BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 1303
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          Date of Hearing:   July 3, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    SB 1303 (Simitian) - As Amended: June 26, 2012

                              As Proposed to be Amended

           SENATE VOTE  :   38-0
           
          SUBJECT  :  Vehicles: Automated Traffic Enforcement Systems

          KEY ISSUEs  : 

          1)Should A "courtesy Notice" sent to owners of vehicles that 
            were photographed for failing to stop at a red light be 
            modifed to clarify that the notice is not a formal citation? 

          2)Should photographs generated by red-light cameras be treated 
            as hearsay evidence?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal. 


                                      SYNOPSIS 
          
          Under existing law, local jurisdictions are free to adopt (or 
          not adopt) automated "red light cameras" that use motion sensors 
          and computer programs to determine if a vehicle entered an 
          intersection after the traffic light turned red.  These systems 
          have been both praised and condemned, producing competing claims 
          about their effectiveness, their reliability, and their 
          fairness.  This bill would impose additional requirements and 
          restrictions on local governmental agencies that opt to use red 
          light cameras and require the vendors who operate these systems 
          to submit annual reports to the Judicial Council relating to the 
          general effectiveness of the systems.  The following analysis, 
          however, will focus on two issues most relevant to this 
          Committee: (1) the so-called "courtesy notice" and "notice of 
          non-liability" that is sent to the owner of the vehicle when the 
          photograph taken by the camera does not appear to match the 
          registered owner's driver license photograph; and (2) the 
          questions that arise when photographs generated by red-light 
          cameras are introduced as evidence in court.  As noted in the 
          analysis, on the first issue the author and various stakeholders 








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          have reached an agreement on the contents of the notice.  On the 
          second point, relating to the use of photographs as evidence, 
          this bill seeks to resolve two competing court cases - by 
          different panels of the same appellate court - that came to 
          different conclusions as to (1) how the photographs were to be 
          properly "authenticated" under the rules of the evidence code; 
          and (2) whether the photographs constituted hearsay that could 
          only be admitted as evidence through a recognized hearsay 
          exception.  As noted in more detail below, this bill effectively 
          codifies the opinion holding that such photographs do not 
          present insurmountable authentication problems and do not 
          constitute hearsay.  The author will take amendments in this 
          Committee relating to the "courtesy notice" or "notice of 
          non-liability."  This amendment appears to have removed nearly 
          all of the opposition to this bill.  However, "Safer Streets, 
          LA," a grassroots organization based in Los Angeles, remains 
          strongly opposed to this bill for a variety of reasons. 
           
          SUMMARY  :  Creates additional standards for the installation of 
          automated red-light camera systems and makes other changes 
          relating to the notices sent to vehicle owners and to the use of 
          red-light camera photographs as evidence in court.  
          Specifically,  this bill  :   

          1)Requires that signs identifying an automated traffic 
            enforcement system be posted within 200 feet of an 
            intersection where the system is operating.  Prohibits a 
            governmental agency that uses an automated traffic enforcement 
            system and that had signs posted on or before January 1, 2013, 
            that met the requirements in effect on January 1, 2012, from 
            removing those signs until the governmental agency posts signs 
            that meet the requirements imposed by the bill. 

          2)Requires a governmental entity that operates an automated 
            traffic enforcement system to develop uniform guidelines and 
            establish procedures to ensure compliance with those 
            guidelines, and that the governmental entity adopt a finding 
            establishing the need for the system.  Sets dates for 
            compliance with these requirements depending upon when the 
            system was adopted.

          3)Prohibits a governmental agency that proposes to institute an 
            automated traffic enforcement system from considering revenue 
            generation, beyond covering operating costs, as a factor when 
            considering whether or not to install or operate a system 








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            within its jurisdiction.

          4)Authorizes the mailing of a "notice of non-liability" or 
            "courtesy notice" by the issuing agency, manufacturer, or 
            supplier of the system to the registered owner or the alleged 
            violator prior to issuing a notice to appear, prescribes the 
            form that must be sent, and prohibits the manufacturer or 
            supplier of the system, or the governmental entity, from 
            altering the notice to appear or notice of non-liability. 

          5)Provides that an evidentiary rebuttable presumption that the 
            printed representation of computer information is presumed to 
            be an accurate representation of the computer information, 
            shall apply to the printed representation of 
            computer-generated information stored by an automated traffic 
            enforcement system.  (See #5 in the Existing Law section.)

          6)Provides that an evidentiary rebuttable presumption that 
            printed representations of images stored in a video or digital 
            medium is presumed to be an accurate representation of the 
            images that it purports to represent, shall apply to the 
            printed representation of video or photographic images stored 
            by an automated traffic enforcement system.  (See #6 in the 
            Existing Law Section.) 

           EXISTING LAW  : 

          1)Permits the limit line, intersection, or other places where a 
            driver is required to stop to be equipped with an automated 
            enforcement system, as defined, if the governmental agency 
            using the system identifies the system by signs that clearly 
            indicate the system's presence and are visible to traffic 
            approaching from all directions, or posts signs at all major 
            entrances to the city, including, at a minimum, freeways, 
            bridges, and state highway routes.  (Vehicle Code Section 
            21455.5 (a).)

          2)Requires that, prior to issuing citations under an automated 
            enforcement system, a local jurisdiction using the system 
            shall issue only warning notices for the first 30 days.  
            Requires the local jurisdiction to also make a public 
            announcement of its intent to use the system at least 30 days 
            prior to commencement of enforcement of the system.  (Vehicle 
            Code Section 21455.5 (b).)









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          3)Provides that only a governmental agency, in cooperation with 
            a law enforcement agency, may operate an automated enforcement 
            system.  Specifies that "operating" a system includes all of 
            the following activities:

             a)   Developing uniform guidelines for screening and issuing 
               violations and for the processing and storage of 
               confidential information, and establishing procedures to 
               ensure compliance with those guidelines. 
             b)   Establishing guidelines for administrative functions and 
               day-to-day functions, including, but not limited to, 
               selecting locations for the system, ensuring that the 
               system is regularly inspected, certifying that the 
               equipment is properly installed and operating properly, 
               maintaining warning signs, and maintaining controls 
               necessary to ensure that only those citations that have 
               been reviewed and approved by law enforcement are delivered 
               to violators. 
             c)   Provides that the above operating activities, except as 
               specified, may be contracted out by the governmental agency 
               so long as it maintains overall control and supervision of 
               the system.  (Vehicle Code Section 21455.5 (c).)

          4)Specifies that a contract between a governmental entity and a 
            manufacturer or supplier of automated enforcement equipment 
            may not include a provision for the payment or compensation to 
            the manufacturer or supplier based on the number of citations 
            generated, or as a percentage of the revenue generated, as a 
            result of the use of the equipment.  (Vehicle Code Section 
            21455.5 (g).) 

          5)Provides, for purposes of authenticating evidence used at 
            trial, that a printed representation of computer information 
            or of a computer program is presumed to be an accurate 
            representation of the computer information or computer program 
            that it purports to represent.  However, if a party to an 
            action introduces evidence that a printed representation or 
            computer program is inaccurate or unreliable, the party 
            introducing the printed representation into evidence has the 
            burden of proving, by a preponderance of the evidence, that 
            the printed representation is an accurate representation of 
            the existence and content of the computer information or 
            computer program that it purports to represent.  (Evidence 
            Code Section 1552.)









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          6)Provides, for the purposes of authenticating evidence used at 
            trial, that a printed representation of images stored on a 
            video or digital medium is presumed to be an accurate 
            representation of the images it purports to represent.  If a 
            party to an action introduces evidence that a printed 
            representation of images stored on a video or digital medium 
            is inaccurate or unreliable, the party introducing the printed 
            representation into evidence has the burden of proving, by a 
            preponderance of the evidence, that the printed representation 
            is an accurate representation of the existence and content of 
            the images that it purports to represent.  (Evidence Code 
            Section 1553.) 

          7)Defines "hearsay evidence" as evidence of a statement that was 
            made other than by a witness while testifying at the hearing 
            and that is offered to prove the truth of the matter asserted. 
             Provides that, except as provided by law, hearsay evidence is 
            inadmissible.  Defines a "statement" to mean (a) oral or 
            written verbal expression or (b) nonverbal conduct of a person 
            intended by him as a substitute for oral or written verbal 
            expression.

          8)Creates several statutory exceptions to the hearsay rule 
            which, if applicable, make hearsay statements admissible.  
            (Evidence Code Sections 1220-1350.)

           COMMENTS  :  In 1998, after the completion of two prior pilot 
          programs, the Legislature enacted SB 1136 (Chapter 54, Stats. of 
          1998), which authorized local governments to install and operate 
          red light cameras - or "automated traffic enforcement systems" - 
          at intersections.  The use of these devices has been a source of 
          considerable controversy since their introduction, and based on 
          the initial and ongoing opposition to this bill, the controversy 
          shows no signs of abating.  Although state law sets out the 
          general parameters for installing the systems, local governments 
          are free to adopt or not adopt the systems and operate them on a 
          day-to-day basis based on guidelines that they develop.  Most, 
          if not all, local governments contract out many of the 
          operational aspects to the system to the private vendors that 
          manufacture and install these systems; however, state law 
          requires that certain aspects of the operation remain under the 
          control of the governmental agency and require that information 
          generated by the system be reviewed by law enforcement officials 
          before a citation may be sent to the alleged violator. 









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          According to the author, the intent of this bill is to preserve 
          the ability of red light camera systems to operate while at the 
          same time addressing legitimate concerns that have been raised 
          about the fairness and accuracy of the system.  Specifically, 
          the bill addresses a number of distinct issues:  the 
          justifications for adopting such systems; required signage that 
          puts drivers on notice that the systems are in place; the 
          transparency of notices that are sent to vehicle owners when the 
          photograph of the driver does not clearly match the photograph 
          of the registered owner; and the evidentiary use of red light 
          camera photographs.  Because the question of the overall worth 
          and effectiveness of these systems and issues like signage have 
          been addressed in prior Committees, this analysis will focus on 
          two issues of greatest concern to this Committee: (1) the 
          so-called "notice of non-liability" or "courtesy notice" sent to 
          the vehicle owner; and (2) concerns that have been raised by the 
          use of red-light camera photographs as evidence in court. 

          The "Courtesy Notice" or "Notice of Non-Liability  :"  Based on 
          information provided to the Committee by the author's office and 
          various stakeholders, the private vendors that local governments 
          typically contract with to operate the red-light system, under 
          the ultimate control and supervision of the governmental entity, 
          send the photographic and related data to the law enforcement 
          agency charged with issuing traffic tickets.  The law 
          enforcement agency reviews the information and decides if there 
          is enough evidence of a violation to justify sending a citation 
          or a "notice of non-liability" (sometimes called a "courtesy 
          notice").  In short, if law enforcement decides that the zoom 
          image of the driver that is captured by the red light camera 
          appears to match up with the driver's license photograph of the 
          registered car owner, then a citation (or ticket) and notice to 
          appear is sent to the registered owner of the vehicle.  However, 
          if the photograph captured by the red light camera appears to be 
          a different person than the one on the driver's license picture 
          of the registered owner - or if it is impossible to say whether 
          it is the same person - then law enforcement sends the "notice 
          of non-liability" or "courtesy notice" to the registered owner.  
          The "courtesy notice" informs the owner that his or her vehicle 
          was photographed failing to stop for a red light, and then gives 
          the owner the opportunity to detach and return a "notice of 
          non-liability" that asks the owner to identify the actual 
          driver, or to provide some other explanation for why the owner 
          is not liable for the violation.  (For example, the owner may 
          have sold the car to someone else before the violation or the 








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          system may have simply made mistake.)  Critics of the red-light 
          camera system refer to the notices as "snitch tickets," because 
          they encourage the owner to "snitch" on the person who was 
          actually driving the vehicle. 

          According to many critics of the red-light cameras, the 
          "courtesy notice" is misleading.  Critics claim that the notice 
          appears to be a semi-official document, if not an actual 
          citation, that seems to require the owner to "name names," so to 
          speak, and return the "notice of non-liability" or possibly 
          assume liability for the violation.  In fact, the notice is not 
          a citation, and there is no consequence for failure to return 
          the notice, since unlike a parking ticket, the owner and driver 
          are not jointly liable for the violation.  When it comes to 
          moving violations, the driver, not the owner, is the only person 
          who can be cited.  To suggest, therefore, that an owner is 
          liable and must name the driver is simply misleading.  On the 
          other hand, supporters of the red-light cameras inform the 
          Committee that these notices are important because the driver is 
          not always the owner and it is not always possible to establish 
          a definite match due to the quality (or lack thereof) of the 
          photographs.  Supporters of the red-light system, therefore, 
          allow the driver to be done with the matter immediately and 
          allow law enforcement to issue the citation against the right 
          person. 

          This bill attempts to increase the transparency of the 
          "courtesy" notice by making it clear that the notice is not a 
          citation and that the owner is not required to turn over the 
          name of the actual driver, even if the owner knows who it was.  
          The burden, after all, is on law enforcement to prove their case 
          by identifying the driver who committed the violation; the 
          burden is not on the third party, even if he or she owns the 
          vehicle, to identify the driver. 

           Proposed Author Amendments to Address the Above Concerns  :  Since 
          this bill was heard by the Assembly Transportation Committee, 
          the author and certain stakeholders have worked with the 
          Committee to craft a notice that will provide transparency to 
          the recipient while at the same time keeping the form as a 
          useful tool that will help law enforcement identify the 
          violator.  Specifically, the author has agreed to make the 
          following changes to the "notice of non-liability" that now 
          appears on page 11 of the bill in print.  The form, as proposed 
          to be amended, appears on the following page of the analysis. 








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                 At the top of each page of the in larger, bold, and 
               capital letters the: "Courtesy Notice: This is Not a 
               Ticket." 
                 In the smaller print just below this line, the notice in 
               the bill in print says the recipient is "encouraged" to 
               review the photographic evidence before taking action on 
               the notice.  The amended version will be rephrased to add 
               that the recipient is "encouraged" to respond to the 
               notice, an affirmative way of informing the recipient that 
               he or she is not required to respond. 
                 The option for "None of the above" is removed as a 
               checkbox option (which law enforcement sees as a "scofflaw" 
               box that would invite people to shirk responsibility.) 
                 The confusing and redundant comments referenced by the * 
               are deleted. 

          As amended today in Committee, the form will read as follows: 


           

                        COURTESY NOTICE: THIS IS NOT A TICKET
                                 ›Insert agency name]
                                  INSTRUCTION PAGE

          
          The Reason You Received This Notice:
          A vehicle registered in your name was photographed failing to 
          stop for an official red light traffic control signal.  This is 
          a violation of the State of California Vehicle Code Section 
          21453(a) or (c) pursuant to Section 21455.5.

          You are encouraged to view the video of this violation  and to 
          respond to this notice  .  You may make an appointment to view the 
          evidence by calling the ›insert agency name] at (000) 000-0000.  
          During this viewing, an officer or qualified employee will show 
          you a high quality video and still images depicting the 
          violation in greater detail than the printed photos in this 
          notice.

          You can also view the video online at www.0000000000.

          The video is available online for 60 days from the date of 
          violation.  After 60 days an appointment must be made with 








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          ›insert agency name].

          DO NOT CALL THE COURT REGARDING THIS NOTICE.  For additional 
          questions contact the Photo Enforcement Program at (000) 
          000-0000.






          Tear Here                          Tear Here                Tear 
          Here

                               NOTICE OF NON-LIABILITY

          IF YOU WERE NOT THE DRIVER/OWNER
          Violation #:  <>                         Last Issued 
          To: <>
                                                               
                                                            ›Insert agency 
                                                       name]

          CHECK ONE:c The person named below was the driver of the 
          vehicle.
                    c    I sold the vehicle prior to the violation date to 
          the person named below.
                    c    I have never owned this vehicle or license plate.

          CHECK ONE:cI am an individual. 
                    c    I am a car rental or leasing company. 

                     
           
          Print Actual Driver/New Owner's 
          Name:_____________________________ Driver's License/ID 
          No.:___________________

          Address:_______________________________________________________Is
          sued in the State of: ____________________

          City, State, ZIP Code: 
          ____________________________________________Date of Birth: 
          ___________________________









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          Gender: __________    Hair Color: __________    Eye Color: 
          __________    Height: __________    Weight: __________


                                     DECLARATION
                  I CERTIFY THAT THE FOREGOING IS TRUE AND CORRECT

          Signature __________________________________________Print Name 
          _____________________________________

          Your Telephone Number  (          )  ______ - ___________Date 
          __________________________________________
           




          Evidentiary Issues:   This bill also attempts to address two 
          competing appellate court decisions on the admissibility of 
          red-light camera photographs as evidence in court.  
          Specifically, the use of these photographs raises two distinct 
          issues which, unfortunately, are sometimes improperly conflated. 
           The first issue concerns what is required to "authenticate" or 
          "lay a foundation" sufficient to show that the photographs are a 
          reasonably accurate representation of what they purport to 
          represent.  The second issue is whether the photograph is 
          inadmissible "hearsay" evidence - that is, is it an out-of-court 
          "statement" by someone who is not in court and which is offered 
          to prove the truth of the matter asserted in the statement?

           Authentication of a "Writing  :"  One of the criticisms of the use 
          of red-light photographs as evidence in court is that the person 
          who usually appears as a witness for the issuing agency is a law 
          enforcement officer who reviewed the photographic evidence and 
                                                                                   decided whether or not to issue a citation.  Critics claim that 
          because the vendor operates the equipment, the officer who 
          appears to testify has no knowledge of whether or not the system 
          was working and therefore cannot verify or "authenticate" the 
          photograph.  (This was the argument made by defendants in the 
          two cases discussed below.)  Evidence Code Section 1401 requires 
          the "authentication" of any "writing" before it may be received 
          into evidence, and Evidence Code Section 250 defines a "writing" 
          to include photographs or videos, including computer-generated 
          and digital photographs or videos.  "Authentication" simply 
          requires evidence sufficient to sustain a finding that the 








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          writing is what the proponent of the evidence claims that it is. 
           This is sometimes referred to as "laying a foundation."  This 
          does not require proving that the photograph is accurate or that 
          it proves anything, but simply that the evidence is what the 
          proponent claims it to be: in this case, a photograph taken by a 
          red light camera.  

          While Evidence Code Section 1401 may work well enough when it 
          comes to traditional photographs, questions have been raised 
          about whether computer-generated digital photographs and videos 
          can be authenticated in the same, relatively easy manner.  The 
          Legislature first tried to address this question by enacting 
          Evidence Code Sections 1552 and 1553, dealing with 
          computer-generated printouts and images.  Evidence Code Section 
          1552 says that, for purposes of authenticating evidence used at 
          trial, a printed representation of computer-generated 
          information is presumed to be an accurate representation of the 
          computer information that it purports to represent.  This is a 
          rebuttable presumption: if the party objecting to the evidence 
          introduces evidence that a printed representation or computer 
          program is somehow inaccurate or unreliable, then the party 
          seeking to introduce the printed representation into evidence 
          has the burden of proving, by a preponderance of the evidence, 
          that the printed representation is an accurate representation of 
          the computer information that it purports to represent.  Of 
          course, one could argue that this presumption only establishes 
          that the printed representation accurately reflects the 
          information in the computer, not that the computer data itself 
          is accurate. (See e.g. People v Hawkins (2002) 98 Cal. App. 4th 
          1428.)  However, the California Supreme Court has addressed this 
          issue and determined that the admission of computer records does 
          not require foundational testimony showing their accuracy or 
          reliability.  "Our courts have refused to require," the Supreme 
          Court held, "as a requisite to admission of computer records, 
          testimony on the acceptability, accuracy, maintenance, and 
          reliability of . . . computer hardware or software." (People v. 
          Martinez (2000) 22 Cal. 4th 106, 132; See also People v. Nazary 
          (2010) 191 Cal. App. 4th 727, 755.) 

          If Evidence Code Section 1552 creates a rebuttable presumption 
          regarding representations of computer-generated information, 
          Section 1553 deals with representations of images stored on a 
          video or digital medium and is therefore perhaps more relevant 
          to the red-light camera issue.  Moreover, the logic applied to 
          the court rulings on Section 1552 would also apply to Section 








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          1553.  The presumption it creates is that an image in video or 
          digital form is presumed to be an accurate representation of the 
          image that it purports to be, and the courts would not require 
          testimony on the reliability of the system that produced it 
          unless there was some evidence to suggest unreliability. 

           Is the Red-Light Photograph "Hearsay" Evidence  ?  Objections to 
          the admission of evidence based on a party's failure to 
          authenticate the evidence are analytically distinct from 
          objections to admissibility based on the claim that evidence is 
          "hearsay."  Hearsay is the statement of a person who is not in 
          court but which is offered to assert the truth of the thing 
          asserted.  The general rule is that hearsay evidence is not 
          admissible; however the courts recognize a number of "hearsay 
          exceptions" that, though originally developed by the courts, 
          have been codified in the Evidence Code.  Before considering 
          whether one of these exceptions applies, however, courts will 
          first consider whether or not the evidence is hearsay, because 
          if it is clearly not hearsay, there is no need to find a hearsay 
          exception. 

          In People v Goldsmith (2012) 203 Cal. App. 4th 1515, the 
          California Court of Appeal for the Second District found that a 
          red-light camera photograph was  not  hearsay.  The court began 
          its analysis by noting, first, that hearsay must be "a 
          statement" by a "person."  Evidence Code Section 225 defines a 
          statement to mean (a) oral or written verbal expression or (b) 
          nonverbal conduct of a person intended by him as a substitute 
          for oral or written verbal expression.  A photograph, the court 
          reasoned, is neither a "written or verbal expression" nor 
          "conduct of a person."  It is merely an image generated by a 
          machine that has no ability to speak for itself, let alone offer 
          testimony.   =The court did not conclude that a photograph was 
          not a "statement" merely because it lacked words, citing cases 
          which have held that printed receipts (which do typically have 
          words on them) are not hearsay, because they were not statements 
          of a person but a printout from a machine.  Such evidence would 
          need to be authenticated, of course, but it is not hearsay, the 
          courts have held.   =As the Goldsmith court put it, "The 
          Evidence Code does not contemplate that a machine can make a 
          statement, and a printout of the results of a computer's 
          internal operations is not a 'statement' constituting hearsay 
          evidence."  (Goldsmith at 1525, citing People v. Hawkins (2002) 
          98 Cal. App. 4th 1428.)









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          In explaining its reasoning, the Goldsmith Court noted that the 
          underlying purpose of the hearsay rule "stems from the 
          requirement that all testimony should be tested by 
          cross-examination, which can best expose what may lie beneath a 
          witness's bare, untested assertions."  It is not possible, the 
          court observed, to cross-examine computer-generated photographs 
          or videos.  That is why photographs and videos are treated not 
          as "testimonial" evidence that can and should be subject to 
          cross-examination, but as "demonstrative evidence" that cannot 
          speak for itself.  To be hearsay a statement must declare or 
          assert something, but a photograph is demonstrative evidence 
          that is only used to demonstrate; it cannot declare or assert 
          anything by itself. 

           Goldsmith and Borzarkian: Conflicting Opinions on the 
          Admissibility of Red-Light Photographs:   In reaching its 
          conclusion, the Goldsmith court disapproved of People v. 
          Borzarkian (2012) 203 Cal. App. 4th 525, a decision issued only 
          a month earlier by a different panel of judges of the same 
          appellate court.  On the question of "authentication," the 
          Borzarkian court found that a police officer who reviewed the 
          photographs for purposes of issuing a citation was not qualified 
          to lay a proper foundation because he was not present when the 
          camera took the picture and had little knowledge as to the 
          reliability of the system.  Contrary to Goldsmith, the court 
          rejected the idea that Evidence Code 1552 authorized admission 
          of the evidence because that section only creates an assumption 
          that a computer's "print function" was working properly; it did 
          not create an assumption that the underlying data is accurate or 
          reliable.  In disapproving of this holding, the Goldsmith court 
          noted that Borzarkian failed to take account of the California 
          Supreme Court's Martinez ruling, which has expressly rejected 
          this view and held that "Our courts have refused to require as a 
          requisite to admission of computer records, testimony on the 
          acceptability, accuracy, maintenance, and reliability of . . . 
          computer hardware or software."  (Martinez at 132.)  

          In addition to ignoring binding authority that admission of 
          computer-generated representations does not require first-hand 
          testimony on the accuracy and reliability of the computer 
          system, on the hearsay question the Borzarkian also failed to 
          ask the critical threshold question of whether or the not the 
          photographic evidence was hearsay.  Instead, the court appeared 
          to assume that it was and launched into an analysis of whether 
          the evidence could be admitted under one of the hearsay 








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          exemptions.  The Court argued that the evidence could not be 
          admitted under the "official records" exception because that 
          exception only applies if the records were made by and within 
          the scope of duty of the public employee, and the court 
          concluded that records were made by the vendor, a private 
          entity.  The court concluded that the photographs could not be 
          admitted under the "business records" exception because that 
          exception requires the custodian of the records to testify, and 
          the court found that the private vendor, not the police officer 
          who testified at trial, was the custodian of the records.  
          However, while this analysis might be a reasonable application 
          of those hearsay exceptions, the Goldsmith decision concluded 
          that such an analysis is beside the point if the evidence is not 
          hearsay, since if it is not hearsay there is no need for a 
          hearsay exception.  In short, Borzarkian's failed to address the 
          threshold question of whether the evidence offered was hearsay 
          and instead jumped immediately to an analysis of hearsay 
          exceptions. 

           This Bill Embraces the Goldsmith Reasoning  :  The author believes 
          that this bill provides an opportunity to clarify the 
          conflicting rulings in favor of Goldsmith.  Although the 
          Committee is not a court, it finds the Goldsmith ruling more 
          persuasive for the reasons stated.  But trying to determine 
          which court "got it right" is a fool's quest and at any rate 
          ultimately irrelevant.   More important, beyond the hearsay 
          question, the courts differed fundamentally in their 
          interpretation of Evidence Code Sections 1552 and 1553, and on 
          what is required to authenticate the photographs.   Because the 
          Legislature enacted those sections, it is arguably both the 
          right and duty of the Legislature to clarify what is meant by 
          them when two courts reach different conclusions about what they 
          mean.  The author attempts to achieve this clarification by 
          amending the evidence codes section on authentication and 
          specifying that both Sections 1552 and 1553 apply to images 
          generated by red-light camera systems.  In addition, it 
          expressly states for the limited purposes of contested red-light 
          citations, the photographs shall not constitute hearsay.  It is 
          important to note that this bill does  not  create a new "hearsay 
          exception" to add to the traditional list of exceptions.  It is 
          instead saying that the photographs are not hearsay, and 
          therefore that there is no need for a hearsay exception. 

           ARGUMENTS IN SUPPORT  :  According to the author:









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            The growing use of automated traffic enforcement systems 
            have highlighted areas of abuse.  Senate Bill 1303 is 
            designed to allow the continued use of automated traffic 
            enforcement systems to enhance public safety while 
            addressing the significant potential for misuse.  The 
            measure establishes ground rules for the operation of red 
            light camera programs to address legitimate concerns about 
            accuracy, privacy, and due process.

            There are two broad deficiencies in existing law first is 
            conflicting appellate court cases.  The bill would resolve 
            this conflict by providing that computer generated evidence 
            that is part of an automated traffic enforcement system is 
            admissible unless the defendant shows that the evidence is 
            faulty in some way.  The second deficiency is with the 
            general lack of clear rules surrounding operation of 
            automated traffic enforcement systems.  The bill would make 
            a number of changes to existing law that will bring fair 
            practice to the use of the technology.

           ARGUMENTS IN OPPOSITION  :  ›NOTE: Redflex, the company which 
          serves as the vendor for most of the red-light camera systems 
          in California, and several law enforcement groups strongly 
          opposed the provision of this bill that allowed recipients of 
          the "notice of non-liability" to check "None of the above" as 
          an option.  However, the Committee has been informed that with 
          the amendment to remove that option, these groups no longer 
          oppose the bill and may even move to a position of support.  
          However, no letters of support or letters withdrawing 
          opposition had been received by the Committee at the time of 
          this writing.] 

          Safer Streets L.A. however, continues to strongly oppose nearly 
          every aspect of this bill because, it believes, "it would impair 
          defendants' rights to confront their accusers and would sanction 
          the mailing of deceptive governmental notices." Further, Safer 
          Streets contends that "the bill's provisions that purport to 
          protect the rights of Californians would provide little or no 
          relief from the abusive use of red light cameras by some 
          jurisdictions in the state."  Safer Streets, L.A. describes its 
          specific objections, in its own words, as follows: 

            1. Provisions in this bill affecting the hearsay rule 
            would permit the introduction of testimonial evidence from 
            a third party in photo enforcement cases, thereby carving 








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            out an exception to long held constitutional protections 
            affording defendants the right to confront their accusers.

            2. California law holds motor vehicle drivers responsible 
            for violations of the vehicle code. However, this bill 
            would permit agents of the government in cases where they 
            know that the registered owner was not the person driving 
            to send out an official looking "notice of non-liability" 
            to the registered owner that appears to require them to 
            identify the driver of the vehicle although no such 
            requirement exists in California law.

            3. Specifying that it is permissible to mail a "notice of 
            non-liability" prior to sending an actual citation could 
            be interpreted to alleviate jurisdictions of the current 
            requirement to deliver citations within 15 days of the 
            alleged violation.

            4. Where a jurisdiction chooses to place photo enforcement 
            signs at red light camera intersections rather than at 
            entrances to the city, this bill eliminates the 
            requirement to post warning signs at all approaches to the 
            intersection. Instead, the bill only requires warning 
            signs in the directions in which the automated traffic 
            enforcement system is being utilized to issue citations. 
            This is problematic in that some systems are located where 
            a motorist might approach the enforcement system after 
            making a right or left turn off a parallel street. Without 
            the requirement to locate warning signs on all approaches, 
            many drivers would have no warning whatsoever that photo 
            enforcement is being used at the intersection.

            5. Some reporting requirements could be used to 
            erroneously justify the use of the enforcement systems. 
            For example, the bill requires that the number of traffic 
            collisions at each intersection that occurred prior to and 
            after the installation of the system be reported. However, 
            the bill does not require that the type of collision be 
            reported nor does it state the length of time before and 
            after the installation of the system for which collision 
            data be reported. Without listing the specific types of 
            accidents that have occurred and providing for a long 
            enough data collection period, the information could be 
            misused to provide justification for the use of red light 
            cameras where no justification exists.








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            6. Provisions requiring that jurisdictions make and adopt 
            a finding of fact establishing that the system is needed 
            for reasons related to safety and prohibit them from 
            considering revenue generation are virtually meaningless. 
            Currently no jurisdiction openly admits that they consider 
            revenue generation, although their actions in running 
            their systems clearly point to revenue generation as a 
            motive. Furthermore, all that would be required for a 
            jurisdiction to find that the system is needed for safety 
            would be for them to show that violations are taking place 
            at a particular intersection. The bill provides no 
            objective criteria for determining whether a system is 
            needed "for reasons related to safety" and therefore does 
            not help protect citizens from photo enforcement abuses.
           
          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          None on file
           
            Opposition 
           
          Safe Streets, L.A.
           
          Opposition (To 6/26 version of the bill)

           Association for Los Angeles Deputy Sheriffs
          California Police Chiefs Association Inc.
          California Traffic Defense Bar Association
          California Walks
          City of Beverly Hills
          League of California Cities
          Los Angeles Protective League
          National Motorists Association
          North American Transportation Association Inc.
          Redflex Traffic Systems
          Riverside Sheriffs' Association


           Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 











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