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Archive for the category “My Articles: Traffic Law”

A Collection of Traffic Law Writings by James W. Cushing

Over the course of my career, I have written extensively on traffic law.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!


Blog Posts:

Hidden Pictures: Constitutional Issues with the Red-Light Program

In 2005, Philadelphia started its participation in the red-light camera program. Per this program, cameras have been set up at high-risk intersections in the city in order to effectively catch motorists running red lights. So far, the cameras have been set up around the city, including the intersections around City Hall and at a few intersections along Roosevelt Blvd. Presently, a debate is ongoing in Harrisburg as to whether to continue and/or extend the red-light program in Philadelphia and into about a dozen other Pennsylvania cities.

There is no doubt that the red-light program has brought millions of dollars to Philadelphia in traffic fines and arguably has made our roadways safer; however, the question as to whether the program is constitutional remains outstanding. I have written about this issue before, in 2009, and, since that time, there has been little discussion regarding the constitutional aspects of the red-light cameras.

The constitutional issues are pretty clear. A traffic violation is a summary criminal offense (see: 18 Pa.C.S.A. Section 106(c); Stumpf v. Nye, 2008 Pa. Super. 122 (2008), Commonwealth v. Henry, 2008 Pa. Super. 20 (2008), and Commonwealth v. Gimbara, 2003 Pa. Super. 394 (2003)). The burden of proof the commonwealth must meet, even for summary criminal offenses, is beyond a reasonable doubt (see Commonwealth v. A.D.B., 752 A.2d 438, Pa.Cmwlth. 2000 andCommonwealth v. Banellis, 452 Pa.Super. 478 (1996)). Logically speaking, then, the burden of proof for the commonwealth for the summary criminal offense of a traffic violation like running a red light is proving it beyond a reasonable doubt.

Despite the clear law described above, pursuant to 75 Pa.C.S.A. Section 3116(b), motorists caught by the red-light program are presumed to be liable and have to prove their own innocence. Clearly, the burden of proof under the red-light program turns the traditional American jurisprudence of “innocent until proven guilty” on its head. The single biggest reason for the constitutional issue is that the photographs taken are only of the rear of the car, as opposed to the face of the driver, capturing only the license plate and make and model of the car. At least if the photographs were of the driver’s face, there would be convincing proof of who the driver was who ran the red light. As it stands now, the ticket for running a red light under the red-light program is assessed to the owner of the car photographed from behind, regardless of who the actual driver was at the time of the violation, despite this not being the case for other traffic violations.

I have been told that the photographs are not taken of a driver’s face to protect his or her privacy, however that has no logical basis, as the license plate and make and model of the car reveals just as much information about the owner of the car as photographs from the front. Additionally, no one sees the photograph except for PennDOT, the owner of the car and perhaps the court and police. Somehow, I simply do not think opposing basic American constitutional jurisprudence is worth the cost of allegedly protecting privacy.

As the debate on the red-light program continues in Harrisburg, I hope that before any decision is made, some consideration is made of the constitutional issues described above and that our rights are protected. Allowing our rights to deteriorate in this limited way without opposition may be a harbinger for further erosion. Now that we have the opportunity to address this issue again, I hope the debate on the red-light program highlights this very important issue.

Originally published in the Legal Intelligencer Blog on April 17, 2012 and can be found here.

Picture Imperfect: the Implications of Using Cameras to Monitor Drivers

Anyone who has driven the roundabout encircling Philadelphia’s City Hall or down the Northeast Philadelphia drag strip (a.k.a. Roosevelt Boulevard) has no doubt encountered the cameras monitoring whether motorists stop at the traffic lights. Although these cameras apparently have made driving these roads safer, are the new traffic laws that were passed to regulate these cameras consistent with the traditional principles of American Law?
Although most people do not view a traffic violation as seriously as a criminal offense, said violations are a form of criminal offense. According to Pennsylvania Courts, a traffic violation is classified as a summary offense pursuant to 18 Pa.C.S.A. Section 106(c) (see Stumpf v. Nye, 2008 Pa. Super. 122 (2008), Commonwealth v. Henry, 2008 Pa. Super. 20 (2008), and Commonwealth v. Gimbara, 2003 Pa. Super. 394 (2003)). According to 18 Pa.C.S.A. Section 106(c), a summary offense is a classification of a criminal offense. Pennsylvania Courts have made it clear that even for summary offenses, the burden the Commonwealth must meet is “beyond a reasonable doubt” (see Commonwealth v. A.D.B., 752 A.2d 438 (Pa.Cmwlth. 2000 and Commonwealth v. Banellis, 452 Pa.Super. 478 (1996)). Therefore, working backward logically, as a traffic violation is a summary offense, which is a classification of a crime, and the Commonwealth’s burden of proof for a crime is beyond a reasonable doubt, it is clear that the Commonwealth has to prove its case against a defendant in Traffic Court beyond a reasonable doubt, and therein lies the rub relative to the traffic cameras mentioned above.

According to 75 Pa.C.S.A. Section 3116(a), a city of the first class, such as Philadelphia, is authorized to enforce traffic control devices through the use of an automated camera system. The cameras photograph the rear of a vehicle, capturing its make, model, and license plate, as well as the violation, as it passes through an intersection against the direction of a traffic control devise, generally a red traffic light. Pursuant to Section 3116(b) of the same title, if an automobile is photographed perpetrating a traffic violation by driving through a red light, the owner of the vehicle is presumed liable for the penalty for the violation. If a vehicle owner is presumed liable for a traffic violation penalty due to a photograph pursuant to Section 3116(a), it is up to the owner of the vehicle to prove his innocence by raising various defenses, such as alleging that he was not driving the vehicle at the time the photograph was taken. It is also notable that under Section 3116(e)(1), the statute specifically prohibits the cameras to photograph the front of a vehicle as evidence of the violation.

What happened to the Commonwealth having to prove guilt beyond a reasonable doubt? It seems that 75 Pa.C.S.A. Section 3116, in one fell swoop, has, in effect, turned perhaps the most axiomatic of American legal principles on its head. The Commonwealth’s burden of proof of beyond a reasonable doubt, which applies to criminal matters such as violating traffic control devices, has not just been reduced to a less onerous burden, but it has been essentially reversed by placing the burden on the automobile owner to prove his innocence. The presumption of guilt against the owner of a vehicle afforded by Section 3116 overlooks doubts that are manifestly reasonable on their face such as: it was the owner’s spouse, friend, child and/or neighbor driving the car, not the owner himself, or that the car was stolen. Indeed, even the obvious solution of photographing the front of the vehicle which would, or at least could, capture an image of the face of the driver illegally traversing the intersection is inexplicably prohibited. Finally, it would seem that Section 3116 tacitly, without any fanfare at all, undermines a basic principle of traffic law which heretofore established that penalties for violating a traffic law attach to an individual rather than the vehicle itself. It seems that Section 3116, without explicitly changing the focus of traffic law, suddenly has made being caught by an approved camera a violation that attaches to the vehicle itself as opposed to the driver. While focusing on the vehicle as opposed to the driver could be an explanation for the sudden ease in the Commonwealth’s burden in these sorts of matters, nowhere in the statute is it stated that traffic violations now attach to vehicles as opposed to drivers. Therefore, one is left with the clear conclusion that, when it comes to traffic control cameras, a vehicle owner is guilty of a violation until proving himself innocent.

Surely the safer streets, which seem to have resulted from the installation of cameras, is a good thing. However, although most people view traffic violations as a minor issue, the apparent overturning of the basic American principle of “innocent until proven guilty” could potentially have significant and long range effects. Could Section 3116 be struck down by the Court? Possibly, but due to the costs involved, it is obviously unlikely that a conviction under Section 3116 would even be litigated let alone appealed to the Pennsylvania Supreme Court. However, it is not outside the realm of possibility that the Pennsylvania Legislature could use Section 3116 as a springboard to slowly erode and ease its burden of proof in even more significant criminal matters. As citizens of this venerable Commonwealth, we must be vigilant in ensuring that our rights do not continue to be eroded in the name of safety.

Originally published on December 8, 2009 in Upon Further Review and can be seen here or on my website here.

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