Red light Enforcement Legal Considerations
The National Highway
Traffic Safety Administration (NHTSA) and the Federal Highway Administration
(FHWA) has compiled and distributed this information as a guide only. This material is not intended to be a
complete treatment of every jurisdiction’s laws and court decisions related to
photo red light enforcement. Instead,
this material includes highlights and examples of court decisions, and
discusses issues that users engaged in photo red light enforcement should
Due to the dynamic nature
of law enforcement and the evolution of technology, it is important that
each department review this information to verify that it is consistent
with applicable, current state and local law and regulations, and with department
policy and procedure. This
information is NOT intended to substitute for the advice of legal counsel. You should speak with your legal advisor, and/or
local prosecutor, about the sufficiency of your department’s manual, policy,
curriculum, and training program on this subject. This material should not be used as the sole
basis for compliance with any law or regulation, and departments should
NOT rely on this material as a legal defense in any civil or criminal
action. Remember that new court
decisions and amendments to the law could change the material in this appendix.
Photo red light enforcement is a relatively new law
enforcement tool. Thus, case law is not
well established. Although the few
cases involving photo red light raised constitutional issues, the decisions
were based upon procedural grounds, never answering the ultimate question – is
it constitutional? The ruling on the
Motion to Dismiss citations issued under San Diego, California’s photo red
light program (now under appeal), found the program constitutional. However, this ruling is not binding and only
provides insight into the court’s reasoning.
Automated speed enforcement, a relatively new enforcement
tool as well, shares common legal issues with photo red light enforcement –
such as the registered owner presumption, notice, procedural, constitutional
issues, etc. Most automated speed cases
have also tended to avoid constitutional questions. Some issues (e.g., chain of custody, service of process issues,
registered owner presumption) have been addressed, but these decisions tend to
be highly fact-dependent and/or are based on State statutes.
Many questions remain.
The answer to these questions may be gleaned from cases not specific to automated
enforcement. Existing case precedent
dealing with evidentiary issues of older enforcement techniques will shape the
use of automated enforcement evidence in the future. Law enforcement will use the same criminal procedures as are
applicable to the collection (search and seizure), preservation
(chain-of-custody), and discovery of other types of evidence.
It is most important to note that although the courts will
borrow from established case law to determine case law regarding automated
enforcement, the path will most likely be contorted. The law is known for nuances.
Thus, subtle distinctions between photo red light programs may affect a
court’s decision and produce seeming inconsistencies.
Most importantly, the classification of the photo red light
violation, as either a civil or criminal violation, will dramatically effect
decisions. Similarly, as in the San
Diego photo red light program, the enabling statute may impact the
admissibility of the evidence (see page 17 for enabling statutes). A State’s surrounding body of law and the
manner in which the program is conducted will also impact the viability of the
photo red light program and the success or failure of challenges to the
program. Without assessing merit,
following are some of the issues that may be generated by photo red light
of evidence of photographs
with enabling statutes
- Foundation: Device reliability (maintenance, checks
for accuracy, training of personnel involved in the process)
or dissemination of photographs
– compliance with applicable state rules for service
notice of use of photo red light enforcement (signs)
– who can bring an action, when, and where
of the program violates Fourteenth Amendment Due Process rights
rights (6th Amendment right)
Protection (disparate treatment for public, police, rental, corporate, out-of-state
vehicles, motorists cited by police
Amendment right to remain silent (for statutes requiring affidavit as to
who was driving)
a citation that requires appearance is a seizure subject to the Fourth Amendment
a motorist is a search subject to the Fourth Amendment
delay (delay between the violation’s occurrence and receipt of notice) –
Fourteenth Amendment Due Process
that the registered owner is the driver impermissibly shifts the burden
– violation of State privacy laws
generation: selection criteria for photo red light enforcement, light phase
The above are all issues that are likely to continue
to be the subject of legal review and refinement. Monitoring their long-term clarification through legal proceedings
is to be advised for all jurisdictions adopting red light camera enforcement
systems. Appendix A reviews current
relevant case law examples and in doing so illuminates the types of issues
that have been raised.
Photo Red Light Case Law Synopsis
Dajani v. Governor
of Md., No. CCB-00-713, 2001 U.S. Dist. LEXIS 982 (D. Md. Jan. 24, 2001)
Facts: The defendant was charged with a photo red
light violation and convicted. In this
jurisdiction, photo red light violations are civil and not considered moving
violations. Insurance companies may not
consider the convictions.
Issue: The defendant appealed to the Federal
district court, requesting the court declare the statute unconstitutional. The defendant alleged the photo red light
statute violated the Sixth Amendment’s Confrontation Clause and the Fourteenth
Amendment’s Due Process Clause.
The court upheld the
conviction on procedural matters (lack of Federal jurisdiction and lack of
standing) without comment on the constitutional issues. The Fourth Circuit Court of Appeals affirmed
the District Court’s decision. (Dajani
v. Governor of Md., No. 01-1179, 2001 U.S. App. LEXIS 17303 (4th Cir.
Kovach v. District of
Columbia, 805 A.2d 957 (D.C. 2002).
Facts: The defendant paid, without contesting, a
photo red light citation. Subsequently,
the police department “decided to remove the camera because it was observing an
inordinate number of people running the light, which was confusing to
motorists.” Id. at 959.
Outstanding fines were dismissed, but those motorists who had paid were
Issue: The defendant appealed, alleging the
District’s decision to forgive some, but not all, violations violated the Fifth
and Fourteenth Amendments.
The court upheld the conviction
because “in failing to contest the infraction, appellant effectively acknowledged
liability for running the red light.” The court also rejected the defendant’s
argument that the confusing placement of the stoplight created “manifest
injustice.” The defendant “has no
standing to challenge the decision unless . . . he was
confused . . .” Id. at 962-63.
Int., Inc. v. City of Charlotte, No. C0A102-200 (N.C. Ct. App., Nov. 19,
2002) (unreported – not final until expiration of rehearing period).
Facts: The president of Structural Components
received a photo red light citation for one of its vehicles. In this jurisdiction, violations are
civil. Structural Components contested
the violation at a “review hearing.”
Issue: Upon conviction, Structural Components
(plaintiff) filed suit in the superior court alleging negligence (by failing to
establish reasonable guideline, failure to govern the program in a reasonable
manner, and failure to provide a reasonable appeals process) and civil rights
violations (State/Federal due process and equal protection).
Upon defendant’s (the City
and Lockheed Martin) motion to dismiss, the court determined it lacked
jurisdiction and dismissed the action.
Structural Components appealed. The appellate court affirmed the trial
court’s dismissal on procedural grounds (waiver of the negligence action for failure
to properly state issue in appeals brief and, because one cannot recover
monetary damage for a procedural due process violation involving a civil
penalty, failure to state a claim). The
court noted the proper avenue to challenge the constitutionality of the statute
was by certiorari to the superior court (which
Structural Components had
not used) and the present statutory scheme provided an adequate method for
challenging the legality of the program.
City of Commerce City v.
Colorado, 40 P.3d 1273 (Colo. 2002).
Issue: Commerce City challenged whether the Colorado
statute (Colo. Rev. Stat.
§ 42-4-110.5 (2002)), which authorized the photo red light program, infringed
upon the City’s “home-rule” powers. Noting
that the program involved a “mix” of state and local concerns and, where
conflicts arose, State concerns prevail, the court affirmed the validity
of the program.
People v. John Allen
(In re Red Light Camera Cases), No. 57927SD (Cal. Super. Ct. Aug.
2001) (order denying motion to dismiss) (available at http://freedom.gov/auto/
cases/sdmotion.asp). This case
remains under appeal. This order
is presented to illustrate issues that may arise with photo red light
The court noted that
pleading defects (i.e., minor errors in the pleading document) that do not
prejudice a substantial right do not justify dismissal.
Issue #5: The defendants argued that because the City
did not comply with statutory provisions regarding the “operation’ of the
program, all citations must be dismissed.
In making its determination the court looked at the following issues.
Issue #5A: Was the delegation of authority
Although, the City had
delegated the tasks of evidence collection and determining who will not be
cited to Lockheed Martin, the police retained the “ultimate authority to
determine who will be prosecuted.” Thus, the delegation was not
Issue #5B: Is the fee paid to Lockheed Martin a
contingency fee and if so, what is the legal effect?
Because Lockeed’s payment
was contingent upon a conviction, the fee was deemed a contingency fee.
The court indicated that
Lockheed was “supposed to be a neutral evaluator of the evidence” and “should
not have a financial interest in the outcome.”
The court reasoned that because the statute mandated a government agency
“operate” the program, the purpose was to guarantee, “information obtained from
the red light cameras would be trustworthy.
The potential conflict created by a contingent method of compensation
further undermines the trustworthiness of the evidence which is used to
prosecute the red light violations.”
Issue #5C: Does the delegation, without statutory
authority, which operates on a contingent fee basis violate due process such
that it requires a dismissal of pending actions?
The court noted that the
threshold question in a due process challenge to executive action is whether
the behavior is “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” In
this case, the court held the conduct did not rise to that level.
Issue #5D: Is the photo red light evidence admissible?
The court indicated that
“where evidence is obtained from sources subject to legislative standards,
there should be substantial compliance.”
The court noted that “there is no authority in the Vehicle Code for
unsupervised private operation of a red light camera system. Therefore, there is not substantial
compliance with the safeguards required by the statute. Such a lack of authority, combined with the
collection based compensation, result in evidence lacking foundation. Without
foundation, the evidence is not relevant and is not admissible.”
Accordingly, the court did not grant the motion to dismiss, but rather
granted a motion to exclude the evidence.
Office of the Attorney
General of the State of Texas, Opinion No. JC-0460, 2002 Tex. Op. Atty. Gen. 20
Issue: Could a city pass an ordinance authorizing a
photo red light program and could violations be civil, rather than criminal?
Based on Texas law (which
deemed red light violations criminal), the Attorney General opined a city
could authorize a photo red light program to identify violators, but could
not make violations civil.
Office of the Attorney
General of the State of Tennessee, Opinion No. 01-004, 2001 Tenn. AG LEXIS 6
(2001) (available at http://www.attorneygeneral. state.tn.us/op/
Attorney General’s Office was tasked with determining whether, pursuant to
inherent police power, a city had authority to enact ordinances allowing
specific constitutional issues, the Attorney General’s opinion concluded that
the use of photo-enforcement did not conflict with any State statute. In a footnote, the opinion noted
photo-enforcement has “generally been viewed as a permissible exercise of State
and local government police power which is not violative of Federal or State
Office of the Attorney General of the State of
Nebraska, Opinion No. 00001, 2000 Neb. AG LEXIS 1 (2000) (Available at
General’s office was tasked with assessing the constitutionality of proposed
legislation involving photo red light enforcement. The Attorney General offered the following opinions:
#1: Procedural Due Process
proposed legislation permitted a defendant to contest the violation in a county
court and assumed that proper notice would be provided. Thus, the Attorney General opined the
proposed legislation would comply with the procedural due process requirements
of reasonable notice and an opportunity to be heard.
#2: Substantive Due Process
due process guarantees individuals protection from arbitrary government
action. The Attorney General noted that
due process is satisfied if the government has the power to act on the subject
matter, if they did not act capriciously or in a discriminatory manner, and if
there was a reasonable relationship to a proper governmental purpose.
Attorney General opined that the proposed legislation complied with substantive
due process because protecting public safety is a proper subject matter and the
legislation was rationally related to that interest.
the registered owner presumption, the Attorney General opined this was also
a “proper exercise of the State’s police power” similar to holding the registered
owner of a parked vehicle liable.
#3: Equal Protection
Attorney General noted the similarities of the Nebraska and U.S. Constitution
in that equal protection challenges not involving a suspect class or
fundamental right are tested only for rationality. A Nebraska Supreme Court decision (State v. Michalski, 221 Neb.
380, 377 N.W.2d 510 (1985)) had held that driving is not a fundamental right,
and that drivers were not a suspect class.
Attorney General opined that the classification would be between two types of
drivers: (1) those individuals cited directly by an officer who receive a
criminal penalty, and have the conviction recorded on their driver’s license;
and (2) those individuals cited by the photo red light program who are
subjected only to civil penalties and no recordation on their driver’s license.
General noted that, although the purpose of the legislation was not set
forth, the apparent purpose was to reduce the hazards of running red lights.
Thus, the Attorney General concluded that, given the “wide latitude”
and deference to the legislative process, the legislation met the rational
basis standard and the proposed law would comply with Equal Protection rights.
Related Automated Enforcement
Case Law Synopsis
Oregon v. Dahl, 57 P.3d
965 (Or. Ct. App. 2002).
Facts: An officer operating a photo radar unit
photographed the defendant’s vehicle exceeding the posted speed limit. The defendant was the only registered owner. The officer observed the violation, but did
not effect an enforcement stop and could not identify the driver. At trial, a witness commented that the
defendant failed to provide a sworn certificate of innocence as permitted by
Issue #1: The defendant contended the Oregon statute
which establishes a presumption that the registered owner of a vehicle is the
driver impermissibly shifts the burden of persuasion.
An Oregon statute (Or. Rev. Stat § 153.030.1) provides
that unless excepted, criminal procedure laws apply to traffic violations. However, a different statute (Or. Rev. Stat § 153.076.2) provides that traffic violations
must be proved by a preponderance of the evidence (a civil standard). Because this statute authorized a civil standard
of proof, the court reasoned a civil standard also applied to the
presumption. Therefore, the burden
shift was permissible.
Issue #2: The defendant contended that, even if the
violation is civil, the Oregon presumption statute violated due process
The court noted that both
U.S. Supreme Court (Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8 (1931))
and Oregon State court decisions required a “rational connection” between the
fact proved and the ultimate fact presumed.
The defendant argued that “vehicles usually have more than one key,
licensed drivers outnumber registered vehicles, and vehicles commonly are
borrowed or stolen, all of which indicate that vehicle are often driven by
someone other than their owner.” The
court, although acknowledging that vehicles are often driven by non-owners,
found that “it is not irrational for the legislature to presume that vehicles
are often driven by owners” and “we need not decide what facts are more likely
to be true; the rational connection test does not require adoption of the best
or most persuasive explanation.” Thus,
the Oregon statute did not violate due process. Id. at 968-969.
Issue #3: The defendant contended a witness reference
to her failure to submit a sworn certificate of innocence violated her
statutory and constitutional right to remain silent.
The Fifth Amendment
provides that no person “shall be compelled in any criminal case to be a
witness against himself.” The court
indicated that the defendant had failed to identify how she could have been
exposed to any criminal responsibility.
Thus, “her constitutional right was not implicated.” Id. at 969.
Section 810.439 provides a
defendant in a traffic violation case an opportunity to avoid trial by
submitting a certificate of innocence.
The defendant may disregard that opportunity. The court “assumed without deciding” that the witness’s comment
impermissibly infringed on the defendant’s statutory right, however, the court
also stated “there was no indication that the trial court relied on that
testimony in making its decision.”
Thus, the court found the defendant was not prejudiced by the
McNeil v. Town of
Paradise Valley, No. 01-17003, 2002 U.S. App. LEXIS 17306 (9th Cir. Aug. 12,
2002). Not Published – Check with
Court Rules. The case is presented to illustrate issues that may arise with
photo red light enforcement.
Issues: McNeil appealed the district court’s
dismissal of alleged civil rights and Racketeer Influenced and Corrupt
Organizations Act (RICO) violations premised on the issuance of an automated
speed citation. The facts and basis for
these contentions was not clearly set forth.
However, it appears that McNeil contended the mailing of a traffic
citation to the registered owner was a seizure and the process was in violation
of due process.
Without elaboration, the
court found municipalities cannot constitute a RICO enterprise. Further the court indicated that, because a
seizure requires intentional physical control, the mailing of a citation
is not a seizure. As for the due
process claim, the court indicated that the challenge to the citation in
municipal court was sufficient.
Oregon v. Clay, 29
P.3d 1101 (Or. 2001).
Facts: An officer operating a photo radar unit
photographed the defendant’s vehicle speeding.
The officer did not effect an enforcement stop and did not know the
identity of the driver in the radar photo.
Subsequently, a citation was issued and mailed to the defendant. The defendant did not appear at trial, but
rather was represented by counsel. No
evidence was presented on behalf of the defendant. The State presented no direct evidence that the defendant was the
registered owner, but rather relied on witness testimony and an “official duty”
presumption to establish the defendant as the registered owner. Upon being found guilty, the defendant
appealed, contending the State had failed to prove that she was the registered
owner of the vehicle. The Oregon Court
of Appeals upheld the conviction and the defendant appealed to the state
In this jurisdiction, the
registered owner is presumed to be the driver – see Oregon Law 1995, Chapter
579, sections 1-3 later codified to Oregon Revised Statutes §§
810.438-810.439. Oregon statute section
811.123 requires proof that a particular person was speeding.
Issue: The defendant contended there was
insufficient evidence to permit the trier of fact to find that she was the
registered owner of the vehicle.
The court indicated that
it did not “perceive any evidentiary basis . . . that would permit a trier of
fact to find that the defendant was the registered owner of the speeding
car.” Id. at 1103. The percipient witness could not identify
the driver and there was no evidence to conclude the defendant was the
registered owner (which would have invoked the presumption that the registered
owner was the driver).
The court indicated that
because an officer had the authority, not a duty, to send the citation, the
presumption that an “official duty had been performed” was not applicable. Because they could not prove the notice had
been mailed to the registered owner, they could not prove the defendant was the
registered owner. Because they could
not prove that the defendant was the registered owner, the presumption that the
registered owner was the driver was not applicable.
Oregon v. Weber, 19 P.3d 378 (Or. Ct. App. 2001).
Facts: An officer operating a photo radar unit
observed the defendant’s vehicle speed.
The unit photographed the vehicle.
Subsequently, the defendant was mailed a citation.
Issue #1: The defendant contended the inscription
(indicating vehicle speed) on the photograph was impermissible hearsay.
The court indicated that, by
statutory definition (Oregon Evidence Code 801), hearsay is a statement by a
declarant and a declarant is a person who makes a statement. A
machine, not a person,
made the inscription on the photograph.
Thus, the hearsay rule is inapplicable.
Issue #2: The defendant contended the court should
have excluded the photograph on chain-of-custody grounds because the state
offered no evidence as to “who picked up the film from the station, what
happened to the film, how it was handled, or what was done to it prior to the
citation and photograph being returned to the police station six days later.”
The court indicated that,
“given the totality of circumstances, the trial court was well within its
discretion in determining that there was no appreciable likelihood of
alteration or tampering and that no further foundation was required.” Id.
Issue #3: The defendant contended the automated speed
enforcement unconstitutionally shifts the burden of proof of the offender
The court ruled the
defendant had failed to use the proper judicial procedure to preserve this
Issue #4: The defendant contended the time delay
(between the occurrence of the violation and the mailing of the notice)
violated her Fourteenth Amendment due process rights.
Enforcement Related Statutes and Ordinances
National Committee of Uniform
Traffic Laws and Ordinances, Automated Traffic Law Enforcement Model Law
- California Vehicle Code– Cal.
Veh. Code §§ 210, 21455.5, 21455.6, 40518, 40520 (2003).
- Colorado Revised Statutes – Colo. Rev. Stat. § 42-4-110.5
- Delaware Code Annotated - Del.
Code. Ann. titl 21 § 4101(d) (2002).
- Official Code of Georgia Annotated
– Ga. Code. Ann. § 40-6-20 (2002).
- Illinois Compiled Statutes Annotated -
625 Ill. Comp. Stat. Ann.
5/1-105.5, 5/11-306 (2002).
- Annotated Code of Maryland – Md. Code Ann. Transp. § 21-202.1 (2002).
- Nevada Revised Statutes Annotated – Nev. Rev. Stat. Ann. § 484.910 (2002).
- New Jersey Annotated Statutes – N.J. Stat. Ann.
§ 39:4-103.1 (2002).
- New York Consolidated Laws Service – N.Y. Veh. & Traf. Law § 1111-a
- General Statutes of North Carolina – N.C. Gen. Stat. § 160A-300.1 (2002).
- Oregon Revised Statutes – Or. Rev. Stat. §§ 810.434 - 36, 438 - 439 (2001).
- Pennsylvania Consolidated Statutes - 75
Pa.C.S. §§ 102, 3116 (2002).
- Utah Code Annotated –Utah Code Ann. § 41-6-52.5 (2002).
- Code of Virginia – Va. Code. Ann. §§ 46.2-819.1, 833.01
- Wisconsin Statutes - Wis. Stat. § 349.02 (2002).
- Toledo, Ohio, Mun. Code § 313.12
(1999) and Ordinance No. 451-00 (2000).
- Dayton, Ohio, Rev. Code of Gen. Ordinances
No. 70.121 (2002).
- District of Columbia
Code Ann. §§ 50-2209.01,
- Charlotte, N.
C., Ordinance No. 966 (1998)–