A broward county judge has found the red light camera statute to be unconstitutional under the Florida Constitution. Read order to find out why.
Counsel for the Defendant appeared and argued that the City of Hollywood was prosecuting these alleged violations without complying with Florida Statute 316.650 (3)(c). The testimony elicited during the trial demonstrated that the traffic infraction enforcement officer was not personally
“providing by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense . . . ,”
as required by Florida Statute 316.650 (3)(c), but was merely hitting the “accept” button to begin the process of generating a Notice of Violation (NOV) once she had viewed the video of the alleged infraction and determined that a violation had taken place. The statute provides in full:
(c) If a traffic citation is issued under s. 316.0083, the traffic infraction enforcement officer shall provide by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense or its traffic violations bureau within 5 days after the date of issuance of the traffic citation to the violator.
Those NOVs that are not paid to the vender maintaining the cameras within thirty (30) days turn into Uniform Traffic Citations (UTC), issued directly by American Traffic Solutions (ATS), the vendor for the City of Hollywood. The testimony also showed that although the CSO believed that ATS was communicating with the Clerk of Court once the UTC was issued, the CSO had no personal knowledge of the communication, what information was sent to the Clerk, and when it was done. Further, no testimony was ever elicited to prove that, even as of the date of this hearing, that this statutory provision has as yet ever been complied with.
A plain reading of this statute demonstrates the intent of the legislature. Florida Statute 316.650(3)(c) requires that a traffic infraction enforcement officer, which in this case was a CSO, provide the required information to the Clerk, not for it to be supplied to the clerk by a third party vendor. The City’s argument that ATS is authorized to make such communication with the Clerk is unpersuasive to the Court. There is no statute authorizing this process of having an entity other than the Department of Highway Safety and Motor Vehicles, a county or a municipality, electronically transmit a replica of the traffic citation data to a court having jurisdiction over an alleged infraction. This data, once transmitted to the clerk of a court, begins the procedure whereby a court might ultimately adjudicate the matter. Therefore, here it has become that a third party non-governmental entity rather than a governmental one which in essence is conferring upon a court the jurisdiction to hear a matter, contrary to the provisions of the statute.
Just to let the readers know, I handle these cases all the time. This issue is just one of many many that have been discovered to be contrary to the statutes or contrary to the rules of evidence.
Here are the things we are running into in court. The municipality or county is trying to introduce hearsay through documents they try and enter into evidence through the “business records exception.” Problem is that hearsay within hearsay, such as this, is inadmissible unless ALL hearsay meets the requirements (predicate) of an exception. So far, the municipalities and counties have not been able to meet this burden.
Another thing we have run into is the part of the statute (316.0083) that says that certain things are “admissible.” Sometimes a hearing officer will think that this is a legislative exception to the rules of evidence. Fortunately, only the Florida Supreme Court can approve a rule of evidence or a modification thereto. Have case-law on that to back up your argument.
Finally, be prepared to fight the introduction of the video and the photograph. The enforcement officer may be familiar with the intersection but the date and time are hearsay and only known to the officer by the information header found on the video. Also notice that the license plate is not readable on the video (at least the ones I have seen). This means that the photo is the only method of identification. The photo, however, crops just the area where the plate is located – there is no other information that the enforcement officer could testify to having knowledge of but the back end of the car and the plate itself.
Needless to say, the rules of evidence are alive and well. Expect some municipalities to fight these with hopes to appeal them (and win). Get your objections on the record, voir dire the witness (don’t rely on cross-examination), bring case-law. Don’t give the municipality or county the opportunity to appeal AND WIN due to a lack of defense record on appeal.