Arizona Photo Radar Citations Can be Prosecuted Criminally

Responding to a request from the Arizona Department of Public Safety (DPS), Arizona Attorney General Terry Goddard last week provided a legal analysis that drivers caught by photo radar at speeds more than 20 miles per hour over the limit can be prosecuted criminally.

In the AG's analysis, Goddard said failure to prosecute does not appear to be supportable as a matter of law. Goddard said neither the photo radar statute nor any state or federal constitutional provisions forbid criminal prosecution of motorists exceeding the speed limit by more than 20 mph.

"People who ignore speed limits and in some cases reach speeds of 100 miles an hour are among the most dangerous drivers on our highways," Goddard said. "There is no basis in the law for not prosecuting them criminally. Failing to do so invites people to regard our highways as racetracks and creates a lethal threat to public safety."

DPS said it has issued 1,823 criminal speeding citations statewide based on photo radar over the past five months. Of that total, 341 citations accuse drivers of exceeding 100 mph.

Goddard emphasized that his opinion does not address the overall merits of photo radar for enforcing speed limits. The analysis was prepared in response to the specific question from DPS about criminal prosecutions. While the analysis is provided as advice to a client agency, DPS Director Roger Vanderpool agreed to provide the memo to the public. The analysis is also being provided to county attorneys throughout Arizona.

Goddard's analysis refutes the view that the photo radar law was intended for civil traffic fines only. The language of the statute "does not preclude the state from using photo radar evidence as part of the evidence necessary to establish an excessive speeding violation," according to the AG's analysis.

The provisions of the Arizona and U.S. Constitutions that give defendants the right to confront their accuser do not apply to recorded information. Goddard's analysis notes that "Arizona courts have routinely permitted evidence derived from radar devices in criminal cases" and have "similarly authorized evidence derived from other types of devices, such as video-tape recorders or cameras."

Goddard explained, "To prosecute a criminal speeding case based on photo radar, the state would typically produce one or more witnesses to authenticate the image of the camera, and, presumably, to testify regarding the camera's reliability, maintenance and calibration. A defendant would be able to confront and cross-examine such witnesses, and his state and federal constitutional rights to confrontation would thus be satisfied."

The Attorney General added, "Public safety and common sense require that reckless speeders be held accountable before a criminal judge and not be allowed to turn our highways into 'pay to race' mayhem scenes."