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Friday, April 18, 2014
New Mexico Appeals Court Upholds Arbitrary Speed Limits
The state of New Mexico does not need to justify its speed limits. The state Court of Appeals came to this conclusion earlier this month in upholding the conviction of Raul Tarin, a motorist who decided to mount a legal battle against his ticket for allegedly driving 71 MPH in a 45 MPH zone. Representing himself in court, Tarin argued that the state had to establish the speed limit's legitimacy before the ticket could be considered valid. It was the first time anyone had brought such an argument to the appellate level in the state.
Under New Mexico law, the default speed limit is 75 MPH, with particular statutory limits set in residential neighborhoods, school zones and business districts. The posting of a lower speed limit requires "an engineering survey and traffic investigation, a detailed report of which is filed with the traffic safety bureau of the state highway and transportation department." Tarin insisted on seeing the study that set the 45 MPH speed limit that got him into trouble, arguing the report is an essential element of justifying a speeding charge. The three-judge panel was not sympathetic to this line of reasoning.
"Defendant's arguments presuppose that the methods for establishing the posted speed limit are a required element to establish a charge of speeding, and it is the state’s burden to prove the validity of the methods for establishing the posted speed limit," Judge Timothy L. Garcia wrote for the panel. "Defendant's arguments regarding the statutory interpretation of Section 66-7-301 appear to be matters of first impression before this court."
The appellate panel pointed out that state law only requires a sign be posted, whether the sign is valid or not.
"Nothing in Section 66-7-301 requires the state to provide any evidence addressing how a posted speed limit was established or adopted. The statutory scheme strongly indicates that the legislature did not intend that evidence of the underlying engineering survey and traffic investigation be a required element in nearly every case involving a speed limit violation below seventy-five miles per hour."
The panel found it would be "needless, inefficient and unreasonable" to require the state to produce a witness and a copy of an engineering survey for every speeding ticket case. The court was even less sympathetic to Tarin's argument that a police officer must have direct knowledge of the speed limit. The officer was familiar with the area and had seen the three 45 MPH speed limit signs posted in the vicinity, but Tarin argued this constituted hearsay because the officer did not know whether the limit was valid.
"We disagree," Judge Garcia wrote. "To the extent that defendant is also arguing that the hearsay rule would not allow the officer to rely on the speed limit signs that stated that the speed limit was forty-five miles per hour, defendant failed to fully develop this argument or establish how it was preserved. Because this court does not review unclear or undeveloped arguments, we will not address this hearsay argument further. For the foregoing reasons, we conclude that there were no hearsay violations arising from the citing officer’s testimony that was based upon his personal observations and personal knowledge of the evidence."
That was enough for the judges to uphold Tarin's speeding ticket. A copy of the ruling is available in a 40k PDF file at the source link below.
Source:
New Mexico v. Tarin (Court of Appeals, State of New Mexico, 4/1/2014)Thursday, April 17, 2014
Colorado: Photo Ticketing Ban Clears Committee
The Colorado State Senate took the first step Monday toward eliminating the use of red light cameras and speed cameras in the state. By a bipartisan 3 to 2 vote, the Senate State, Veterans and Military Affairs Committee approved a measure that would prevent municipalities from hiring for-profit companies to mail automated citations to vehicle owners.
"When we use red light cameras and we say we're increasing safety, and some of the data shows we're not, we're actually giving up our liberty," the bill's sponsor, state Senator Scott Renfroe (R-Greeley), explained. "That's what this bill is about. It's a bill about liberty and our constitutional rights: our right to face our accuser, our right to due process. Those things are not given with a red light camera ticket -- you're assumed to be guilty until you prove yourself innocent. That's not how we should operate in America."
Renfroe had a powerful ally in Denver City Auditor Dennis J. Gallagher who blasted the photo ticketing program in a 2011 investigation (read report). Gallagher testified about how his city paid no attention to the effect of red light cameras and speed cameras on accidents. The program generates $7 million in profit for the city.
"The results of the audit indicated that the Denver Police Department had not shown the specific public safety impact of either program," Gallagher said. "If they are not having a tangible impact on improving public safety then perhaps other options for that improvement need to be investigated and implemented that might be better at improving public safety."
In a 2004 audit, Gallagher blasted the lack of oversight of the private companies that run the "school zone" photo radar program.
"We observed that there is insufficient supervision of van drivers," Gallagher wrote. "Drivers are required to set up in neighborhoods or school locations in various parts of the city. The drivers themselves choose when and where to set up in neighborhoods or school locations. Consequently, the vans were not always set up at appropriate locations, for example in school zones after school hours."
The audit also noted Denver would wildly overstate the cost of city personnel assigned to "oversee" the program. Over a few months in 2002 when the camera program was suspended, the budget showed payroll costs being charged to the non-functioning cameras. Around the same time, one employee working full-time on parking tickets was charged as an "expense" for the camera program.
The problems with the private vendors have not improved over the past decade. Earlier this year, the former executive vice president of Redflex Traffic Systems admitted he bribed local officials in Colorado in the hopes of increasing business for his company.
The ticketing ban next heads to the Senate floor where it must pass before heading to the House. Committee passage is significant for Renfroe as his previous attempts to ban cameras have failed at the committee level.
A copy of the legislation is available in a 20k PDF file at the source link below.
Source:
Senate Bill 181 (Colorado General Assembly, 4/14/2014)Wednesday, April 16, 2014
Kansas Supreme Court: No Search Over Spilled Beer
Police cannot search a vehicle merely because it smells like spilled alcohol, the Kansas Supreme Court ruled. The justices last month reviewed the December 19, 2008 traffic stop of Robert G. Stevenson, a man who had been pulled over allegedly because he signaled 30 feet before he made a turn at the intersection instead of the legally required 100-foot distance.
Sedgwick County Sheriff's Detective Jon Gill and Deputy Justin Crafton suspected Stevenson might be involved in drug activity, so they used the 100 foot rule as a pretext for the stop. When Stevenson rolled down the window, the officers immediately were hit with the scent of booze.
"It smelled to me as if an alcohol container had spilled inside the vehicle," Detective Gill testified. "It was a very strong, very strong odor."
The deputy performed a field sobriety test on Stevenson while Detective Gill poked his head inside Stevenson's 2001 Chevrolet Blazer and saw nothing incriminating. Stevenson was perfectly sober, so he was allowed to return to his vehicle. His driver's license checked out and there were no outstanding warrants for his arrest. The officers were unsatisfied with this outcome, so Deputy Crafton decided the strong odor gave him probable cause to search for an open container of alcohol.
The search turned up the culprit, a half-full bottle of red wine behind the driver's seat with a leaky lid that had spilled onto the floorboard. The search also turned up two pipes with a tiny amount of methamphetamine residue. Stevenson was arrested on a drug charge that he argued must be suppressed as the fruit of an illegal search.
The Court of Appeals found no precedent in Kansas for the odor of a legal substance serving as the grounds for a search, so it turned to a case involving a spilled beer that the Idaho Court of Appeals ruled was justification for a search. The Kansas Supreme Court was not impressed by the Idaho court's reasoning. It was even less impressed with the Sedgwick County police officers who demonstrated very little actual interest in the alcohol.
"Here, the state presented absolutely no evidence to even suggest that Stevenson was asked about the origin of the alcoholic odor in his vehicle or whether he was asked if he had recently consumed alcohol," Justice Lee A. Johnson wrote for the majority. "Indeed, the suppression hearing transcript reveals that the officers could not even say whether an odor of alcohol could be detected on Stevenson's person when he was outside of the vehicle."
The officers, the high court found, should have given Stevenson a ticket for the turn signal violation and sent him on his way. He could not have been detained further without evidence of contraband or a crime. The court looked at the open container law and found it is impossible to assume that the smell came from unlawfully transporting alcohol.
"One first observes that the statute does not prohibit the possession of an open container in a vehicle," Justice Johnson wrote.
In an SUV, the open container or unsealed wine bottle can legally be placed "behind the last upright seat."
"Country common sense would likewise lead one to believe that an intoxicated person would be more likely to have an open container in the vehicle from which he or she had been drinking than a sober person who had passed the field sobriety tests," Justice Johnson wrote. "Here, we know that Stevenson was cleared of driving under the influence, and we do not know whether he even smelled of alcohol."
The court reversed the lower court decisions. A copy of the ruling is available in a 110k PDF file at the source link below.
Source:
Kansas v. Stevenson (Kansas Supreme Court, 3/31/2014)Tuesday, April 15, 2014
Labor Department Investigates Redflex Over Trade Violation
Is Redflex Traffic Systems outsourcing US engineering jobs for cheaper Australian labor? That is the question the US Department of Labor is now investigating, adding to the numerous inquiries into the Melbourne, Australia-based firm's business practices. The second largest provider of photo enforcement services in the United States was recently caught violating labor laws in California. It is the subject of a massive federal bribery investigation and charges of racial bias. Redflex was even fined by the Federal Communications Commission in 2008 for illegally importing uncertified radar units.
The new charges stem from Randall Bass, Ngoc Nguyen and Bob Hervey, engineers who until recently worked out of the Arizona office of Redflex. They were fired in May of last year and turned to the Labor Department for help.
"Redflex Traffic Systems has two divisions, one in Phoenix and one in Melbourne, Australia," the engineers wrote in their petition to the Labor Department. "The engineering department at the Phoenix location was tasked with research and development (R&D) of new and existing systems specific to the US market. This engineering department was closed, with all R&D effort transferred to the Melbourne division. Of the five systems engineers at the US office, three engineers were laid off and two engineers were transferred to support engineering under different management."
On the first review, Redflex escaped blame because the engineers it hired were based in Australia and not brought into the US.
"The initial investigation resulted in a negative determination based on the findings that the subject firm did not shift to, or acquire from, a foreign country the services provided by the workers of the subject firm; further, neither the subject firm nor its customers imported services like or directly competitive with the services supplied by the workers," Labor Department Certifying Officer Del Min Amy Chen explained.
The engineers appealed, offering new documentation to show that they did indeed qualify for Trade Adjustment Assistance, which provides job training and other financial subsidy for US employees affected by trade-related job loss.
"After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the US Department of Labor's prior decision," Chen said. "The application is, therefore, granted."
While the investigation is ongoing, a Labor Department spokesman declined to discuss the reason for the reversal. While there is no formal deadline, a final decision could come within the next month or so.
A copy of the notice of reconsideration is available in a 200k PDF file at the source link below.
Source:
Department of Labor Determination TA–W–83184 (Federal Register, 3/26/2014)Monday, April 14, 2014
Missouri: Crowd Control Loudspeakers To Be Deployed On Freeways
The Missouri Department of Transportation (MoDOT) announced last week that it would improve safety in highway work zones by startling drivers with an ear-piercing noise. At an event in the Kansas City district headquarters, the agency showed off a Long Range Acoustic Device (LRAD), which is capable of producing an ear-piercing shriek or siren at 153 decibels, which is beyond the threshold of pain and into the territory that causes permanent hearing damage for the driver and any passengers or nearby vehicles.
"The sound easily penetrates the windshield and well-insulated cab of a car, even overriding the vehicle's engine sounds and a radio turned up loud enough to jam to tunes at highway speeds," MoDOT's Michele Compton explained in a newsletter.
LRAD Corporation, maker of the product, claims it can broadcast a loud message in a 15 degree arc over a distance of 1.9 miles. The system was developed for the military for use against terrorists and has been used by law enforcement to disperse crowds of protesters. MoDOT has used the system both mounted on a moving truck and in a stationary position on the side of the road. One test last year had the LRAD truck set off an ear-piercing siren while repeating the phrase, "Slow vehicles ahead" over and over.
Another system used a radar gun to trigger the sound blast in the direction of a vehicle exceeding a certain speed. Each device costs $25,000 and the department has acquired several models.
"We need the right tool for the right place," state Maintenance Engineer Beth Wright said. "I believe it holds promise because it's not extremely loud over distances."
MoDOT is examining whether the device is only to be used in rural areas as the loud noise is likely to disturb nearby neighborhoods and businesses near urban freeways. Missouri transportation officials have been on the cutting-edge in the use of such technologies. Long before the revelation that the National Security Agency has been spying domestically on cell phone use, MoDOT contracted with a firm to track drivers on state freeways using cell phones.
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