Legislative News

Posted By FLTAC

Written By Paul Henry

Today the Florida Senate’s Transportation Committee heard Senator Garcia’s  SB 672, the bill to ban red light cameras. The room was packed with citizens and members of various law enforcement agencies and local political people.

 After Senator Garcia introduced it, there was some discussion among the   Senators regarding it. Sen. Joyner asked what financial impact the bill would have. Sen. Garcia stated around $70 million less revenue. This was backed up when a government representative stood up and stated it would be $70 million to the state, and $75 million to the cities and counties.
 The bill was approved by the committee with a vote of 4-2, although Sen. Latvala said he’d pass it but would not vote for it on the floor of the  Senate. The logic of politics (pretty sure this is an oxymoron) eludes me.

 The first speaker was the St. Petersburg Police Chief. He and all of the local government people that spoke were opposed to the bill. The main reason touted: Safety. Even Sen. Garcia brought forth this term as a  benefit of the cameras.

 I was fortunate to get to the hearing early and be the first speaker in support of the bill. After summarizing most of what I’ve written here, to  including refuting the safety allegation, I was asked a few questions.

 Sen. Latvala asked about not writing tickets to everyone. I explained there  would be cases where someone from out of town may not be familiar with an  intersection and make a right turn where prohibited if they didn’t see the  sign. Sen. Latvala equated this to his driving 55 in a 35 and saying he   didn’t see the sign. I told him the fact he was a Senator would probably  be of more concern than the sign, and related how the FHP was informally  told not to write tickets to legislators since we would pay for it at  budget time.

 Sen. Joyner asked about the use of video, and equated this to  video from a store robbery used in court. I explained in a robbery, you  have live witnesses and the video would be of  supplemental use. I equated  the cameras to the store robbery getting a photo of the license plate of  the suspect’s car and then issuing an arrest warrant for the owner, and  making them come in and prove they did not commit the robbery. I also  spoke of the DHSMV crash data, which showed even without cameras, the  traffic signal violation causations of crashes in fatal, injury, and  property damage crashes had been going down from 2008 to 2009.  Most  importantly, I stated we had gone from where the accused was innocent  until proven guilty to guilty until they proved themselves innocent.

I  feel this point was lost on the panel. For this reason, I need to expand  on this key area of the law to clarify it.   When one looks at the criminal justice system in America, one concept is  that the accused is innocent until proven guilty. What this means is that  the state (or government) must prove beyond any reasonable doubt the  accused committed the violation. The burden is upon the government.

Let’s  look at the elements of a moving traffic offense in Florida, such as  running a red light: 

 1) Driving a motor vehicle;

  2) Within this state; and

  3) Failing to do something required (i.e. stop at a steady red signal) or  doing something that is prohibited.

 First, we’ll look at a police officer pulling over a motorist for running  a red light. The officer can testify to:  1) (Name of motorist) was driving a motor vehicle and that they were  identified by their driver’s license or other identification; 

 2) They were driving within this state/county/city (for court  jurisdiction); and

 3) They failed to stop at a steady red signal as required in s. 316.075

 (the red light law).

  We’ll now look at the camera ticket:   1) No one from the state is here to identify the driver;

 2) The violation can be reasonably assumed to be within the  state/county/city for court jurisdiction; and  3) The photographic evidence will show the violation by the motor  vehicle..

 Here’s where this fails: No one from the state can identify the driver.   The camera can’t testify (more on this below). If it could, it could not  identify the driver.

  Looked at another way, let’s say there is video of a car driving away from  a burglary, but it  only shows the rear and the driver can’t be  identified.. Is it proper to seek an arrest warrant and cause the owner to   come to court to prove they did not commit the burglary, or would it be  better to use that video and allow the police to question the owner before  making any charges? By the way, I had this situation take place several  times in my career in hit and run crashes. A witness would get a tag  number, which gave us a lead to investigate, not prosecute blindly. In  each and every investigation, we had to put the accused “behind the wheel”  before a prosecution could take place.

The standard is the same for  traffic violations- they must be proven beyond any reasonable doubt, which  is why the driver must be identified. A camera cannot do this. Coercing  the owner to do so is the only way.

 Our state and U.S. Constitutions afford us protection from our  governments, albeit eroding protection.

  In the U.S Constitution’s 5th Amendment and the State Constitution’s   Article 1 Section 9 no person can be compelled to be a witness against  themselves in criminal matters. The way the camera law is written, the  accused has the burden of proving they didn’t commit the violation. 
It is similar when we move on to the 6th Amendment when the accused in a
 criminal matter has the right to confront witnesses against them. A camera
 cannot be called as a witness.
 These of course exclude non-criminal traffic infractions such as camera  tickets, but the spirit of the law is very clear. In a civil lawsuit, you   cannot claim the 5th or 6th amendment protections, but the standard of   proof is also much lower- 51%, or a preponderance of the evidence. In a  traffic or criminal case, the standard of proof is very high- beyond any  reasonable doubt, so the protections should be equal as well.

 There’s little thought or concern about best evidence. From what I have  learned about the camera practice, the camera takes the photo and/or
 video, and this goes to the private company for processing.
In the case of
 Reflex,it goes to a foreign company.
 If we’re going to line someone’s pockets,  can’t we do so with an American company?
 It is then sent to the law  enforcement agency, where a representative reviews it and makes the  enforcement decision. For evidence to be admissible in court in Florida,  it must be verifiable as authentic. I ran into this as an Investigations
 Lieutenant with DHSMV records. These records, which are generated by the  department, once under seal are self-authenticating documents per F.S.  90.902. Camera photos and/or videos sent electronically are another  matter- they are not generated by the department or a government agency.
 They would most likely be covered by F.S. 90.803(6) as business records.  That opens up other requirements for them to be admissible. While I’m not  a lawyer, I have to think this has crossed the minds of some attorneys. Is  there some type of acceptable certification for this evidence to be used  in our courts, or are we just taking the word of the company that supplies  them? See below for what their financial interest may be in the matter.
  By the way, several of the police officers testifying today noted in  response to my statement regarding unsworn Traffic Infraction Officers  that they in fact use sworn officers for this task. That means of course  they have now reduced the number of sworn officers on the street.
  Of particular interest to me in the hearing was the official from the City  of Apopka. She stated they have used the cameras since 2007, and quoted  some astounding crash statistics, to include a reduction of crashes from  over 200 to less than 40. She also stated they went from 2 cameras to 10,  and they spend $600,000 (yes, 5 zeros) on the cameras annually. Let’s  break down that money:
  $600,00 / 10= $60,000 per camera per year.
  $60,000/ 12= $5,000 per camera per month.
  I tried to find the current starting annual salary for an Apopka Police   Officer, but the closest I could find was from October 2004. The starting   salary back then was $32,855. Adjusting for inflation, it’s now $38,497.  The real cool thing about real police officers is that (all doughnut jokes  aside) they can do more than write red light tickets. They can investigate   burglaries, help disabled motorists, back up other officers, and write  other types of tickets as well as be a deterrent to all types of illegal  activity just by their presence. They’re also around $12,000 less than a  camera. The Apopka official listed several things they had used the money  for, such as upgrades to police cars, broadband for emergency services,  and equipment for ambulances. I’m glad to see it is going for worthy  causes and not for an unnecessary function of government.
 As an aside, speaking of cops, I found it very interesting the number of  ”brass” (administrators) that showed up from around the state to testify  at this hearing. The Orange County Sheriff sent not one but two Captains,  one of whom recalled vividly the words of Mrs. Wandall while she held her  dead husband (the namesake of the camera law) at his crash scene and then  spoke about their daughter. The Captain omitted to add that the driver  that caused this crash had already been ticketed four times by human law  enforcement, so realistically a camera would have had no effect on this  driver.
This to me appeared to be political activity while on duty,  something you couldn’t do in the FHP, as well as trying to add  non-relevant emotional content to what should be a factual hearing (some  call this not letting a good crisis go to waste). After the hearing in an  elevator, after questioning my years of service, one of these Captains  told me [sarcasm] that law enforcement was very proud of what I’d done  today[/sarcasm]. I gave thanks to the First Amendment. It’s a Constitution  thing. At least for now.
 Now I want to look at the Apopka money from another point of view, a  reverse-engineering if you will. We have some known factors here:
 $5,000/camera per month cost.
  $75 revenue per ticket.
  We can conclude the Apopka cameras must each generate over 66 tickets per
 month to break even, or a little over two per day. If you’ll recall, in  the Tallahassee news story I referenced in my earlier posting, the city  stated 40 tickets a day were issued. Look at the number from this story:
 75% of these were right turn on red where prohibited tickets, the  violation that does not cause serious injury or fatal crashes. So if this  is the case in Apopka, the number issued may need to be a lot higher. 75%  of 66 is 49.5 (rounded to 50), so if the cameras are being truly used for  safety and ticketing the worst offenders, they may not be cost-effective.
  A word about discretion is in order. Way back when I got my first black & yellow FHP car, speeding fines were relatively cheap. The federal  government had extorted, oops, make that demanded that we add an enhanced  penalty for the National Maximum Speed Limit (NMSL) of 55 MPH or we’d lose  highway funds. So you could get a ticket for doing 50 in a 30 and pay less  than someone doing 65 in a 55. Anyhow, at some point either too many  people got “low end” speeding tickets or maybe one or more of those  Senators did get one. The Legislature changed the fine structure and did  away with fines for 1-5 MPH over the speed limit. Is someone doing 56 in a  55 breaking the law? Yes.. Do they deserve a ticket? No. The Legislature  realized this and took that discretion away from the cops. What we have   with the red light cameras is zero discretion. If someone misses the mark  by 10′ do they need a ticket? No. Especially if the road is wet or there  are any number of other factors involved (i.e. car behind too close). A  camera can’t sort this out as a real police officer could. Of course the  owner can go to court and contest the ticket, but this is usually at the  expense of lost time from work, having to pay to park at the courthouse,   etc.
 I’ll play devil’s advocate here. Let’s conclude that red light cameras are  the best thing in the world and now every traffic signal has one. While  we’re in this utopia for some, no one runs red lights anymore. Two things  to consider:  1) In places like Apopka, we’re still paying $600,000/ year for something  that is now not giving any return on investment; and  2) What do we then do about the number one cause of deaths and injuries in  Florida on the highway, DUI?
 Since we’ve previously approved red light cameras and transferred the  burden of proof from the state to the accused, it is now a far smaller  step to mandate sobriety testing equipment that tests all drivers prior to  the vehicle being operable. Think this is far-fetched? God works in  mysterious ways, and on the way home from the committee meeting I heard a  bit on the news about mandating making vehicles inoperable if the driver  has been drinking (commonly called an interlock). For repeat offenders,  this is being done and I fully support it. For those that don’t drink,  what is the purpose? Where is the cause?
 
 Oh, and that safety issue? Most know there are lies, **** lies, and  statistics. I like to quote reliable sources. Recall if you will my last  post where I used the state’s own DHSMV Crash Facts for 2008 and 2009. So   here’s a report with the City of  Tallahassee’s data that showed during the  same six month period in 2009 and 2010 how crashes increased at a camera  intersection after installation. I’ll note the math shown is wrong- based on the table data, it should be a total of two crashes pre-camera and four  post-camera, not three and five. From the report:
  ”During this period, the City of Tallahassee collected $168,744 in red  light camera fines at the Killearn Center intersection. For the last month  of available data, anuary, 2011, the City collected approximately $36,000  at this intersection. Based n this monthly data, the City will collect  close to $450,000 in annual fines at this intersection.”
 This page lists a total of 9 government, media, and university reports  that showed how crashes increased after cameras were installed.  Then there’s this report out of New Mexico:
  ”Comparing a year’s worth of data before the devices were installed at  three intersections to a year after, the number of collisions increased 13  percent from 53 to 60.”
 Then there’s that right turn aspect. Tallahassee has several intersections  with a no right turn on red. They conveniently have a camera at one of  them. Again, using the city’s own numbers, data from the program shows 874  red light  violations during the month of January. Of those, 659 were from  drivers making that right turn from the westbound lanes. That means over  75% of the tickets were for a far less hazardous violation. Yet these  drivers paid the same fine amount as those that allegedly/supposedly blew  through the red signal at a higher speed that had the potential for  serious injury or death crashes.
  Finally, remember that these devices are called Traffic Infraction  Detectors, not Red Light or even Traffic Signal Infraction Detectors. As   part of the testimony at the hearing today, one of the police officers  testified how they can check speed via the camera, so they don’t ticket   anyone turning right on red unless they are going 15 MPH or faster. Anyone  want to guess where this is going? Here’s a hint: Don’t visit England!  Although it appears some Brits are staging a revolution of their own.  Speed cameras have already made it to the U.S. According to this report,  they are in use in several states. In yet another parallel, in Arizona you  don’t get points for these tickets either, just a high fine. From the  link:
  ”She says although Arizona freeway drivers are not levied points on their  license for any breach of the law, that as drivers are forced to pay more  fines, they become “more aware” of their driving patterns, and modify  their driving accordingly.”
  In summary, make no mistake this law is all about money. As I’ve said  before, if it was focused on safety, then there would be points assessed  and no free ride on insurance premiums. I also doubt the large crowd of  local government people would show up to oppose the bill. I’d be curious  to know how many showed up in this same room about 2 years ago on March  10, 2009 for CS/SB 344 (2009), which made seat belt use a primary  (ticketable) violation.. I looked on the Senate’s website and all I saw  was a vote of 7-2 in favor.. There’s no record of who spoke for/against  the bill. 
 If this bill passes, the state stands to “lose” $70 million, and the  locals more than that. Like the tobacco companies of years past, we have  an easy “bad guy” here that we can get a lot of money from. The more  cameras that are installed the more dependent upon their revenue the  locals will become and the more they will fight to not only keep what they  have but get more cameras. It is essential to “nip this in the bud” and  prevent further abuse of our legal system. Is our Legislature up to the  task?
  ***********************************************************************
 Paul Henry
 Executive Director
 Floridians Against REAL ID
 Website: http://www.liberty2010.org/realid
 Facebook Group: http://www.facebook.com/group.php?gid=115180305181083
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> 850-364-0221

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