Oregon Photo Tickets- Save Your Envelope
Many people just pay photo tickets they get in the mail believing there is no way to fight it. In fact, photo tickets are among the most winnable because of the hoops the government has to jump through make them more difficult to prove than person to person tickets.
King MotionIn order to raise the issue the defense must to tell them via pre-trial notice or motion that we are challenging the statutory preconditions to the issuance of the citation. We typically call this a King Motion, after a case called "State of Oregon v Kermit King" which lays out how and why to make the government prove they did their due diligence.
Statutory PreconditionsThe hoops, or preconditions, are laid out in 810.436, 810.439 and 810.437. They are laid out like a checklist and unlike a cop testifying at trial we get to have the list in front of us.
The precondition I get the most traction out of at trial is 810.439(E) or the sister statutes 810.436(d) and 810.437(1)(c). These require the government to show that the citation was mailed within 6, 10 or 10 days respectively. Since the cop didn't mail it the government will have to bring someone who has personal knowledge about the mailing thanks to the evidence code and a case called State v Brian Daly. This is also where the envelope comes in. If you can prove it wasn't postmarked in time, you win!
Many of my clients mention that they didn't see the required signage. Unfortunately, most cops just simply testify that they put them up and that is the end of it. Judges tend to believe that the cop isn't lying and the driver just missed the signs.
Another big one is that the photos are no good. The legislature seemed to take bad photography into consideration when they added the rebuttable presumption to the preconditions. That means that it is up to the defendant to show that they were not the driver rather than the government having their usual burden of showing that the defendant was driving.
There are a number or other preconditions and you should make sure the government proves each and every one of them.
Hearsay and ConfrontationAny time a cop wants to tell a judge what someone else said or anything the cop didn't personally witness it is probably hearsay and a violation of the confrontation clause. You or your lawyer, if you have one, should object. We see this most often when the cop tries to tell the judge that someone else mailed the ticket within the specified time. We argued whether this was inadmissible hearsay for many years until the Court of Appeals finally told us we were right in State v. Daly. Look for passive voice, "it was mailed" as well as the direct "Redflex mailed it". "Objection, hearsay, personal knowledge, confrontation." I don't always win on the confrontation piece however you have a right to cross examine the person who is testifying against you. If Jenny from Redflex mailed it, Jenny from Redflex needs to answer your questions at trial.
Certificate of InnocenceIf you aren't the driver, sign the certificate of innocence and send it back right away. Unless you are a business or government entity you do not have to rat out the actual driver.
If it was you, or you can't remember and the picture is awful, plead not guilty and go to trial. Talk to the cop in advance and see if you can work out a deal. False swearing is a felony, you don't want to turn your traffic ticket into a crime of moral turpitude.
Do I need a LawyerCall one of us to find out. If you have other tickets, drive for work, or are worried about insurance, you probably want a lawyer. It's our job so we have more experience than you. If you're thinking about going to law school, maybe this is a good chance to do some legal research and find out if it's any fun for you. Most lawyers are happy to talk to you over the phone to go over options and give some more specific details
Speeding Tickets from Red Light CamerasThese are the newest tickets camera tickets we have and many more jurisdictions are adding them. Because of the wording of the statute we have a lot to argue about. Remember to save your envelope!