Jim Porter: Challenge your red light camera conviction
March 9, 2012
TAHOE/TRUCKEE andamp;#8212; If youandamp;#8217;ve recently been ticketed for running a red light based on an automatic red light camera mounted at the intersection, have I got the ticket for you. Read on, andamp;#8217;cause I have your Get Out of Jail Free Card.Beverly Hills ViolationAnnette Borzakian ran a red light at the intersection of Beverly Drive and Wilshire Boulevard in Beverly Hills. Her citation read, andamp;#8220;Traffic Notice to Appear andamp;#8212; Automatic Traffic Enforcement System.andamp;#8221; Her citation was based on photographic evidence. She was not pulled over by a Beverly Hills cop.Borzakian appeared in court and objected to the evidence but was found guilty and fined $435. Unlike most of us folks in North Tahoe-Truckee, Beverly Hillsandamp;#8217; drivers have money andamp;#8212; enough to hire fancy Beverly Hills attorneys.Borzakian appealed, alleging the photographic evidence from the red light camera should have been excluded for andamp;#8220;lack of foundationandamp;#8221; and andamp;#8220;hearsay,andamp;#8221; and she cited cases throughout the country overturning convictions based on intersection cameras. She must have hired Perry Mason.Court TestimonyOfficer Butkus, not Dick Butkus, but Mike Butkus, of the Beverly Hills Police Department, presented evidence at the trial. He had 40 hours of training in photo enforcement and presented large photos and records that were kept by the camera company, Redflex Traffic Systems, but on cross-examination he had to admit he did not maintain the records, did not know much about the camera, was not present at the scene and did not control and could not confirm the chain of custody of evidence. Officer Butkus spoke to the judge and to all the motorists in court that morning who had been cited and were fighting red light camera tickets.Officer Butkus testified the records he had been given by the camera company showed the light had been yellow for 3.15 seconds before it turned red and that it had been red for 0.28 second when Borzakian entered the intersection. That doesnandamp;#8217;t seem like a lot of time, but technically she ran a red light. Remember, one of the incentives of red light cameras is the fine money it generates for the municipality (split with the camera company). Critics argue the cameras serve little public safety purpose.AnalysisDespite the obvious red light running, the Court of Appeal reviewed other cases around the country involving red light cameras, including People v. Khaled, which we wrote about a year and a half ago. The Court relied on basic evidence law, finding that Officer Butkus did not qualify as the appropriate witness and did not have the necessary knowledge of the underlying workings, maintenance, or recordkeeping of the Redflex Traffic System. All of that was, andamp;#8220;outside the personal knowledge of the officer.andamp;#8221;Plus, California law requires andamp;#8220;a witness to testify as to the identity of the record and its mode of preparation in every instance.andamp;#8221; Officer Butkus was not able to personally establish the time of the incidence, the method of retrieval of the photographs or even that any of the photographs were a andamp;#8220;reasonable representation of what it is alleged to portray.andamp;#8221; Classic hearsay testimony. Only the photographer could testify as to how he took the photo, not a police officer who was not present and didnandamp;#8217;t know diddly about the incident other than what he was given by the camera company.Get Out of Jail FreeSo thatandamp;#8217;s it for red light cameras in California, unless this case is overturned by the California Supreme Court, which would be unlikely. You red light (camera) runners now have a published Appellate Court decision in your back pocket. When you go to court, tell the judge to read People v. Annette Borzakian, Second Appellate District, and donandamp;#8217;t forget to send me $100. If you have stock in Redflex Traffic Systems, this would be a good time to sell. I understand a class action lawsuit has been filed andamp;#8212; if you are interested.Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmandamp;#8217;s website http://www.portersimon.com.