Picture this! And take that!
By A.J. Wagner
I have long advocated that the use of speed and red light cameras is unconstitutional as they are currently configured in Dayton. This past week, a court in Cincinnati agreed with my assessment when it issued a permanent order against the Village of Elmwood. What follows are excerpts of the judge’s opinion.
The Village Counsel of Elmwood Place, a small village located in Hamilton County, Ohio passed ordinance 9-12 (The Ordinance). This ordinance created The Automated Speed Enforcement Program. The ordinance provides that the “owner of a vehicle shall be liable for a penalty imposed for speeding.” The ordinance assumes that the owner of the motor vehicle was operating the vehicle at the time of the offense.
The Village of Elmwood Place entered into a service agreement with Optotraffic, LLC (service agreement), Optotraffic is a Maryland for-profit corporation that provides automated speed and traffic enforcement systems to local governments.
In exchange for providing this service to Elmwood Place, Optotraffic receives 40 percent of all revenues resulting from payments of citations and related fees.
The owner of a vehicle subject to enforcement action receives a notice of liability. The notice of liability is a civil, not a criminal, proceeding.
The civil penalty is $105.00 and it does not involve points on a driver’s license or on a driver’s record. The fine is enforced like civil judgments. Elmwood Place stated that it may use collection services, report non-payment to credit agencies and deprive owners of their vehicles.
Elmwood’s Automated Speed Enforcement Program is capable of generating approximately $362,250 per month.
Individuals and businesses in Elmwood Place have suffered damages as a result of the operation of the Automated Speed Enforcement Program. Businesses have lost customers who now refuse to drive through Elmwood. Churches have lost members who are frightened to come to Elmwood and individuals who have received notices were harmed because they were unable to defend themselves against the charges brought against them.
The plaintiffs assert that the ordinance violates the Ohio Constitution. The Constitution of the State of Ohio guarantees that every person injured in his lands, goods or personal reputation shall have remedy by “due course of law.” In other words, a person facing civil penalties must be afforded the opportunity to defend, enforce or protect their rights through presentation of their own evidence, confrontation and cross-examination of adverse witnesses and oral argument.
The court finds that the ordinance fails to provide due process guaranteed to any person receiving a notice of liability from The Village of Elmwood Place.
If the owner of the vehicle wants to contest the liability, he or she must pay $25 to the Village of Elmwood and request a hearing before a hearing officer and there is no assurance that the fee will be returned if the appeal is successful. However, the hearing is nothing more than a sham!
The so-called witness for Elmwood Place testifies from a report produced by the company that owns the speed-monitoring unit. This witness has no personal knowledge of the speeding violation and, therefore, their testimony is based solely on hearsay. The accused motorist has no ability to cross-examine the witness because the witness was not present when the violation occurred. There is no opportunity to obtain any discovery about the device or to subpoena any witnesses that may have knowledge of the device. In fact, the device is calibrated once a year; even though it may have been subjected to 12 months of varying amounts of rain, snow, sun, storms, ice, wind and lightning. Moreover, the device was not calibrated by a certified police officer, but rather it was calibrated by Optotraffic – the corporation that owns the device. Remember, Optotraffic has a financial stake in this game. I used the term “game” because Elmwood Place is engaged in nothing more than a high-tech game of three-card Monty. It is a scam that the motorists can’t win. The entire case against the motorist is stacked because the speed monitoring device is calibrated and controlled by Optotraffic. Remember, Optotraffic had already received approximately $500,000 at the time of the January 2013 hearing before this court.
To compound this total disregard for due process, Elmwood Place has another scheme up its sleeve. If a motorist tries to convince a hearing officer that he or she was not the driver of the offending vehicle, the ordinance requires that the owner making such a claim provide the name and address of the driver of the vehicle. If the driver was the owner’s spouse, the ordinance requires the owner to testify against his or her spouse, in violation of the spousal immunity statute Revised Code 2917.02 (D).
A permanent injunction is granted to the Plaintiffs prohibiting further enforcement of the ordinance, by the Defendants.
– Judge Robert P. Ruehlman, Hamilton County, Ohio Court of Common Pleas
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.