Friday, December 6, 2013

Montgomery County Circuit Court: Innocence is a Defense

A Montgomery County Circuit Court judge ruled last week that “not being the driver” is a valid defense against a speed camera citation.  Basing his decision on careful analysis of Maryland law, the judge determined that a person named on a citation has no duty to identify the actual driver to exercise this defense. 
The case involved a citation issued to a leading member of the Maryland Drivers Alliance, Ron Ely.  Ely had received a speed camera citation from Montgomery county for a Toyota Prius, for which he was one of two registered owners.  Mr. Ely was not the driver – or even a passenger -- at the time of the alleged violation.

The citation was first disputed in district court.  The district court judge stated the only defense she would accept was for the guilty person to be presented in court and admit to the offense.  In addition, while Mr Ely had requested the presence and testimony of the "operator" of the device, using the means specified on the citation, the judge refused to permit the operator to be called to testify or to be cross examined even though she was present in the courtroom.  The district court found against the defendant.... along with every other speed camera defendant who appeared in district court that day with the exception of some Gaithersburg and Montgomery County police officers.  The citation was then appealed to circuit court.

Upon closer examination of the statute and consultation with attorneys, the following wording was noted in the statute (emphasis added):
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(f)    (1)   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 
(iii)   Any other issues and evidence that the District Court deems pertinent.[...]  
(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.
(4)     (i)   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.(ii)   On receipt of substantiating evidence from the District Court under subparagraph (i) of this paragraph, an agency may issue a citation as provided in subsection (d) of this section to the person who the evidence indicates was operating the vehicle at the time of the violation.
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The defendant noted that the statute specifically uses the word "defense" not "transfer of liability".  Furthermore, paragraph 3 does not include any requirement to identify the driver, only to provide "corroborating evidence" that the person named in the citation was not driving.  The statute furthermore does note that the court may consider "Any other issues and evidence that the District Court deems pertinent" which makes clear that the defenses shown are not intended as an exhaustive list, but rather are meant to ensure that the specifically listed defenses are not forbidden by the court.

Further bolstering the argument, the defendant noted that PRIOR TO 2009, article 21-809(f) paragraph 3 was worded differently, as follows :
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(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) Provides the name, address, and, if possible, the driver's license identification number of the person who was operating the vehicle at the time of the violation; and
(iii) Includes any other corroborating evidence.
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However subparagraph 2 had been struck from the law in 2009 by the state legislature.  This demonstrated that the omission of the requirement to identify the driver is NOT merely an oversight or a technicality, but that it was intentionally removed by design in order to permit an affirmative defense in the case of actual innocence.

The defendant had sent a letter as specified in item 3 to the circuit court prior to the hearing, presenting a copy into evidence at the hearing.  For each prosecution witness which appeared, the defendant asked them whether they could identify the driver from the citation photos, and each of them could not.  When the defendant began to offer "corroborating evidence" that he was not the driver into evidence, the county attorney stipulated that Mr. Ely was not the driver.

The defendant argued to the circuit court that the case, which appears online, showed his name and his name alone in the record, as did the citation.  He also noted the language used in the "Baker vs Montgomery County" decision referred to paying a citation as "an admission of speeding", not merely an admission of "liability".   As stated by Maryland's highest court:
"Moreover, whether vehicle owners were speeding and whether local governments violated § 21-809(j) are distinct questions that finding a violation of § 21-809(j) would not nullify the owners’ admission that they were speeding, i.e., payment of the penalties." (pg1)
and
"Thus, Petitioners’ § 21-809(j) defense, if successful, would not nullify Respondents’ prior admission of speeding, represented by paying the penalty before trial in the District Court."
As such, the defendant argued, the court is determining individual guilt or innocence for "speeding", not merely "liability".

The defendant furthermore noted that identifying the driver may simply be impossible in many cases.  If the owner of the vehicle was not present, any statements as to who was driving would be "hearsay" which is normally inadmissible as evidence in court.

The defendant in this case tried to further bolster his argument by filing a subpoena to Montgomery County for documents pertaining to any citations issued to himself in the past.  Montgomery County had no record of any prior citations issued to Mr Ely.  In fact this citation was the first speed camera citation which Mr Ely had ever received.

The judge found in favor of the defendant.  When the prosecution tried to argue that paragraph 4 of the statute was meant to transfer liability, the judge noted that the wording uses an "OR" and that if no evidence is presented that portion of the statute does not apply, and that this did not constitute a requirement on the defendant to provide such evidence.  The judge furthermore stated that for the defendant to  mail the affidavit stating that he was not the driver to the circuit court was appropriate in this case on an appeal, and that since such appeals are "de novo" hearings whatever occurred at the district court hearing was irrelevant.

The wording on the back of a Montgomery county citation reads as follows:
TRANSFER OF LIABILITY  If you, as the registered owner, were not operating the vehicle at the time of this infraction and you choose to identity the person who was, you shall provide to 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. 
This appears to be based on the pre-2009 wording of the law, and doesn't give any clue to a ticket recipient that they might have an option of disputing the citation without identifying the driver.  An individual who cannot, or does not wish to "transfer liability" would logically ignore this section on the citation.  In 2009 the district court created a template citation which uses completely different language:
Differing language between Montgomery County Citations and the District Court's Template
"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 " .... 
with no requirement included to identify the driver even mentioned in the template.  Thus it would seem that the template citation created by the district court was based on the current wording of the law, whereas the Montgomery County citations are based on the old language.

A defense of this sort might be described as an "affirmative defense", in that a burden of proof is placed on the defendant, but if successfully exercised it nullifies the violation.  The agency would still re-issue the citation if the actual driver is identified.   The defense cannot be exercised in the case where one was the driver, as this would constitute perjury which carries potential penalties far greater than a speeding citation.

Mr Ely spent several times the value of the citation and dozens of hours of time preparing for the case.  It is unclear at this time how much Montgomery County taxpayer money the county, who brought at least four prosecution witnesses and numerous pieces of evidence not normally presented at district court hearings, to try to prosecute the defendant for a $40 violation which he did not commit.

Anyone who wishes to use such a defense would need to send a letter to the district court with some evidence that they were not the driver (for example, some documentation establishing an alibi or that the person named in the citation was nowhere near the location of the alleged violations at the time).  In the letter they should note the exact wording of the statues, note that does not require identifying the driver, and note the fact that providing evidence against someone without first person knowledge because you were not present would constitute "hearsay" which is inadmissible under Maryland Rules of evidence.  They should also reference the 2009 change to the law, which can be found here on page 6, to support the argument that the requirement to identify the driver has been deliberately struck from state law.

After the judge rendered their verdict in this case, the County Attorney protested that this ruling was unprecedented and would "turn the entire speed camera program on it's head".  However this is incorrect on both counts.  Other motorists have been found not guilty in district court based on the fact that they were not the driver.  And the idea that the program needs to rely on the ability to find genuinely innocent people guilty, and that for the court to find a few of them not guilty would bring the system crashing down, seems both silly and a bit perverse.  To quote a line from the movie 'Catching Fire': "It must be a fragile system if it can be brought down by a few berries."

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We have created a sample letter with instructions which you can use if you are the person named on a Maryland speed camera citation and were not the driver and wish to try to use this defense.  See the sample letter HERE.

The content of this website does not constitute legal advice or a substitute for legal counsel.  We are merely informing you of a possible avenue of defense which you can try and you still need to convince the District Court.  Rest assured that someone from the Montgomery County Government visits our website EVERY DAY, that they have already seen this letter before you have, and that the over 40 lawyers in the office of the County Attorney which your tax dollars pay for are already hard at work trying to undercut this defense.  If we thought the system was fair the Maryland Drivers Alliance wouldn't even exist in the first place.