In the recent case of City of Parma vs. Demsey, the defendant was unsuccessful in defending himself in what was likely a kangaroo court for photo enforcement. Demsey appealed, but he apparently chose the wrong basis on which to appeal. While Sean C. Gallagher agreed with the denial of the appeal, he did offer the following gems which should be very useful for anyone looking to defend against a speed camera ticket (the full text may be found here):
{¶ 23} I concur fully with the judgment and analysis of the majority. I write separately to address concerns about due process and the admission of “technical” evidence with no record that it has ever been vetted for reliability.
{¶ 24} “There is no such thing as a perfect person, a perfect machine, or a perfect computer operating system.”
{¶ 25} The use of automated technology in society is increasing. Surprisingly, the admission of evidence derived from these new technologies is often unchallenged in Ohio courts. Often, as here, there is a presumption that everything works and is reliable.
{¶ 26} In this case, Demsey was given a copy of a document titled “Statement of Technology” that purports to explain the reliability and operating nature of the Redflex Technology equipment that measured his speed.
{¶ 27} Under Parma Codified Ordinancess 313.035(D)(4), the hearing officer may consider, as an affirmative defense, that the automated traffic enforcement camera system “was not operating properly.” Despite this phrase, no standards for admissibility or reliability are outlined in the Ordinances. There is nothing referencing source codes for operation, margins of error, calibration (if applicable), radio interference (if applicable), weather, or other potential considerations that may affect the result. If the equipment is turned on and gives a result that the operator can explain, the motorist is liable.
{¶ 28} Analogous to municipal governments embracing automated traffic enforcement technology is Ohio’s reliance on technology to enforce drunk driving under Ohio’s O.V.I. laws. R.C. 4511.19(D)(1)(b) creates a mandatory duty to follow Ohio Department of Health regulations for admission of test results involving bodily fluids for alcohol levels as outlined under the Ohio Administrative Code. Unlike O.V.I. enforcement, automated speed technology is not subjected to any independent review prior to implementation. Apparently, in this case no independent judicial review of the information contained in the “Statement of Technology” covering the reliability of this technology or the equipment occurred. Further, no administrative agency of the local government “vetted” this technology or the equipment to ascertain its reliability. The city of Parma entered into a contract with a private vendor, and inherent in this contract is the presumption that the science, the equipment, and the operator are apparently infallible.
{¶ 29} I am not suggesting that a Daubert hearing is required in every automated traffic enforcement case. Daubert v. Merrill Dow Pharmaceuticals (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469; Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735. Nor am I ignoring the fact that a vendor may be able to produce test results from the manufacturer that trumpet the accuracy and reliability of the device in question. Despite this, at some point courts cannot abdicate their responsibility to independently determine what evidence is admissible based on some objective standards of reliability.
{¶ 30} Further, Ohio Evidence Rules 104 and 402 address general admissibility and relevance questions about evidence. Specifically, Evid.R. 702 provides even more specific guidance.3 At section (C), the rule states:
“To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
“(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
“(2) The design of the procedure, test, or experiment reliably implements the theory;
“(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
{¶ 31} No such judicial or administrative requirements are set for automated camera enforcement as used in this case.
{¶ 32} The Ohio Supreme Court, in a 4-3 decision, in 1984, held that an accused did not have a constitutional right to offer expert testimony to challenge the reliability of intoxilyzers in general. State v. Vega (1984), 12 Ohio St.3d 185, 463 N.E.2d 1303. Nevertheless, a defendant could still challenge the accuracy of his specific test results. See Vega. In either instance, the admission or denial of such evidence is predicated on the requirement that standards are adopted and followed that support reliance on the results received from the testing process. No such standards exist in this case.
