready to confront their elusive masked bandit. But VonTesmar wasn’t placed in handcuffs and hauled off to the slammer; instead, he was presented with a stack of 37 photo-radar tickets.
As far as police were concerned VonTesmar was a masked bandit. His disguise: a cheap plastic monkey mask. His crime: driving more than 11 mph over the speed limit on Valley freeways.
Over the course of several months “someone” wearing monkey and giraffe masks had been photographed while speeding on Valley freeways in VonTesmar’s white Subaru.
DPS officials estimate the car registered in VonTesmar’s name was caught by cameras more than 90 times, but sufficient time had lapsed on the majority of those violations by the time officers finally tracked him down at his place of work and served him with 37 unpaid photo-enforcement tickets. VonTesmar is currently facing fines in excess of $6,500, and he says the police incident at his place of work has jeopardized his employment.
VonTesmar – or Dave the Speed Monkey, as he was dubbed after the incident – says the photo-radar process is flawed and there is no way to know who actually was driving his car.
“They haven’t proven it’s me behind the wheel. There’s no proof that it’s me,” he says. “The only thing that they’ve proven is it’s my car, and nobody’s arguing that.”
Typically, the DPS uses drivers-license photos and vehicle registration to confirm the identity of motorists, but there is a special unit assigned to address repeat offenders. In this case, officers sat outside VonTesmar’s home and watched him drive to work on four separate occasions while wearing both the monkey and giraffe masks. DPS officials say the “monkey man driver” was an isolated incident.
However, Kielsky, VonTesmar’s attorney, says it appears as though DPS is making an example out of him.
“It’s got a feeling of a little bit of a vendetta on behalf of DPS,” Kielsky says.
Regardless, VonTesmar says this shows a pretty clear picture of the weaknesses of high-tech speed enforcement.
“There are flaws in the whole system. In this case, they have not identified the driver,” he says. “It’s a speed tax. It’s not consistently applied… It’s selective enforcement, and it’s amazing this is continuing to go on.”