Category: carlaw

Some guys REALLY don’t like photo-radar

…but this seems extreme, even by the standards of photo-enforcement opponents. Police are looking for a suspect who shot and killed a worker inside a photo-van parked along the highway. “Phoenix police released witness accounts of the suspect Monday, which described him as a White male in his 60s, with a thin face, white hair and a white mustache. He smelled of smoke. The suspect’s car is believed to be a white and gray 1980s Chevy Suburban with a roof rack and black rims and tires” — AZ Rep 4/19/2009

suspected stupid criminals vehicle
suspected stupid criminal's vehicle

Video revealed the suspect’s vehicle, which was somewhat unusual, an older model, and two-toned paintjob plus the roof rack. An unrelated DPS officer recognized the vehicle as a former neighbor and boom…. “Police on Monday arrested Thomas Patrick Destories, 68, of Phoenix on suspicion of first-degree murder” … what a moron. His story is going to be he didn’t know anyone was inside. It’s people like Destories that gives all gun nuts a bad name. The suspense now is what will he be charged with? I would guess they’ll go for 2nd degree murder (see here for list; and scroll down to table) “manifesting extreme indifference to human life…”, which may slip down to manslaughter.

2 elderly peds killed in Scottsdale

Investigation pending… but unimpaired (we assume the driver wasn’t impaired) drivers are rarely charged, regardless of circumstances.

Alfred Tillman, 82, and his wife Bernice, 80, were struck and killed by a pickup truck as they attempted to cross 90th Street near the bagel shop at 15768 N. Frank Lloyd Wright Blvd… Investigators had not decided by late Friday whether the driver, Blake Allan, 39, of Peoria, would be cited in the deaths, Clark said…. Police say the Toyota pickup was southbound on 90th Street near Frank Lloyd Wright Boulevard shortly after 7 a.m. when it struck the pair…The accident occurred in a 35-mph zone, and Clark said early indications were that speed was a factor in view of the length of the skid marks and the amount of damage to the truck.

— Deaths of elderly couple stun those who saw them regularly, The Arizona Republic, 4/10/2009

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28-672 in the news

[ There have been many changes to this law, most recently in 2019, see history, below, as well as a couple of Court of Appeals opinions, most recently in 2021]

Prosecutors routinely decline to prosecute negligent drivers who kill/injure. Nearly without exception, they will only seek homicide (i.e. negligent homicide, or manslaughter) / aggravated assault charges if the driver is impaired. Short of that, the hurdle, in the minds of prosecutors, is very very high.

Arizona has no vehicular homicide law, it does however since 1998 have a law, §28-672, ” Causing serious physical injury or death by a moving violation” (and some companion laws 28-675 and 6 which work in an analogous fashion). The catch is that in order to be charged with 28-672, the driver must have been engaging in one or more of a specific list of infractions. For example, running a red light. Continue reading “28-672 in the news”

DPS says photo radar major factor in drastic fatality reduction

Arizona DPS in a press release Dec 29, 2008 cited photo radar as a major factor in a 59% decrease in fatal crashes for the 80 days of “enhanced” photo-radar enforcement, compared to the same period in prior years on Phoenix metro highways.

A modest decrease in miles driven is also a factor.

The statewide fatality decrease in 2007 (over 2006) was dramatic, and it remains to be seen how this will compare to full AZ 2008 stats.

Photo enforcement remains controversial but report by ASU Civil Engineering professor Simon Washington  Evaluation of the City of Scottsdale Loop 101 Photo Enforcement Demonstration Program confirms not only safety benefits but also time and financial savings due to reduction in crashes.

On the other hand, critics claim that the cameras have no effect on safety; the most strident claim that cameras cause an overall increase in crashes — but so far at least that is all they are, claims.

the enabling legislation for the so-called enhanced photo (DPS / state-run) is 48th 2nd regular session HB 2210 “budget reconciliation; criminal justice” (which is very long and has lots of stuff in it; it was also apparently a striker because the original name was “regents; scholarships;”), see  §41-1722, [some updates 3/1/2013 — much has changed, in particular it looks like that statue is now missing due to repeal, see all of chapter 41; also see process-servers-and-personal-jurisdiction] which among other things gets rid of points, and changes (see changes to  process service requirement.

General rules for commencing a civil traffic violation “by filing” (photo tickets are filed as opposed to issued) are specified in 28-1592 and 28-1593; say that complaints must be filed within 60 days and served within 90 days from filing. There are exceptions if the incident involves a traffic collision and investigation. Do these rules apply to photo tickets? dunno, as far as i can see there are no alternatives. And how this jives with Rule 4(d), i dunno either, see below.

Here are a bunch of “emergency changes” to the Arizona rules of civil procedure, effective Sept 2008. These are mostly regarding the complaint and service provisions of phot0-radar violations.

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There was an article in June 2009 issue of Perfectify magazine written by Arizona Attorney Monica Lindstrom Smile for the Camera (p.44). It gives some general background regarding service requirements

Under Arizona rules of civil procedure, Rule 4(d), a complaint must be served within 120 days. for purposes of a photo radar ticket, the “complaint” is the ticket and it is typically considered filed on the day of the violation (the day you were speeding or ran the red light). In other words, the government has 120 days to serve you with the ticket. If it fails to do so, then the ticket is dismissed — unless the government asks for more time. Beware some cities are using “alternative service” which can be by publication in a newspaper or posting it on your door. I recommend keeping up with the news in your area and doing periodic internet searchs to see if your city/town/county is employing this sneaky method.

I am not aware of any such “alternative service”.??

Strangely/inexplicably, she seems to not understand that there are no points associated with photo radar (speed cameras).

 

Thomas says no to criminal speeding

In a surprise move (a surprise to DPS, that is. Is this more politics than law?), Maricopa county attorney Andrew Thomas announced (Feb 24,2009) that his office will not charge motorists flashed at 20+ over with “criminal” speeding. Cities within Maricopa county, as well as everywhere outside of Maricopa are not affected by Thomas’ decision.It wasn’t clear to me if the DPS photo citations go to the city, or to the county by default (I’m guessing they go to the county?).

His whole explanation is silly; e.g. his claim that it is unconstitutional since “you can’t cross-examine a camera”. This is absurd, how does he support any other machine-based evidence? breathalyzers (or blood analysis machines), photographs, surveillance videos, wiretaps and so forth. they can’t be cross examined either.

In Arizona, criminal speeding is defined by §28-701.02 “Excessive Speeds, Classification”. The reference to 20 over isn’t completely accurate on the highway, it refers to over 85mph — i.e. 20 over if the posted limit is 65mph, but 30 over if it is 55. The general reasoning, which is said to be an “informal” opinion is that criminal requires a higher burden of proof than photo-radar alone can provide and as such they will decline any such cases. The DPS has indicated it will request a formal opinion on the matter from the Attorney General.

Attorney General says yes to criminal speeding

That didn’t take long. In a Feb 27th memorandum, Attorney General Terry Goddard knocked Thomas’ claims; “Mr. Thomas’ anecdotal explanations of potential abuses of the criminal process based on the use of photo radar do not provide a reasoned basis for an assertion that photo radar cannot be used to establish a criminal violation.”

“Arizona courts have similarly authorized evidence derived from other types of devices, such as video-tape recorders or cameras… there is no reason to believe the same rule would not be followed by Arizona appellate courts were the issue to be raised here.”

“Mr. Thomas states that prosecutions based on photo radar evidence would violate the Confrontation Clauses of the United States and Arizona Constitutions because a defendant would have ‘no opportunity to question or cross-examine a camera.’ Mr. Thomas ignores, however, the fact that non-testimonial evidence such as a surveillance tape or an Intoxilyzer test result is routinely admitted in criminal cases without implicating the Confrontation Clause. Under Mr. Thomas’ interpretation of the Confrontation Clause, the evidentiary use of surveillance tapes or Intoxilyzer test results, as well as any other mechanical measuring device, would be improper because there is no opportunity to question or cross-examine the tape or the measuring device. Furthermore, the United States and Arizona Confrontation Clauses, by their express terms, only afford a criminal defendant the opportunity to confront the witnesses against him… A defendant’s right to confrontation does not extend to physical evidence”

Thomas Responds

(do we have a dyfunctional system going here in AZ or what?) From KTAR story dated Feb 27th:

“[Goddard’s] main goal seems to be avoiding being pinned down on controversial issues,” Thomas said. “Quite frankly, that’s one of the reasons why this amazes me. You never hear him weighing in on the controversial, tough issues that I take on”

Then he switches to… drum roll please… immigration enforcement!

“Since the first year I took office, he and DPS have refused to fully enforce the immigration laws of this state,”… “DPS has released one van load after another of illegal immigrants stopped on our highways.”

New rules on license plate holders

New rules on license plate holders goes into effect Jan 1, 2009. Holders may not obscure any of the word “Arizona”. The law was passed in 2006, but delayed implementation until 2009 to allow dealers time to adjust.

“Law-enforcement officials say the law will help officers differentiate between in-state and out-of-state vehicles, a difficult task given the state’s profusion of specialty plates. Arizona issues license plates in more than 60 styles” amen to that, I think there are too many styles and it makes it harder for witnesses to get tag info.

Inquiring minds who want to know the actual verbiage, it from  §28-2354(B),

28-2354. License plates; attachment

B.  …A person shall maintain each license plate so it is clearly legible and so that the name of this state at the top of the license plate is not obscured.

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Mionske: Can’t we do better?

In Bob Mionske’s Nov 20th column, Can’t we do better?, he asks “What do you think can be done about cyclist safety?”…

2007 Fatals by type

This may sound trite but, to improve cyclist’s safety I think the best thing to do is focus on improving traffic safety.  I know it’s easy to read yet another apparent case of a negligent motorist hurting/killing a cyclist, getting off scot free and then feeling that “the system” is stacked against cyclists. But this loses sight of the fact that the problem isn’t limited to cyclists as victims, all categories of motorist’s victims, including other motorists, are treated just as shabbily. Cyclists’ fatalities represent less than 2% of the 41,059 traffic deaths (NHTSA 2007 Traffic Safety Annual Assessment – Highlights)

There are other, far larger, constituencies who are also subject to these same injustices; pedestrians, motorcycle operators, and the largest of all; passengers and innocent drivers. These groups — which includes just about everybody — are all victims of negligent drivers.

So the key, in my view, to tightening up laws which would actually punish negligent drivers is to broaden to appeal beyond the tiny community of active bicyclists to involve as many of these other groups as possible.

So without this becoming a laundry list — consider for example victim Lance Adams who was killed in Mesa, AZ April 2005 WHILE WALKING ON THE SIDEWALK… no criminal charges(prosecutor says “no likelihood of conviction”), no citations. Matthew Hayes Peterson said he blacked out, causing his vehicle to jump the curb. The young man who killed Lance had a previous speeding violation, and somewhat incredulously was ticketed for speeding again on Dec 14 (90mph! in a 65. As of story Feb 1, the outcome of that ticket was still pending).Prosecutors won’t seek criminal charges against a 21-year-old driver who ran over a Mountain View High School student last year, saying there isn’t enough evidence to prove he was impaired.

DRIVER WON’T BE CHARGED IN STUDENT DEATH

Jim Walsh. Arizona Republic.  Jan 31, 2006.

Lance Adams, 15, was walking home from school on a sidewalk April 11 when he was struck and killed by an SUV driven by Matthew Hayes Peterson.

Mesa police sought manslaughter charges in late December after obtaining long-delayed test results from the Arizona Department of Public Safety’s crime lab on drugs found in Peterson’s system.

But Krystal Garza, a spokeswoman for Maricopa County Attorney Andrew Thomas, said in a statement that the case was sent back recently to Mesa police.

“Based on the information submitted to date, we don’t believe there is a reasonable likelihood of conviction,” Garza wrote. “One factor in this decision was there were no signs of impairment that could be tied to any substance, legal or illegal, in the suspect’s system.”

Peterson told police after the collision that he blacked out before his 2000 Toyota RAV4 jumped a curb in the 1400 block of North Lindsay Road and struck Adams.

The lab tests measured the amount of marijuana metabolite found in Peterson’s system, along with two prescription drugs identified by police as propoxyphene, a narcotic pain reliever and zolpidem, a sleeping medication.

[oddly, they listed the chemical names. The two prescription drugs found in Peterson’s system are commonly known by their brand names; Darvon, and Ambien. One wonders if Peterson had a prescription? What about the warnings, did Peterson heed them?]

Heed the warnings?

Ambien/zolpidem Warnings : “Patients should be cautioned against engaging in hazardous occupations requiring complete mental alertness or motor coordination such as operating machinery or driving a motor vehicle after ingesting the drug, including potential impairment of the performance of such activities that may occur the day following ingestion of Ambien”

Darvon/Propoxyphene Warnings: … may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks, such as driving a car…”

Mesa boy injured in hit-and-run; driver gets 6 years

This is one of those “it’s hard to know what do with some people”. She’s out there driving around on a suspended license, presumably for previous mis-deeds involving driving. (she has at least one prior dui)

These often make me wonder about sentencing, the prison sentence stems from the aggravated DUI. It would seem to me that 3 years of “probation” for the hit-and-run has no effect at all, because she’ll ostensibly be sitting in prison longer than that. Or isn’t that how it works?

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Ex-state employee gets 6 years in hit-run

by Jim Walsh – Oct. 6, 2008 03:02 PM
The Arizona Republic

A former state employee who struck a 3-year-old Mesa boy in a hit-and-run collision in April was sentenced to six years in prison by a court commissioner.

Heather Mariah Grace Funk, 29, pleaded guilty to aggravated driving while under the influence of intoxicating liquor or drugs and leaving the scene of an injury accident.

The prison sentence stems from the aggravated driving charge. She was placed on probation for three years for leaving the scene of the accident, according to court records.

The boy was riding a tricycle on a sidewalk in the 3100 block of East Cicero Street when he was struck by a red Chevrolet pickup while crossing a driveway, police said. The boy survived. Police believed Funk was under the influence of methamphetamine at the time.

Funk was driving while her license was suspended and had a history of drug arrests. She had been hired by the state as a maintenance worker after her release from prison on another conviction for aggravated driving under the influence.

Mejia guilty of neg hom and hit-and-run in death of Walmsley

This is remarkable only in that the county attorney sought negligent homicide charges…

From an earlier azcentral story “On May 2, 2007, Mejia was arrested after deputies obtained a search warrant and gathered evidence from a Ford F-350 pickup truck linked to the hit-and-run suspect” .  The article doesn’t mention any allegations of evidence tampering(?).

Arizona Superior Court Docket CR2007-006287,  All case minutes. Here’s the Warrant to search the large 2007 pickup truck involved. Sentencing Minute from 6/17/2008 — I guess fairly standard, the charges are deemed “non-dangerous” and thus you can get a light sentence the negligent homicide is an F4 (class 4 felony; smaller number are more serious). One oddity was the hit-and-run was listed as an F3, whereas it should have been an F2 (because the defendant clearly caused the collision by driving on the wrong side of the road).

There are a lot of case minutes, including a request to be released early from probation, and numerous requests to revoke probation; finally in the 4/18/2014 minute “Defendant admits violation of probation for condition 1” (whatever that is, i can’t find it in the sentencing minute). It doesn’t seem like anything bad happened.

Mejia TR-200701627 speeding 2/28/2007 in Avondale Muni; dismissed w/driving school; a couple of months before he caused the fatal crash.

These cases from 2013/14 seem to have something only to do with the original case’s restituation, not a new criminal beef:  CR2013-462094 and CR2014-110154

 

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Avondale man gets 3 years in cyclist’s hit-run death
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Arizona Republic, The (Phoenix, AZ)-June 20, 2008
Author: Brent Whiting, The Arizona Republic

An 18-year-old Avondale man has been sentenced to three years in prison for killing a cyclist in a hit-and-run traffic crash.

Victor Manuel Mejia, who pleaded guilty to charges of negligent homicide and leaving the scene of a serious injury accident, also was placed on a five-year probationary term.

The sentence was handed down last Friday in Maricopa County Superior Court after relatives of Mejia and the victim, Bob Walmsley, were offered a chance to address the judge.

Walmsley, 65, of Sun City West, was killed April 9, 2007, while he and other cyclists were pedaling on 99th Avenue in the Southwest Valley, south of Interstate 10 near Southern Avenue.

He was hit by the driver of a pickup truck who was traveling north on 99th Avenue and was trying to pass another vehicle. The driver fled after striking Walmsley, according to sheriff’s investigators.

On May 2, 2007, Mejia was arrested after deputies obtained a search warrant and gathered evidence from a Ford F-350 pickup truck linked to the hit-and-run suspect.

Walmsley, a cycling enthusiast, moved to Arizona in 2000 after retiring in California as an engineer and computer programmer.

License Plate Covers

Apparently the existing law, §28-2354, which requires that vehicle license plates be displayed “clearly legibly” isn’t clear enough for police, who don’t seem to enforce that law.

Thus House Bill HB2250 (48th legislature, 2nd regular session, 2008) which would make the rules about covers crystal clear: “…a person shall not apply a covering or any substance to the license plate”.

Unfortunately, the provision is tangled up with the abortion debate — strange but true! It turns out the cover thing is in a bill involving special license plates… thus the controversy.

And as if one controversy wasn’t enough, the cover thing is clearly aimed at would-be camera violators.

By the way, probably the most controversial use of photo enforcement was speed cameras on a section of Loop 101 in Scottsdale. ASU engineering professor Simon Washington’s research has consistently showed only good things in terms of safety and even a time savings due to reduced speed — that is the time savings due to fewer crashes more than offset the time lost by lower speed. See Speed cameras help travel time, report says, Arizona Republic,May 13, 2008.

Unmentioned and unquantified in the report are not only fuel consumption, and air pollution benefits. Mean speeds were reduced from 73 before to 64 mph after enforcement. Vehicles’ toxic NOX pollution increases substantially with increased speed. NOX turns into ozone.