Tuesday, December 28, 2010

Montgomery County Safe Speed Says Operators Need Not Appear in Court

Montgomery County has asserted that it is not required to present speed camera operators in court even if the defendants request them to appear in writing.

One individual challenging a speed camera reported to us that he asked the Safe Speed Program's representative over the phone how to request the operator appear, and was told that for fixed pole cameras the operator who signed the camera logs and performed the 'daily self test' would not actually be present, that the operator's supervisor would appear instead. 

StopBigBrotherMD.org sent an email to the the safe speed program on December 16th requesting confirmation of this fact, and we did not receive a response by Dec 28th.  We then called the safe speed program's phone number and asked whether if a defendant requested the operator appear whether it would be the actual operator who signed the camera logs for the day of the violation.  The representative Stated that for mobile units the actual technician would be present if requested, however for fixed pole cameras it would be the operator's supervisor who appeared instead and that he would present the camera logs.  We then asked  if a defendant wanted to ask a question such as 'were you working on this day' for a ticket issued on a weekend (as we had previously reported that many speed camera logs had not been filled in on for several days in a row, particularly weekends and holidays) she at first seemed to sidestep the question by stating that school zone cameras do not issue tickets on weekends.  When we pointed out to her that Montgomery county has many cameras that are not in school zones (and in fact the large majority of Montgomery County's speed cameras are not located in school zones) she stated that she believed the logs were filled out before and after the weekend if the operator was not working.

While the county's position appears to be that presenting the operator is not required, judges have not always agreed with this.  One defendant at a Montgomery County District Court 'Speed Camera Day' in November 2010 stated that his citation was dismissed when the operator who signed the camera's logs was not present, and he was able to prove that he sent the request for the operator by certified mail.  The county's representative reportedly argued on that day that on other occasions just having the logs was enough.

In addition, the Montgomery County Office Of Legislative Oversight's report on the safe speed program (Sept 29, 2009) did include "Violator requested the Technician to be present at the hearing and Technician was not available;" as one of the few reasons why speed camera citations had been dismissed by the District Court (see pg 38).  Thus there were at least some cases prior to Sept 2009 when a judge decided against the county on this basis. It is probable the county does in fact have a District Court precedent supporting their side (they have yet to respond to our request for a copy of any such decision), but such a court decision was probably based on a defendant appearing without an attorney (as is the case with almost every defendant on speed camera day) who would not have been prepared to counter any legal argument the County's teams of paid attorneys would have constructed.  As such we don't believe defendants (or courts) should take Montgomery County at their word if they try to claim that this is decided law.

We note however the current wording of state law for speed monitoring systems (sec 21-809) reads as follows :
"(2) If a person who received a citation under subsection (d) of this section desires THE speed monitoring system operator to be present and testify at trial, the person shall notify the court and the State in writing no later than 20 days before trial."
We note that the wording is "the" speed monitoring system operator, not "a" speed monitoring system operator, and that another portion of the state law specifies that it is the camera operator's duty to perform the self tests on the machine and fill out and sign a daily setup logs.  As such specific duties of the operator are spelled out.  One could read this and conclude that the intent was to require the county to present someone in court who was capable of testifying about how the device was ACTUALLY operated in this particular instance, not how it is supposed to be operated in theory.  Otherwise the county could simply deliberately not choose to present a person in court who might need to admit to an error or problem with the system.  Thus, regardless of the county's position, a court could possibly still interpret this as meaning the specific operator who signed the logs must still attend upon request.  We suggest that if it was the intention of the Maryland General Assembly to explicitly strip citizens of their right to face the camera operator in court, then they should consider rewording this in the 2011 session (which will start in January), among the other changes they will no doubt be considering to further reduce the legal rights of Maryland drivers.