 illustration by JASON WALTON |
BY MAUREEN O'HAGAN |
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Daniel Dolan is no stranger to constitutional challenges. In a landmark decision in 1994, the U.S. Supreme Court ruled that the city of Tigard had unlawfully taken property from Dolan's family business.
Capt. Pat Nelson
says about 15
A photo-radar
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For the past two years the Portland
Police have been using photo-radar devices to catch neighborhood speeders.
Until now, it's been as easy as taking money from a baby. Last month,
however, a Tigard resident challenged his speeding ticket in Multnomah
County Court, saying the entire photo-radar system is unconstitutional.
Although his argument was never considered in court, it launched what
pro tem Judge Lewis Lawrence describes as an avalanche of similar complaints
by local speeders.
"It's been extraordinary," Lawrence said, taking a breather from his traffic-court duties. In the past few weeks he has had to answer countless questions about the system. "There's been a great deal of upwelling of feeling about photo radar," he said. The current of criticism isn't likely to be stemmed anytime soon. A suburban lawyer plans a separate constitutional challenge, based on different arguments, to Portland's photo-radar system in a hearing early next month. Tigard resident Daniel Dolan started the stream of protest. On Aug. 26 he challenged a $104 photo-radar speeding ticket on several grounds. Some of his claims are rather technical fine points. But Dolan's most sweeping argument was that photo radar violates the Equal Protection Clause of the Constitution because some drivers are treated differently than others. According to Portland Police Bureau Capt. Pat Nelson, a private company, San Diego-based U.S. Public Technologies LLC, looks at the photos and the license plates caught on film to see if the gender of the driver matches that of the registered owner. If so, the registered owner receives a ticket in the mail. If not, no ticket is issued. But if the registered owner is a business or a public agency, USPT has no way of identifying the driver. In that case, the registered owner receives only a warning letter. Dolan says the system, used in both Portland and Beaverton, allows people who borrow cars or use company vehicles to get away with speeding, while people who drive their own cars get busted. After leafing through the 10-page written argument, Lawrence tossed out Dolan's ticket. But before you put pedal to metal, beware. Lawrence was motivated by practical--rather than constitutional--considerations. Weighing Dolan's legal arguments would be impossible in traffic court, where the docket is so packed that most cases are allotted only a few minutes. Rather than tie up court, Lawrence let Dolan off the hook. Lawrence subsequently studied Dolan's arguments more thoroughly--and spent a lot of time explaining the issues to other speeders--but he has not been swayed by them. "The thing for everyone to know is that since what happened last [month], there have been 20 to 30 photo-radar trials in my court," he said. "In general, the result has been conviction." Still, people are interested in Dolan's case. Although Dolan is not a lawyer, his legal arguments are in demand, and speeders have been calling to ask for copies of his legal briefs. Dolan's challenge won't be the last. Jim McHugh is mounting another constitutional attack on photo radar. McHugh, an Oregon City lawyer, claims that the statute is faulty because, among other things, the burden of proof is on the accused. Under the U.S. Constitution, it's supposed to be the other way around--that is, the accused is innocent until proven guilty by the state. McHugh says other states with photo radar have written their statutes differently to avoid this problem. A hearing on McHugh's motions is scheduled for Oct. 8. In the meantime, Nelson is working on a way to catch speeders who drive vehicles registered to their employers. He wants to start sending businesses a citation notice, along with a photo of the driver, when their vehicles are caught speeding. The business will be asked to identify the driver so the cops can issue a citation. Nelson concedes the system has a big drawback. "If a business wants to ignore the citation," he says, "there isn't a whole lot we can do." All of this may be moot anyway. A Seattle company has recently begun targeting Portland to market a way to beat photo radar. Laser Jam USA sells a clear plastic device that fits over a license plate. When viewed head on, the device is undetectable. But when the plate is viewed from an angle, as it is with photo radar, the device blocks out one or two characters. "In most states," says company spokesman Torre Foot, "it's perfectly legal."
originally published September 16, 1998
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