Monday, February 23, 2009

County Attorney Will Not Prosecute Photo-Radar Offenders

Law Not Intended To Be Used for Criminal Prosecutions, Thomas Concludes

Today, County Attorney Andrew Thomas announced his office will decline to prosecute motorists on criminal charges whose cases are based solely on photo-radar evidence. Recently, the Arizona Department of Public Safety has referred cases to the Maricopa County Attorney’s Office for prosecution of criminal charges based on photo-radar evidence only. Thomas’ office analyzed the photo-radar statute and other legal and constitutional principles that apply to such cases.

After completing this review, Thomas has concluded his office will not prosecute motorists for alleged criminal offenses based on photo-radar evidence. “The plain language of the law, as well as other legal and constitutional principles, disallows criminal prosecution of motorists based on photo-radar evidence,” Thomas said. “The language of the statute indicates photo radar was intended for civil traffic fines only, not for prosecution of alleged criminal charges. Important legal and constitutional principles also come down against criminal prosecution of motorists based on this evidence.”

Arizona Revised Statute Section 41-1722, the so-called photo-radar statute, provides for a photo-radar enforcement system to regulate vehicle traffic and speed in Arizona. Subsection D of the statute specifies that “the department of transportation shall not consider the violation for the purpose of determining whether the person’s driver license should be suspended or revoked.”

The County Attorney concluded that because the legislature prohibited the use of photo-radar evidence for suspension or revocation of driver’s licenses, the legislature ipso facto could not have intended for such evidence to be used in the even more serious context of criminal charges. Conviction of a crime under Arizona law may result in incarceration. The County Attorney concluded the statute was intended to enable fines based on civil traffic violations, not to authorize criminal prosecutions based on photo-radar evidence.

In addition, Arizona courts have recognized a “rule of lenity” which requires that criminal laws be interpreted so that any doubt is resolved in favor of the defendant (Vo v. Superior Court, 172 Ariz. 195, 836 P.2d 408 (App. 1992)). Given the statutory problems identified, this rule likely would lead courts to disallow prosecutions based merely on photo-radar evidence.

Finally, the Confrontation Clauses of the federal and state constitutions argue against photo-radar criminal prosecutions. The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” In photo-radar cases, there are no witnesses, and defendants are not permitted to confront their accuser. The U.S. Supreme Court has upheld a broad interpretation of the rights of defendants under the Confrontation Clause. The high court has gone so far as to prevent courts from placing screens between victims of child sexual abuse and defendants when the accusers testify on the witness stand (Coy v. Iowa, 487 U.S. 1012 (1988)). In photo-radar cases, there would be no accuser except a camera.

Arizona’s Constitution is even more explicit. Article 2, Section 24 of the Arizona Constitution gives criminal defendants the right to “meet the witnesses against him face to face.” Arizona courts have interpreted this clause as giving defendants the right to question and cross-examine witnesses. There is no opportunity to question or cross-examine a camera.

Thomas stated that if the legislature wishes for his office or other prosecutors to bring criminal charges based on photo-radar evidence, they will need to amend the statute to address these concerns and to deal with constitutional issues that would arise. He added that his office has told DPS officials of this decision. The County Attorney’s Office will not render a formal opinion on the matter, but rather has referred DPS to the Attorney General’s Office, which is that agency’s legal advisor, for any formal opinion.

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