HB609 By Representative Coleman-Evans RFD Public Safety and Homeland Security Rd 1 05-MAY-15

SYNOPSIS: This bill would authorize the city council or other governing body of any Class 6 municipality to adopt a municipal ordinance providing for automated speeding enforcement.

This bill would authorize automated speeding enforcement in a Class 6 municipality as a civil violation.

This bill would authorize the municipality to adopt a municipal ordinance consistent with this act.

This bill would provide certain procedures to be followed by the municipality using automated photographic speeding enforcement.

This bill would provide that the owner of the vehicle involved shall be presumptively liable for a civil violation and the payment of a civil fine, but providing procedures to contest liability.

This bill would provide for jurisdiction in the municipal court of the municipality over the civil violations and allowing appeals to the circuit court of the county where the city hall of the municipality is situated for trial de novo.

This bill would create a cause of action for any person held responsible for payment of the civil fine against the person who was actually operating a vehicle while speeding.

This bill would prohibit the tampering with automated speeding enforcement devices or equipment systems, except by authorized persons.

A BILL TO BE ENTITLED AN ACT

Relating to Class 6 municipalities; authorizing automated speeding enforcement in a Class 6 municipality as a civil violation; authorizing the municipality to adopt a municipal ordinance consistent with this act; providing certain procedures to be followed by the municipality using automated photographic speeding enforcement; providing that the owner of the vehicle involved is presumptively liable for a civil violation and the payment of a civil fine, but providing procedures to contest liability; providing for jurisdiction in the municipal court of the municipality over the civil violations and allowing appeals to the circuit court of the county where the city hall of the municipality is situated for trial de novo; creating a cause of action for any person held responsible for payment of the civil fine against the person who was actually operating a vehicle while speeding; and prohibiting the tampering with automated speeding enforcement devices or equipment systems, except by authorized persons.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Each Class 6 municipality, by municipal ordinance, may adopt the procedures set out in this act.

Section 2. The Legislature finds and declares the following:

(1) Accident data establishes that speeding vehicles have been and are a dangerous problem in a municipality.

(2) Studies have found that automated speeding enforcement in a municipal area is a highly accurate method for detecting speeding violations and is very effective in reducing the number of speeding violations and decreasing the number of traffic accidents, deaths, and injuries.

(3) Current Alabama law provides that speeding is a criminal misdemeanor. Under Alabama law, one who commits such a misdemeanor is subject to prosecution only if the misdemeanor was witnessed by either a duly empowered police officer or other witness who makes a verified complaint to a sworn magistrate.

(4) Many jurisdictions that have adopted laws that allow the use of automated speeding enforcement have experienced a significant reduction in the instances of speeding, and the Legislature finds that it should adopt legislation that would authorize a Class 6 municipality to implement a program for automated speeding enforcement of speeding violations.

(5) By allowing a program for the use of automated traffic cameras in speeding enforcement by a Class 6 municipality, the Legislature hopes to both decrease the rate of speeding violations.

Section 3. As used in this act, the following terms shall have the following meanings:

(1) CIVIL FINE. The monetary amount assessed by the Class 6 municipality pursuant to this act for an adjudication of civil liability for a speeding violation, including municipal court costs associated with the infraction.

(2) CIVIL VIOLATION. There is hereby created a non-criminal category of law called a civil violation created and existing for the sole purpose of carrying out the terms of this act. The penalty for violation of a civil violation shall be the payment of a civil fine, the enforceability of which shall be accomplished through civil action. The prosecution of a civil violation created hereby shall carry reduced evidentiary requirements and burden of proof as set out in Section 6, and in no event shall an adjudication of liability for a civil violation be punishable by a criminal fine or imprisonment.

(3) MUNICIPALITY. Class 6 Municipality.

(4) OWNER. The owner of a motor vehicle as shown on the motor vehicle registration records of the Alabama Department of Revenue or the analogous department or agency of another state or country. The term shall not include a motor vehicle rental or leasing company when a motor vehicle registered by the company is rented or leased to another person under a rental or lease agreement with the company, in which event "owner" shall mean the person to whom the vehicle is rented or leased; nor shall the term include motor vehicles displaying dealer license plates, in which event "owner" shall mean the person to whom the vehicle is assigned for use; nor shall the term include the owner of any stolen motor vehicle, in which event "owner" shall mean the person who is guilty of stealing the motor vehicle.

(5) PHOTOGRAPHIC SPEEDING ENFORCEMENT OR AUTOMATED SPEEDING ENFORCEMENT SYSTEM. A camera system which is designed and installed to work in conjunction with an electrically operated speed detection device synchronized to automatically record digital imaging of a motor vehicle while speeding.

The device shall be capable of producing at least two recorded images, at least one of which is capable of clearly depicting the license plate of a motor vehicle that is speeding.

(6) SPEEDING VIOLATION. Any violation of a motor vehicle at a speed that exceeds the legal maximum speed limits presented in or adopted pursuant to Article 8, Chapter 5A, Title 32, Sections 32-5A-170 to 32-5A-178, inclusive, Code of Alabama 1975; provided, however, that speed limits set by action of a Class 6 municipality as found in the City Code of the Class 6 municipality shall supersede the limits set in Article 8, Chapter 5A, Title 32, Sections 32-5A-170 to 32-5A-178, inclusive, Code of Alabama 1975. A speeding violation shall be a civil violation as defined in this act.

(7) TRAINED TECHNICIAN. A sworn law enforcement officer employed by the Class 6 municipality, who alternatively:

a. Is a professional engineer in the field of civil engineering.

b. Has received instruction and training in the proper use of the automated photographic speeding enforcement system to be used by the municipality's traffic engineer or his or her designee.

c. Has been trained by the vendor installing the equipment. Under no circumstances shall the salary or other compensation of the trained technician be related to the number of notices of violation issued or amount of fines collected.

Section 4. (a) The Class 6 municipality may utilize an automated photographic speeding enforcement system to detect and record speeding violations, to issue notices of civil violations by mail, and to prosecute civil violations for the recorded speeding violations which may occur within the corporate limits of the Class 6 municipality as provided in this act. A civil fine assessed under this act shall not exceed one hundred dollars ($100), and municipal court costs may be assessed in the same manner and in the same amounts prescribed for municipal criminal speeding violations prosecuted as a misdemeanor. An additional fee of ten dollars ($10) shall be added to the costs authorized to be collected in connection with notices issued under this act. Court costs collected pursuant to this act shall be distributed in the same manner as prescribed by law for the distribution of municipal court costs for misdemeanor violations. The additional ten dollars ($10) authorized by this act shall be paid to the Alabama Criminal Justice Information Center as compensation for record keeping with respect to speeding violation notices issued pursuant to this act.

(b) If an ordinance is adopted for automated speeding enforcement, the municipality shall cause a sign to be posted at each of a minimum of 10 roadway entry points to the municipality to provide motorists with notice that automated photographic speeding enforcement systems are in use. The sign shall comply with this requirement if it states substantially the following: "AUTOMATED CAMERAS USED IN SPEEDING ENFORCEMENT," or if it otherwise gives sufficient notice.

(c) Prior to operating such an enforcement system, the municipality shall make a public announcement and conduct a public awareness campaign of the use of an automated photographic speeding enforcement system a minimum of 30 days before using the devices. The municipality may place photographic speeding enforcement systems at locations without public notice of the specific location, may change locations without public notice, and may install and move as needed decoy devices designed to resemble photographic speeding enforcement systems.

(d) The municipality shall post signs warning of the use of an automated photographic device for speeding enforcement within 60 yards of every speed detection device used. Each sign shall be placed at least five feet from the edge of the road or street and shall be placed not lower than two feet and not higher than eight feet.

Section 5. (a) Prior to imposing a civil penalty pursuant to this act, the municipality shall first mail a notice of violation by certified U.S. mail, return receipt requested, to the owner of the motor vehicle which is recorded by the automated photographic speeding enforcement system that committed a speeding violation. The notice shall be sent not later than the 30th day after the date the speeding violation is recorded to the following:

(1) The owner's address as shown on the registration records of the Alabama Department of Revenue.

(2) If the vehicle is registered in another state or country, to the owner's address as shown on the motor vehicle registration records of the department or agency of the other state or country analogous to the Alabama Department of Revenue.

(b) A notice of violation issued under this act shall contain the following:

(1) Description of the speeding violation alleged.

(2) The date, time, and location of the violation.

(3) A copy of recorded images of the vehicle involved in the violation.

(4) The amount of the civil penalty to be imposed for the violation.

(5) The date by which the civil penalty must be paid.

(6) A statement that the person named in the notice of violation may pay the civil penalty in lieu of appearing at an administrative adjudication hearing.

(7) Information that informs the person named in the notice of violation of the following:

a. The right to contest the imposition of the civil penalty in an administrative adjudication.

b. The manner and time in which to contest the imposition of the civil penalty.

c. That failure to pay the civil penalty or to contest liability is an admission of liability.

(8) A statement that a recorded image is evidence in a proceeding for the imposition of a civil penalty.

(9) A statement that failure to pay the civil penalty within the time allowed shall result in the imposition of a late penalty not exceeding twenty-five dollars ($25).

(10) Any other information deemed necessary by the municipality.

(c) A notice of violation under this act is presumed to have been received on the 10th day after the date the notice of violation is placed in the United States mail.

(d) The civil penalty imposed shall be paid within 30 days of the 10th day after the date the notice of violation is mailed.

(e) It shall be within the discretion of the trained technician to determine which of the recorded speeding violations are prosecuted based upon the quality and legibility of the recorded image. In lieu of issuing a notice of violation, the municipality may mail a warning notice to the owner during the initial warning period.

Section 6. (a) The municipal court of the municipality is vested with the power and jurisdiction to hear and adjudicate the civil violations provided for in this act and to issue orders imposing the civil fines and costs set out in this act.

(b) A person who receives a notice of violation may contest the imposition of the civil fine by submitting a request for a hearing on the adjudication of the civil violation, in writing, within 15 days of the 10th day after the date the notice of violation is mailed. Upon receipt of a timely request, the municipality shall notify the person of the date and time of the adjudicative hearing by U.S. mail.

(c) Failure to pay a civil penalty or to contest liability in a timely manner is an admission of liability in the full amount of the civil fine assessed in the notice of violation.

(d) The civil fine shall not be assessed if, after a hearing, the municipal judge of the municipality enters a finding of no liability.

(e) If an adjudicative hearing is requested, the municipality shall have the burden of proving the speeding violation by a preponderance of the evidence. The reliability of the automated photographic speeding enforcement system used to produce the recorded image of the violation may be attested to by affidavit of a trained technician. An affidavit of a trained technician that alleges a violation based on an inspection of the pertinent recorded image or video is admissible in a proceeding under this act and is evidence of the facts contained in the affidavit.

(f) The notice of violation, the recorded and reproduced images of the violation, regardless of the media on which they are recorded, accompanied by a certification of authenticity of a trained technician, and evidence of ownership of a vehicle as shown by copies or summaries of official records shall be admissible into evidence without foundation unless the municipal court finds there is an indication of untrustworthiness, in which case the municipality shall be given a reasonable opportunity to lay an evidentiary foundation.

(g) All other matters of evidence and procedure not specifically addressed in this act shall be subject to the rules of evidence and the rules of procedure as they apply in the small claims courts of this state, except that on any appeal to county circuit court where the city hall of the municipality is situated for trial de novo the evidence and procedures shall be as for any civil case in the circuit court except as otherwise provided in this act.

(h) A person who is found liable for the civil violation after an adjudicative hearing or who requests an adjudicative hearing and thereafter fails to appear at the time and place of the hearing is liable for court costs and fees as set out herein in addition to the amount of the civil fine assessed for the violation. A person who is found liable for a civil violation after an adjudicative hearing shall pay the civil fine and costs within 10 days of the hearing.

(i) Whenever payment of a civil fine is owed to the municipality, the amount of the civil fine as set by ordinance may not be increased, decreased, or remitted by the municipal court, and the liability may be satisfied only by payment.

(j) It shall be an affirmative defense to the imposition of civil liability under this act, to be proven by a preponderance of the evidence, that:

1. The operator of the motor vehicle was acting in compliance with the lawful order or direction of a police officer.

2. The motor vehicle was being operated as an authorized emergency vehicle under Sections 32-5A-7 and 32-5-213 of the Code of Alabama 1975, and that the operator was acting in compliance with that chapter.

3. The motor vehicle was stolen or being operated by a person other than the owner of the vehicle without the effective consent of the owner.

4. The license plate depicted in the recorded image of the violation was a stolen plate and being displayed on a motor vehicle other than the motor vehicle for which the plate had been issued.

5. The person who received the notice of violation was not the owner of the motor vehicle at the time of the violation.

(k) To demonstrate that at the time of the violation the motor vehicle was a stolen vehicle or the license plate displayed on the motor vehicle was a stolen plate, the owner must submit proof acceptable to the hearing officer that the theft of the vehicle or license plate, prior to the time of the violation, had been timely reported to the appropriate law enforcement agency.

(l) Notwithstanding anything in this act to the contrary, a person who fails to pay the amount of a civil fine or to contest liability in a timely manner is entitled to an adjudicative hearing on the violation if:

1. The person files an affidavit with the hearing officer stating the date on which the person received the notice of violation that was mailed to the person, if not received by the 10th day after same is mailed as set out in subsection (a) of Section 5.

2. Within the 15 days of the date of actual receipt, the person requests an administrative adjudicative hearing.

Section 7. (a) Following an adjudicative hearing, the municipal court judge shall issue an order stating the following:

(1) Whether the person charged with the civil violation is liable for the violation and, if so,

(2) The amount of the civil fine assessed against the person, along with the fees and costs of court provided for herein.

(b) The orders issued under this section may be filed in the office of the judge of probate where the city hall of the municipality is located and shall operate as a judicial lien in the same manner and with the same weight and effect as any other civil judgment filed therein.

(c) A person who is found liable after an adjudicative hearing may appeal that finding of civil liability to the circuit court of the county where the city hall of the municipality is situated by filing a notice of appeal with the clerk of the municipal court. The notice of appeal must be filed not later than the 14th day after the date on which the municipal court judge entered the finding of civil liability. The filing of a notice of appeal shall stay the enforcement of the civil fine penalty. An appeal shall be determined by the circuit court by trial de novo.

Section 8. (a) The circuit court hearing an appeal shall use the procedures that apply to criminal convictions in municipal court with the following qualifications:

(1) The proceedings shall retain their civil nature on appeal with the circuit court applying the preponderance of the evidence standard.

(2) If the person is adjudicated by the circuit court to be responsible for payment of the civil fine, circuit court costs shall be owed by the person adjudicated responsible, with 100 percent of those court costs retained by the circuit court. Court costs in the circuit court shall be calculated as are court costs for criminal appeals from the municipal court, and in the event the circuit court finds the person appealing not to be responsible, no municipal court costs shall be owed to the municipality.

(3) Regardless of the civil nature of the proceedings, the circuit court, in its discretion and for its administrative convenience, may assign case numbers as for criminal appeals and place the appeals on criminal dockets in the same manner as criminal appeals from municipal court.

(4) The circuit court shall sit as trier of both fact and law in the civil proceedings in the circuit court.

(5) The municipality shall be responsible for providing an attorney to represent the municipality and to prosecute the civil proceedings in the circuit court.

Section 9. If the evidence produced by an automated photographic speeding enforcement system does not produce an image of the license plate with sufficient clarity for a trained technician to determine the identity of the owner, and if the identity cannot otherwise be reliably established, then no notice of violation may be issued pursuant to this act. If, however, a notice of violation is issued, to the degree constitutionally allowed, those issues related to the identity of the vehicle or its owner shall affect the weight to be accorded the evidence and shall not affect its admissibility.

Section 10. The municipality may provide by ordinance that a late fee not exceeding twenty-five dollars ($25) shall attach to untimely paid civil fines that are authorized in this act. No person may be arrested or incarcerated for nonpayment of a civil fine or late fee. No record of an adjudication of civil violation made under this act shall be listed, entered, or reported on any criminal record or driving record, whether the record is maintained by the municipality or an outside agency. An adjudication of civil violation provided for in this act shall not be considered a conviction for any purpose, shall not be used to increase or enhance punishment for any subsequent offense of a criminal nature, shall not be considered a moving violation, and shall not be used by any insurance company to determine or affect premiums or rates unless an accident occurred due to the violation. The fact that a person is held liable or responsible for a civil fine for a speeding violation shall not be used as evidence that the person was guilty of negligence or other culpable conduct, and any evidence generated by an automated photographic speeding enforcement system may only be used as evidence in other proceedings if it is or becomes admissible under the rules of evidence applicable therein.

Section 11. The municipality shall keep statistical data regarding the effectiveness of automated photographic speeding enforcement systems in reducing speeding violations and collisions and shall communicate the data on an annual basis to the Alabama Department of Transportation and the Alabama Criminal Justice Information Center.

Section 12. A civil penalty may not be imposed and no adjudication of liability for a civil violation may be made under this act if the operator of the vehicle was arrested or was issued a citation and notice to appear by a sworn police officer for a criminal violation of any portion of Title 32, Chapter 5A, Article 8, including, but not limited to, Sections 32-5A-170 to 32-5A-178, inclusive, Code of Alabama 1975, or any other municipal ordinance which embraces and incorporates the statutes contained in that article, and which occurred simultaneously with and under the same set of circumstances which were recorded by the automated photographic speeding enforcement system.

Section 13. Any person against whom an adjudication of liability for a civil violation is made pursuant to this act, or an ordinance passed pursuant hereto, and who actually pays the civil fine imposed thereby shall have a cause of action against any person who may be shown to have been operating the vehicle recorded at the time of the violation for the amount of the civil fine actually paid plus any consequential or compensatory damages and a reasonable attorney fee, without regard to the rules regarding joint and several liability, contribution, or indemnity. Provided, however, that as a condition precedent to the bringing of a civil action, that the person held responsible for payment of the civil fine must first make written demand on the other person for reimbursement of the civil fine, giving a minimum of 60 days to remit payment, and if reimbursement is fully made within the 60-day period then the cause of action shall be extinguished and no attorney fees or other damages shall attach to the reimbursement. Any cause of action brought pursuant to this section must be commenced within two years from the date of the payment of the civil fine for a speeding violation.

Section 14. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 15. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Class 6 Municipalities

Court, Circuit

Court, Municipal

Motor Vehicles

Law Enforcement

Municipalities

Civil Procedure