Articles tagged with: traffic

The Last Word on Red Light Cameras in Missouri

http://www.dreamstime.com/royalty-free-stock-photography-red-color-traffic-light-image16973177      We previously wrote blogs on various red-light traffic ticket ordinances in Missouri and the fact that the Missouri Court of Appeals has ruled that various ordinances are in conflict with Missouri state law.  One such ordinance that was ruled invalid was the City of Ellisville, Missouri’s ordinance.  The Ellisville City Council just decided to end the use of its red-light cameras and will remove their red-light cameras and terminate their contract with American Traffic Solutions.

     Also, based on the rulings by the Missouri Court of Appeals, various other cities whose ordinances have been determined improper and the company that owns and operates the cameras on the traffic lights appealed the decisions of the Missouri Court of Appeals to the Supreme Court of Missouri.  The City of Kansas City and American Traffic Solutions, Inc. sought transfer to the Missouri Supreme Court, but this was denied.  (SC93907).  The City of Creve Coeur also sought to transfer a case to the Missouri Supreme Court, but that also was denied.  (SC93947).  What is interesting is that in September 2013, the Missouri Court of Appeals ruled that the City of Florissant, Missouri’s red-light camera ordinance was valid, and the plaintiffs who were ticketed appealed to the Supreme Court of Missouri; that request for transfer was denied as well.  What this suggests is that the Supreme Court of Missouri does not wish to hear issues related to red-light traffic tickets, although they could decide to review a case that was decided by the Court of Appeals if the case was decided on constitutional issues.

     It should be also noted that the City of St. Louis has always claimed that their ordinance on red-light traffic tickets was valid since it did not claim that “no points were assessed” but left that decision to the Department of Motor Vehicles.  However, St. Louis City Judge Steven Ohmer, recently ruled that the city ordinance was invalid.  See Sarah Tupper, et al. v. City of St. Louis, et al., 1322-CC10008. The order granted a preliminary and permanent injunction prohibiting the city from enforcing the red-light camera ordinance, sending out any notices of violation, processing payments on tickets, or sending collection letters relating to the tickets.  The St. Louis City announced that it would appeal Judge Ohmer’s decision.    We will continue to watch this matter and update our blog as events develop.

#redlightcamera   #missourilaw

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

Is There Really a Loophole in Missouri’s DWI Law?

A recent front-page article in the Post-Dispatch reported on a potential loophole in Missouri’s DWI law.  By way of background, a driver who is ticketed for suspicion of DWI and has a Blood Alcohol Content (“BAC”) of at least 0.08% (more precisely stated as 0.80 grams of alcohol per 210 liters of breath) faces two independent proceedings.  One is the standard DWI criminal prosecution by the prosecuting attorney of the jurisdiction issuing the ticket.  The other falls to the Missouri Department of Revenue (“DOR”) and is a civil administrative proceeding under which one’s driver’s license may be suspended for up to ninety (90) days for driving with an excessive BAC.  [Not addressed in this blog is the outright refusal of a driver to submit to a BAC test which might result in the loss of one’s driving privileges for an entire year.]

http://www.dreamstime.com/royalty-free-stock-images-keys-cuffs-alcohol-image28780349How do you prove that a driver was actually under the influence of alcohol?  There are several ways available to the standard prosecution – erratic driving, field sobriety tests (reciting the alphabet backwards, slurred speech, smell of alcohol, bloodshot eyes, etc.), admissions or statements of the driver or witnesses, and the BAC test.  But the DOR administrative procedure relies exclusively on the BAC test.

 In order to use the BAC test result in either a criminal or administrative hearing, , the prosecutor and the DOR must prove that the test result was “reliable”, and make that showing by proof that it was administered in strict compliance with the standards adopted by the Missouri Division of Health and Senior Services (“DHSS”).  The DHSS has promulgated a 141 page BAC operator manual.  One of those standards is that the BAC machine must be calibrated at least every 35 days.  In the past, the State only had to show that the machine had been calibrated to either 0.10%, 0.08% or 0.04%.  But on November 30, 2012 the DHSS published a new rule (apparently by mistake or simply not having thought through the consequences discussed here) that provided the machine should be calibrated to the 0.10%, 0.08% and 0.04% levels.

 Now DWI defense attorneys are having a field day challenging the admissibility of BAC test results unless the machine was tested at all three levels.  Consequently, most judges across the state are throwing out the BAC tests.  The result of this is that the DOR is losing most of its administrative revocation cases. 

 The ultimate impact, if any, on criminal prosecutions is yet to unfold.  As noted, in a criminal prosecution the State will elicit testimony from the arresting officer who can be relied upon to testify that the driver drove carelessly, smelled of alcohol, stumbled, mumbled and could not recite the alphabet.  This testimony is usually supplemented with videos from the patrol car’s dash camera showing the field sobriety testing and from the booking process at the police station.  The defendant’s actions and conduct are often enough to show a jury that he should not have been behind the wheel.  So, even without the BAC results a jury can usually find that there is sufficient other evidence to convince them that the defendant was guilty of DWI.  But some jurors may wonder why the State has not introduced the BAC results and conclude that, perhaps, the test results were not above the legal limit and acquit the defendant.

 The DHSS purports to have corrected this rule on January 29, 2014, so now the rule clearly requires that the BAC machine only be tested at one of the three levels – just like the former rule was written.  See 19 CSR 25-30.051.  However, the new (old) rule may also be subject to challenge because the DHSS adopted the change as an emergency rule, and that process may not have been appropriate.  [That is well beyond the topic of this blog.]

A large number of questions still exist.  For instance, is the BAC test thrown out if the arrest occurred during the “and” period but the trial is held when the “or” rule is in effect?  What if the arrest occurred during the former “or” period, e.g. October 30, 2012, and the trial was held during the “and” period, e.g. October 30, 2013?  Maybe these questions will never be answered by the courts, but they underscore the importance of attention to detail when a state agency is drafting rules that control the admissibility of important evidence.

 We will continue to monitor this development and update our blog when we have more information.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

#DWI  #missourilaw   #DWIlaw   #BAC

KANSAS CITY IS THE LATEST CITY TO SEE THEIR RED-LIGHT CAMERA ORDINANCE VOIDED

     In our most recent article, we commented upon Missouri’s inconsistent red-light camera rulings.  In Edwards, et al. v. City of Ellisville and American Traffic Solutions, Inc., ED99389 (2013), the Missouri Court of Appeals for the Eastern District handed down a ruling invalidating the “red-light camera” ordinance of the municipality of Ellisville, Missouri.  More recently, the Missouri Court of Appeals for the Western District has held that a similar Kansas City ordinance is likewise void and unenforceable because it “permits what state law prohibits – the classification of running a red light as a non-moving violation free from the assessment of points.”  The case is Damon, et al. v. City of Kansas City and American Traffic Solutions, Inc., WD75363 (2013). Red-Light Camera Ordinance Voided            Kansas City’s municipal government had been planning to amend its ordinance after the Ellisville ruling, but now those plans are on hold.  For the time being, Kansas City will not issue any “red-light camera” tickets, pending a clarification of the applicable law.  The City hopes the Supreme Court of Missouri will clear up the confusion.  Interestingly, however, Kansas City is still taking pictures of vehicles that run red lights in the hope their ordinance will ultimately be reinstated, after which they may try to go back and issue tickets to individuals who ran a red light.  If the Kansas City ordinance is found to be valid as written, then perhaps they can legitimately issue tickets later (a ticket is essentially a criminal “charge”, for which there are applicable statutes of limitations by which such a charge must be issued, and do not require them to necessarily be issued at the exact time of the offense). However, we believe that if the ordinance is held to be invalid (as decided under the Western District’s appellate ruling) but is subsequently “corrected” to comply with whatever guidance the Missouri Supreme Court may offer, drivers could not be ticketed for any violations occurring in the interim.  

            The Kansas City case is more interesting because of an issue not present in the Ellisville case – the plaintiffs in the Damon case claimed that American Traffic Solutions (“ATS”) had actually received a legal opinion, in advance, that the ticketing plan was “illegal” under Missouri law.  Consequently, the appeals court left standing a request for reimbursement of fines that had already been paid (plus a “convenience fee” charged by ATS) by prior-ticketed motorists (or, at least, the vehicles’ owners).  The claim is the City and ATS were unjustly enriched by participating in a scheme they had reason to believe was illegal.  This fits nicely with other claims by the plaintiffs that the City had adopted the red light camera ordinance only to raise money and that red-light cameras are proven to cause, not prevent, accidents.  It is also interesting to note that the law firm which had earlier opined that the plan was “illegal” continued to represent ATS throughout the ensuing litigation.

            We are aware of only one situation in the country where drivers who had paid red-light camera tickets actually received refunds.  The City of Minneapolis, Minnesota adopted a red-light camera ordinance and collected fines for about two years before the ordinance was found to be invalid by the Minnesota Supreme Court in State v. Kuhlman, 729 NW2d 577 (Minn. 2007).  A class action lawsuit was pursued in federal court for refunds, and a settlement was reached that ended up costing Minneapolis approximately $2.6 million paid to more than 14,000 drivers.  See, Shapira, et al. v. The City of Minneapolis, Case No. 06-CV-02190- MJD-SRN, United States District Court, District of Minnesota.  

            It remains to be seen how red-light camera ordinances and applications will be evaluated by not only the Missouri Supreme Court but the judiciary in other states. We think that red-light cameras are probably here to stay, whether for security, surveillance, the claim of “safety” or just to generate local revenue…but not without a fight in most instances.

#redlighttickets  #trafficviolations   #redlightcamera    #Americantrafficsolutions

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Tightened Illinois Traffic Rules and Speeding Penalties

http://www.dreamstime.com/royalty-free-stock-image-traffic-cop-talking-driver-sports-car-image29660066If you ever received a speeding ticket in Illinois, you may have been sentenced to “court supervision”, which is a form of probation.  In Illinois, the court has the discretion, upon a plea or finding of guilty, to defer further proceedings and the imposition of a sentence, and enter an order for supervision. 730 ILCS 5/5-6-1(c).  In particular, in cases involving a charge of speeding, courts were permitted to grant court supervision as a probationary penalty to drivers who were caught driving up to 40 mph over the limit. However, Senate Bill 2888, known as “Julie’s Law”s, seeks to limit the court’s discretion by prohibiting any judge from ordering supervision to drivers charged with speeding more than 25 mph over the posted speed limit in an urban district, or more than 30 mph on the highway

Julie’s Law is an effort to keep repeat speeding offenders from getting a “slap on the wrist.” The law was named in honor of the late 17-year-old Julie Gorczynski, who was killed when a car speeding at 76 mph in a 40 mph zone struck the passenger side of her friend’s Jeep.  The speeding driver had received multiple prior speeding tickets, but many had resulted in “supervision”, instead of convictions. Supporters of Julie’s Law (especially her family) felt that the courts have been too lenient on drivers with previous speeding violations and that Julie’s death could have been prevented by stricter laws.

Several other new traffic laws in Illinois were signed by Governor Pat Quinn, including several related to cell phone usage on the roadways.  One bill (SB2488) prohibits the use of cell phones at any time while driving on any section of highway that is undergoing a construction or maintenance project. Additionally, HB5105 expanded the ban on hand-held cell phone usage and texting to commercial drivers, except when necessary for the driver to communicate with law enforcement officials or other emergency services.

HB5099 prohibits any driver from using a cell phone within 500 feet of an emergency scene except for specific exempt purposes. An “emergency scene” is now defined as a location where an authorized emergency vehicle is present and has activated its oscillating, rotating, or flashing lights.  In addition to restricting the use of a hand-held cell phone for verbal communication, drivers are also restricted from sending “electronic messages” (e-mail messages, text messages, instant messages, and digital photographs, videos, or command access to the Internet).

While more than 70 local governments in Illinois ban the use of hand-held cell phones while driving, Illinois state law does not currently prohibit cell phones while driving. But that could soon change. Legislators recently sent HB1247 to Governor Quinn, which would enact a statewide ban on drivers from using hand-held cell phones.  If Quinn signs the bill, Illinois will join the ranks of the eleven other states — California, Connecticut, Delaware, Hawaii, Maryland, Nevada, New Jersey, New York, Oregon, Washington, and West Virginia — that broadly ban the use of hand-held electronic devices while driving.

The bottom line in Illinois – put down that phone and watch your speed!

#Julieslaw  #Speedingticket   #Illinoislaw

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

IS THAT REALLY A POLICE CAR?

No matter where you are, the sight of flashing red and blue lights in your rearview mirror will make your heart race a bit faster. But what if you see those lights and the car is not marked in any way, or does not look like a typical police car?

IS THAT REALLY A POLICE CAR?

Many people, especially women, are taught not to stop if an unmarked car is trying to pull them over – at least not until you can do so in a well-populated or busy area. This suggestion is further advanced by a “story” currently making the rounds on Facebook and other social media sites about a woman being flagged over by a purportedly “unmarked” police car with flashing lights, who smartly dials “112” on her cell phone, putting her in touch with a police dispatcher who tells her that they have no cars in her area. She keeps driving and is finally saved when the real police show up and surround a would-be assailant pretending to be a police officer. While that particular story, and its common variations, may be just urban legend (especially the suggestion that dialing “112” will actually put you in touch with a dispatcher, which is not accurate), there are certainly stories of individuals who have attempted to impersonate police vehicles with light bars or other devices, and attacking people (especially women) who dutifully and automatically pull over at the sight of those lights. So the question remains, what should you do if that situation should arise? And what are the implications if you do NOT pull over and the vehicle is an actual police officer with a legitimate reason to stop you?

One consideration is that “failure to yield” to a police officer, or failure to obey the lawful direction of a police officer is generally a crime (or at the very least, a traffic offense) in most states, and can lead to fines and points or other impact upon one’s driver’s license. Would an actual police officer be understanding of an explanation about your fear of his unmarked vehicle? Will he give you a ticket even though you explain that you were taught by your parents not to pull over for an unmarked “police car”? When personal safety is at issue, and you can’t be completely sure of the motives or legitimacy of a car flashing what appear to be emergency vehicle lights at you, start by turning on your own emergency flashers, so that the “officer” knows you are aware of his presence and aren’t avoiding him. Try to pull over in a well-populated area if possible, or at least in a well-lighted area or a business parking lot. If you aren’t near a well-populated and well-lit spot, or otherwise still question the legitimacy of the vehicle, dial 911 on your cell phone and advise the dispatcher of your location, and that you are being pulled over by a car you cannot identify as an actual police car. At the very least, if it turns out to be an actual police officer decides to give you a ticket for “failure to yield” to him, you will have a timed and documented (911 recording) explanation of your rationale for not immediately doing so, which you or your attorney will likely be able to use to get such a charge thrown out.

Remember, while the odds are that those flashing lights in your rearview mirror is an actual police officer, if the vehicle does not look like a police car, don’t hesitate to think about your safety first.

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.