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Fairfax Brief
(and a similar one from Seattle)

The following is a brief that an attorney prepared in association with the National Motorists Association for the defense of a motorist who had received a red light camera ticket.

This brief asks the General District Court in the City of Fairfax, Virginia to strike the evidence against this person and rule that the underlying ordinance allowing photo enforced red light infractions be held unconstitutional.

This brief was filed in Virginia. It is possible that the defenses outlined in this brief could be utilized in fighting red light camera ticket fights in other states.

Many other cases and /or transcripts are available - see the Index to Transcripts, Briefs, and Court Decisions.

In 2009 a Seattle motorist expanded upon the Fairfax brief.  His brief is available on the website of the National Motorists Association.

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TABLE OF CONTENTS

I.   Introduction and Facts

II.  Motion

III. Use of Obviously Altered! Manipulated Evidence

IV.  Lack of Foundation for the Entry of the Photos into Evidence

V.   Lack of Established Scientific Reliability and Acceptance of Mechanical Device Used to Create Evidence

VI.  Unconstitutional Infringement on the Fifth Amendment Rights of the Accused

VII.  Unconstitutional and improper Limitation of Defenses

VIII. Unconstitutional / Improper Conclusive Presumption and Unconstitutional / Improper Shifting of the Burden of Proof

IX.   Civil vs. Criminal Classification

X.    Improper Certification of Evidence

XI.   Unconstitutional/ Presumption that is not Rationally Connected to the Element it Seeks to Prove

XII.  Improper Delegation of Police Powers

IN THE GENERAL DISTRICT COURT FOR THE CITY OF FAIRFAX

CITY OF FAIRFAX VS. TRAFFIC CASE #-----

JOHN SMITH,

Defendant


MOTION IN LIMINE TO STRIKE & CHALLENGE THE CONSTITUTIONALITY OF SECTION 98-21 OF THE CODE OF THE CITY OF FAIRFAX

NOW COMES, John Smith, the Defendant herein to Motion this Honorable Court to rule on the constitutionality of Code of the City of Fairfax, Section 98-21 and/or to strike the evidence against Mr. Smith. In support of his Motion the Defendant states into this Honorable Court as follows:

FACTS:

On or about June 4, 2001 the Defendant received in the mail the documents attached hereto marked as Exhibit “A”. It alleges that a vehicle which is allegedly reportedly registered to him was photographed allegedly running a red light at the corner of Chainbridge Rd. and Eaton Place, on May 19, 2001 at approx. 11:23 a.m. The citation was not personally served upon the Defendant, but was mailed to him thirteen days after the alleged infraction. On June 13, 2001 the Defendant by and through his legal counsel contacted the Clerk's office, noting his objection to the affidavit requirement set forth in the Code. On or about June 19, 2001 an affidavit objecting to the affidavit requirement was signed and filed with the court clerk. On July 10, 2001 the Defendant was mailed a summons to appear for a hearing on August 21, 2001.

UNCONSTITUTIONAL DENIAL OF RIGHT TO CONFRONT AND CROSS EXAMINE ADVERSARIAL WITNESSES

As written, the Code of the City of Fairfax Section 98-21 is unconstitutional for a number or reasons including but not limited to the fact that it denies the Defendant due process constitutional rights under the 5th and 6th Amendments to the Federal Constitution as incorporated through the 14th Amendment to the Federal Constitution, and it violates his State Constitutional rights under the Virginia Constitution Article 1, Section 8.

The 6th Amendment to the United States Constitution as incorporated through the 14th Amendment to the Constitution states that "in all criminal prosecutions, the accused shall enjoy the right to. . . be confronted with the witnesses against him. . ." Additionally, the Virginia Supreme Court has held Article 1, Section 8 of the Virginia Constitution “guarantees to the defendant in criminal cases the right to cross-examination of the adversary’s witnesses.” See Moore v. Commonwealth, 202 VA. 667, 119 S.E. 2d 324 (1961). These rights include the right to reasonable cross examination of these witnesses. However, in this particular prosecution, the Code does not call for nor can the City of Fairfax produce any human witness that could be subject to cross examination, which can testify to actual first hand information evidencing that the alleged offense even occurred, other than the Defendant himself. Instead, the City is relying on hearsay evidence, i.e. unclear pictures which do not even show anyone driving the vehicle in question taken out of court and used to prove the matter asserted. Pictures in which one cannot even identify the sex, race or identifying characteristics of the driver, or in this particular situation, pictures in which one cannot even identify the existence of a driver in the vehicle at all.

USE OF OBVIOUSLY ALTERED / MANIPULATED EVIDENCE

The photos are further suspect in that the infraction notices contain obviously altered and blacked out portions of photographs, showing that the photographs were obviously manipulated after being created by a remotely operated, inanimate machine. The pictures also have images of a "scoreboard-like box" superimposed upon them. As such, the pictures presented do not accurately and fairly represent the intersection in question in that they contain an image of an object which does not actually appear over the intersection in reality.

The fact is the City has no human being that can properly testify to first hand knowledge of the incident in question or the accuracy of, and the foundation for the photo(s) intended as prima facie evidence, nor is this a situation in which there was a traffic officer who contemporaneously observed the offense in question. In that the alleged evidence was produced by mechanical camera, which is triggered remotely by non-human means, gathered after the fact, and developed and processed by a third party contractor that did not actually witness the incident in question. The third party in this instant case is a civilian contractor who operates the cameras for profit, i.e., a company that has a vested economic interest in the outcome of the production of evidence which leads to citations and convictions. Quite literally, the party producing the alleged incriminating evidence of the alleged violations enjoys a direct economic gain with each citation manufactured. This creates a suspect situation, rank with potential bias and the potential appearance of improprieties.

LACK OF FOUNDATION FOR THE ENTRY OF THE PHOTOS INTO EVIDENCE

The law in Virginia holds that "the party offering the photographs must demonstrate its relevance and lay a foundation for their introduction in evidence." Lucas v. HCMF Corporation, 238 Va. 446, 451; 384 S.E.2d 92 (1989). Normally, a foundation and authentication for a photograph is established by the photographer who took the photo or a witness with first hand information that can testify that the photo purports to accurately portray what was actually observed first hand on the date and time in question. In this case, because a photograph was produced by remote, mechanical means, there is no one with first hand information who is capable of testifying to the foundation and accuracy of the photo purporting to accurately portray what could have been observed on the time and date in question. We recognize that while there is some case law which indicates that "even though no human is capable of swearing that he personally perceived what a photograph purposes to portray. . .there may nevertheless be good warrant for receiving the photograph in evidence." Ferguson v. Commonwealth, 212 VA 745, 747; 187 S.E.2d 189, 191 (1972). However, in such cases, the test of admissibility is "whether the evidence is sufficient to provide an adequate foundation assuring the accuracy of the process producing it." Law of Evidence in Virginia, 4th Edition, by Charles E. Friend, p. 560. This is important, for not all mechanical means of producing evidence are deemed sufficiently scientifically reliable to warrant admission into evidence. The prime example being results from a polygraph-- which is a mechanical/scientific method of producing evidence of guilt, but is not deemed scientifically reliable enough to warrant acceptance into evidence. See Robinson v. Commonwealth, 231 VA 142, 155 (1986) see also Odum v. Commonwealth, 225 VA 123, 132, 301 S.E.2d 145, 150 (1983); Skinner v. Commonwealth, 212 VA 260, 262, 183 S.E.2d 725, 727 (1971).

LACK OF ESTABLISHED SCIENTIFIC RELIABILITY AND ACCEPTANCE OF MECHANICAL DEVICE USED TO CREATE EVIDENCE

Likewise, the remote red-light photographic equipment used in this case is a mechanical/scientific method of producing evidence which lacks the scientific reliability, scientific acceptance, and reliability records to warrant its unquestionable acceptance into evidence, in that these machines are without sufficient documentation evidencing its scientific reliability, or their routine calibration and testing. The U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993) reasoned that when faced with a proffer of scientific evidence, the court must make a preliminary assessment of whether the evidence's underlying reasoning and methodology is scientifically valid and whether it can be properly applied to the facts at issue. Among the many considerations the Court indicated should bear in the inquiry, were whether the theory or technique in question can be tested, whether it has been the subject to peer review and publication, its known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within the scientific community. The photo enforcement red light camera system is a machine which is without sufficient documentation evidencing its acceptance as a reliable and well recognized method of testing, and is a machine and process which is without sufficient documentation evidencing its accuracy and/or potential error rate. It is a machine which is without sufficient documentation evidencing a reliable chain of custody for the alleged pictures which serve as the prima facie evidence. There is no documentation evidencing the machine which is operated by sensors and electronic type technology (some of which is buried under ground) is routinely and scientifically calibrated, tested and maintained to insure accuracy, calibration or proper placement of the equipment, and/or the meters and sensors used. Nor is there any evidence to prove that the machine was properly calibrated and working in perfect order at the exact date and exact time in question. The calibration and accuracy of these machines are questionable in that it is an established fact that the cameras are frequently jostled, tinkered with, and routinely moved about the City. The Fairfax City's own web site indicates that "the three photo red light cameras are rotated among eight intersection locations." (See www.ci.fairfax.va.us/red light.) In light of the fact that no two intersections are the same, the machines would require specific re-adjustments with each and every move. Yet the City of Fairfax claims in response to a Freedom of Information Act request that they do not maintain any records of calibration. Thus, to allow the use of such evidence without proof of its calibration and accuracy would clash with the fundamental due process rights of the accused. The fundamental unfairness of utilizing remote photo evidence is not only Orwellian in nature, but is unconstitutional.

UNCONSTITUTIONAL INFRINGEMENT ON THE FIFTH AMENDMENT RIGHTS OF THE ACCUSED

City of Fairfax Code Section 98-21 is further unconstitutional in that it denies the Defendant his constitutional rights under the Fifth Amendment to the U.S. Constitution as incorporated through the 14th Amendment to the Constitution and under the Virginia Constitution, Article 1, Section 8, in that it compels the Defendant to give up his Constitutional right and privilege against self incrimination in order to take affirmative actions to rebut the presumption created by the code section.

It is fundamental constitutional hornbook law that in America a Defendant is innocent until proven guilty beyond a reasonable doubt. The Fifth Amendment to the U.S. Constitution as incorporated through the 14th Amendment to the Constitution further holds a defendant is entitled to due process, including but not limited to the fact he or she cannot be compelled in any criminal case to be a witness against himself Specifically, the U.S. Supreme Court in Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) stated "[t]he Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." (Emphasis added.) Also see McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings...)

Likewise, similar protections can be found in the Virginia Constitution. Specifically, Virginia Constitution Article 1, Section 8 states a defendant cannot “. . . be compelled in any criminal proceeding to give evidence against himself. . . " Virginia Constitution, Article 1, Section 8 has been interpreted to mean "the privilege against self-incrimination protects a person from any disclosure sought by legal process against him as a witness.” See Owens v. Commonwealth, 186 VA 689,43 S.E.2d 985 (1947). Virginia Constitution, Article 1, Section 8 has been held to further preclude the prosecution from using an assertion of the privilege against self-incrimination to discredit or convict the person who asserted it. See Dean v. Commonwealth, 209 VA 666, 166 S.E. 2d 228 (1969) and United States v. Ghiz, 491 F.2d 599, 600 (4th Cir., 1974). However, that is the exact situation the application of City of Fairfax Code Section 98-21 creates. (I.e., in that the only way under the ordinance to rebut the presumption of guilt is to forfeit the constitutional right to remain silent and to take affirmative action to prepare an affidavit denying involvement, appearing to testify in open court, or indicating the vehicle was stolen.) Thus, under the Fairfax Code, one is not innocent until proven guilty. One must take affirmative steps and forfeit the right to remain silent in order to present three, and only three, very specific and enumerated defenses. Case law holds that “it is the question, not the anticipated answer, that is relevant to a ruling on the privilege against self-incrimination.” See Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E. 2d 870 (1992).

UNCONSTITUTIONAL AND IMPROPER LIMITATION OF DEFENSES

The unconstitutionality of remote photo enforcement is further highlighted by the fact the statute specifically limits defenses to three ways, and only three ways, in which a defendant may attack liability and rebut the presumption under the statute. These limitations foreclose and prevent the basic fundamental ability to assert other viable, rational, and well- reasoned defenses such as breach in chain of custody; altered evidence; improperly calibrated machines; broken sensors; necessity; yielding the right of way to an emergency vehicle; being part of a funeral procession; being directed through the intersection by the Police; presenting alibi evidence through a third party witness, etc. As written, Fairfax Code, Section 98-21 does not allow for the presentation of any other defenses, no matter how legitimate, to rebut the presumption. The fact that the ordinance creates a presumption and then in the next breath expressly limit the ability to rebut the presumption, throws the concept of innocent until proven guilty on its ear and establishes a fundamentally unfair scheme that creates the appearance of improprieties and an inequitable rubber stamp court system stacked against the Defendant. In fact, other Courts have held that restricting an accused to a single method of rebutting the prima facie case against him would deprive him of due process of law. See People v. Hoogy, 277 Mich. 578, 267 N.W. 605 (1936). The Court in People v. Hoogy held:

"If the accused submits himself as a witness the prima facie case made by the ordinance is overcome, but otherwise (regardless of whatever other testimony than that of the accused is submitted) the prima facie case against him is not overcome. The italicized portion of the ordinance restricts the accused to one class of competent testimony by which the presumption may be met in making his defense, and in so doing bars him from meeting the presumption with other testimony regardless of its competency and probative force. Such an ordinance provision deprives the accused of due process, compels him to be a witness in proceedings where he is being prosecuted and is therefore obviously invalid and violative of the Constitution.. ." Hoogy, at p. 606-607 (Emphasis added)

Under a strict reading of the Code, even if you proved the light was malfunctioning; that necessity required you to go through the light; that a Police Officer not seen in the picture waived you through the intersection; that you were in a funeral procession; that the evidence was altered; that the machine was not properly calibrated; or that a third party can provide you an alibi --- there is no ability to raise those defenses or any other legitimate defense, in that those defense are not valid defenses under the code, as written-regardless of their legitimacy and probative force. The ordinance thus appears to compel all but a small minority of defendants--those whose cars were stolen prior to the offense--to testify on their own behalf in order to rebut the presumption against them. So the issue now becomes whether these apparent limits on the defendant's ability to rebut the presumption against him render the ordinance unconstitutional for self-incrimination reasons. The Virginia Court of Appeals has addressed this specific issue. In Speller v. Commonwealth, 2 Va. App. 437, 441, 345 S.E.2d 542 (1986) the court, citing Griffin v. California, 380 U.S. 609 (1965), held that a lower court ruling, "that [the defendant] could not substitute another person to testify as to matters on which he himself could testify," was erroneous. The court said that the ruling in question impermissibly burdened the constitutional privilege against self-incrimination by penalizing the defendant for exercising his right to refuse to take the stand. Specifically, the Court in Speller stated:

"The court's ruling that Speller could not substitute another person to testify as to matters on which he himself could testify is erroneous. The effect of the trial court's ruling was to preclude relevant, admissible evidence on behalf of Speller because he did not choose to take the witness stand and offer the evidence personally. By handicapping Speller's defense in this manner, the court achieved the impermissible result of imposing a penalty on him for exercising his constitutional privilege." Speller, at page 442.

UNCONSTITUTIONAL / IMPROPER CONCLUSIVE PRESUMPTION AND UNCONSTITUTIONAL / IMPROPER SHIFTING OF THE BURDEN OF PROOF

An additional infirmity of the Ordinance can be found in the fact that Fairfax City Code, Section 98-21, unconstitutionally removes and relieves the obligation of the Commonwealth to prove beyond a reasonable doubt the defendant’s guilt and further improperly and unfairly limits a Defendant’s defenses, unless he forfeit his constitutional right and privilege against self incrimination. Thus, as written in order to rebut the presumption of guilty, one must forfeit both his Federal and State Constitutional Rights to stand mute and takes affirmative steps to provide written or oral statements in the burden of proving his innocence. This same infirmity also creates an impermissible and unconstitutional burden shifting situation. The U.S. Supreme Court has dealt with the burden shifting presumption issue on numerous occasions. In Sandstrom v. State of Montana, 442 U.S. 510 (1979), the Court held presumptions which impermissibly shift the burden of persuasion to the Defendant, via either a conclusive presumption or a burden shifting presumption are unconstitutional. In fact, the U.S. Supreme Court in Sandstrom held "a conclusive presumption in this case would conflict with the overriding presumption of innocence which the law endows the accused and which extends to every element of the crime." Sandstrom, Supra at p. 522., see also Morissette v. United States, 342 U.S. 246 (1952), Mullaney v. Wilber, 421 U.S. 684 (1975), United States v. United States Gypsum Co., 438 U.S. 422 (1978). The U.S. Supreme Court in Sandstrom, 442 U. 5. 510, 534 (1979) went on to state that "a presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would suffer from similar infirmities." On this same line of logic, the City of Fairfax Ordinance Section 98-21 which creates a "rebuttable presumption" based upon simple and legal ownership and which sets forth only a few specific requirements that one must take affirmative action via testifying in open court or by filing an affidavit to rebut that presumption, creates the very same unconstitutional burden shifting situation the U.S. Supreme Court addressed and ruled unconstitutional in the above cited case.

The City’s desire to raise revenue or arguably to provide for the traffic safety of its citizens (however admirable) should not and does not trump or negate the City’s obligation to insure for and to provide for the well established, and extremely important, fundamental Constitutional and Due Process Rights of the citizens of the United States and of the Commonwealth of Virginia. The City will likely argue the Cameras are for the purpose of crime control, or law enforcement--not to create a Stalinist Police State. However, I would remind the Court that Stalin did not promise a Stalinist Police state either. Stalin promised crime prevention, law enforcement and a worker's paradise. Progress in the field of law enforcement still must be tempered with constitutional safeguards.

CIVIL VS. CRIMINAL CLASSIFICATION

The City of Fairfax is likely to argue that because they classify these tickets as "civil in nature" or "administrative" the constitutional protections afforded criminal defendants don't apply. However, the argument is without factual and legal merit. The U.S. Supreme Court has ruled that simply classifying a fine as a civil fine is not the standard for determining if a fine is civil or penal in nature. The U.S. Supreme Court in United States v. Halper, 490 U.S. 435, 447 (1989) citing Hicks v. Feiock, 485 U.S. 624, 631 (1988) held "the labels affixed whether to the proceeding or to the relief imposed. . .are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law." (Emphasis added) The Court stated "in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceedings giving rise to the sanction, that must be evaluated." United States v. Halper, 490 U.S. 435, 447 (1989). The U.S. Supreme Court went on to state "we have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See e.g. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "retribution and deterrence are not legitimate non-punitive governmental objectives." Bell v. Wolfish, 441 U.S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." United States v. Halper, 490 U.S. 435, 448 (1989). In this case, there is no rational relation to the necessary goal of compensating the City of Fairfax for its loss associated with alleged red light runners, thus leading but to one conclusion that the fines purpose is to punish and deter red light running, a function that is clearly and unequivocally criminal and punitive in nature. This "civil vs. criminal" analysis and standard has been followed by the Virginia Court of Appeals in Tench v. Commonwealth, 21 Va. App. 200, 204, 462 S.E.2d. 922 (1995).

IMPROPER CERTIFICATION OF EVIDENCE

City of Fairfax Code, Section 98-21 is further infirm in that it allows for a certificate or a facsimile thereof, sworn to or affirmed by a technician employed by the city, based upon inspection of photographs, microphotographs, videotapes or other recorded images produced by the system, to come into evidence as prima facie evidence of facts contained therein without providing adequate due process protections. Under Fairfax City Code, Section 98-21, the certificate is allowed into evidence as prima facie evidence despite the fact that the technician has absolutely no first hand personal knowledge of the exact event to which he (or she) is certifying as fact, in that the evidence (the alleged photographs) were gather remotely, by a machine, and processed by one or more third parties after the fact. The technician is relying on obvious hearsay information given to him by a third party(s), in that the technician has no first hand knowledge of who the registered owner of a particular vehicle is or even what specific type, make, or model of vehicle was involved. In this case the technician is not certifying his personal observations, nor is he certifying records he maintains. It is important to note that under this Code Section the technician or police officer is not certifying to the validity of test results physically observed by him, or recorded contemporaneously with his observations, or even performed in his presence such as a Certificate of Drug Analysis performed by the State Laboratory, but is looking at altered evidence, which lacks a secure chain of custody, and lacks a sufficiently proven indicia of scientific reliability, in order to certify facts to which he or she did not personal witness, and to records he or she does not personally maintain. In short, this ordinance allows a third party to certify facts which have no chain of custody, no scientific indicia of reliability, and of which the third party has absolutely no personal knowledge. This clearly smacks of a fundamental due process violation and puts the judicial system on a scary slippery slope toward the abolishment of legal standards of proof and foundation.

While there are other State Code sections which allow the admission of certificates into evidence as prima facie evidence, such as Virginia Code Section 19.2-187, these Code sections differ in that the certificates are certified by the individual which actually performed the analysis or laboratory examination. Under Virginia Code Section 19.2-187 the certifying agent has a first hand, personal knowledge of the actual facts in that the agent personally performed the testing and examination. The underlying purpose of Virginia Code Section 19.2-187 certification is to avoid the need for an expert to personally appear and testify as to the facts he personally witnessed in every case, whereas the certificate under City of Fairfax Code, Section 98-21 appears to be intended to circumvent the normal evidentiary rules of the Court to allow obvious hearsay and double hearsay evidence to be made prima facie evidence of the facts contained therein by having it certified by a “technician employed by the city” without the need for that technician to have any specific training, or without the need for the certifying technician to have any first hand knowledge of the event to which he or she is certifying, and without the certification being conducted contemporaneously with the procuring of the actual evidence. Under City of Fairfax Code, Section 98-21, an unknown technician without any specific legal training or qualifications is able to circumvent fundamental due process and established evidentiary court rules and certify hearsay facts into prima facie evidence with only a limited ability to rebut their alleged evidence, regarding facts to which the technician has no personal knowledge, with the certification at times occurring days, weeks, and months after the alleged event. Once again, the City’s desire to raise revenue should not and does not trump or negate the City’s obligation to insure for and to provide for the well established evidentiary court rules and standards and extremely important, fundamental Constitutional and Due Process Rights which protect and are the right of the citizens of the United States and the Commonwealth of Virginia, nor should the government be able to contract those obligations away. The presumption in this case is not to prevent busy laboratory technicians from spending all of their time in court testifying to their personal observations, but is intended to allow the City to circumvent constitutional protections to aid in the convenient production of "acceptable" hearsay evidence needed to garner quick and defenseless convictions in a for profit money making scheme, run by the City in conjunction with civilian for-profit contractors.

UNCONSTITUTIONAL/ PRESUMPTION THAT IS NOT RATIONALLY CONNECTED TO THE ELEMENT IT SEEKS TO PROVE

City of Fairfax Code Section 98-21 is further unconstitutional in that it contains a permissive presumption that is not rationally connected to the element it seeks to prove. Permissive presumptions are constitutional if there is a "rational connection" between the ultimate fact presumed and the basic fact proven. Barnes v. United States, 412 U.S. 837, 841 (1973) (citing Tot v. United States, 319 U.S. 463, 467 (1943)). While the United States Supreme Court in Tot v. United States, 319 U.S. 463 (1943) held that subject to the constitutional requirements of due process, Congress has the power to prescribe what evidence is to be received in the Courts of the United States, the Court in Tot also held that the test of the validity of a statutory presumption is not the comparative convenience of producing the evidence of the ultimate fact, but the existence of a rational connection between the facts proved and the facts presumed. In short, a statutory presumption cannot be sustained if there is no rational connection between the fact proved and the ultimate fact presumed, or if the inference of the one from proof of the other is arbitrary because of the lack of connection between the two in common experience. In practical terms, this means that a permissive presumption must "more likely than not" flow from the presumed basic fact. Leary v. United States, 395 U.S. 6, 36 (1973). However, when a presumption is mandatory, such as it is in this case, the prosecution, "may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt." County Ct. v. Allen, 442 U.S. 140, 167 (1979)(Emphasis added.) In other words, in a mandatory presumption case the basic fact proven must bear sufficient relationship to the elemental fact presumed to prove it beyond a reasonable doubt. In Pennsylvania v Slaybaugh, 364 A 2d 687 (PA, 1976), the Pennsylvania Supreme Court held that, "the inferred fact of operation of a motor vehicle at a specific time does not flow logically beyond a reasonable doubt from the mere established fact of ownership." Slaybaugh at p. 690 (Emphasis added). Thus, the court invalidated the statute at issue. Id. And in a New York case, the Court of Appeals held that lower court erred, in reasoning that proof that one owned a car created a rebuttable presumption that one was its operator. New York v. Hildebrandt, 308 N.Y. 397, 126 N.E.2d 377, 378 (NY 1955) (Emphasis added). Hildebrandt was a case in which a "photo traffic camera" was used to determine that the defendant's car had been speeding, but the state could not or did not provide evidence of the cars driver at the time of the infraction. The lower courts held that the mere fact that the defendant owned the car was sufficient proof that he had been driving at the time of the infraction to support conviction for speeding. The appellate court held that such an inference violated the presumption of innocence and the right to proof of guilt beyond a reasonable doubt. In Hildebrandt, the New York Court of Appeals said:

"We think it is going much too far to infer the driver's identity from the fact of ownership. We all know that many a passenger car is customarily driven at various times by various persons, we know that many a person owns more than one passenger automobile, we know that some owners are not licensed operators, and we are informed that there are outstanding in the State at least one million more automobile operators' licenses than passenger automobile registrations. From all of this it follows, we think, that it is hardly a normal or ready inference or deduction that an automobile which speeds along a highway is being driven by its owner, and no other person." Hildebrandt, at p.379 (Emphasis added)

The same logic is certainly applicable in the Commonwealth of Virginia and in the City of Fairfax. According to a United States Department of Transportation report, in the Commonwealth of Virginia in 1999 there were an estimated 4,433,415 class 0 (automobile operator) motor vehicle driver licenses in force. See: Office of Highway Policy Information, Highway Statistics 1999 (1999). This is further supported by the results from a recent Freedom of Information request made to the Virginia Department of Motor Vehicles, that show that as of June, 2001 there were over 5,068,974 valid Virginia Drivers Licenses issued to persons living in Virginia. This number includes private licenses, commercial licenses, learner's permits and motorcycle licenses. This number does not account for the millions of additional individuals that drive on valid out of state licenses, on suspended licenses or without licenses all together. This is important, for the U.S. Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 522 (1979) held "a presumption which would permit. . . an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect."

We know from experience, and the Court can take judicial notice of the fact, that clearly, some of these licensed drivers do not have automobiles registered in their own names, i.e., not everyone owns a car. For example, many of us did not have our own car when we were sixteen, despite the fact we had a license to drive, additionally many of us frequently drive our spouses or family's vehicles. Thus, when these license holders do drive, they are not necessarily driving automobiles that they own. Couple this with the fact that there is no law which prohibits someone from having permission to drive a car that is not registered to them and/or that there is no requirement or law which requires a registered owner to identify individuals that may drive his or her vehicle, it illustrates that there is an extremely high probability that the registered owner may not in fact be the driver of the vehicle being cited. Based upon Virginia statistics alone, the potential is that based solely on the numbers it is a 1 in 5,068,974 chance that the photographed driver was in fact the actual registered owner. The numbers get even more remote if you factor in the fact that any person licensed in the U.S. could possibly be driving a car registered to someone else. I would further note that any requirement that would require an individual to identify who was driving the vehicle would create a number of additional constitutional issues, in that such a requirement would infringe upon the constitutionally protected freedom of association, and at times force an individual to possibly bear witness against a spouse in direct contradiction of the Spousal Privilege. No matter how one analyzes the various possible permutations of the statistics, in the words of the Hildebrandt court, it is hardly a "ready inference" that the driver of an automobile is its owner. Hildebrandt, Supra at p. 379.  This leads to but one logical conclusion: that an ordinance which does not require proof of who was actually committing the offense, creates the distinct possibility of literally millions of erroneous photo red light citations being issue for the traffic infractions of others. That is far from proof beyond a reasonable doubt, especially in light of the fact that individuals are normally not responsible for the criminal acts of third parties. See Holles v. Sunrise Terrace, Inc., 257 Va. 131, 509 S.E.2d 494 (1999).

The Virginia Constitution provides, "[t]hat no person shall be deprived of his life, liberty, or property without due process of law," Va. Const. Art. I, Section  11. In applying this right to the issue of evidentiary presumptions, the Virginia Court of Appeals has held that, "[a] natural and rational evidentiary relationship must always exist between the fact proven and the ultimate fact presumed." Morton v. Commonwealth, 408 S.E.2d 583, 585 (VA Ct. App. 1991)(quoting Sharp v. Commonwealth, 213 Va. 269, 271, 192 S.E.2d 217, 219 (1972)). And under Virginia law, "even if the inference is permissive, if the only evidence of guilt is that which gives rise to the inference, a rational relationship must exist, beyond a reasonable doubt, between the inference and the proved fact." Morton, 408 S.E.2d at 585 (citing Allen, 442 U.S. at 166-7; West v. Wright, 931 F.2d 262, 265 (4th Cir. 1991); and Sharp, 192 S.E.2d at 219).

IMPROPER DELEGATION OF POLICE POWERS

City of Fairfax Code Section 98-21 is further infirm as being against public policy as an improper delegation of police power to a for-profit commercial enterprise. Imagine the public outcry if the City of Fairfax announced that from now on, Fairfax City Police Officers would receive a direct commission for each and every ticket they issued. The authority and credibility of the Police would be severely and irreparably damaged, in that such a scheme would be rank with the potential for abuse, that the officers would be subject to impeachment for bias for having an economic interest in the outcome of the charges, and based upon the fact that they have a direct economic incentive to issue as many tickets as possible, regardless of their legal and factual merit, in the hopes of increasing their income. Public policy alone should not allow that sort of scheme to exist. Yet the remote photo citation systems run by civilian contractors for profit are directly analogous to police working on a commission, in that the City of Fairfax has delegated the police power to enforce red light traffic violations to a for-profit commercial enterprise, the goal of which is to create a large profit from the issuance of red light tickets. This results in an entity that has a direct and unequivocal economic interest in seeing that as many tickets are issued as possible, because each ticket issued increases its bottom line.

The fear associated with the delegation of governmental police powers to private entities is that the governmental power may be used and abused to further private rather than public interests, and in such a manner as to circumvent constitutional protections or to insulate the government entity from accountability or civil rights liability. In short the contractors can be hired to do the Government's dirty work for them, in a manner that themselves would not be allowed to, without a readily available avenue for procedural safeguards or adequate redress by the citizens. One of the safety nets created by the governments retaining the exercise of police powers is that through the democratic process, aggrieved citizens can vote abusing governmental officials out of office. Whereas, citizens have no ability to directly vote commercial contractors away.

Discovery and disclosures from red light camera jurisdiction in the area illustrate these are multi-million dollar operations. (In an article titled "D. C. aims to Catch Speeders on Camera," the Washington Post reported on July 2, 2001 that the District of Columbia generated over 9 million dollars in fines from red light photo enforced citations last year.) With modern computers, digital pictures, graphics, scanners and photo quality printers, one can easily adjust images to eliminate the "red eyes created by a flash bulb or to change a green light to red, especially where a multi-million dollar economic interest exists to do so. The alarming issue is once again, as written City of Fairfax Code Section 98-21 does not allow defendants to raise or challenge the evidence on the issue of the potential bias, thus, once again creating a clear constitutional violation. The Virginia Supreme Court has held "the right of an accused to cross-examine prosecution witnesses to show bias or motivation, when not abused, is absolute." Barker v. Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985) (quoting Hewitt v. Commonwealth, 226 Va. 621, 623,311 S.E.2d 112, 114 (1984)). (Emphasis added)

Fairfax City and most Virginia jurisdictions with red light cameras have cleverly approached the subject of fees. They purposely set the potential fine at $50.00, an amount significantly less than California's $271.00 photo enforced tickets. This amount is sufficient to penalize drivers, but is typically not high enough to justify an individual taking a day off from work to contest the ticket or to justify retaining expensive legal counsel to challenge the ticket, when the costs of representation would likely grossly exceed the ticket itself. Thus, most tickets go uncontested, and the potential of improprieties goes on-- capable of repetition yet evading legal review.

WHEREFORE, any and/or all of the foregoing reasons, the Defendant prays this Honorable Court finds City of Fairfax Code Section 98-21 unconstitutional, striking the Code section and/or striking the evidence against the Defendant, and dismissing the charges against the Defendant with prejudice.

Respectfully submitted,