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 Defend 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). "