Virginia Lawyers Weekly VA Lawyers Weekly
A vehicle owner served with a notice of violation, which cited a no-stop right turn on red with photo and video evidence, did not show that her constitutional rights were violated either by the city red-light-camera ordinance or its authorizing state statute.
Background
Defendant Tawana Cooper received a Notice of Violation from the City of Fairfax, related to a vehicle for which she was the registered owner. The City’s “Respect Red Enforcement Program,” which operates via photo and video images of vehicles at certain intersection, had captured such images of her vehicle making a right turn at a red light without stopping. The Notice Cooper received stated the date and time, location, direction of vehicle travel, vehicle speed, and citation number related to the violation.
After contesting liability in general district court, Cooper was found guilty and assessed a civil penalty of $50. Cooper appealed to this court, which reached the same result.
Cooper moved to reconsider, on grounds that the red-light camera program violates her rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, as well as her rights under Article I, §§ 8 and 11 of the Virginia Constitution.
Authorizing statute
The statute authorizing localities to adopt a traffic-light photo-monitoring system, Code § 15.2-968.1, requires a locality to embed several procedural protections in any adoptive ordinance.
For example, before a summons is issued, an officer must certify that the photo or video shows that a violation took place, based on at least one photo or video from before the violation and at least one from after. Contempt or arrest proceedings may not be instituted for failure to appear to the summons return date. If a third summons is required, it will be served by a law enforcement officer.
In addition, the locality must provide the vehicle owner a notice of her ability to rebut the presumption that she was the operator. The person summoned must be given at least 30 business days to inspect the information collected by the monitoring system. The owner can rebut the presumption either by affidavit or testimony, or by a certified copy of a police report showing that the vehicle was reported stolen prior to the violation date.
Finally, the alleged violator must have the opportunity to contest the violation in general district court. The statute significantly limits the consequences of a violation, with a maximum of $50 and no court costs to be assessed.
Fairfax City Code § 98-21 precisely tracks all of these requirements.
Civil proceeding
Contrary to Cooper’s contentions, Fairfax City Code § 98-21 is a civil statute imposing a civil penalty in a civil proceeding. As in Deaner v. Commonwealth, 210 Va. 285 (1969), no arrest is made here, and Cooper is not detained. Initial contact by the City was made by mail, and in fact the locality is prohibited from initiating an arrest if the defendant fails to appear.
Also, as in Wilson v. Commonwealth, 23 Va. App. 443 (1996), the legislature here clearly intended § 15.2-968.1 to be civil, not criminal, as the statute makes both explicit and implicit.
This finding largely resolves Cooper’s constitutional challenges, which invoke Fifth and Sixth Amendment protections for criminal defendants.
Constitutional analysis
Notwithstanding the conclusion above, even analyzed the violation as a criminal one, the court finds no constitutional violation.
First, Cooper received constitutionally sufficient notice and service. Mailing of the summons is clearly lawful and authorized. Moreover, mailing is only the first of several steps in providing notice in this context. If the defendant fails to appear in response, the City must again attempt service pursuant to § 19.2-76.3 (personal or substitute service). If the defendant again fails to appear, personal service is executed by a law enforcement officer. Thus, the vehicle owner may receive three separate notices of a violation. In this case, Cooper received the summons and returned the form by mail, requesting a hearing.
Further, the Notice Cooper received sets forth the essential elements of the violation, including three photos of the vehicle. It notified her of her options, including her right to contest the citation (of which she availed herself) and rebut the presumption that she was the operator at the relevant time. It also provided a 90-day period for Cooper to inspect the information collected – three times longer than the period required by statute.
Accordingly, notice provided to Cooper and the means by which she received it were both constitutionally sufficient.
Second, Cooper’s right not to incriminate herself was not violated. Nothing in the statute or ordinance required her to file an affidavit or testify, let alone be a witness against herself. Precisely the opposite is true: She had available two powerful mechanisms to defeat an alleged violation – submission of an affidavit or sworn testimony. With the exercise of either option, the presumption is not merely undermined or challenged but stands rebutted. Far from violating Cooper’s privilege against self-incrimination, the statute and ordinance guarantees her privilege for self-exoneration.
Third, the ordinance does not deprive Cooper of due process of law. While it is true that the ordinance creates a presumption that the owner was the vehicle operator, it is explicitly a rebuttable presumption. In other words, it sets out circumstances for a prima facie case. The prima facie evidentiary connection between ownership of a vehicle and operating the vehicle is a natural and rational one.
Finally, Cooper’s Equal Protection rights were not violated. The clear purpose of the statute and ordinance is to protect public safety at certain intersections. The use of an automated camera system that identifies individuals who run a red light is a rational and reasonable means to address the danger posed. And courts routinely rely on photo and video evidence of the kind obtained by the automated red-light system, including crime-scene photos, dashcam and body camera video, and surveillance materials.
In addition, a defendant in this context has the full array of procedural rights afforded to other individuals charged with traffic infractions. This is true even though the actual penalty for such a violation is less serious: A red light violation does not constitute an operator conviction, does not impact insurance, does not requirement court costs, and is limited to $50.
Finally, the presumption here can be readily rebutted and does not even require an appearance in court. In contrast, charges for other traffic infractions cannot be rebutted simply by submitting an affidavit.
Motion for reconsideration denied.
City of Fairfax v. Cooper, Case No. MI18-261, July 10, 2018. Fairfax Cir. Ct. (Bellows). VLW No. 018-8-066, 26 pp.
