Tagged my Clipper card at the gate to enter MUNI - gate opened. On train fair inspector told me that I don't have any valid payment and issued me a ticket despite me telling her that I was let in by the gate.
Contested ticket stating that gate opened upon tagging my clipper card. SFMTA wrote me back that "citation was properly issued and is valid" - no further explanation. Now I'm forced to pay the $103 fine before I can even get a hearing.
There are several aspects you need to pay attention to. Payment of the fine as a prerequisite to a hearing is least important. Most important is that if you are innocent of what they accuse, you should feel a duty to clear it regardless of cost.
1. The "issued and valid" step?: I don't believe anything is tested. I think that time is wasted in this step. Time is valuable. You know the approximate time that you activated the gate. You should use the Freedom of Information Act to request a video tape of this act of your using the card and the gate opening. I believe that transit authorities use the non-substantive "issued and valid" step to waste time and delay the FOIA request and increases the probability that they will come back and say "so sorry, we toss it after 2 months".
You know that if you have a video of the door opening it means you did it correctly.
2. Mathematically it is clear that a civil standard will be more difficult to win than a criminal standard. I am informed that most transit authorities adopted the civil standard and if you run the math it makes sense. Civil is 51-49. Criminal is, say 99-01. Criminal "not guilty" findings would occur in any case where there was any doubt, and there would be a lot of them. Civil cases rely upon the so-called high reliability of tap cards. So, check your SFMTA statute to see whether you are being charged criminally or civilly.
3. As a master's degreed electrical engineer, I know about the 1.1 - 1.6 gig frequency, lack of polarization of the electromagnetic signal, proximity activation, handshake, as well as defects on the chip recordation, AND later electromagnetic effects on your card. A good defense can be mounted based upon all of the above, but to get the facts in on this particular system, you will need to hire an expert. If the nuances of your card and its transpondive mechanism were explained to the hearing officer, he or she would drown in a sea of ignorance.
Other aspects include a different interference pattern based upon everything you were wearing that day. (I.E. the card had high reliability in a constant environment, but when you change people, clothing and metal, you can get various interference effects).
What might your card have been exposed to, to alter its recordation by the inspector. Many inspectors use an app on a phone. Those have higher transmitter power and might possibly alter the recorded information by reading it. Remember, that I-phone may be putting out a tower telephone signal at the same time it is trying to signal and read your card.
4. If the card has a number on it, you should use the number to request transactions list that occurred when you tapped your card. If a transaction bearing your card's number was RECORDED BY THE SFMTA computers at the time you tagged your clipper card, you will have further proof that you were using it properly.
5. If you have electronic payment records which you can match to your ridership, then use them. In a recent case, I used credit card charges in conjunction with IRS travel receipts to show concordance of tap card activity with IRS travel records. Also use anything which shows you would not have any gain by jumping a turnstyle (for example: employer provides a paid-up clipper card.
6. Make sure that you record the hearing so as to appeal, should you lose.
So, to be most sure, hire an attorney (who will preferably hire an expert on electromagnetic reader card reliability, get a printout of the card activity on the day in question and secure the video tape showing you entering the gate, tapping or tagging your clipper card, and produce any financial records which show a consistent, honest pattern of usage.
Bring evidence that you requested a video and that you requested the card activity.
Have the attorney put on the case for electronic failure using the expert.
This should help maximize your chances, but you may still lose.
Good Luck, I hope you win this.
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
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Criminal Defense Attorney
Remember to pay close attention to the deadlines. Unfortunately, the courts have upheld the requirement that people pay the fine prior to the administrative hearing and get refunded if they prevail. However, the law requires that the "issuing agency" e.g. Muni, adopt a written procedure to allow a person to request a hearing without payment if the person can show an inability to pay the fine. It is my understanding that your best bet to get a waiver from Muni is to bring in documentation of your inability to pay in person when requesting the administrative hearing. You may want to call them and confirm this. Also, FYI - if you lose the administrative hearing you can appeal to the Superior Court and get to present your case over again.
I am NOT giving you legal advice. Nothing stated here should be construed to establish any sort of attorney-client relationship. My opinion stated here is limited by the information available to me. You should not rely on my statements in determining your course of action.