http://www.thenewspaper.com/ TheNewspaper: A Journal of Driving and Politics en-us http://www.thenewspaper.com/news/41/4108.asp http://www.thenewspaper.com/news/41/4108.asp The Wisconsin Court of Appeals on Thursday decided to shut down a motorist who won and a motorist who lost a speeding ticket case in a circuit court. The appellate judges ruled, in effect, that the validity of a speed limit can never be challenged and there is never a valid excuse for violating the limit other than saying a police officer made you do it.

Tammy Camden initially beat the charge that she was driving 92 MPH in a 55 MPH zone on March 13, 2012. Wisconsin State Trooper Daniel Breeser was running a speed trap on Highway 18 in Patch Grove when he saw Camden's vehicle and pulled her over. According to Camden, she had a stalker behind her that tailgated her, matching every move. When she moved over a lane, he did as well. When she sped up, he sped up. She argued at trial that she was "attempting to get away" from the unknown follower when she was stopped.

The finder of fact, Grant County Circuit Court Judge Craig R. Day, believed Camden to be credible. In 1982, the Wisconsin Supreme Court recognized in the case of Wisconsin v. Brown that there is a necessity defense to speeding when the police officer forced the motorist to speed. The high court ruling declined to decide whether other necessity defenses would be valid. The appeals court refused to extend the precedent on its own authority.

"Extending the 'legal justification' defense established in Brown to include causes other than law enforcement officers would be incompatible with the error-correcting function of this court," Appeals Court Judge Gary E. Sherman wrote in an unpublished ruling. "Accordingly, because the supreme court has not extended the defense of necessity to apply to civil forfeiture actions for speeding if the cause is someone or something other than a law enforcement officer, I conclude that the circuit court erred in determining that it applied in this case. The judgment of the circuit court is therefore reversed."

Jeffrey K. Crossfield had even less luck with his challenge. He lost his case before Dane County Circuit Court Judge Ellen K. Berz. He was stopped on February 23, 2012 by Sheriff's Deputy James Hodges for allegedly driving 50 MPH in a 35 MPH zone in Westport. Judge Berz threw out all of the evidence he had collected at trial regarding the traffic studies and validity of the underlying ordinance establishing the speed limit on Highway Q.

Crossfield argued the 35 MPH limit only applies in a "semiurban district" under state law, and that the section of road in question does not fit that definition. Appellate Court Judge JoAnne F. Kloppenburg said even if he was right about that interpretation, he would still be guilty. She accepted at face value the town's declaration that its engineering studies were in order and that they could not be challenged.

"Crossfield's argument remains without merit, because official signs gave Crossfield notice of the thirty-five-mile-per-hour speed limit," she ruled. "Crossfield cannot challenge his speeding citation on the grounds that he disagrees with the speed limit adopted in the local authority's discretion. It follows that the circuit court properly excluded as irrelevant any evidence as to the information that local authorities may have obtained to 'determine and declare a reasonable and safe speed limit' under Section 349.11(1)(a), including studies undertaken, measurements that were taken, and businesses or homes in the area."

The court cases are available in a 90k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-24T00:06-08:00 http://www.thenewspaper.com/news/41/4107.asp http://www.thenewspaper.com/news/41/4107.asp The effect of the Supreme Court's landmark Jones ruling outlawing warrantless GPS surveillance of motorists continues to affect the way drivers are treated at traffic stops. Last week, a judge with the US District Court for the Southern District of West Virginia applied the precedent to the common police practice of "permeation" where a police officer enters a suspect's vehicle without warrant or consent to facilitate a drug dog sniff of the car's exterior.

In January 2012, Justice Antonin Scalia penned the United States v. Jones decision that held attaching a GPS tracking device without a warrant was not permissible.

"The government physically occupied private property for the purpose of obtaining information," Justice Scalia wrote for the unanimous court. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

In March, the Supreme Court reiterated this finding with a decision, again authored by Justice Scalia, that said a police officer could not use a drug dog on the porch of a home without a warrant.

These decisions became relevant to Marcus Wyn Taylor when his Buick was pulled over for allegedly making an unsafe turn near his home in a Charleston, West Virginia public housing project at 6pm on October 24, 2012. Charleston Police Corporal Owen Morris already suspected Taylor of being a drug dealer because he had recognized the man sat on his porch "at all hours of the day and night."

Officer Morris and Detective Wes Daniels approached the car and noted that Taylor appeared nervous. Taylor asked if he could speak to his lawyer, but the officers refused. When Taylor opened the glove compartment to retrieve his license and registration, Detective Daniels caught a glimpse of an unknown amount of cash.

Taylor was ordered out of the Buick, and he asked again to speak to his lawyer while refusing to consent to a search of the car. Taylor was handcuffed for "aggressive behavior." A drug dog was called in, as about twenty local residents gathered to watch the spectacle. A lawyer, Rico Moore, arrived on the scene but was told he could not talk to Taylor until an arrest was made. Up to this point, US District Judge John T. Copenhaver, Jr. found the officers' conduct above board.

"One must take into consideration as well Mr. Moore's appearance on the scene and his uncooperativeness, and a growing crowd from which at least a couple of hostile utterances were heard," Judge Copenhaver ruled. "The stop was not prolonged beyond the time reasonably required to complete its mission under the circumstances faced by the officers."

Detective Daniels entered the Buick, rolled up the windows, turned the ignition key "on" and activated the fan to blow air out of the vehicle to where the dog would be sniffing. The dog alerted, though no actual drugs were found. Instead, there was a FN Five-seveN semi-auto pistol under the driver's seat and $93,157 in the trunk. Taylor was arrested for being a felon in possession of a firearm.

Had the dog not alerted, Taylor would have been sent on his way. The judge found the entry into the Buick to be a constitutional violation.

"As in Jones and Jardines, law enforcement physically occupied private property -- the Buick -- for the purpose of obtaining information -- the otherwise undetectable, or less easily detected, odors of controlled substances -- found therein," Judge Copenhaver ruled. "Probable cause was lacking for that unreasonable search. The search thus transgressed the Fourth Amendment."

Taylor's public defender and federal prosecutors have until June 28 to make their arguments on whether the evidence acquired from the illegal search should be suppressed.

A copy of the memorandum opinion is available in a 120k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-23T00:08-08:00 http://www.thenewspaper.com/news/41/4106.asp http://www.thenewspaper.com/news/41/4106.asp Members of the public are having success holding speed camera companies and their customers accountable. This week, governmental agencies in England and Maryland upheld citizen complaints against the proponents of automated ticketing.

On Wednesday, the UK Advertising Standards Authority (ASA), an independent government agency that enforces UK laws against false advertising, announced the speed camera firm Vysionics had agreed to drop from all future advertising material its claim that photo enforcement caused a 70 percent reduction in accidents. The authority looked into the matter after Malcom Heymer with the Alliance of British Drivers (ABD) lodged an objection in February.

"In a formal investigation, if the ASA Council decides that an ad is in breach of the code, the advertisers are told to withdraw or amend it," ASA investigations executive Simon Lane wrote in a response to Heymer ( view ASA ruling, 85k PDF). "Because Vysionics have already assured us that the advertising you complained about will be amended in the future, we consider there is little to be gained from continuing with a formal investigation, which would achieve that same outcome."

The British motorist rights group was pleased that the watchdog agency has once again objected to the statistics used to market photo enforcement. In 2006, the agency ruled against a speed camera pamphlet issued by Greater Manchester. In 2005, it agreed that West Yorkshire speed camera operator used bogus statistics in a poster.

"This is long overdue recognition that the claims of the whole speed enforcement industry are exaggerated and self-serving," ABD deputy chairman Brian Gregory said in a statement. "The huge increase in speeding penalties in recent years has contributed nothing to the downward trend in casualties which, since 2008, has been largely due to the economic downturn."

On Monday, Maryland's Open Meetings Compliance Board found the city of Baltimore guilty of violating state law regarding the meetings of a speed camera advisory task force, siding with a complaint filed by the Maryland Drivers Alliance. The board upheld the complaint on all three grounds: the task force excluded the public from meetings, it failed to maintain minutes and it did not give proper notice of meetings.

The board stated there were no notices posted on the city's transportation department website. It also blasted the "minutes" that the task force produced after the fact as wholly inadequate.

"The 'minutes' of the November and January meetings contain only the agenda and the words 'No actions were taken,'" the board ruled. "The method by which the minutes were adopted is unclear, as 'no actions were taken' at any meeting; the attendees of the meetings are not listed; the chair or other presiding officer is not identified; the presence of quorum is not stated."

On March 20, reporters for the Baltimore Sun recorded on video their exclusion from an official task force meeting at the Brekford Corporation's headquarters in Hanover. The board refused to accept the city's excuse for its actions.

"A public body must refuse to meet at a private facility when the owner will not admit the public," the board ruled. "The act would be meaningless if it were interpreted to allow public bodies to meet secretly at private facilities... Members of public bodies should be made aware at the outset that their public service includes the duty of openness, and specifically, that the public must be given a meaningful opportunity to attend their meetings."

A copy of the Maryland ruling is available in a 250k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-22T00:18-08:00 http://www.thenewspaper.com/news/41/4105.asp http://www.thenewspaper.com/news/41/4105.asp Plans to convert Interstate 95 into a toll road in North Carolina and Virginia have run into a roadblock. On Tuesday, the North Carolina House of Representatives will vote on final passage of a measure that would prohibit the state from installing toll booths on existing general purpose lanes. The measure passed on a preliminary vote 113-0 last Thursday.

If enacted, House Bill 267 would grant tolling authority only if the state "maintains at all times at least the same number of general purpose non-toll lanes on the affected segment that were available prior to imposition of any tolls." The revenue collected could not be diverted to fund other, unrelated projects. Just last week, the North Carolina Department of Transportation (NCDOT) issued a report on how much revenue would be generated by collecting tolls that would run $19.20 for a passenger car making a statewide journey.

North Carolina already imposes a 37.5 cents per gallon tax on gasoline that automatically rises with the wholesale price of gasoline. On top of this, drivers on I-95 would be hit with between $250 million and $928 million in annual tolls, according to the NCDOT analysis. One of the plans still on the table is called "local mitigation" where drivers from out-of-state would be charged a discriminatory 50 percent premium compared to North Carolina residents in the local area. The No Tolls I-95 Coalition opposes the tolling scheme as bad for commerce.

"I-95 is the primary transportation artery not only for North Carolina destinations but also for overnight stays and travelers will divert to other roads to avoid tolls," Jerry Dimeo, President of First Carolina Management, said on behalf of the coalition. "This [would] have a significant negative impact for many counties and businesses in the state that depend on tourism for their livelihood as well as make us far less competitive with other states."

The tolling plans of Virginia Governor Robert F. McDonnell (R) were similarly undermined by a vote of the legislature in February.

"That no tolls shall be imposed or collected on Interstate 95 south of Fredericksburg pursuant to the Interstate System Reconstruction and Rehabilitation Pilot Program without the prior approval of the General Assembly," the law enacted last month stated.

Adding to the difficulty of tolling, Portsmouth Circuit Judge James A. Cales Jr ruled on May 1 that the use of a state transportation agency to impose tolls without a vote of the General Assembly represents an unconstitutional delegation of the power to tax. The ruling directly shuts down tolling plans for the Elizabeth River Crossings while raising questions about the legality of Governor McDonnell's tolling plans for other roads throughout the state.

Should the judiciary delay the effort beyond the November election, the leading candidate to take the governor's mansion in Richmond, current Attorney General Ken Cuccinelli (R), prefers the legislative model just adopted by the North Carolina House, only allowing tolls for new capacity.

"I favor a user fee toll road system for new highways as a transportation policy -- that's a pretty conservative approach," Cuccinelli told Breitbart News in February. "I explain why it makes Virginia better to go this way instead of another way."

Cuccinelli also said he disagreed with Governor McDonnell's approach of hiking fees on the Dulles Toll Road to fund a $6 billion Metrorail train to Dulles International Airport.

A copy of the North Carolina legislation is available in a 90k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-21T12:10-08:00 http://www.thenewspaper.com/news/41/4104.asp http://www.thenewspaper.com/news/41/4104.asp Earlier this month, the city of Baltimore, Maryland told the state's Open Meetings Compliance Board that it was keeping meetings of the city's speed camera task force secret, in violation of state law. Assistant City Solicitor Hilary Ruley provided screenshots from the Wayback Machine, to show that announcements were placed somewhere on the website at some point for a pair of meetings.

"This is the best evidence that the city can currently locate of the fact that all of the task force's meetings were advertised," Ruley wrote. "Again, it invited the media and the general public to attend all of its meetings and the media did attend each meeting."

The controversy developed last month when three motorists representing the Maryland Drivers Alliance complained to the state that Mayor Stephenie Rawlings-Blake set up a speed camera task force -- a government body -- that held secret meetings with the photo enforcement firm Brekford in violation of the Maryland's open meeting law. The city's response did not satisfy critics.

"Please note also that that city provided screenshots from web.archive.org for notices of just two of their meetings," Louis M. Wilen, one of the three who filed the original complaint, wrote in an emailed response to the board. "The additional three pages that Baltimore City provided are work orders, not actual evidence that meeting notices were posted. I realize that the OMA Compliance Board procedures do not provide for yet another response from the complainants, but I hope that the OMA Compliance Board will consider the above information when making their decision."

The speed camera task force was set up in September 2012 so that members of various pro-speed camera organizations, including AAA, and city employees could discuss photo ticketing policies. The most controversial meeting of the group was held on March 20 at the Brekford Corporation's headquarters in Hanover. Reporters for the Baltimore Sun attempted to enter the meeting but were turned back. The interactions were recorded on video.

The complaint also alleged the speed camera task force failed to keep minutes of the meetings or refused to make these documents public. Baltimore admits the task force is subject to state law but denies any violation.

"The task force has been in the process of compiling meeting minutes," Ruley wrote. "As the OMA manual recognizes, there is no standard reasonable time for creation of meeting minutes and certainly draft meeting minutes need not be made public."

The city included in its response to the state a set of newly generated, bare-bones minutes for the six meetings of the task force. The individuals who filed the complaint were not satisfied, citing a precedent where routine delays of "several months" in producing minutes were found to be unlawful. They were also unsatisfied with the level of detail provided by the documents.

"At best, the minutes consist of an agenda followed by a mixture of random phrases and undefined acronyms combined occasionally with marginally understandable sentences," Wilen and others wrote in response. "The minutes from two of the meetings do not provide any information beyond an agenda."

If the open meeting compliance board upholds the complaint, each individual participating in the speed camera task force could be fined $100. Source]]> TheNewspaper Editor 2013-05-20T01:19-08:00 http://www.thenewspaper.com/news/41/4103.asp http://www.thenewspaper.com/news/41/4103.asp California is the largest market for red light cameras in the country thanks to the fines set by the state running nearly $500 each. Municipalities that adopt the technology are quick to deny any possibility that financial considerations have anything to do with their decisions to monitor local intersections. Internal discussions between the city of Menlo Park and camera vendor Redflex Traffic Systems suggest otherwise.

Menlo Park is currently in the process of deciding whether to renew its contract, so earlier this month the city signed a sixty-day extension allowing four cameras to continue operating until July 2. The decision of whether to install a fifth camera hinges on the number of citations that can be generated, not on any accident reduction consideration, according to a review of emails between the Menlo Park Police Department and Redflex.

Redflex currently charges a monthly fee of $5651.50 for each intersection camera it operates. That means to be profitable, a location must generate just twelve paid tickets each month. On March 11, Redflex spent twelve hours videotaping traffic at the intersection of Bayfront Expressway and Chilco Street, counting how many tickets it might be able to issue in that time. For the eastbound direction, the company counted zero violations caused by a driver running straight through a red signal -- the type of violation that might cause an accident. Instead, there were 114 vehicles turning right on red, a maneuver that, though ticketable, is rarely dangerous according to federal data (view study). The result at the intersection would be sufficient to issue $650,000 worth of tickets annually.

"My only question is: since most of the violations are right turns, how long would that be sustainable?" Traffic Sergeant Sharon A. Kaufman asked in a March 28 email to Redflex. "Once behavior changes will we see a drastic reduction in the number of citations/violations?"

The response from Redflex account representative Mark Riggs presupposed no such behavior change.

"The normal process for a new approach is the first few months there will be high numbers then it will begin to decline and stabilize," Riggs replied. "Where it drops is anyone's guess due to all of the variables involved. I can say that most intersections that have right turns enforced continue to produce consistent numbers."

The emails show that Menlo Park has not changed its ways since it was slammed three years ago by the San Mateo County Civil Grand Jury for focusing solely on citation numbers ( view grand jury report, 1mb PDF file).

"Based on interviews and responses to survey questions, the reporting of accident statistics is not being used as a measure of the effectiveness of red light cameras," the grand jury found. "The primary emphasis appears to be on the number of citations issued. Based on the data provided by the cities, there was no overall trend indicating a noticeable change in accident rates before and after installation of red light cameras."

From 2008 to 2012, Redflex issued 23,066 tickets worth $11 million in Menlo Park. In February and March of this year, Redflex mailed $330,000 worth of tickets, according to data supplied by HighwayRobbery.net. Source]]> TheNewspaper Editor 2013-05-17T00:03-08:00 http://www.thenewspaper.com/news/41/4102.asp http://www.thenewspaper.com/news/41/4102.asp Hagerstown, Maryland announced Wednesday that it would refund 808 illegally issued speed camera tickets. Brekford Corporation mailed the citations between the end of December and January using three automated ticketing machines that failed to meet the certification requirements of state law.

"A speed monitoring system shall undergo an annual calibration check performed by an independent calibration laboratory," Maryland Code Section 21-809 states. "The independent calibration laboratory shall issue a signed certificate of calibration after the annual calibration check that shall be kept on file; and shall be admitted as evidence in any court proceeding for a violation of this section."

A motorist who intended to fight a photo ticket requested the calibration certificate for use at trial in January, but the city responded with a March 5 letter denying the request, despite the law's requiring calibration documents be kept on file. The Maryland Drivers Alliance investigated the incident and forced the city to release an "in-house" calibration certificate from Sensys, the Swedish firm that manufactured the speed camera that Brekford operates on Hagerstown's behalf.

Another court challenge used the newly obtained documents and Washington County District Court Judge Mark D. Thomas agreed that the lack of independent certification rendered the citations void. All charges were dismissed. The finding raises the potential of similar refunds for citation recipients in the city of Laurel where six of Brekford's speed cameras operated under calibration certificates provided by the speed camera manufacturer Sensys, not an independent lab.

In December, Baltimore was forced to issue refunds for photo radar tickets after Xerox, the company that operates the cameras on the city's behalf, admitted that 5.2 percent of the tickets were issued based on bogus radar readings (view report).

The Maryland Drivers Alliance is encouraging ticket recipients in the state to file a public information act request for the calibration certificates before paying any fines. The group provides a sample request form on its website and offers to assist motorists in understanding the documents. Source]]> TheNewspaper Editor 2013-05-16T00:01-08:00 http://www.thenewspaper.com/news/41/4101.asp http://www.thenewspaper.com/news/41/4101.asp There is no evidence that the world's largest red light camera program is operated as a safety program, according to a report released Tuesday by the inspector general for the city of Chicago, Illinois. The independent investigation comes as Redflex Traffic Systems continues to operate every aspect of the automated ticketing program despite Mayor Rahm Emanuel's promise to cut ties with the Australian firm.

Earlier this year, Redflex was caught in a $2 million bribery scheme designed to ensure Windy City officials would continue adding new cameras to boost the company's bottom line. The audit results are consistent with the suggestion that the locations for the new cameras were selected for the benefit of Redflex, not city residents.

"CDOT [the Chicago Department of Transportation] was unable to substantiate its claims that the city chose to install red-light cameras at intersections with the highest angle crash rates in order to increase safety," the report found. "Neither do we know, from the information provided by CDOT, why cameras in locations with no recent angle crashes have not been relocated, nor what the city's rationale is for the continued operation of any individual camera at any individual location."

The city gave Redflex $19.1 million for 384 cameras stationed at 190 intersections. Redflex has no financial incentive to issue additional tickets because it is paid the same $52,740 annual fee for each camera whether the location issues 328 citations or 19,805 (the lowest and highest volumes recorded at an intersection, respectively). In 2012, Redflex issued 612,278 tickets, collecting $71,943,053 in revenue.

Redflex offers a turn-key operation, leaving municipalities with no true responsibilities. So when the inspector general asked for crash data that might justify the cameras, Chicago responded that it does not collect the sort of reliable data that the audit requested. An independent analysis conducted by a University of Chicago adjunct professor in 2010 found no accident reduction where cameras were used (view report). The city also failed to provide any documentation that the yellow signal timing at the photo enforced locations is appropriate for traffic conditions. Chicago just uses a blanket 3 seconds for intersections with a 30 MPH posted speed limit and 4 seconds for 35 MPH intersections.

"We found a lack of basic recordkeeping and an alarming lack of analysis for an ongoing program that costs tens of millions of dollars a year and generates tens of millions more in revenue," the report stated.

The inspector general recommended the city come up with guidelines regarding selection of camera locations that would allow independent verification of whether continued camera use makes sense. When Chicago names another vendor to take over the red light camera program, Redflex will walk away having earned $106 million since the program began.

A copy of the audit report is available in a 1.1mb PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-15T00:25-08:00 http://www.thenewspaper.com/news/41/4100.asp http://www.thenewspaper.com/news/41/4100.asp The Maine state legislature's Joint Transportation Committee on Monday reported a bill that would lift the veil of secrecy from a major toll road project and force private developers to pay for their own feasibility studies. On April 5, 2012 Governor Paul LePage (R) signed a bill ordering the state transportation department to conduct an economic feasibility study of a $2 billion, 220-mile toll road cutting across the state from east to west, connecting the Canadian provinces of New Brunswick and Quebec. The new bill repeals that provision.

"We should not be using public funds to conduct a study for a private project," state Senator Edward J. Mazurek (D-Knox County), the bill's sponsor, testified. "We have a range of existing state transportation projects waiting for funding, and siphoning limited public funds to private projects is not acceptable."

The state transportation department was supposed to have completed its study in January, but agency officials suspended the project after failing to receive key documents.

"To perform such a study, we need to have reliable information about the connections between the new proposed highway and existing public infrastructure," Maine DOT legislative liaison Nina A. Fisher explained. "Without knowing these connections, we cannot properly identify proposed highway users or their willingness to pay tolls."

The committee voted to repeal the mandate for the study and make public any work done to date on the project.

"Notwithstanding any law to the contrary, all documents, including, but not limited to, emails, attachments, letters, contracts, reports, records, notes, summaries, working papers, plans, interoffice and intraoffice memoranda and drafts or any other materials created, received or transmitted by the Department of Transportation in connection with Resolve 2011, chapter 147 are not confidential and are subject to public review," Legislative Document Number 985 states.

In most states, toll roads constructed with substantial public assistance keep all materials regarding the proposal secret until after the final contracts are signed. The critical traffic and revenue analysis as "proprietary" data that cannot be disclosed. A study released last month found the secret traffic analyses conducted in Orange County, California were significantly inflated, leading to the loss of millions in taxpayer money (view report).

The committee turned back stronger attempts to outlaw the project, but that did not stop local activists from testifying that the state's public-private partnership (PPP) statute should also be repealed.

"Repealing the PPP law would protect the public from misuse of taxpayer money for private interests, protect the public from assuming at least 50 percent of investor debt on a project for private profit, protect the public from being on the hook completely if the project fails, ensure public infrastructure for public use, and protect the public's social, environmental, and economic assets that benefit us all," Chris Buchanan with Stop the East-West Corridor testified. "PPPs in general have proven in other states to socialize risks and privatize profits. In many cases, PPP projects have cost taxpayers more money than if they had done the project publicly in the first place."

A copy of the legislation is available in a 25k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-14T00:46-08:00 http://www.thenewspaper.com/news/40/4099.asp http://www.thenewspaper.com/news/40/4099.asp Since April last year, Dayton, Ohio has been trying to generate millions in additional revenue by towing vehicles said to have unpaid photo enforcement or parking tickets. The city's policy instructed police to pull over motorists and taking their car away until the alleged debt was paid. To keep a steady stream of $85 citations, Redflex Traffic Systems of Australia operates ten red light cameras and ten speed cameras in Dayton.

"We have a substantial number of people who continue to ignore our traffic laws and flout the system," Police Chief Richard Biehl explained in a press release announcing the policy on April 9, 2012. "Unfortunately, we sometimes have to tow vehicles to get the driver's attention and cooperation."

In a decision late last month, the state Court of Appeals said Chief Biehl and the city have been flouting the Constitution. Three days before that press release was issued, Officer Jeff Hiber pulled over a car he saw on Salem Avenue because a license plate check claimed its driver had three unpaid parking tickets.

In the course of the stop, passenger Edward L. Dukes, was caught with a small amount of crack cocaine. A Common Pleas Court judge upheld the stop as legitimate.

"Officers may stop and detain a motorist when observing any traffic offense or violation of the law and no independent 'reasonable articulable suspicion' of other criminal activity is required under Terry," the lower court judge ruled. "Here, Officer [Hiber] had authority to stop the car (and tow) pursuant to Dayton Police Department General Orders 3.02-6 Towing Motor Vehicles, 3.02-03 Parking Enforcement, and Executive Order 7-2012."

In Ohio, photo tickets and parking tickets have been made civil violations to minimize due process protections for ticket recipients, streamlining the collections for municipalities. The three-judge appellate panel pointed out that this arrangement also eliminates the criminal element from any charge that would justify a warrantless seizure of a driver.

"Hiber's testimony is clear that he initiated the traffic stop herein because the vehicle was on the police department's 'tow-in-list,'" Judge Mary E. Donovan wrote for the appellate court. "He did not observe a traffic violation or testify that he possessed a reasonable articulable suspicion of criminal activity when he stopped the car."

The court blasted the city of Dayton and state prosecutors for attempting to justify a traffic stop based merely on the April 2012 towing policy issued by Chief Biehl.

"We disagree with the state's assertion that the public's interest in obtaining the hundreds of thousands of dollars owed to the city for unpaid parking citations outweighed Dukes' privacy interest as a passenger in a vehicle on the tow list," Judge Donovan wrote. "Driving a motor vehicle while owing civil parking fines is not a crime. In other words, the protections guaranteed by the Fourth Amendment cannot be altered by means of an executive order issued to police department personnel."

The court reversed the conviction of Dukes. A copy of the decision is available in a 50k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-13T01:26-08:00 http://www.thenewspaper.com/news/40/4098.asp http://www.thenewspaper.com/news/40/4098.asp Red light cameras in League City, Texas were covered with bags this week, but not by vigilantes. Australian camera vendor Redflex Traffic Systems had no choice but to shut down the devices.

Last November, 77 percent of voters approved a measure banning the use of automated ticketing machines -- the fifth city in the Lone Star State to do so -- but technically the measure has not yet taken effect. City officials last year re-wrote the immediate ban initiative circulated by citizens and replaced it with a measure that would only take effect on October 29, 2014, when the city's contract with Redflex expired. The change proved politically untenable, so on April 23, the council voted to pay Redflex $350,000 to end the contract on July 1.

"The city will cease issuance of red light tickets immediately and the seven cameras still in operation will be turned off and removed by Redflex within 90 days," the council resolution stated.

In November, voters also knocked the two most vocal red light camera supporters off of the city council, easing the way for passage of the take-down resolution last month. Since the beginning, League City's camera program generated $4,941,261 in revenue. Source]]> TheNewspaper Editor 2013-05-12T00:04-08:00 http://www.thenewspaper.com/news/40/4097.asp http://www.thenewspaper.com/news/40/4097.asp A police officer who lashed out at a deaf driver with whom he had difficulty communicating cost St. Paul, Minnesota $93,450 on Wednesday. The city council approved a settlement with Douglas D. Bahl, who had sued over a traffic stop that took place on Friday, November 17, 2006. Bahl is a high school teacher, but he can only express his thoughts fully in American Sign Language.

St. Paul Police Officer Stephen Bobrowski pulled Bahl over at around 5pm for allegedly running a red light. When the officer came to the driver's side window and began speaking, Bahl shook his head, pointed at his ear and said, "no" while indicating he wanted to use a pad of paper and pen to communicate. Instead, Officer Bobrowski began speaking louder, saying "driver's license" and making the shape of a card with his hands.

When Bahl failed to produce the license, Officer Bobrowski shoved him. Bahl leaned away, and the officer grabbed him by the wrist. Bahl took a pad of paper from the passenger's seat and wrote "joint" to signify his wrist joint was in pain. Bobrowski blasted Bahl with Mace and yanked the man out of the car to be placed under arrest. Bahl was taken to Regions Hospital for treatment of his left eye which showed significant swelling from the attack. A sign language interpreter was available, but she would only translate for hospital business, saying the police could get their own interpreter.

Bahl was taken to jail and booked for "obstructing with force." Since the man could not make a phone call, he asked to be able to email his girlfriend (now his wife) for help. The officers refused, saying he could use a TTY machine, something that would not work to reach his girlfriend. Later, when Bahl thought of someone he could contact with a TTY, the jail staff denied the request, saying he would have to wait until the next morning.

The next day, Saturday, St. Paul Police Sergeant Bryant Gaden came to the jail to interview Bahl in writing. Bahl asked for an interpreter and signed a form that spelled out his Miranda rights. After doing so, Sergeant Gaden said the city's case did not justify hiring an interpreter.

When Sunday arrived, Bahl asked for a TTY. He was told, "After noon. See what we can do." Bahl finally used another inmate to make a call that got word to his family that he was incarcerated (something not allowed by the jail's rules). By Monday, was charged with bail set at $6000 and released.

Bahl filed suit against the city and county under the Americans with Disability Act claiming he was excluded from the benefit of public services because he was deaf. A district court judge threw out these claims.

"Bobrowski's decision initially to try to communicate with Bahl using gestures and lip reading before leaving Bahl alone to retrieve a pen and paper were objectively reasonable and lawful," US District Judge David S. Doty ruled in December 2010.

The court also found no problem with the jail's denying the use of email or a TTY machine.

"As an initial matter, email is not a modification of a telephone call; it is an entirely different service," Judge Doty wrote. "Even if it were a modification, Bahl offers no evidence that email or Internet access were available on a computer in booking or the officer's desk in the cell area, or that Ramsey County could, over the weekend, make that service available."

The US Court of Appeal for the Eighth Circuit agreed, saying it would not second guess Officer Bobrowski's actions, particularly because Bahl should have known he was to produce his license when pulled over. The appellate panel, however, found that an interpreter should have been provided when the Miranda warning was provided.

"Unlike an arrest or a speeding ticket, a custodial interrogation with an interpreter would have afforded Bahl certain benefits, including the right to ask questions and tell his side of the story, which arguably could have affected the charging decision," the three-judge panel ruled in March 2012. "Under these circumstances, we find the post-arrest interview to be a covered 'service' or 'activity.'"

Because it lost on that point, the city was persuaded to settle by agreeing to extensive policy and training changes to ensure a greater availability of services for the deaf. Bahl will receive $20,000 and Mid-Minnesota Legal Aid will receive $73,450 in attorney's fees. Source]]> TheNewspaper Editor 2013-05-10T00:55-08:00 http://www.thenewspaper.com/news/40/4096.asp http://www.thenewspaper.com/news/40/4096.asp Police officers who want to stop and interrogate a motorist often claim he "weaved within his lane" as justification. Until now, this common pretext has generally been upheld by the judges around the country. The Nebraska Supreme Court, however, expressed its doubt on Friday.

"Upon our independent review, we find ourselves confronted by the rare case where the law enforcement officer's testimony completely undermines the existence of a reasonable suspicion of criminal activity," Justice William B. Cassel wrote for the court regarding the case of Doan Q. Au.

In the past, the state Supreme Court had upheld stops consisting of as few as two "weaves" that do not cross the center line or lane divider. The justices affirmed these cases on the understanding that it is reasonable to suspect a drunk or sleepy driver was behind the wheel. That assumption changed on Friday when the high court reviewed comments made by Officer Kristopher Peterson of the Douglas County Sheriff's Department.

"In each of those cases involving weaving vehicles, we were not confronted by testimony admitting that the observed behavior 'happens all the time' with unimpaired drivers," Justice Cassel wrote.

Officer Peterson made his observations, confirmed by dashcam video, when he stopped a car with out-of-state plates on Interstate 80 on September 22, 2010 just after 10pm. The vehicle's tires were seen continuing over the left-hand divider line for several hundred feet after passing an uneven stretch of pavement as the highway curved to the left. Cars were merging into the vehicle's lane just before the car drifted to the left a second time. The prosecution insisted this drifting violated the law, and therefore constituted reasonable suspicion to conduct a traffic stop. During the trial, however, Officer Peterson admitted this type of weaving was common, and the Supreme Court justices took note.

"Peterson's own testimony demolished his claim that he had a reasonable suspicion that the driver was intoxicated or fatigued," Justice Cassel wrote. "On cross-examination referring to vehicles touching the lane divider line, he admitted that 'this happens quite a bit' and that it 'happens all the time by people [who] are driving [and who] aren't under the influence or fatigued.' He did not attempt to explain how the circumstances in the case before us differed from what 'happens all the time' with unimpaired drivers."

The justices noted there were several factors that could explain the drifting that had nothing to do with impairment, including the uneven pavement surface, the curve in the road, merging vehicles, the dark of night and the driver's unfamiliarity with the area.

"When we subtract all of these circumstances from the bare touching or crossing of the lane divider line, all that remains is an inchoate and unparticularized hunch," Justice Cassel wrote. "That is not enough."

The court went on to explain the driver did not violate the state law regarding lane changes. The same legal language is used by most states.

"A vehicle shall be driven as nearly as practicable within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety," Nebraska Revised Statutes 60-6, 139 states.

The justices explained the use of the phrases "practicable" and "as nearly as" mean the provision cannot be read as an absolute prohibition on any deviation from a straight line path. A police officer must explain how the driving conduct deviated from the norm and why under the road's particular conditions such driving should be considered unreasonable.

"The district court erred in treating the mere touching or crossing of a lane divider line as a traffic violation," Justice Cassel concluded. "Consequently, the court erred in determining that probable cause existed for the stop."

The appeal was brought not by an impaired driver, but a passenger whose cocaine was discovered after a drug dog was used to search the vehicle. Because the stop was suppressed, the state has no case against the passenger.

A copy of the decision is available in a 170k PDF file at the source link below. Source]]> TheNewspaper Editor 2013-05-09T00:20-08:00 http://www.thenewspaper.com/news/40/4095.asp http://www.thenewspaper.com/news/40/4095.asp Privacy groups are upset that law enforcement has been using cameras to track the movements of motorists who are not suspected of any wrongdoing. To investigate how this information is used, the American Civil Liberties Union (ACLU) last year formally sought information on automated license plate recognition cameras (ALPR, also known as ANPR in Europe) from law enforcement agencies around the country. The Los Angeles, California Police Department (LAPD) refused to hand over some related documents, so the ACLU joined on Friday with the Electronic Frontier Foundation (EFF) in filing a lawsuit to compel disclosure.

Police agencies and politicians claim the high-speed tracking cameras are only used to find stolen cars, but the machines in Los Angeles have already collected 160 million pieces of information on the public, including individuals not suspected of having committed any crime. The ACLU and EFF sought last August to obtain a sample week's worth of the actual data LAPD collected so that the public could judge for itself.

"Location-based information like license plate data can be very revealing," EFF attorney Jennifer Lynch said in a statement. "By matching your car to a particular time, date and location, and then building a database of that information over time, law enforcement can learn where you work and live, what doctor you go to, which religious services you attend, and who your friends are. The public needs access to the data the police actually collected to be able to make informed decisions about how ALPR systems can and can't be used."

In September, LAPD refused to hand over the sample data, claiming it "contains official information" and was part of an investigative file exempt from the public records law. The Los Angeles Sheriff's Department was even less responsive, refusing to disclose the number of vehicles on the "hot list" and the generic reason why individuals would ever be added to it. The sheriff's office even lost track of the information it was denying on "investigative" grounds by sending information to EFF that it refused to provide to ACLU. The groups point out that the right to obtain government documents is enshrined in California's constitution.

"The people have the right of access to information concerning the conduct of the people's business, and, therefore, ...the writings of public officials and agencies shall be open to public scrutiny," Article 1 Section 3 states.

Neither the LAPD nor the sheriff's department has filed a formal response. A Los Angeles County Superior Court judge will decide whether these agencies should be forced to hand over the information. Source]]> TheNewspaper Editor 2013-05-08T00:09-08:00 http://www.thenewspaper.com/news/40/4092.asp http://www.thenewspaper.com/news/40/4092.asp Transportation officials in the United States and around the world remain fascinated with tolling public-private partnerships as a method of financing roads, but tolling continue to prove itself an unreliable choice. Last week, the Rivercity Motorway Group's bankruptcy administrators began soliciting bids for the Clem7 toll road in Brisbane, Australia. The 4.2 mile tunnel links five major area roads at a cost of $8.10 per round trip -- a proposition few residents found worthwhile. A bankruptcy judge with the Federal Court of Australia explained the problem.

"I have before me evidence, which I am satisfied discloses the following in relation to the tunnel business and its assets," Justice John Alexander Logan wrote. "Initial modelling and forecasts suggested that the average daily traffic which flowed through the tunnel in or around December 2010 would have been around 90,000 vehicles per day whereas the actual flow in that month was around 25,000 vehicles per day. The value of the tunnel business was written down in the corporate group's financial report for the year ended 30 June 2010 to $258 million."

A recent study concluded many tolling projects suffer from the same optimistic forecasts. Here, it resulted in creditors being owed $1.4 billion, as the latest traffic numbers still hover in the 25,000 range. Bids on the road will be taken until May 13.

"There is every reason to expect, in the context of a sale in respect of companies in liquidation, that very substantial losses indeed loom in prospect," Justice Logan wrote.

Bankrupt toll roads have become a lucrative business for PPB Advisory, the company tapped to run the road until it can be sold. Administrators proposed in 2011 that they be paid $425,000 for their services, given the firm has a great deal of experience with failed public-private partnerships. In February, BrisConnections Group, operator of the Airportlink toll road, went bankrupt. In 2010, Connector Motorways Pty Limited, operator of the Lane Cove Tunnel toll road, went under. In 2007, the Cross City Tunnel toll road went bust.

The same phenomenon is common in Europe. In Spain last year, ten toll concessions, including the Madrid-Toledo highway, became insolvent. The Spanish government provided more than a billion euros in bailout money to the tolling firms Abertis, Acciona, ACS, Bankia, Cintra, OHL and Sacyr Vallehermoso.

Failures are equally common in the United States, beginning with the toll lanes on the 91 freeway in Orange County, California which had to be bought out by county taxpayers in 2003 for more than the original cost of construction. San Diego's South Bay Expressway went bankrupt in 2010 and was also bought out by county government. In South Carolina, the Greenville Southern Connector went bankrupt in 2010. Transurban, the Australian company that runs the Pocahontas Parkway in Richmond, Virginia, wrote down the toll road as having a value of $0 last year. Source]]> TheNewspaper Editor 2013-05-07T00:59-08:00