Below is part of a “Trial by Declaration” response to a California robot camera ticket. This was successful. But it took a year before I got my bail money returned.
I. THE “NOTICE OF TRAFFIC VIOLATION” HEREIN IS INVALID
A. IMPERMISSIBLE DELAY OF FIVE DAYS FROM TIME OF
ALLEGED INFRACTION UNTIL CITATION IS ISSUED
In Jackson v. Superior Court (1950) 98 Cal.App.2d 183, the following
principle is set forth:
“. . . to the right to arrest without warrant the law attaches the
following conditions: The arrest must be made at the time the offense or any part of the offense is being committed or within a reasonable time thereafter or upon fresh and immediate pursuit of the offender.
(6 C.J.S. 590.)”.
In the instant case, the citation was not issued at the time of the alleged
offense, nor within a reasonable time thereafter, nor “upon pursuit”. In the instant case, there were five days from the date of the alleged offense (8-8-2013) until the date of the citation (8-13-2013).
Five days is far too long. In the Jackson case the officer’s arrest for misdemeanor [footnote 1: 1 Penal Code Section 19.7 incorporates into infraction procedure all constitutional procedural protections applicable to misdemeanor procedure.] committed in his
presence 28 hours earlier was held to be not lawful.
Jackson cites a case where “ . . . some five hours having elapsed . . . during which the defendant [officer] was not about anything connected with the arrest, the court was right in its instruction that there was no authority to arrest for that occurrence.”
Jackson cites the California Supreme Court in People v. Craig, 152 Cal. 42, 47,
“It seems to be generally held that an arrest for a misdemeanor without a warrant cannot be justified if made after the occasion has passed though committed in the presence of the arresting officer.” In the instant case, not only had the occasion passed five days before, but it was not even “in the presence” of the officer.
B. THE ARRESTING OFFICER ADMITS THAT THE ALLEGED
INFRACTION WAS NOT COMMITTED “IN HIS PRESENCE”
Please see def’s declaration above at para 2. Officer Butkus admits . .
”Violation was not committed in my presence. . .”
C. CALIFORNIA LAW REQUIRES THAT THE ARRESTING OFFICER
BE “IN THE PRESENCE” OF THE ALLEGED INFRACTION
Penal Code section 836, subdivision (1) authorizes warrantless
misdemeanor arrests only when there is reasonable cause to believe an
offense has been committed in the officer’s presence. “In the presence,” is
defined as follows:
“In the presence” is commonly interpreted to refer to having personal knowledge that the offense in question has been committed, made known to the officer through any of the officer’s five senses. (See People v. Burgess (1947) 79 Cal.App.2nd 174, 176.)
Officer Butkus issued his citation on 8-13-2013. He admittedly did not
witness the alleged infraction. So how did defendant receive an earlier 8-8
Notice? Apparently the robot camera made the decision to arrest defendant
– a decision that was only later affirmed by Officer Butkus.
D. IMPORTANCE OF THE JACKSON PRINCIPLE
FOR PUBLIC SAFETY AND TO PREVENT CORRUPTION
Jackson cites a case which expresses the gist of the principle:
“. . . The power to arrest without warrant, while it may in some cases be useful to the public, is dangerous to the citizen, for it may be perverted to purpose of private malice or revenge, and it ought not, therefore, to be enlarged.”
Today’s reliance on robot camera technology for making an arrest leads to
dangers far greater than this. Instead of “private malice or revenge”
(impacting individuals) – here the entire paradigm of law enforcement is
perverted on a large scale – affecting every driver.
Under Jackson, a police officer – a human who is sworn to uphold the law
– witnesses a possible infraction “in his presence”. His human sense of
justice and his human ability to judge the event – in the context of public
safety – operate to determine his decision to pursue that offender – without
pause. In Beverly Hills, however, it is the programmer of the traffic camera
who makes these judgments.
Apparently, the cameras are owned and operated by a private contractor
that gets a percentage of the fines levied. The more tickets the cameras
issue, the more money the contractor and the city will receive. The
contractor has no interest in streets becoming safer. It’s in the contractor’s
best interest to issue as many tickets as possible. This is obviously a
conflict of interest.
In fact, it appears that the traffic cameras actually cause more accidents
than they prevent. This is the subject of scholarly journal articles as well as
articles in the media. For example, a vivid description of how the traffic cameras
are, themselves, a safety hazard is provided by “Note, Speeding towards Disaster:
How Cleveland’s Traffic Cameras Violate the Ohio Constitution”, 55 Clev. St. L. Rev.
607 (2007), p. 608:
“Driving to see her boyfriend one clear October day, Carla Correa approached a Baltimore intersection in her Honda Civic. As she approached, the light turned yellow, and Correa quickly slammed on her brakes. Moments later, a large truck rear-ended her, completely wrecking her Civic. Why would Correa choose to stop so quickly instead of simply coasting through the yellow light? The answer lies in a tiny box perched on a post above the intersection. Inside the box is the dark omnipresent lens of a red-light camera, watching over the intersection like the proverbial “Big Brother.”” Correa explained that the intersection had a “quick yellow light” and “when [she] saw the
yellow, [she] freaked out.” She stated, ““Everytime I see the red
light camera, I’m terrified by it.”
It appears that attitudes and fears like Ms. Correa’s are prevalent among the nation’s drivers. A Washington Post study reported that the amount of traffic accidents increased at red-light intersections in the nation’s capital. The study also found that crashes resulting in injuries and fatalities had increased by 81% after installing red-light cameras at an intersection. Although camera proponents tout their safety benefits, the real purpose is often revenue based. When a municipality chooses to issue tickets with the goal of generating revenue, what stops municipalities and the companies they contract with from issuing as many tickets as possible without safeguarding the rights of citizens? . . .’ .”
An October 27, 2011 study by the US PIRG Education Fund titled CAUTION: RED LIGHT CAMERAS AHEAD, found that
“Privatized traffic enforcement system contracts that limit government discretion to set and enforce traffic regulations put the public at risk.”
The study goes on to say the following:
“For example: Yellow Light Duration. When traffic engineers lengthen a yellow signal, it gives drivers more time to react to the signal change, which tends to reduce the number of red-light violations. However, some contracts, including those in the California cities of Bell Gardens, Citrus Heights, Corona and Hawthorne, potentially impose financial penalties on the city if traffic engineers extend the length of the yellow light at intersections with red-light cameras, which would reduce the number of tickets the systems can issue.”
Right on Red Enforcement.
Law enforcement agencies in different cities choose which types of violations to prioritize in the name of public safety, including whether or not to ticket motorists who make a “rolling stop” rather than a complete stop behind the line before turning right on a red light. However, some contracts require municipalities to strictly issue tickets on all right turns that do not first come to a complete stop, or enable vendors to impose financial penalties on cities that choose to alter their enforcement standards including the contracts that Ventura and Napa Valley, California have with camera vendor Redflex.
Instead of assisting law enforcement with its work, the camera technology
involves private profit motive instead of public safety. This species of
corruption leads to more blatant corruption.
Consider the March 2, 2013, Chicago Tribune article by reporter David Kidwell, entitled “Red light camera firm admits it likely bribed Chicago official,” which states the following:
“Chicago’s embattled red light camera firm went to City Hall on Friday in its latest effort to come clean, acknowledging for the first time that its entire program here was likely built on a $2 million bribery scheme. By its sheer size, the alleged plot would rank among the largest in the annals of Chicago corruption.”
Therefore – from the point of view of both public safety and municipal integrity – it is important that the rule of Jackson should not be enlarged.
In People v. Superior Court of Los Angeles County, 7 Cal. 3d 186 (1972) the California Supreme Court discussed the precise moment when a peace officer “arrests” a motorist for committing an infraction:
“The second preliminary matter we must consider is the precise point in time at which a traffic violator is “arrested.” A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place (see People v. Griffith (1971) supra, 19 Cal. App. 3d 948, 950-951, and cases cited), and the temporary restraint of the suspect’s movements incident to that investigation will not ordinarily be deemed an arrest. But when the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court (Veh. Code,  40500-40504), an “arrest” takes place at least in the technical sense: “The detention which results [during the citation process] is ordinarily brief, and the conditions of restraint are minimal. Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest. [Citations.] Some courts have been reluctant to use the term ‘arrest’ to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations]. The Vehicle Code, however, refers to the person awaiting citation as ‘the arrested person.’ Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution. The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear.” (Fns. omitted.) (People v. Hubbard (1970) 9 Cal. App. 3d 827, 833 [88 Cal. Rptr. 411].)”.
And, the April 25,1997 Opinion of the California Attorney General (no. 96-1201) rules that
” . . . a peace officer “shall” issue a notice to appear in court to a motorist who commits an infraction if the person “is not immediately taken before a magistrate, as provided in this chapter [§§ 40300-40618].”.”. (citing Cal Veh Code Section 40500, subdivision (a))..
The opinion then analyzes the question ” . . . whether a peace officer may take a motorist into custody if the person refuses to sign the notice to appear in court.” and concludes that “. . . the person must be taken into custody” (emphasis added).
“A motorist charged with committing an infraction is under arrest while the peace officer is in
the process of issuing the notice to appear in court.. . . The signing of the notice to appear is the means for securing the motorist’s release from arrest. Section 40504, subdivision (a) provides: “The officer shall deliver one copy of the notice to appear to the arrested person and the arrested person in order to secure release must give his or her written promise to appear in court or before a person authorized to receive a deposit of bail . . . .”
Hence, a person is not subject to arrest for refusing to sign the notice to appear; the arrest has already occurred. A person who does not sign the promise to appear must be taken into custody and brought before a magistrate. As previously quoted, subdivision (b) of section 40302 requires that the “person shall be taken without unnecessary delay before a magistrate” if “the person arrested refuses to give his written promise to appear in court.” In People v. Blazina (1976) 55 Cal.App.3d Supp. 35, 37, the court declared:
“If the defendant refuses to sign the notice to appear, he must be taken into custody and brought before a magistrate without delay. A notice to appear is only furnished to the defendant when and if he agrees to appear by affixing his signature.””
In the case of camera traffic tickets, this required procedure is obviously not followed.