Wednesday, September 24, 2014

Will Montgomery County Seek To Reinstate "Squealer Provision"?

We previously reported that the court has ruled it is an explicitly permitted defense under Maryland law if the recipient of a speed camera ticket ticket is not the driver, and moreover that this does not require the person to identify and incriminate the person who was driving.  The language on citations implies to ticket recipients that the only option is to "transfer liability" which applies "If you, as the registered owner, were not operating the vehicle at the time of this infraction and you choose to identify the person who was".  The circuit court ruled that a change made to the law in 2009 deleted the requirement to identify the driver, and district court judges in Montgomery County have upheld this twice since then.

However Montgomery County has refused to change the language which appears on their citations.  Furthermore, the head of Montgomery County's speed camera program has indicated that the believe that the specifically authorized affirmative defense is a "loophole" created by an ill informed legislature, and raised the possibility that Montgomery County could seek to negate the court decision in the future by restoring to state law the requirement to incriminate another person in order to exonerate yourself.

The reply was in response to a letter from a member of the National Motorists Association (a national motorist rights organization) to Captain Tom Didone (the head of Montgomery County's speed camera program), who was confronting the county about the issue of language about "transfer of liability" on a sample affidavit on their website, and discussed the paragraph which was deleted from the law in 2009.  Captain Didone replied in an email dated August 26th, regarding his feelings that the defense, which the Circuit Court had already ruled on, was not the intent of state law:
"I believe that there is no harm in mentioning that people can always choose to identify the driver if they want to.  This requirement was initially included into the law because the law requires rear photography only so that the driver’s identity could not be told.  The fundamental concept that was understood was that the owner was responsible for his or her vehicle unless otherwise notified.

The Legislature removed the paragraph and created the loophole in the law in 2009 (when I was not assigned her in Traffic and not able to provide testimony).  It is a loophole that you are working to promote and advertize and not the intent of the law.

Time will tell if the Legislature will close the loophole once they receive the appropriate information..

Captain Didone has testified before legislative committees in opposition to positions held by the Maryland Drivers Alliance, at the expense of Montgomery County taxpayers, in each of the past three years.

Captain Didone continued his explanation in a follow-up email dated  August 27, 2014 to indicate his view that the 2009 change to the law was somehow invalid because he was not personally involved in its writing.
"When the General Assembly revised the law in 2009, they removed the paragraph that required the owner to identify the driver, if they wished to transfer the liability.  This provision was a mandate in the law that passed the 2006 General Assembly when Montgomery County was authorized to operate the first speed cameras in the State. This is why I used the phrase “Loophole” because by removing the paragraph, an issue was created that was not previously experienced. Last year, when I worked on the Speed Camera Reform legislation workgroup, I was informed by staff that legislators voted to remove the “Squealer provision” as it was referred to when they revised the law in 2009.  It is my personal opinion that the legislators took this action without being fully informed of the consequences because they did not have the same workgroups as they did last year.  The “loophole” issue was not in the forefront of our minds so the matter was not raised in last year’s work group. The County has not decided if we are going to take this matter forward with the General Assembly.  The provision has not had a significant impact on our ability to change behavior and most owners are accepting responsibility for their vehicles.  If this changes, I hope that the County would work to address the issue."
The County Executive and members of the County Council had been copied on these emails, but did not respond.

These emails were forwarded to the Maryland Drivers Allaince, and the chairman of The Maryland Drivers Alliance replied to Didone's email by asking him about the "work group" he participated in.  In that reply we asked for the agendas, minutes and participants of the "speed camera reform work group" under the Open Meetings Act.  Didone did not respond.  An amendment to Maryland's speed camera law was passed in 2014 based primarily on input from local governments, and was drafted by an apparently "secret" legislative workgroup.  The Maryland Drivers Alliance has so far been unable to find any public notices for the meetings of the "workgroup" which wrote it or a list of participants.

Despite Didone's opinion on the Court's decision and the intent of slate law, the fact that legislators referred to the deleted requirement as a "Squealer Provision" seems to indicate that lawmakers knew precisely what the effect of the previous requirement was, and that deleting it removed the requirement to incriminate another person,  In other words it seems to support that the legislative intent was to remove the obligation to name the driver.

County Executive Ike Leggett
Elected Officials are the ones who set county policy
Since Didone's response indicated that the county MIGHT seek to restore the "Squealer Provision" in the future, we asked the County Executive and County council their position by email on whether they would seek to restore the requirement.  We additionally asked the county council and county executive their position on the county holding secret meetings, such as the Speed Camera Symposium which Captain Tom Didone banned critics of speed cameras from observing last year, and asked whether they .  Neither the County Executive nor any member of the County Council responded to our questions.

The Chairman of the Maryland Drivers Alliance identified himself as a resident of Council President Craig Rice's district, and specifically asked Council President Craig Rice:
- Will Montgomery County ask the state legislature restore the "Squealer Provision" to Maryland's law as Didone has suggested? 
Montgomery County Council President Craig Rice
Elected Officials are the ones who set county policy
- Do you believe that Montgomery County Speed Camera Citations and the Montgomery County Safe Speed website should be modified to correctly state that it is a defense under Maryland law if you were not driving and that there is no requirement to identify the driver?
- Do you believe it is acceptable for the Safe Speed program to organize secret meetings like last year's "Speed camera symposium," which exclude th public and the press at the absolute discretion of county employees, or to be involved in secret legislative meetings like this "speed camera work group" ?
- Are you willing to support legislation requiring the county to disclose all taxpayer funded lobbying conducted by county employees?

Craig Rice did not respond to any of our questions.

Craig Rice has had his own issues with traffic tickets in the Past.  Last year it was reported that Rice had run up over a thousand dollars in unpaid parking and traffic ticket fines in DC and Maryland, Those tickets were paid shortly after Mr Rice was contacted about them by the press.

Since the incumbent elected officials will not answer questions, the public is left to wonder whether they will use taxpayer resources to lobby for limiting the People's legal rights in the future in secret legislative meetings.  We are also left wondering whether elected officials in Montgomery County would ever be willing to reveal to the public that their tax dollars are being used to lobby for legislative changs which some taxpayers oppose.

Tuesday, September 23, 2014

National Camera News: Cameras Slammed in New Jersey, Ohio

The new Jersey Senate Transportation Committee has approved a measure to block the enforcement of out of state photo tickets.  According to TheNewspaper.Com:
The panel on Tuesday unanimously approved a measure modeled after a South Dakota law that would immunize the state's residents from photo enforcement tickets issued by other jurisdictions.
The measure, championed by state Assemblyman Declan J. O'Scanlon Jr (R-Monmouth), forbids the state Motor Vehicle Commission from cooperating with NLETS, the interstate motor vehicle information network that red light camera and speed camera companies use to look up the license plate and registration information on out-of-state drivers. Without this information, the ticket cannot be mailed.
The ban would presumably prevent Maryland speed and red light camera citations from being enforced for New Jersey drivers.

In addition, New Jersey Governor Chris Christie has said that he may not renew the state's own red light camera law, which is set to expire this December.  According to

Red light cameras in New Jersey will almost certainly go dark before Christmas. Governor Chris Christie (R) on Thursday said that he was unlikely to support renewal of the program that expires December 16, and his approval is necessary. Christie appeared on New Jersey 101.5 radio's "Ask the Governor" program to deliver the message to state lawmakers that it would not be worth their time to put a reauthorization measure on his desk.
"I have real concerns about it and my inclinations are against continuing that program," Christie said in response to a caller's question. "I will tell you my gut feel on this is, Greg, that I don't favor it."
For the red light cameras to continue after December 16, a majority in the state Assembly and state Senate must send legislation providing for an extension to Christie for his signature. Such a bill has not been introduced and would have a tough time clearing the state Senate Transportation committee which unanimously voted last week to prohibit other states from mailing photo tickets to New Jersey residents. The only outspoken voice in favor of cameras is Assembly Transportation Committee Chairman John S. Wisniewski (D-Parlin), a potential 2017 candidate for governor, who has proposed to let small towns install speed cameras. Christie quickly shot that idea down.
"If my inclination is against continuing that [red light camera] program, I'm certainly not inclined to start a new one [with speed cameras]."
In Ohio, the State Supreme Court ordered the Municipality of Maple Heights to place a measure which would ban speed and red light cameras on the ballot, denying an effort by the municipality to block the vote.
"Whether council delayed passage of an ordinance deliberately or negligently is not relevant," the court wrote. "The Maple Heights City Council received verification of the signatures more than two weeks before the constitutional deadline of September 5 and conducted two regular council meetings in the interim. Its failure to enact an ordinance at the second meeting fell well short of acting 'forthwith.'"
The town had tried to block the referendum vote.  An internal memo from the City's law director stated how important the cameras were to the town budget"As discussed at the numerous budget hearings, the photo monitoring devices are an integral part of our recovery plan submitted to the state for approval," "Federal, state and county cuts have crippled the city in addition to the real estate market crash... The mayor and council have decided what is in the best interest of its citizens." 

Maple Heights signed a speed camera contract with Maryland-based contractor Optotraffic in June of 2014.

Sunday, September 21, 2014

Gubernatorial Candidate Urges Motorists to Vote For Question One

This November, in addition to voting for candidates for the state legislate and for governor, voters will have the opportunity to vote on a ballot question to create an amendment to the state constitution which would limit the legislature's ability to divert money from the Transportation Trust Fund.

Question 1 will be worded on ballots as follows:
Limits the use of Transportation Trust Funds to the payment of principal and interest on transportation bonds and for constructing and maintaining an adequate highway system or any other transportation-related purpose. Also prohibits the transfer of Transportation Trust Funds into the General Fund or a special fund of the State, except for: (1) an allocation or use of highway user revenues for local governments or (2) a transfer of funds to the Maryland Transportation Authority or the Maryland Transportation Authority Fund. Transportation Trust Funds may be used for non-transportation related purposes or transferred to the general fund or a special fund only if the Governor declares a fiscal emergency and the General Assembly approves legislation, by a three fifths vote of both houses, concurring with the use or transfer of the funds.
While the proposed amendment may be imperfect, since it is still possible for funds to be diverted from the Transportation Trust Fund by a 3/4 vote of the legislature and still allows gas taxes and tolls to be used on "any other transportation-related purpose" besides just roads, this still represents a significant strengthening of the protection of transportation funds and is much better than the current situation.  There is currently a very low bar for the legislature to tap transportation funds to address budget shortfalls in other areas, and requiring a 3/5 vote in both houses is a step in the right direction.  The Maryland Drivers Alliance believes motorists should vote for Question 1.

Candidate for Governor Larry Hogan is urging motorists to Vote for Question 1 and outlined his position on transportation funding.

The following is a press release from Hogan for Governor.  
The Maryland Drivers Alliance is not affiliated with any candidate or political party.  The views and opinions expressed in this press release are not necessarily the official position of the Maryland Drivers Alliance.

Larry Hogan vows to protect Maryland Transportation Trust Fund after O’Malley-Brown’s eight years of misuse
ANNAPOLIS, MD – September 20, 2014 – A coalition of businesses, unions, and transportation advocates are urging Maryland voters to pass Question 1 this November, an amendment to the state constitution to protection state transportation funds, making it more difficult for governors to redirect the money to other purposes, according to a story in today’s Baltimore Sun.
Larry Hogan issued the following statement in response:
“I support Question 1 100 percent.  Lt. Gov. Brown is the reason why we have to pass this amendment in the first place.  For the last eight years, he and Governor O’Malley used the Maryland Transportation Trust as their own personal piggybank to balance the state’s budget. 
O’Malley and Brown picked the lock on the Transportation Trust Fund and siphoned off nearly $1 billion in our gas taxes to balance their bloated budget.  Then they passed massive gas and diesel tax hikes only to invest the majority of the money in mass transit projects instead of fixing our crumbling and congested roads and bridges.  Struggling Maryland families and workers are now paying more at the pump to drive on worse roads in heavier traffic.”
Maryland law requires that 30 percent% of the income to the Maryland Transportation Trust Fund be distributed to local counties and municipalities as their share of the highway user revenues. This has not happened in recent years, and the state has a $400 million structural deficit. 
Hogan said, “Under a Hogan administration, the Transportation Trust Fund will be used as it was intended: for roads and highways. It’s not a bike trail fund, and it’s not a light rail fund. Drivers pay the tax every time they fill up at the pump and when they register their car—so drivers need to reap the benefits.” He added, “I’m opposed to the Purple Line—it’s too expensive, ridership is too speculative, and it diverts funds from needed repairs to roads and highways.”
Indeed, Maryland is in the slow lane when it comes to its highways, according to a new report on state road systems. Maryland ranked 39th in overall highway performance and cost-effectiveness and 48th in interstate congestion, said the report by the nonprofit Reason Foundation, which drew data mostly from 2012 for its evaluations.
Meanwhile, another recent story in the Baltimore Sun highlighted the many differences between Larry Hogan and his opponent when it comes to funding transportation projects in the state.
Here is an excerpt:
To Hogan, the state's transportation program is in dire straits and its roads are crumbling because O'Malley, a Democrat, “robbed” the state's transportation trust fund of $1 billion instead of making cuts in the general fund to balance the budget.

“They drained all the money out of transportation for eight years,” Hogan said. That, he contends, is why the administration felt compelled to raise gas taxes.

“We don't think there should have been the need for a gas tax increase in the first place.” …

Hogan vowed a “shift in priorities” if he is elected.

“We're going to focus on building roads, and that's something this administration has not done,” Hogan said. He also promises to immediately restore some $400 million a year in what's known as “highway user revenue”—state aid to local governments to pay for such basic projects as fixing potholes and repaving worn streets. Such aid to the counties was slashed by more than 90 percent during the recession, though some has been restored in recent years.
More on Larry Hogan’s Transportation Plan
- Maryland transit currently uses 57 percent of the available Maryland transportation funding, while highways, which generate the overwhelming percentage of income to the trust fund, only receive 43 percent of the available funds. An alternate source of funding is needed for transit in Maryland. Funds should be allocated according to impact on traffic and needs; the O’Malley-Brown administration’s focus on massive rail projects is not only cost-prohibitive but diverts needed funds from long-overdue repairs to our roads and bridges.     
- Hogan will work to restore the required 30 percent of the highway user revenues that are supposed to go to local counties and municipalities. He has already identified significant savings in the state budget starting with $1.75 billion in potential savings that the O’Malley-Brown administration has ignored.
#   #   #
CONTACT:    For more information and interviews, contact Adam Dubitsky at M (240) 625-2683 or, or Erin Montgomery at M(443) 858-5403 or

Authority: Hogan-Rutherford Committee to Change Maryland.  John C. Wobensmith, Treasurer

Friday, September 19, 2014

Montgomery County Citations, Calibration Log Defects Went Unnoticed For Months

The Maryland Drivers Alliance has learned that speed camera citations issued by Montgomery County as well as some of the "daily setup logs" associated with some cameras contained systematic errors which went unnoticed and uncorrected for months and possibly years.

Citations Provided Incorrect Address to Exercise Legal Right

The citation defect appears to affect all speed camera citations issued during the later part of 2012, all of 2013, and the first half of 2014.  Under Maryland law, a defendant contesting a citation is permitted to request the presence of the speed monitoring system citation operator in court by sending a letter making the request at least 20 days prior to the hearing.  However the backs of Montgomery County citation provide an incorrect address to which such requests are to be sent.  In fact the instructions read: "Send this correspondence in an envelope marked “Operator Request” to: Montgomery County Customer Service at 1-866-579-5742"
Specifically telling the defendant to mail the "Operator Request" in an address addressed to a phone number.

Any letter addressed as shown would not be delivered by the Post office.

This defect apparently went unnoticed by Montgomery County Safe Speed during a period of many months.  The citation template containing the erroneous information was approved by the District Court in 2012, and hundreds of thousands of citations were issued during that time without any employee of the Safe Speed program requesting that it be changed.

In 2014, Richard Harrison, the program manager and "local designee" for the Safe Speed Program, confirmed the error and stated to the Maryland Drivers Alliance in July of 2014 that the address would be corrected.  Harrison, who rejected the commonly used term "ombudsman" to describe his duties, asserted without proof that no individuals were denied their right to face the operator due to this issue.   In reality there is no way of knowing whether some motorists did not exercise their right to request the Operator's testimony because incorrect instructions were provided.

Long Path To Confronting an Accuser
The issues were uncovered by a member of the Alliance who disputed a citation and who was ultimately found not guilty by the circuit court.  The defendant in this case recognized the error, but nevertheless mailed a request to the address shown on the citation, precisely as shown.  Not surprisingly the letter was returned by the postal service "address unknown".

However the defendant in this case was an expert on speed camera law and was unusually familiar with the County's program, he was able to determine the correct address to which the "Operator Request" needed to be sent, and did send such a request.  However upon appearing in District Court and requesting to cross examine the operator, who did happen to be present in the room, and presenting the court with a copy of the request and a certified mail receipt, the district court judge refused to permit "you don't need to testify" the judge told the Operator.

The right to confront an individual providing testimony against a defendant has been upheld by the US Supreme Court.  Unfortunately, this was not respected by the District Court in this case, and the defendant was unable to confront the operator, and thus unable to present questions to her about the "daily setup logs" she had signed as the defendant has intended.  In this case the defendant appealed the citation to Circuit Court.  The fact that this entailed paying a non-refundable fee which was twice the cost of the original fine, plus hundreds of dollars in other expenses, is the main reason only a handful of speed camera cases have ever been appealed above District Court.

Prior to the circuit court hearing, the defendant repeated sending the request in the same way, one copy to the "address" shown on the citation, and one to the correct address.  Once again the letter sent to the "address" on the citation was returned address unknown.

Camera Logs Contained Systematic Defect
The circuit court did permit the defendant to cross examine the operator, who appeared completely surprised by the defects on the logs.  The defendant (representing himself 'pro se' questioned the operator (Stephanie Little) about the "daily setup" log which she had signed, which contained an apparent defect:
Daily Setup Log Containing Defect: Click to Enlarge

"Q: Would You say the cameras are as accurate as these logs?"
A: Yes
A That is why we perform the test of the electric tuning 
fork to verify that the system is working correctly.   
 Q Excellent.  That's a -- so what is step five on the log?  A That's just saying how to operate the system software -- that just    
 Q Yeah, what does it --  
  MR. STEVENSON:  Can she finish her answer?   
  THE COURT:  Had you finished your answer?   
  MS. LITTLE:  Yes.  No.  I'm not finished yet.  And how we -- and the using level that it's set to to operate the CIT2 software that also assists in operating the fixed camera unit.   
  THE COURT:  Okay.   
  BY MR. ELY  
 Q Okay, and did you certify that item according to the log?   
 A Yes.   
 Q Is there an SL next to that item on the log?   
 A Well, on number five?   
 Q Next to number five, yes.   
 A No, but there's an SL everywhere else. 
 Q Okay.  Yes, that is interesting.  What -- could you please read the description of the task for number seven?   
 A There's nothing there on number seven.   
 Q Oh, and did you complete that task --  
 A Yes.   
 Q -- according to the log?   
 A I'm not responsible for printing out the deployment -- when I see these deployment logs on the computer, we have a button there that says that verify and check that everything was checked.  How it's printed out I have nothing to do with that, but before I save this log it usually tells me that it's missing my initial or anything else."

It is unclear how many camera logs contained these defects, or for what period of time they were issued.  However  the defendant in this case had requested all daily setup logs for the camera locate 19600 Blk of Georgia Avenue from May 15, 2013 – May 21, 2013, and all logs provided contained the same error.  To the best of our knowledge, Montgomery County has not issued any refunds for citations issued with these daily setup log errors.  Montgomery County spent taxpayer money going to court to uphold the principal that paying a citation is an admission of speeding, and therefore that a local government cannot be sued to force the refund citations for any reason whatsoever.

The defect demonstrates that printed copies of "electronic logs" may in fact not authentically reproduce what the operators "sign: by pressing a button.  Normally "hearsay" evidence is permitted in court, however state lawmakers exempted speed cameras records from hearsay evidence, and define them to be evidence of the violation without the testimony of the "operators" who "signed" them by merely pressing a button (the "signatures" on the logs are also digitally imprinted).  However only the the state is exempted from "hearsay" evidence rules... defendants are not permitted hearsay in their defense.

In at least one case a circuit court judge has ruled in the past that digital signatures on speed camera citations did not have legal standing.  The possibility that electronically reproduced documents may not accurately reflect what was actually "signed" is one argument why electronic signatures should not be sufficient to authenticate a document.

Upon questioning of the operator in this circuit court case, the Operator also was did not correctly recall the location of signs in the vicinity.  The operator claimed to be very familiar with the area and incorrectly stated that the speed limit south of the camera was marked as 30mph for a full mile, when in fact photographs presented by the defendant showed that the camera was placed near a speed transition zone, about 160 yards from the point where the speed limit dropped from 40mph to 30mph.
The circuit court did not rule on these issues in this case, and instead found the defendant in this case not guilty on the basis that state law makes it a defense if you are not the driver.  The prosecution had agreed that the defendant in this case was not the driver, and the County attorney furthermore made a statements which implied that the prosecution was aware the defendant was not the driver when they decided to spent thousands of taxpayer dollars prosecuting the case of a $40 ticket in Circuit Court.

Montgomery's History of Denying Legal Rights, Lack of Transparency
Montgomery County has a long history of denying the right to face an accuser.  In prior years we had received reports that Montgomery County was refusing to present the operators in court even when requested, and the district court was inconsistent in ruling on this.  In February 2011, the editor of this website requested documents pertaining to this policy from Montgomery County, and the County Police responded that there would be a $43,685.29 fee merely to begin searching for responsive documents, and a six month delay.  The Office of the county executive never responded to request at all and police stated that the $43,000 fee did not include records in the County executive's custody.  The county did not cooperate with a request to clarify the reason for the fee so the request could be narrowed.
Letter from Montgomery County demanding $43,000 fee for release of records, click to enlarge

The county never produced the requested documents, but in 2012 County Attorney David Stevenson did send an 11 page long "legal bulls**t" response, which defended the county's policy and failure to produce records.
"When you presented your inquiry in December 2010, it was the position of the Police Department that in the class of cases identified above, a speed monitoring system operator was required to be presented in court, but the speed monitoring operator in court didn't have to be the speed monitoring system operator who filled out and signed the daily set up log for the speed monitoring system unit on the day when the unit recorded the person's"
Thus the county at the time felt at that time that it was acceptable to present a person who had no first hand knowledge of the events in question.  It is unclear what the county's current position is.

In the 2014 "so called reform" legislation which Maryland passed this year, the state actually softened the requirement for speed camera operator logs, such that they no longer need to certify that they performed the tests on the device, but rather.  The Maryland Drivers Alliance argued against this change, stating that it created an entirely new level of hearsay evidence and flew in the face of supreme court rulings protecting the right to face the accuser.  The head of Montgomery County's automated traffic unit, Captain Tom Didone, has stated that he was a member of the legislative work group which wrote the so called reform bill, and thus the county had substantial input into the wording of the bill.

Monday, September 15, 2014

Montgomery County Has No Ombudsman, Still Pays Per Ticket

Earlier this year state lawmakers passed a so-called reform measure which proponents claimed would "end the bounty system" (paying contractors based on the number of tickets) and address concerns about errors by creating an "ombudsman" for each local speed camera program.  However correspondence with a representative of Montgomery County reveals that neither thing has actually happened.

Insurance Company AAA Mid Atlantic, an organization with a long history of supporting speed cameras, praised and took credit for the reform bill.  In 2010 AAA's Lon Anderson was quoted by the Washington Post as taking credit for the legislation which authorized statewide speed cameras in Maryland.  In a similar  fashion, AAA took credit for the reform legislation.  AAA claimed that the legislation, which went into effect June 1, was "Ending the Bounty System".  AAA's press release promoting Maryland Speed Cameras also stated "The law also requires each jurisdiction in the state with such a program to appoint an ombudsman to resolve and void erroneous citations before the motorist goes to court to prove his or her innocence and to respond to citizens’ complaints, questions, and concerns about the program".

The term 'Ombudsman' is often defined as "a commissioner who acts as independent referee between individual citizens and their government or its administration" and many people construe the term to mean an individual who has a degree of independence from a program and who is capable of being objective.  The term has been widely used with respect to this reform legislation in news reports, press releases, and legislative testimony by Montgomery County, and in previous correspondence from the county.  During legislative hearings Captai Tom Didone, the Head of Montgomery County's traffic enforcement division, had introduced Mr Richard Harrison as the county's "ombudsman" to the state legislature, using that term.  

However when asked about his duties, Richard Harrison three times rejected the use of the term "ombudsman" to describe his role.  "OMBUDSMAN -- is not a term that is used in the Speed Camera Reform Act of 2014."  stated Harrison in a letter dated July 2014.  In response to a second letter, Harrison wrote again in a letter dated September 2, 2014. "Ombusman is not a term that is used in the Speed Camera Reform Act of 2014.  We use the term local designee."

In response to the question "Do you believe it is the Role of Montgomery County's "Ombudsman" to be an independent advocate for the public when addressing complaints regarding the Safe Speed Program that are of a systematic nature, or is your role to defend the county's position even if that position conflicts with the people's legal rights?"

Harrison responded "As I have stated above I am the Local Designee, not an ombudsman."  ... "It is my role, as the county's local designee and as a county employee, to objectively carry out these duties and responsibilities imposed on the Local Designee by law."

Harrison then vigorously defended the county's position regarding certain language which appears on citations.  Harrison specifically refused to request a change to the "Transfer of Liability" instructions on citations, which we have argues incorrectly indicates that it is a requirement under the law to identify the driver.  "No, I am not going to make any request of the District Court."  (The Maryland Drivers Alliance has previously reported that the circuit court has ruled it is a defense under Maryland law if the person named in the citation was not driving, and it is our opinion that language on citations and the Montgomery County website misleads motorists into believing they are required to identity the driver to exercise the defense, which the circuit court ruled is not the case.  A dispute on this matter is ongoing. )

More of a "YesMan" than an "Ombudsman"
In the same letter, Harrison responded to the question about "Who is the current Program Manager for the Montgomery County Safe Speed Program?" that he is the Safe Speed program manager, and he confirmed that Captain Tom Didone is his immediate supervisor.

The September 2 letter was in response to questions the Maryland Drivers Alliance had asked regarding statements made by Captain Tom Didone.  Therefore in Montgomery County it is up to the Program Manager of the program to  "objectively" investigate such a complaint about the program which he himself manages, as well as any questions about the actions or statements of his immediate supervisor.

In any event, by Harrison's own statement, Montgomery County most certainly has no "ombudsman".

Semantic Games, Not Real Change
Harrison also responded to a question about Montgomery County's current "Bounty System" contract.  Harrison confirmed that Montgomery county still pays their contractor on a per ticket basis.  Harrison stated that the county has until June 2017 to comply with the change.  Harrison stated that the Procurement and County Attorney's office was looking at options for a new contract arrangement, including "tiered pricing".

"Tiered Pricing" arrangement would essentially pay the vendor for *batches* of tickets, or use some other formula based on ticket volume to compute the fee, rather than paying a flat fee.  Thus it would still be based on ticket volume, and is in fact the very definition of being "contingent on the number of citations issued or paid".  Thus the goal of making is to contractors are not incentive to issue more tickets is not satisfied, rather it is legitimized.  Only the words "per-ticket" would be changed, not the fact that they would be paying their contractor based on ticket volume.

In 2011, Montgomery County added an amendment to their speed camera contract which would immediately switch the payment structure from $16.25 per ticket to a flat fee per camera if the legislature passed legislation closing the loophole permitting per-ticket payments.  However Montgomery County has apparently elected not to exercise this provision and ACTUALLY "end the bounty system" immediately and completely, even though they have the contractual means to do so at any time.

We previously reported how another speed camera contractor, Brekford, had cheered about how the changes to the law would not affect them, because they had locked in new long term contract extensions which would allow them to continue "bounty system" contracts for years to come.  So far we have not found any local governments which paid their contractor based on ticket volume at the time the "reform" legislation was passed which have actually switched to a flat fee.

New Rules = New Loopholes, Still No Enforcement
Before the reform legislation, there was an existing provision of the law which stated "If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid."   It was the legislative intent, as stated in the fiscal policy notes that payments to contractors not be made based on the number of tickets issued however Montgomery County found that they could circumvent the previous wording of the law by not using the term "operate" to describe what the contractor does and rendering the provision ineffective.  "Bounty System" contracts based on a loophole which Montgomery County invented soon became the norm in much of the state.

The legislation claiming to "end the bounty system" reworded the language from stating "operates" to "administers or processes citations", but then changed the language from "contingent on the number of citations" to "contingent ON A PER TICKET BASIS".  It therefore does NOT end all payments based on the number of tickets, but rather legitimizes payments based on ticket volume so long as it is not a fixed dollar amount for one single ticket.

 Since existing contracts were grandfathered in until mid 2017, the promises being made about "ending the bounty system" do not need to be kept until long after, and thus the manner in which they will create new loopholes to continue paying based on ticket column-- need not be made public until years later.   And since the state's speed camera law contains no outside oversight and no enforcement mechanism for its requirements, local governments are free to be as creative as they wish in their efforts to do so without having to be concerned that such loopholes will be deemed illegal.  Most press releases about the "end of the bounty system" (including those by AAA) have cleverly redefined the term "bounty system" (which isn't actually a term any contract uses) to only say it ends an explicit single payment for a single ticket, and not include all other types of arrangements based on ticket volume.

Closed Process, Insincere Lawmakers, Whitewashed Problems
The "reform" legislation was drafted by a secret legislative workgroup, which the head of Montgomery County's speed camera program Captain Tom Didone says he was a member of.  Didone has not responded to requests for information about this workgroup's membership, meeting agendas, or minutes.  (Some organizations have and reporters have noted that it is becoming more common for the legislature to create temporary workgroups to discuss controversial legislation and exempt those meeting from Maryland's "sunshine laws").  By the time the legislation was dumped on the house committee floor, the committee had not intention of hearing from the public. Sponsors told motorists who came to testify that they already knew all their was to know about speed cameras, and Vice Chair James Malone stated that "today is "me too' day" (using those words) and that those attending should "just say 'Me Too.'".

The Maryland Drivers Alliance did not say "me too", but instead stated that the legislation was filled with loopholes and contained only cosmetic changed which would not address the problem.  Montgomery County is apparently determined to prove us correct.

Friday, September 12, 2014

What Happens When You Take a DC Police Officer's Picture?

When DC Police routinely photograph and video the public, and motorists, with cameras mounted all across the city, the public is told that "There is no expectation of privacy in public places."  So how do they react when someone tries to film police?  A Washington Post reporter just found out.

Wednesday, September 10, 2014

Insurance Company AAA Actively Promotes Speed Cameras

You've seen them in the news and on TV talking about speed cameras in Maryland and DC, and may have believed that AAA has been hard at work defending motorist's rights on this issue.

If so we are sorry to have to break it to you, but the truth is that AAA is an insurance company which supports and lobbies in favor of speed cameras.  

Reality Check
AAA testified IN FAVOR of statewide speed cameras in Maryland in 2009.
"On behalf of our approximately 900,000 Maryland members, AAA Mid-Atlantic supports SB 277, which would expand the authority to use speed monitoring systems statewide and would add the authority to use them in highway work zones." wrote AAA Mid Atlantic in their 2009 testimony.

AAA also opposed the repeal of speed cameras in 2013, side a public hearing next to representatives of one of the most troubled local speed camera programs in the state(Forest Heights), and in opposition to motorists who came to support repeal, to support the continuation of Maryland's speed camera law.

SEE THE VIDEO ON GENERAL ASSEMBLY WEBSITE OF 2013 SPEED CAMERA REPEAL BILL TESTIMONY where AAA sided against motorists and against the speed camera repeal bill.  AAA's team of three lobbyists start their testimony in opposition to repeal at time index 2:43:00.
AAA's John Townsend and Regina Alvarez Testifying AGAINST the Repeal of Speed Cameras

Lon Anderson: AAA Mid Atlantic Director of Public and Government Relations
In fact AAA didn't just jump on the speed camera bandwagon after the fact, they were helping to pull the wagon.  All the way back in 2002, AAA Mid Atlantic's Lon Anderson bemoaned that speed cameras had not been authorized by the legislature at that time, and stated to the Gazette that AAA had testified in favor of those bills.  "If this legislation had been enacted ... we could have had a model program in the nationstated Anderson.  If Lon Anderson and AAA had their way, Maryland wouldn't have gotten its first speed cameras in 2007... we'd have gotten them five years sooner.

The vote on statewide speed cameras in 2009 was VERY CLOSE in the state senate, down to just a few votes.  If AAA had come out strongly against this, rather than providing political cover with their support, we would likely not have statewide speed cameras in Maryland today.

In fact Lon Anderson took credit for Maryland's Statewide Speed cameras being enacted.  When speaking with Washington Post's Dr Gridlock in 2010 Lon Anderson said : "I worked hard to get the speed camera law passed in Maryland, and the red light camera laws reinstated in Virginia."

We know some of you may be surprised to hear this.  But then how would AAA representatives be able to go on TV to complain about how badly Maryland's speed cameras have been administered if they hadn't worked to put them there in the first place?

AAA continues to claim that they do not oppose speed cameras.  AAA's John Townsend was recently quoted by WTOP stating "We aren't against speed cameras. We have worked with Montgomery County and Prince George's County to make sure they have a camera program that is valid, earnest and based on integrity and fairness" so there is no basis for assuming their support for speed cameras has changed, and they have been giving PRAISE to the press about the Maryland speed camera programs which they have supported legislatively.

Because Lon Anderson told the Post in 2010bthat they had lobbied for speed camera in Maryland and red light cameras, we wondered whether they would support speed cameras in Virginia as well.  AAA told one motorists that because there is not currently legislation pending in Virginia at this time, they therefore have not taken a position.  However it is inevitable that such legislation will be considered in Virginia sooner or later, and AAA's reply seems to leave open that they could support speed cameras when (not if) the matter is brought up in that state.  We asked Lon Anderson by email  on September 9th "Will AAA Pledge NOT to support speed cameras in Virginia, should they every come before the legislature?".  As of September 13th we had still received no response from Lon Anderson regarding that pledge.

In 2013 AAA also helped organize a secret speed camera meeting, which members of the public and the press were barred from observing.  AAA assisted in planning the closed event, in coordination with the heads of Maryland's biggest county speed camera programs, which included training representatives from local speed camera programs in how to conduct public relations, how to conduct media campaigns, and also discussing upcoming legislation.

And now in 2014, AAA has sold out on the cheap on speed camera reform.  We've talked about why this bill is a fraud at length already, and we hate to beat a dead horse.   Yet AAA failed to demand stronger reforms.  AAA took the position that what was needed was merely to "change the public perception" of speed cameras when what was need was to change the REALITY of speed camera programs.  They lent their credibility to a reform package which was designed to be ineffective and loaded with loopholes, and which was written by local speed camera programs for the purpose of changing nothing while letting lawmakers seeking re-election claim to have voted for reform.  AAA has praised a bill which did not contain audits of speed camera programs and provided no outside oversight of speed camera program.  They cheered for "reform" which did nothing to relieve systematic due process violations taking place at speed camera court hearings and did nothing to restore the constitutional right to face an accuser.  And they approved of a bill which wrote into law that it is OK for 5% of speed camera citations to be issued in error.  

Before this bill was passed public officials in the wake of Baltimore's speed camera error scandal were saying they should have a "zero error" program.  How the hell does it make things better to go from that to writing into state law that having up to 1 in 20 citations issued in error is OK?  Fact is the new law does little or nothing to address the issue of speed camera errors which brought about calls for reform in the first place, and trying to sugar coat that while lowing the bar for accuracy could actually make matters even worse.

AAA was fully aware of the weakness of the reform bill which was passed.  AAA has bragged to the press that the bill would 'end the bounty system' knowing perfectly well that contractors continue to get paid based on the number of tickets, that so far few if any speed camera programs have altered their existing bounty system contract, and that lawmaker put the loophole there *by design*.  In doing this, AAA has provided support to a program which continues to be broken and corrupt to this day, and which is arguably even more corrupt for having yet another lie piled on top of all the old lies.

Tuesday, September 9, 2014

DC Inspector General Finds Motorists are "Guilty Until Proven Innocent"

The DC Inspector General released a scathing report on the Districts ATE (Automated Traffic Enforcement) system and parking ticket system, which concluded that tickets were being issued based on insufficient evidence and that motorists were essentially being presumed guilty.

Wednesday, September 3, 2014

Baltimore To Begin Investigation Into Camera Errors

From the Baltimore Sun:
City Councilman James B. Kraft says he’s hired two investigators to help complete a City Council probe of Baltimore’s troubled speed camera system.Two paralegals -– who are paid $32 and $26 per hour, respectively –- from the Robert Half Legal staffing firm began work last week reviewing thousands of documents that the Rawlings-Blake administration turned over to Kraft’s committee.“The mayor has approved the money for two full-time investigators for up to three months,” Kraft said.A City Council committee is investigating the work of former Baltimore speed camera contractors Xerox State & Local Solutions and Brekford Corp., but that probe had stalled as Kraft said he needs to hire staff to go through the voluminous documents turned over to him.
The city’s speed camera system has been shut down for more than a year following The Baltimore Sun's revelations about erroneous tickets. The Sun investigation found errors at many cameras, including tickets issued for slow-moving or stopped cars. When operating, the network of 83 speed cameras and 81 red-light cameras brought more than $140 million to city government through $40 speed camera citations given out in school zones and $75 red light camera tickets.
An audit of Xerox's cameras showed some had double-digit error rates and tests of Brekford's system disclosed widespread problems.
Three speed camera companies have registered lobbyists with the city in an attempt to win the rights to run the camera system when the city resurrects it. Harris has said the administration is waiting for the City Council to complete an investigation of Baltimore's camera problems before requesting new bids.
This is the latest in a series of events in Baltimore's currently mothballed Speed Camera program which has been going on since 2012.
   - In October of 2012 the Maryland Drivers Alliance was provided several videos of ticketed trucks which were CLEARLY not traveling the recorded speed.  The city had not responded to complaints from these companies, one of the trucking companies spent hundreds of dollars hiring an attorney to get the tickets dismissed in court.
   - The Baltimore Sun's extensive investigation showed more apparent errors, including large trucks apparently not traveling at the recorded speed.  The city's initial response was denial that there was a serious problem, and to try to out spin the story in other media outlets.
   - Documents retrieved by the Maryland Drivers Alliance in the second half of 2012 proved that the city was aware of multiple erroneous speed camera tickets at a camera on Cold Spring Lane eight months before.
   - Only when the Baltimore Sun found a video showing a COMPLETELY STATIONARY car getting a ticket did enough other media outlets swarm onto the story that the city could not ignore it.
   - It was only in December of 2012 that Xerox actually admitted there were hundreds of systematic errors caused by "radar effects".
   - On top of this, there had been multiple instances where hundreds tickets had been issued based on an incorrectly recorded speed limit.
   - The city commenced an Audit, for the purpose of getting leverage over Xerox in their contract dispute and possible legal action.  This audit was initially *kept secret* when the Baltimore Sun asked for it.  The only reason it was eventually revealed was because it was **leaked** in early 2014.  That audit showed double digit error rates at MANY cameras.
   - The speed camera task force was also found to have conducted *secret meetings* which violated the open meetings act.

The Maryland Drivers Alliance had obtained documents which showed that the the cameras which produced the errors passed all their calibration tests, even on the very day that a stationary car was issued a ticket for speeding, demonstrating that "calibration" does not prove the cameras are accurate in the real world.

Monday, September 1, 2014

Report Reveals Why Red Light Camera Studies Show Conflicting Results

Red Light Camera Studies often report conflicting results on safety, with some studies showing increases in accidents (particularly rear end collisions) and others showing decreases when red light cameras are used.  The conflicting reports are often cited by photo enforcement advocates (typically including photo enforcement industry and the insurance industry) and opponents.  A peer reviewed article published in the Journal of Evaluation attempted on and Health Professionals examined why this would be the case.  The evaluation was conducted by University of South Flordia researchers Barbara Langland-Orban, Etienne E. Pracht and John T. Large joined Cincinnati Children's Medical Hospital Center's Nanhua Zhang and the University of Florida's Joseph T. Tepas.  The abstract for the study (from website) reads as follows:
"Evaluations of red light camera (RLC) traffic safety programs have produced mixed results. Some conclude RLCs were associated with significant increases in motor vehicle crashes and injury crashes, whereas other research reports safety benefits. To understand the difference in findings, the present analysis assessed whether standards required for internal validity in quasi-experimental public health program evaluations were adhered to in frequently cited RLC analyses. Four evaluation standards were identified and used to assess the RLC analyses: lack of bias in the selection of both (a) treated sites and (b) comparison sites, (c) integration of relevant control variables in the analysis, and (d) full disclosure of results of the statistical analysis. Six leading RLC studies were then critiqued. Only two of the six studies adhered to the four standards and both concluded RLCs were associated with significant increases in crashes and injury or possible injury crashes. A third study reported an increase in fatal/injury crashes but did not test for statistical significance. Three studies reported equivocal findings; however, each failed to adhere to most standards. Differences in findings were attributed to the evaluation methods used. If implementing an RLC program, communities should use sound public health evaluation methods to assess effectiveness."
A primary issue involved is called "selection bias".  Put as simply as possible, typically studies compares a set of "treated" intersections (one where a camera has been added) to a set of "control" intersections where cameras were not added, and attempts to compare the difference in accident rates, or reduction in accident rates.  If the treated intersections had a very high rate of accidents before adding cameras (particularly if this represented an unusual spike of accidents), and the control intersections had a very low rate of accidents before the study, then the comparison in rates is not valid because to treated intersections would be expected to decline. In the examined studies where the control and treated samples started out with similar rates and other rigorous statistically rigorous methods were followed, the cameras were showed to be associated with increases in accidents.

Wednesday, August 27, 2014

Montgomery County Legislative Candidates Call For Reversible Lanes on I-270

Two candidates for the state legislature in Montgomery County district 15 are calling for the state to add reversible lanes to I-270 to alleviate traffic concerns.

The father son team of Robin Ficker and Flynn Ficker, running for state senate and state delegate respectively, say the plan is a cost effective approach to addressing traffic congestion.  Robin Ficker said traffic congestion is one of the biggest concerns that District 15 residents have expressed to him.  "Gridlock on I-270 and to a lesser extent, gridlock on 355 and 27 are their biggest transportation concerns." he wrote, and joked that "The voters are thinking the county may soon try to raise money by giving them parking tickets while they are driving on I-270."

There have been proposals for widening I-270 with additional lanes for some time, but most of the push has been to add High Occupancy Toll (HOT) lanes only.  Robin Ficker felt that creating reversible lanes was a better approach that would save both money and land.  "We need two reversible lanes for cars in the middle of I-270 which could be built for 1/20 the cost per mile of the Purple Line.  There would NOT be tolls for the reversible lanes.  We think it could be done within the existing right of way."

Saturday, August 23, 2014

Baltimore Sun: RedFlex Lobbying to Win Baltimore City Camera Contract

From the Baltimore Sun:
Traffic camera giant Redflex has been lobbying the Rawlings-Blake administration and City Council to take over Baltimore's once-lucrative speed and red-light camera network — stressing that it should not be judged by an unfolding scandal in Chicago in which a former executive is charged with bribery.
The Arizona-based firm ran Chicago's red-light cameras for a decade, generating $500 million in revenue, but lost the work last year amid city and federal investigations. Officials in Baltimore said Thursday that the company, which was once a finalist to run this city's system, has used the recent talks to distance itself from the Chicago indictments.
Redflex is the third speed camera company to register lobbyists in an attempt to run Baltimore's system — once the largest in North America. The company has retained local lawyers Kenneth J. Battle Jr. and Kimberly Robinson of the Funk & Bolton firm, who have registered as lobbyists with the city, documents show.
The local system has been shut down for more than a year following The Baltimore Sun's revelations about erroneous tickets. The Sun investigation found errors at many cameras, including tickets issued for slow-moving or stopped cars. When operating, the network of 83 speed cameras and 81 red-light cameras brought more than $140 million to city government through $40 speed camera citations given out in school zones and $75 red light camera tickets.

Tuesday, August 12, 2014

District Court Grudgingly Accepts Innocence as Defense

District Court judges in Montgomery County dismissed three speed camera citations, albeit somewhat reluctantly, after the person named in the citations successfully proved that they were not the driver of the vehicle and argued that state law specifically permits this as a defense.  Both defendants successfully argued that state law does not require that they identify the driver.

Innocent Motorists Prevail in Court --- Barely

On May 12, 2014 Attorney Paul Layer argued that he was not driving the vehicle at the time when two citations were issued under his name.  Layer pointed out that Transportation Article §21-809(f)(1)(ii) specifically permitted that it was a defense if the person named in the citation was not driving.  Transportation Article §21-09(f)(3) required that to exercise this defense, the defendant must mail the court a sworn affidavit stating they were not the driver certified mail return receipt requested, along with "corroborating evidence".  Layer provided the court with plane tickets showing he was not present at the time, and a copy of the statement with the certified mail receipt he had mailed to the court.
Paul Layer: and that being the case, your honor, and the affidavit is self explanatory, that being the case I need to respectfully disagree with the interpretation that I’ve heard from your honor this morning on 21-809. 21-809(f)(3) lays out the requirements for the defense that I’m presenting which I was not the driver. Now, effective October 1, 2009, the Maryland legislature amended the statute and removed any requirement that a defendant who is pleading not guilty on the grounds that they were not the driver, it was removed from the statute any requirement that the defendant identify another driver and what the 21-809(f)(3) is left with is the lower case Roman numerals (i) and (ii) which indicate the requirement that I provide to the district court certified mailing indicating I was not the driver and any other corroborating evidence. I’ve done that through my affidavit to you. I disagree respectfully with your, what you’ve, I’ve heard you talk about this morning –   
Judge: You’re correct, you’re correct, I’m reading it again, you’re correct, it doesn’t require that you name the driver

After the judge declared Layer not guilty, a representative from Montgomery County -- Dan McNickle -- attempted to intervene in the case without being sworn in or called to the stand.  McNickles asked the court to let them reissue the ticket to another individual without having received testimony as to who was driving.  Mr Layer, as a skilled attorney, was able to rebuff this.
"I’ll object, I’m going to object to that, judge. I don’t know who this person is, I don’t know if he’s under oath, I don’t know if he’s testifying or what, but what I think he may be keying into is 21-809(f)(4), and (f)(4) is an instruction to the district court, if you find that there was evidence indicating that there was another person who was driving the vehicle, you can –"
"I’m simply making an argument to you that section (4) is not activated in this case and respectfully I think it exceeds the court’s authority to order the agency to issue a citation under these circumstances."   
"Judge: I…I wasn’t saying I was ordering them, they asked whether or not they could issue a citation. And certainly (pause) all right, I already said I was finding you not guilty, I’ll keep it that way. All right, have a seat in the front row to get your paperwork. Oh, you’re free to go sir"

The second case was heard on August 11, 2014 before Judge Margaret M. Schweitzer.  The defendant provided the following report:
The judge made a point of explaining to other defendants that a speed-camera citation was "like a parking ticket" -- it applied to the car, she said.  She discussed the ability to walk away with no fine if the defendant had provided a letter to "transfer liability".  At that stage, I wasn't very optimistic that she would accept a straight defense that I wasn't driving absent naming who was "liable".  
At my trial, Officer Hebron of the automated enforcement unit testified that the car was "registered to or operated by" me at the time of the alleged civil offense, as he had with all previous defendants.  I asked him several questions:  (1) Did he know or have any evidence that I operated the car at the time of alleged offense? ("No").  (2) Could he recognize the driver in any of the photos taken by the automated equipment at the time of the alleged offense? ("No").  He then testified that the car was registered to me.  I then asked (3) Did he know whether the car was registered to anyone in addition to me?  I was surprised, actually, that he didn't know.
I then told the judge that the statute provided for a defense that the defendant was not driving at the time of the alleged offense, and in compliance with Transportation Art.  §21-809(f)(3) I had sent by certified mail, return receipt requested, a letter to the District Court affirming that I was not the driver, and providing corroborating evidence.  The judge said my case file didn't contain the letter (great docketing system, MoCo!), so I provided her a copy (and a copy for the state, even though there was no representative present).  After she read it, I indicated that I wanted to discuss the law.  I said I had complied exactly with the requirements of the law with respect to a defense of factual innocence, and  I reminded her that she had discussed "transfer of liability" earlier in the day.  I said that the law doesn't require that to assert a defense of factual innocence, and began to discuss the State Assembly's amendment removing such a requirement in 2009.  At that point, she interrupted me and said she was familiar with the history, agreed with me that I had complied with the law's requirements, and was finding me not guilty.  And that was that.
We previously wrote that the Montgomery County Circuit Court upheld this defense in December of 2013 in the case of State of Maryland vs Ely case #123554C.  The defendant, who is a founding member of the Maryland Drivers Alliance, proved that he was not driving at the time of the alleged violation and successfully argued this is a defense under state law.

The Maryland Drivers Alliance has created a sample letter to the court for those who might be seeking to utilize this defense.  Note that this defense can only apply if the person named in the citation was not driving the vehicle and can provide some corroborating evidence of this.

Local Governments, Court Defends Citation Language Which Misleads Motorists

One of the reasons few motorists have exercised this defense until now is that they language shown on speed camera citations may be misleading about the requirements of the law regarding this defense.  Citations issued by Montgomery County currently state the following:
TRANSFER OF LIABILITY: If you, as the registered owner, were not operating the vehicle at the time of this infraction and you choose to identify the person who was, you shall provide the District Court a sworn to and affirmed statement and mail by certified mail. Your statement must indicate you swear or affirm that the person named in the citation was not operating the vehicle and include any corroborating evidence. All requests must be received no later than thirty days after the mail date of the citation. Send your request in an envelope marked “Transfer of Liability” to: Montgomery County PO Box 10314, Gaithersburg, MD 20898-0314.

This compares to the statute language.
"The District Court may consider in defense of a violation:"[...]
"(ii) Subject to paragraph (3) of this subsection, evidence that the person named in the citation was not operating the vehicle at the time of the violation; and"
 And paragraph 3 goes on to state:
“(3)   To satisfy the evidentiary burden under paragraph (1)(ii) of this subsection, the person named in the citation shall provide to the District Court a letter, sworn to or affirmed by the person and mailed by certified mail, return receipt requested, that:(i)   States that the person named in the citation was not operating the vehicle at the time of the violation; and(ii)  Includes any other corroborating evidence.”
§21-809(f)(3) previously contained a requirement that the defendant identify the driver.  However this section was deleted from the statute in 2009.  Yet the backs of speed camera citations used across the entire state still refer to this as a "transfer of liability" and state that a person who was not driving must "choose to identify the person who was".

To make matters even more confusing, between 2009 and 2012 the district court had distributed a draft citation which contained entirely different language which more closely matched the meaning of the law than the current citation language.
Q. What if I was not driving the vehicle?A. You must provide a sworn statement in which you swear or affirm that you were not operating the vehicle and include any corroborating evidence.  The statement must include the citation number and be mailed by certified mail, return receipt requested, and be received no later than 30 days after the mail date of the citation.

So far the district court has put its feet down and defended the current language.  District Court spokesperson Angelita Williams stated to us that "the Maryland Judiciary’s position is that the language provided on the speed camera citation is consistent with the requirements of Transportation Article §21-809(d)(1)"  We note that  §21-809(d)(1) is the portion of the statute which specifies what information a citation must contain, including among other things Information advising the person alleged to be liable under this section of the manner and time in which liability as alleged in the citation may be contested in the District Court;” --- not the portion of the statute defining the defense we inquired about (§21-809(f)(1)(ii))

The Maryland Drivers Alliance has sent a complaint to the Chief Judge of the district court requesting that the language be changed.  In our complaint we noted that in order to contest a citation under §21-809(f)(1)(ii), a motorist must take very specifically spelled out steps prior to the hearing, which they would not be able to do if they are misinformed about the law.

District Court to Examine Citation Language

WUSA 9 has done an investigation of this matter, discussing Mr Layer's case.  The District Court told WUSA9 that "While the Judiciary believes the citation's language is fair and balanced, in an attempt to be informative to motorists, an internal committee is currently reviewing the citation's language for clarity."

Montgomery County 'Ombudsman' Says No Such Thing as an 'Ombudsman'

A complaint was also sent to the "Ombudsman" for Montgomery County, Richard Harrison.  Mr Harrison first responded by stating that they don't use the term "ombudsman" -- even though the head of the Safe Speed program identified Mr Harrison using the specific term "ombudsman" to the state legislature to explain why a legislative change they supported would ensure the system was fair.  "Local designee" Mr Richard Harrison defended the current language on the citations claiming that "The statement that appears in the "Transfer of Liability" not legally or procedural incorrect.  It does not "misrepresent" the defense allowed by Section 21-809(f)(1)(2)"

....and thereby proving his point that there is no such thing as an "Ombudsman" for Montgomery County's speed camera program in any sense that most people would understand the term.

When asked whether it was the county's position that a person can be compelled to testify against their spouse in Maryland, Montgomery County ombudsman... er I mean "local designee" Mr Harrison stated that it was the county's position that "in a civil case, a witness does not have a privilege to decline to answer questions about the person's spouse that do not seek the revelation of confidential communications between spouses".

Spousal privilege is recognized under Maryland law.

Gaithersburg Changes Misleading Website

Websites for some local speed camera programs are also misleading about this defense. The City of Gaithersburg's website was even more specifically wrong, stating:
What if I wasn't driving my car at the time of the violation? Am I still responsible for paying the citation?The law provides that the registered owner must provide a signed affidavit that states they were not operating the vehicle at the time of the violation and provide the name, address and, if possible, the driver's license identification number of the person who was driving at the time of the violation. The police have the discretion to then forward the citation notice to the person identified by the registered owner.

The Maryland Drivers Alliance and some motorists sent complaints to the city about this.  Gaithersburg Sgt Scott Scarff initially responded to one motorist by stating "You are incorrect, Section 4 (i) states if the District Court finds that the person named in the citation was not operating the vehicle at the time of the violation or receives evidence under paragraph (3) of this subsection identifying the person driving the vehicle at the time of the violation, the clerk of the court shall provide to the agency issuing the citation a copy of any evidence substantiating who was operating the vehicle at the time of the violation.  The District Court in order to satisfy the requirement of identifying the person requires the name and address of the person at a minimum before they will grant a transfer of liability, our website suggests clearly “if possible” for the letter also to contain the driver’s license of the person who was driving  it no way suggest it is required.. This direction is provided to assist those who are requesting transfers of liability to provide the best information if known to assure that their request is given full consideration and has the best chance of being granted by the District Court."

Our complaint to Gaithersburg noted that the statement on the website was "objectively false" and appeared to come from the deleted portion of the statute.  The city relented and agreed to delete the language from their website and replace it with a link to the statute.  Gaitherburg declined to directly answer our question "Is it the position of the City of Gaithersburg that the defense under transportation article 21-809(f)(1)(ii) requires a defendant to provide a sworn statement which identifies the driver?" with spokesperson Sgt Scott responding "it is the City of Gaithersburg’s position that we follow the evidence requirements in accordance with the Maryland Transportation Article 21-809 (f) (I) (ii). "