By Sandy Brundage
Almanac Staff Writer
Drivers tagged by Menlo Park's four red light cameras during the past year may want to keep an eye on the latest court rulings.
Menlo Park's contract with Arizona-based Redflex Traffic Systems contains a "cost neutrality" clause that has been ruled illegal in other jurisdictions. The appellate division of Orange County Superior Court overturned a conviction in 2008; last year the same happened in San Mateo County.
The presiding appellate judge of San Mateo County Superior Court agreed. In a terse, one-word ruling, Judge Mark Forcum stamped, "Reversed," overturning a driver's 2009 conviction for turning right on red without first coming to a stop.
That kicked off a winning trend for attorney Frank Iwama, who represented the driver. The former state deputy attorney general said he's won 18 of 18 red-light ticket cases -- several originating in Menlo Park -- with two initial losses overturned on appeal. He challenged the idea that the cameras primarily stop red-light runners.
"Truth be told, 90 percent of these red-light camera tickets are not straight through running the light; they're right turns," Mr. Iwama said. "Usually in California you're entitled to make a right turn on red. But slow down to next to nothing, and cross that white line -- I'm not condoning it, but you get hit by a $500 fine, it goes on your DMV record, and your insurance."
A San Mateo County grand jury report released in June estimated Menlo Park's average monthly income as $94,500 from red-light camera citations, although a city staff report indicates the number of citations has been on the decline since June 2009.
"It's fairly clear it's for money," Mr. Iwama said. "It's a nice revenue flow for the city. But if that's the case, why don't they just say that up front? Five hundred dollars, for some families that's one month of food."
California's vehicle code specifically states that compensation to a company like Redflex can't be based on the number of citations issued. A "cost neutrality" clause like Menlo Park's saves the city from paying Redflex's $5,000 to $6,000 monthly fee per camera if the revenue from the number of citations issued doesn't cover the cost. In other words, Redflex loses money if the number of citations falls below a certain number.
"For whatever reason Menlo Park has the attitude that they don't have to change the contract," said Mr. Iwama. San Mateo and San Carlos deleted that clause from their Redflex contracts. Menlo Park City Attorney Bill McClure said there's no need for Menlo Park to follow suit. "Our contract language is different, and we believe ours is legally correct."
Mr. McClure explained that in Menlo Park, payments to Redflex are only deferred if revenue does not cover the fees. "It's not about 'not paying,' it's about when the money will be paid," he said.
Red light cameras have created other controversies in court. Another Orange County case was overturned in May when the appellate court ruled that the camera's photos and videos were inadmissible hearsay evidence. This poses a question: Why do red-light camera photos fall into a different legal category than surveillance camera photos, such as those taken at ATMs or convenience stores?
Mr. Iwama suggested the answer lies within the automated nature of the red-light cameras. "Usually there's a live person who can testify, 'Yes, this is the equipment, I had it installed, it's in good shape.' They may not see the actual break-in, but they can vouch for the equipment and lay a foundation for the evidence," he said. "But with red-light cameras, nobody saw the violation other than the equipment. The people who can vouch for the equipment aren't here, they're in Arizona."
Redflex's contract with Menlo Park specifies the company is responsible for all maintenance and troubleshooting. The company monitors all of its cameras remotely, relying on the system to indicate knockdowns, power outages, or communications issues, according to Shoba Vaitheeswaran, director of communications at Redflex.
Mr. McClure, Menlo Park's city attorney, weighed in on the recent court rulings, after his office participated in a conclave with Redflex on June 29. "One could say that bad facts make bad law," he said.
Mr. McClure believes the Orange County court is "just wrong in its decision." The difference between the Orange County case and local cases, he said, boils down to whether the officer testifying in court is qualified to answer questions about the citation and how the camera system works.
"The problem with the officer testimony that was present in the Orange County case is not present in Menlo Park's cases," he said, explaining that Menlo Park officers who testify have personally reviewed the evidence and know how the technology works.
However, Mr. Iwama took issue with that statement, having just gotten a red-light ticket dismissed in part because the Menlo Park police officer read from a script while testifying, and was unprepared to answer questions without it. Menlo Park and Santa Ana, where the Orange County hearsay case originated, both contract with Redflex, he said, and follow the same procedures.
Mr. McClure cited other cases where photographs and videos are not hearsay, as with surveillance photos, and only need to be authenticated by a police officer to count as evidence. Redflex, along with several cities, have asked the Orange County Superior Court to de-publish the case, which would mean attorneys could no longer cite the case as precedent.
"It is worth noting that the [Orange County defendant did not assert innocence or claim that he did not run a red light," Mr. McClure said. "The purpose of the cameras is and continues to be to ticket people running red lights in an effort to change behavior to make intersections more safe for other drivers obeying traffic signals."
The Menlo Park Police Department is currently compiling data to evaluate how the red-light cameras are affecting safety at those intersections.