Arizona Lawsuit Could Affect Fate of Photo Radar

An angry Arizona motorist and the American Civil Liberties Union are challenging the use of photo radar in a plea to the Arizona Supreme Court that could be a harbinger of similar challenges in Pasadena.

A petition was filed by Phoenix resident Roseanne Cortright, who was photographed by the device as she drove through nearby Paradise Valley, Ariz., the only other city in the United States to use the machine.

Aided by five attorneys from the Phoenix area who have donated their services, Cortright is arguing that use of photo radar is illegal and unconstitutional.

The court is tentatively scheduled to decide on Feb. 15 whether to hear the case. If it does, it would be the first case in the country involving photo radar to reach the appellate level.

‘We’re Going to Fight’

“Do we want robocop? Do we want a country where machines decide if we’re driving reasonably?” asked David D. White, the lead attorney in the case. “We’re going to fight this to the end.”

The resolution of the case in Arizona will probably have a limited effect on the legal debate over the use of photo radar in Pasadena because an Arizona court decision would have no legal bearing in California, said Thomas D. Hogue, an attorney who successfully argued a photo radar case in Pasadena.

But he said an affirmative decision in Arizona could help by outlining a legal strategy that could be used in Pasadena. It could also act to encourage or discourage more legal challenges here.

Photo radar is a device that combines a camera, microcomputer and traffic radar to monitor the speed of traffic. It automatically snaps a picture of any vehicle traveling faster than a pre-set speed limit.

The photograph, which includes the vehicle’s license plate number and the driver’s face, is used to produce a speeding ticket that is later mailed to the registered owner of the car.

Used in Europe, Asia

The Swiss-built device has been used for years in Europe and Asia, but it has appeared in the United States in the last year and a half.

In that period, it has issued more than 14,300 speeding tickets in Pasadena and Paradise Valley, and inspired a steady stream of controversy.

A number of Pasadena motorists have challenged their tickets in court, but the only major victory came in a case argued by Hogue. The judge ruled that the police car containing the photo radar was painted the wrong color. The ruling resulted in the dismissal of more than 900 tickets and the car has since been repainted to comply with state requirements.

Despite the controversy, Pasadena officials have been pleased with photo radar and began tests last week of a similar photo device to catch motorists who run red lights.

Paradise Valley was the first city in the country to use the photo radar to catch speeders, beginning in October, 1987.

There have been nearly 100 trials in disputes over photo radar tickets at the local court level in Paradise Valley, with most motorists losing their cases.

$60 Speeding Ticket

Cortright, a law firm receptionist, was photographed by the machine last August and received a $60 speeding ticket in the mail a few weeks later.

But unlike most drivers who simply paid their fines, Cortright decided to fight.

She asked White to be her attorney, and he was soon joined by other irate lawyers and the ACLU. Efforts to reach ACLU officials in Arizona were unsuccessful, but White said the group is involved in the case because of concerns over the photo radar’s infringement of individual rights.

Cortright is challenging the use of the machine on grounds that it is a violation of an individual’s constitutional right to due process.

Unlike an ordinary speeding ticket in which drivers are stopped by an officer, photo radar citations are mailed to the registered owner of the car days and even weeks after the incident has occurred.

Adequate Defense

White said the result is that drivers may not remember the circumstances of the incident and would be deprived of the ability to mount an adequate defense.

The circumstances are important because in Arizona, as well as Pasadena, drivers can only be convicted of speeding if they exceed what is considered a “reasonable and prudent” speed. In both states, drivers are allowed to go above or below the posted speed limit, depending on road conditions.

For example, on foggy days with very poor visibility, a driver could be cited for speeding even though he did not exceed the posted speed limit. Similarly, a driver could exceed the limit if visibility is good and there are no other vehicles on the road.

“How can you prepare a defense if you can’t remember what happened?” White asked.

He said use of the photo radar is also unconstitutional because the registered owner of the vehicle is held responsible, even though someone else may have been driving the car.

Innocent Until Guilty

Registered owners in both cities can have photo radar tickets dismissed by proving they are not the driver in the photograph.

But White said the city has no legal right to cite the registered owner in the first place.

“In this country, we’re supposed to be innocent until proven guilty,” he said.

Charles G. Ollinger, town attorney in Paradise Valley, rejected White’s arguments as unfounded.

He said mailing tickets after an incident has occurred does not deprive drivers of the chance to defend themselves. For example, he said, robbery suspects are routinely arrested weeks or even months after a crime has occurred.

‘Trivial’ Infringement

He added that holding the registered owner of a car responsible for a ticket is no different than the way parking tickets are handled.

Ollinger said that even if there was some infringement of an individual’s rights, it would be “so trivial compared to the interests of the people of the state in enforcing traffic rules.”