Saturday, February 28, 2015

The Constitution vs. Red Light Cameras I

Driving is not a right it is a privilege.  In order to enjoy the privilege, you have to get a license, register a car, have it inspected, insure it, and lastly obey the laws of the state of Texas.  I am reminded of a saying by Abraham Lincoln when dealing with people that say their Constitutional Rights are being violated.  He says “if a goat has 4 legs and a tail.  And if we call the tail a leg, then how many legs does a goat have.  Ans: 4, just because you call a tail a leg doesn’t make it so.”  The same is true with the Constitution.  Just because you say your rights are being violated doesn’t make it so.  We have judges well versed in the Constitution, and it is important that you respect their ability to judge.  

Article IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Privacy:  The Supreme Court describes driving as “a regulated activity on public roads where there is no personal expectation of privacy.”  

7th circuit Idris, “nobody has the fundamental right to run a red light or avoid being seen by a camera on a public street.”  “The fact that liability through the use of photographs taken by Automated cameras rather than tickets from absent police officers does not alter the constitutionality of the procedure available to alleged red light violators.”

Guilt:  7th Circuit Idris “ an owner cannot deny liability simply by claiming he or she was not driving the car at the time of the red light violation.” “Issuing a citation to a vehicle owner (or Lessees) instead of the driver is constitutionally permissible.” “A system of photographic evidence reduces the cost of law enforcement and increases the proportion of all traffic offenses that are detected.  These benefits can be achieved only if the owner is held responsible.”  “Owners will take more care in lending their cars and often can pass the expense on to the wrongdoers.”  Judge Easterbrook uses an example of you going to a tax lawyer and him making a mistake on your taxes.  The IRS still comes to you because you are responsible to pay the proper tax.  He also uses the case of Van Harken vs. Chicago, stating that parking tickets are made out to the registered owner not the driver.  I use the example of a Toll bill that arrives in the mail.  It was my car license that was witnessed using the road, therefore it is my responsibility and I can seek retribution from the person that used the road with my car.

5th Circuit;  (Arlington) “The governing body of a local authority by ordinance may implement a photographic traffic signal enforcement system and provide that the owner of a motor vehicle is liable to the local authority for a civil penalty if the vehicle is operated in violation of the instructions of that traffic control signal.”  Appellants have not alleged that they were improperly cited for traffic violations by the City of Arlington instead they have claimed their violations would not have been discovered were it not for ATS.  This interest in evading the law cannot create standing.  A Plaintiff’s complaint that the defendant’s actions “will make his criminal activity more difficult lacks standing because his interest is not legally protected.

6th circuit “it is clear that the type of evidence the hearing officer may consider when determining liability concerns whether a violation was in the owner’s car, not whether the owner was the person who committed the violation.  Thus an owner may be held liable for someone else’s actions.


Article V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

First let me state the instead of “Himself” it should read “Themselves”.  I state no authority in changing the Constitution, but women were granted the right to vote in 1893 well after the Constitution was written.  Also notice the word “Criminal Case.”  A red light ticket has been determined to be a civil offense by the state.  If you were testifying against yourself you would be stating that you ran the red light.  In this instance you are testifying for yourself stating that you didn’t run the red light, Big Difference!  The reason for not testifying yourself in a CRIMINAL trial is so that a lawyer doesn’t get you on the stand and let you talk yourself into a jail cell.  But you do have the right to testify on your own behalf if you feel compelled to do so.  I will discuss due process in Article 14.  But I want to talk about the “taking of Private Property without just compensation,” in this case $75.

The 6th circuit states rules that, “The citation informed Plaintiffs of 4 methods to resolve the issue.  1.  “to admit” the violation of which involved paying the fine.  2. The instructions “to deny” permitted them to check a box to indicate whether they desired a hearing, 3. wanted to demonstrate that the vehicle had been stolen or 4. wanted to demonstrate that the vehicle was not in their custody, care or control at the time of the infraction.  (Under their control would require producing the individual that was in control of the vehicle.)  In other words they had plenty of options that they did not pursue.  So the government was proper in taking their $75.

Supreme also ruled that the taking of property is just when it is used in a manner that is unlawful.  A car can be confiscated if used in a crime like a robbery or the sale of drugs.  It can be confiscated without any compensation.

Article VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. 

Confronted by his accuser:  State Transportation Code 707.014 a)  A person who receives a notice of violation may contest the imposition of the civil penalty…by filing a written request for an adjudication hearing.  b)  The local authority shall notify the person of the date and time of the hearing. c)  A hearing officer shall conduct the hearing. d)  Issues must be proven by a preponderance of evidence.  e)  The reliability of the photographic system must be attested to by the officer.  f)  The officer must fill out an affidavit attesting to the violation being based on the photographic recorded image: 1) admissible in the adjudication hearing and in an appeal 707.016.  2)  Evidence of the facts contained in the affidavit.  g)  At the conclusion of the hearing the officer must issue a finding in writing of liability/no liability, signed and dated.  h)  the finding will be filed.

State Transportation Code 707.016 a)  The owner of a motor vehicle determined by a hearing officer to be liable for a civil penalty may appeal the determination to a judge filing an appeal petition with the clerk of the court… e)  An appeal under this section shall be determined by the court by trial de novo. (new trial)

I will discuss Article VII and XIV in the next posting. 

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