I approached the intersection preparing to stop but saw in the mirror a pickup behind me hadn't planned to so I rolled through at 20 mph . The pickup as seen in the photo did stop in the cross walk.
Any way I didn't intend to brake the law but at the time safety was an issue. With that looking at the image on line I don't see how a positive ID can be made when wearing a helmet and dark glasses. So do I have any chance of presenting my case as a safety issue or even just saying positive ID can't be made?
You certainly have a chance. However, you went online and admitted to braking the law, here in a public forum--indicating that to a certain extent, if you talk too much at the hearing--you may sink your own case. I do not practice in your state or know your courts/judge, but some can be very reasonable with a full and honest telling of the facts--others not so much. Its a crap shoot when it comes to traffic court. Best of luck to you
NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.
Before we get to the issue of identity, allow me to explain the issue of service:
For an Arizona photo ticket, until you are properly served, the court cannot legally do anything. Personal service is effective if the defendant is personally served (that means, the process server says words to the effect that the documents are important legal documents, and they are offered to the defendant, and then left for the defendant). Personal service (on a substitute) is also effective, if it is at the defendant's residence, and the individual who is served is a co-resident, of suitable age and discretion.
It is not necessary that the person being served accept the papers, that the process server offered them and then left them for the person served when they refused to take them is usually enough.
If the service is at the residence of the defendant, and the person encountered by the process server is of suitable age (14 or older, usually) and discretion (not incompetent), then this would constitute substitute service, and it is valid, as long as the person is also a co-resident at that residence.
A service worker (landscape maintenance, domestic, service and repair, etc.) who is not a co-resident is not a proper substitute for accepting service. A visiting family member who does not live there (even if they are an overnight guest), is not a proper substitute for accepting service.
Importantly, the rules state that service at THE HOME of the defendant, upon a person who LIVES WITH the defendant, is proper, if that person is OF SUITABLE AGE AND DISCRETION.
Please look up the status of your case online through the Mesa Court's website:
Looking up your case cannot be deemed as service or waiving service.
If the court was told you were served (even if you were not), and if you miss the deadline, a default would be entered against you, and your license would be ordered suspended, and more.
If that happens, to properly challenge this, you really should have an attorney help you, one who has experience challenge service of process in traffic court cases.
When challenging sufficiency of service, one must be very careful to only challenge the service, as raising any other issue could be deemed by the court as waiving service and accepting personal jurisdiction.
We regularly fight these cases, and have challenged the perfection and sufficiency of personal service with great success.
You should certainly seek out the services of a competent and experienced attorney to review this matter with you carefully, to challenge the service based upon the lack of proper service, all while avoiding waiving service or appearing generally, and all that to avoid unnecessarily being held responsible.
Once you are past the service issue, then you the remaining issues are related to whether the prosecution can prove that you were the driver and that you violated the applicable traffic laws.
It is unlikely that they can prove you were the rider, assuming a full-face helmet and dark glasses. We appear in court WITHOUT the defendant, to not make their job easier -- keeps them from just identifying our client as the driver.
You can dispute the ticket as not complying with the law (unconstitutional is too strong a word). In many cases, these tickets are not certified by a police officer, but by a police aide, and Arizona seems to require that tickets for moving violations be certified by a police officer. Additionally, the individual who comes to court to testify is often not the person who certified the ticket, and it would be a due process violation to allow that individual to testify when they have no information about how the ticket came to be generated and signed (they may be familiar with the process, but they don't know what was done in YOUR case).
-- Michael Kielsky
Counselor & Attorney at Law
Kielsky Rike PLLC
Tempe, AZ 85282
This answer is a general statement of law, did not and could not consider all details of your situation, should not be relied upon as legal advice, does not create an attorney/client relationship. If you found this answer helpful, please click the "thumbs-up" button below this answer.
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