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Monday, April 07, 2014
Hawaii Court Upholds Implied Consent Law
Judge Craig H. NakamuraThe standard rules for dealing with individuals suspected of committing a crime do not apply to drunk driving cases, Hawaii's Intermediate Court of Appeals ruled on March 28. Three years ago, the state decided to "crack down" on driving under the influence (DUI) by making it a crime to refuse to take a breathalyzer test. Previously, the offense was punished with the administrative penalty of revoking the individual's driver's license. This change created a problem. Criminal offenses require the arresting officer to read the Miranda warning before questioning, and this warning makes it clear that the accused has the right to consult an attorney. Prosecutors, however, want no lawyers to be involved in DUI cases. The three-judge appellate panel agreed, upholding the conviction of Yong Shik Won, who was denied access to a lawyer on April 20, 2011. At around 3:15am, Won was allegedly driving his Chevy S-10 on Sheridan Street at 55 MPH in a 35 MPH zone when Honolulu Police Officer Vincent Gonzales pulled him over. It was clear to Officer Gonzalez that Won was tipsy, so he was brought to the police station and handed a form that explained he had given his "implied consent" to provide a breath or blood sample. "You are not entitled to an attorney before you submit to any test or tests to determine your alcohol and/or drug content," the form explained. Refusal of the test is a crime punishable by 30 days in jail, a $1000 fine and license suspension. Won refused to initial the form, objecting to the denial of a lawyer. He blew a 0.17 on the breathalyzer, double the legal limit. Won argued the arresting officers misinformed him about his rights. The appellate panel was not convinced, counting fourteen other states that impose criminal sanction for refusing a breathalyzer test while denying Miranda warnings and access to lawyers. "The protections of Miranda and the privilege against self-incrimination only apply to testimonial communications," Judge Craig H. Nakamura wrote. "Won's argument appears to have been uniformly rejected by every court that has construed implied consent statutes which like Hawaii's statute impose criminal sanctions for refusal to submit to testing." The majority reasoned that although the refusal is essentially meaningless since the same punishment is imposed whether the test is taken (and failed) or not, the appearance of an option to refuse helps to "avoid potential violence" that would come from a forced test situation. "Because the [DUI] arrestee does not have the unfettered right to refuse to submit to testing under the statutory scheme, it would be misleading to advise the [DUI] arrestee that he or she has the right to remain silent or to consult with counsel when asked whether he or she would submit to testing," Judge Nakamura wrote. The court reasoned further that because refusal is now a crime, and it is illegal for a lawyer to counsel a defendant to commit a crime, an attorney could only tell his client to submit to the test anyway. A copy of the decision is available in a 1.5mb PDF file at the source link below.
Source: PDF File Hawaii v. Won (Intermediate Court of Appeals of Hawaii, 3/28/2014)

Sunday, April 06, 2014
France, UK Speed Cameras Sprayed And Burned
Landes, France speed cameraVigilantes in Landes, France spraypainted a trio of speed cameras last week Sunday. Sud Ouest reported that red paint covered the cameras in Laglorieuse on the D30, and on the D934 through Hontanx and Saint-Gein. The devices were within about nine miles of one another. Vigilantes in Leeds, England set fire to a speed camera on Tuesday. According to ITV, the automated ticketing machine on the A65, New Road Side, in the town of Horsforth was destroyed by fire.

Friday, April 04, 2014
California Man Takes Red Light Cameras To US Supreme Court
US Supreme CourtOf the thousands of petitions for appeal presented to the US Supreme Court each year, less than four percent are accepted for review. Of those accepted, none have ever been about photo enforcement. Howard Herships hopes his constitutional argument against the use of red light cameras will be the first to make it to the nation's highest court. Herships appealed after the California Supreme Court turned away his case in December, deciding instead to review two similar case. The California court heard oral arguments in the first case, California v. Goldsmith (view opinion), on Thursday. "If the California Supreme Court affirms People v. Goldsmith and People v. Borzakian (view case) then the US Supreme Court will grant my writ of cert," Herships told TheNewspaper. "However, if the California Supreme Court reverses People v. Goldsmith then the US Supreme Court will reverse and remand in light of back to the California Supreme Court. At issue in all of these cases is whether the Sixth Amendment right of a defendant to confront the witness against him allows a police officer to testify about red light camera evidence even though he has absolutely no direct knowledge about the facts of the case. Unlike most other states, California does not treat photo ticketing charges as a civil matter where due process rights are reduced. The Goldsmith appellate decision said an officer could testify by reading the printout supplied by companies like Redflex, but the Borzakian appellate decision came to the opposite conclusion. Rather than wait to have the high court resolve the split in the Court of Appeal, Redflex wrote a new law, which the California legislature duly enacted in 2012, modifying the rules of evidence to deem photo ticketing evidence automatically reliable. Herships insists the state cannot pass a law to eliminate a defendant's constitutional right to confront the witnesses against him, namely the actual Redflex technician who verified the image used to send him a $500 ticket. Allowing a "surrogate witness" to testify in court, he argues, violates recent Supreme Court rulings interpreting the Confrontation Clause, including Bullcoming v. New Mexico (view opinion) and Melendez-Diaz v. Massachusetts (view case). Herships cites the 2004 Crawford v. Washington case on this point. "The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising," Justice Antonin Scalia wrote. Herships also argued he was denied equal protection under the law when the California Supreme Court decided to review two other cases on the same subject while denying his claim. The US Supreme Court will decide whether to accept this case by April 18.

Thursday, April 03, 2014
Ireland: Whistleblower Exposes Faulty Speed Camera Equipment
RTE Prime TimeSpeed cameras around the world have been caught issuing citations to thousands of motorists who were not speeding. A camera in Melbourne, Australia issued $26 million in bogus tickets a decade ago. Just last year, one in ten tickets issued in Baltimore, Maryland was based on a faulty speed reading. On Tuesday, the Irish television network RTE One provided insight into one of the causes of unreliable camera readings in Ireland. The current affairs "Prime Time" interviewed a whistleblowing former employee of GoSafe, a consortium of speed camera providers Redflex Traffic Systems of Australia, Spectra Group of Ireland and Egis Projects of France. The man, who asked to remain anonymous, explained how GoSafe ignored his concern that the speed cameras were being set up improperly. The camera is supposed to be aimed at a precise 22 degree angle toward the targeted vehicle lane. Radar is susceptible to a phenomenon known as the cosine effect which will increase the measured speed if the angle is less than the expected 22 degrees. To prevent that from happening, camera van drivers are supposed to check the angle during setup by aiming the camera at a tripod placed at a distance from the van. Emails obtained by RTE show that the shoddy equipment often made proper setup impossible. Some tripods had levels that were stuck together with zip ties or rubber bands, for example. "Operators have reported issues with setup equipment," one GoSafe manager wrote in a May 20, 2012 email. "They highlighted that these staffs, tripods, etc are required to comply with our setup procedures and are uncomfortable signing documentation stating that they set up as per GoSafe training. We need to look into this ASAP." When weather or other conditions prevent setting up the camera properly, the speed camera van driver is supposed to tell his supervisor who is supposed to tell him to park the van and use it as a visible deterrent without issuing tickets. Instead, the whistleblower's supervisor told him to issue tickets anyway. The supervisor said the tickets would not be mailed, but it turned out they were. The whistleblower filed a grievance, demanding the 30 to 40 people who were unfairly ticketed should receive a refund. He was fired. The Justice spokesman for the Fianna Fail opposition party is calling for an investigation in light of the "Prime Time" findings and his own meetings with the whistleblowers. "The whole integrity of the system was questionable," Niall Collins told RTE One. "What has come out on the videotape is quite shocking in that people are having penalty points applied to their licenses and fines levied against them incorrectly, that's a very serious." Several district court judges have also been throwing out photo radar cases after finding the evidence unpersuasive.

Wednesday, April 02, 2014
Indiana: Officer Testimony Overrules Video Evidence
Indiana Supreme CourtVideotape evidence can be overruled by the testimony and after-the-fact interpretation of a police officer, the Indiana Supreme Court ruled last week. In a 6 to 1 decision, justices overruled the state Court of Appeals which reviewed dashcam footage of Joanna S. Robinson driving her Chrysler PT Cruiser at around 1am on October 15, 2011 in Elkhart County and found no evidence of a crime. Sheriff's Deputy Casey Claeys followed Robinson on County Road 4, and he testified that he saw her "drive off the right side, which was the south side of the road, twice." He conducted a traffic stop which led to her being busted for driving under the influence of alcohol (DUI) after her breathalyzer reading was 0.01 over the legal limit. She also was carrying a small amount of marijuana. The justices, however, only concerned themselves with whether the initial traffic stop was justified. Elkhart Superior Court Judge Charles Carter Wicks concluded that the stop was justified when the case came to trial. "I reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant's vehicle actually left the roadway," Judge Wicks found. "But it does show the vehicle veering on two occasions onto the white fog line." The trial judge found the deputy's experience was more accurate than the videotape, but the appeals court reversed, saying the video showed what appeared to be no more than a driver momentarily distracted. The state Supreme Court concluded the trial judge had it right the first time. "Deputy Claeys, as he drove down County Road 4 on that October night, was observing Robinson's vehicle through the lens of his experience and expertise," Justice Mark S. Massa wrote for the majority. "And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony -- along with the other witness testimony and evidence, including the video -- through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys's testimony more heavily than the video evidence, and we decline Robinson's invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor." In Indiana v. Keck, a companion case decided on the same day, the high court admonished appellate courts not to reweigh evidence that has already been evaluated at trial. "Our trial judges are able to see and hear the witnesses and other evidence first-hand," the justices unanimously held. "But the appellate bench, in a far corner of the upper deck, doesn't provide such a clear view. Remote from the hearing in time and frequently in distance, we review a cold paper record. Thus, unless that record leads us to conclude the trial judge made a clear error in his findings of fact, we will apply the law de novo to the facts as the trial court found them." A copy of the decision is available in a 140k PDF file at the source link below.
Source: PDF File Robinson v. Indiana (Indiana Supreme Court, 3/25/2014)

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Since 1999, Washington, D.C. cameras have issued 4,500,103 tickets worth $312 million (as of 5/30/10).
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