Know your rights if you get a traffic-camera ticket

This information was provided by the American Civil Liberties Union of Hawai'i Foundation. Reach ACLU at office@acluhawaii.org or 522-5900.

1. Right to contest ticket by mail or in informal hearing

When you get a traffic camera ticket by mail, you have three basic choices: pay the ticket; admit the violation, but argue mitigating circumstances; or contest the ticket. While you might think that you should choose one of the first two options if you believe that you were speeding, ran a red light, or disobeyed traffic lane markings, you should realize that these tickets go on your driving abstract. As a result, you could be paying for the ticket for years in the form of higher insurance rates. Even if you believe that you might have committed a traffic infraction, you should carefully consider your options before giving up your right to contest the ticket and make the government prove their case.

Contesting the ticket by mail or in an informal hearing at traffic court is the first step in the process of contesting your ticket. The simplest way to get through this first step is to contest the ticket by mail. To do so, you must make a written statement explaining why you are contesting the ticket. You should not misstate the truth, but you need not confess either. For example, you might choose to write something like, "The photograph does not show that I am the driver of the vehicle and I contest the ticket on that basis. Moreover, I believe the evidence presented is untrustworthy given the financial incentive of the contractor to issue tickets even when vehicles are not speeding."

You can also contest your ticket in an informal traffic court hearing where you can make the same arguments that you could make in writing. Be aware, however, that the judge will ask you to make a statement and will probably ask you questions. This might put you in the awkward position of having to admit in open court that you were the driver of the vehicle. However, you could follow up by explaining, for example, that you were driving with the flow of traffic or were going downhill. In addition, by law, any statements that you make in this hearing — even ones indicating that you were the driver of the vehicle — cannot be used against you if you subsequently demand a full trial.

Still, the simplest way to get through the first step of process is to contest your ticket by mail.

2. Right to contest ticket in full trial if dissatisfied with result in informal traffic court proceedings

You should expect that you are likely to lose, at the least partially, when you contest your ticket by mail or in an informal hearing. This is because the Legislature has provided by law that the photo of your vehicle alone creates a presumption that you were speeding, ran a red light, or disobeyed traffic lane markings. However, you have a right to demand a full trial in which you have additional protections.

To do so, simply ask for a trial at the conclusion of your informal hearing or within 30 days of receiving an adverse decision by mail.

3. Right to proof beyond a reasonable doubt

At the informal hearing, the government need only meet a low standard of proof ("preponderance of the evidence") to show that you are guilty. However, if you insist upon your right to a trial, the government must prove beyond a reasonable doubt that you were the operator of the vehicle and that you broke the law.

The Legislature has provided that a photo of your vehicle alone creates the presumption that you were the driver of the vehicle at the time of the alleged violation. The legal effect of this presumption has not yet been completely addressed by the courts. However, in a criminal trial, a presumption alone is not enough to prove the state's case beyond a reasonable doubt. Since a trial on a traffic ticket is held according to criminal court procedures, the same rule should apply.

In other words, the judge should not presume that you were the operator of the vehicle based upon the mere fact that you are the registered owner, unless it would be reasonable to reach such a conclusion beyond a reasonable doubt. However, everyone knows that vehicle drivers are often not the registered owners. No reasonable person could conclude beyond a reasonable doubt that you were the vehicle driver just because you are the registered owner. Thus, if the photograph on the citation does not show you as the driver and there is no other evidence that you were the driver, you should have a good chance of winning at trial.

Beware: There are no guarantees. As explained above, the law on the effect of presumptions in trials on traffic violations is not completely settled. The judge could have a different view of the law than does the ACLU of Hawai'i. However, we feel strongly that, as the law stands today, a photo of your vehicle alone is not enough to prove beyond a reasonable doubt that you were the driver.

4. Right to remain silent at trial and right against self-incrimination

Both the Unites States and Hawai'i constitutions provide that you may not be forced to testify against yourself and that you have a right to remain silent. The fact that you remain silent may not be used as evidence against you.

The Department of Transportation and others have incorrectly said that you are legally required to sign a "Declaration of Vehicle Operator Identification" identifying the vehicle driver if you claim you were not the driver. They include the "Declaration of Vehicle Operator Identification" on the citation. You can fill this out if you want to, but you cannot be forced to do so.

You have a constitutional right to remain silent and make the government prove that you were the driver. At trial, you need not testify. Indeed, you should not testify unless you have proof that you were not the vehicle driver or that you did not commit the violation. Anything you say at trial can be used against you. For example, you might think you are helping your case by arguing that you were going with the flow of traffic, but by making this argument, you would be admitting that you were the driver.

Often, the best approach will be to remain silent, wait for the government to finish presenting its evidence, and then ask the judge to dismiss the case due to the insufficiency of the evidence.

5. Right to challenge the evidence against you

You also have a right to challenge the evidence against you. This includes requiring the government to prove that the photo radar was working properly, the speed-detection laser was properly calibrated, and the evidence is otherwise trustworthy and reliable.

In other states, judges have thrown out hundreds of citations issued by ACS, the company running the Hawai'i photo enforcement program, due to the lack of trustworthiness of the information on the tickets. This is because ACS receives money — $29.75 in Hawai'i — for each ticket paid out and has a profit motive to issue as many tickets as possible.

6. Right to an attorney

You have a right to have an attorney represent you in court. Many of the arguments outlined above, including the arguments about proof beyond a reasonable doubt and about the reliability of evidence, are legally complicated. Such arguments are best made by an attorney with knowledge and expertise in this area. Indeed, it is almost always a better idea to have an experienced attorney represent you than to represent yourself. However, you are not entitled to a free court-appointed attorney for minor traffic violations not punishable by imprisonment. You should decide for yourself whether you can afford an attorney and weigh the risks of proceeding without one. If you do not have an attorney, you can still contest your ticket in court.