Three weeks after being "flashed" at night in a construction zone along I-17 in the Verde Valley, I received a ticket in the mail. I have several concerns. As I was entering the construction area, I had slowed down to the speed limit posted on each sign as we approached. As I was doing this, cars and trucks were passing me. When we got to the photo radar van, it flashed. Several issues seem to be at play. I was going 35 mph at the first posted sign, but was going down hill with cars passing. They must have slowed down before the van. It seems that the whole notion of "context" is not addressed by photo radar. Who was doing what and what point in time? Was I really going 46 mph as they state, even though I was going 35 mph shortly before? Isn't the "blinding flash" more of a danger?
Criminal Defense Attorney
UNDERSTAND THIS: OTHER PEOPLE SPEEDING OR GOING FASTER THAN YOU IS NOT A DEFENSE TO YOUR SPEEDING. POLICE CAN SELECT ANY SPEEDER THEY WANT TO PROSECUTE. AND GOING JUST A LITTLE OVER THE SPEED LIMIT IS NOT A DEFENSE EITHER - 46 IN A 45 IS SPEEDING.
HERE'S ONE WAY OF DEALING WITH THIS: DEMURRER TO THE PHOTO RADAR TICKET. RATIONALE: A COPY OF THE NOTICE TO APPEAR IS NOT A LEGAL SUBSTITUTE FOR THE CRIMINAL COMPLAINT REQUIRED TO INITIATE PROSECUTION.
ENTER A NOT GUILTY PLEA AND REQUEST A TRIAL DATE. ON THAT DAY, WHEN CALLED, SAY TO THE JUDGE "I'M FILING A DEMURRER (FOR REASON STATED ABOVE). PENAL COE SECTION 1003 ALLOWS FILING A DEMURRER AT ARRAIGNMENT, WHICH I'M NOW DOING." GIVE PAPERS TO THE CLERK. HAVE ANOTHER COPY WITH YOU IN CASE JUDGE ASKS IF YOU'VE SERVED THE PROSECUTOR. USUALLY A PROSECUTOR ISN'T PRESENT AT TRAFFIC TRIALS, BUT IF THEY ARE, HAND A COPY TO THEM. IF THEY'RE NOT IN COURT, SAY "THE D.A. HAS IMPLIEDLY GIVEN UP THE RIGHT TO SERVICE BY NOT BEING PRESENT."
THE PENAL CODE REQUIRES THE DEMURRER TO BE HEARD IMMEDIATELY, BUT IF THE JUDGE SETS ANOTHER DATE FOR THE HEARING ON IT, RETURN ON THAT DATE AND SAY "THE BASIS FOR MY DEMURRER IS A NOTIE TO APPEAR WAS ISSUED IN A SITUATION REQUIRING A VERIFIED COMPLAINT BE USED. THERE WAS NO TRAFFIC STOP AND NO COMPLAINT HAS BEEN FILED"
IF HE RULES AGAINST YOU ENTER A NOT GUILTY PLEA.
AND CONSIDER THIS: YOU ARE ENTITLED TO SEE THE PHOTO TAKEN AUTOMATICALLY PRIOR TO YOUR TRIAL DATE. EXAMINE IT AND SEE IF THE PICTURE IS CLEAR AND LOOKS LIKE YOU. IF NOT, THERE'S REASONABLE DOUBT AS TO WHO WAS DRIVING - YOU WIN.