Article from: www.thenewspaper.com/news/36/3673.asp
12/26/2011Ohio: Appellate Judge Blasts Judiciary Over Speed Cameras
Respected Ohio appellate judge argues the courts has failed in its duty to ensure speed cameras are reliable.
An Ohio Court of Appeals judge blasted his colleagues Thursday for accepting at face value the accuracy claims of speed camera and red light camera advocates. Judge Sean C. Gallagher used a non-controversial photo enforcement case involving the city of Parma to question why his colleagues refuse to impose the same legal standards on ticketing technology that they impose on breathalyzer machines in drunk driving cases.
"Often, as here, there is a presumption that everything works and is reliable," Judge Gallagher wrote in a concurring opinion. "Unlike OVI enforcement, automated speed technology is not subjected to any independent review prior to implementation. Apparently, in this case no independent judicial review of the information contained in the 'Statement of Technology' covering the reliability of this technology or the equipment occurred. Further, no administrative agency of the local government 'vetted' this technology or the equipment to ascertain its reliability. The city of Parma entered into a contract with a private vendor, and inherent in this contract is the presumption that the science, the equipment, and the operator are apparently infallible."
Parma's city ordinance makes reference to the fact that tickets are only valid if the camera is "operating properly," but it provides no standards or definitions of what this means. As a result, vehicle owners are, in effect, automatically convicted by the camera.
"If the equipment is turned on and gives a result that the operator can explain, the motorist is liable," Judge Gallagher wrote.
Gallagher argued that since the legislature has not set any guidelines, it falls to the judiciary to ensure justice is done by establishing standards for speed cameras and red light cameras.
"At some point courts cannot abdicate their responsibility to independently determine what evidence is admissible based on some objective standards of reliability," Judge Gallagher concluded. "In any event, I concur fully with the majority opinion and discuss admissibility and reliability concerns so that they may be more fully explored at a later date."
The court majority found motorist Kenneth Demsey guilty of driving 35 MPH in a 20 MPH zone on January 29, 2010. At trial, Demsey argued that Parma's private ticketing vendor, Redflex Traffic Systems of Australia, did not have proper permission to set up a photo radar trap on church property.
"Without God's permission, the city had no right to be there and the ticket is void," Demsey said.
The majority opinion dismissed this argument by pointing to the Ohio Supreme Court's 2008 decision authorizing localities to install photo enforcement programs without the authorization of the state legislature (view ruling).
Judge Gallagher is well regarded by his colleagues. Last year, Ohio Supreme Court Chief Justice Eric Brown tapped Gallagher to fill in for him when he recused himself for a case. He is the past president of the Northern Ohio Municipal Judges Association, instructor for the Supreme Court's Judicial College, and member of the Supreme Court Rules Advisory Committee.
A copy of the decision is available in a 60k PDF at the source link below.
Source: Parma v. Demsey (Court of Appeals, State of Ohio, 12/22/2011)
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