Photo Radar Defense

When you receive a photo radar ticket in the mail, you have four options:

1. Pay the Ticket.

This is probably the worst of the 4 available options.

2. Ignore the Ticket.

The State (the “State” is who issues the ticket, regardless of whether your ticket is from Scottsdale, Paradise Valley, etc.) sends a photo radar ticket in the mail in an effort to save the expense of having the recipient personally served with the ticket, known as service of process.  Service of process involves a person licensed with the court delivering the ticket to the driver or a person who lives with the driver.  Service of process is a necessary step before the court can take action against the driver, and before the driver is required to respond to the ticket. 

If the driver sends back any written communication to the court (like the coupons that came with the ticket), the driver will waive the service requirement.  Courts may also consider a telephone call a waiver of service, even though that is not legally correct. In summary, a driver can ignore the mailed ticket until it is served (or service is waived).  If the ticket you received is labeled a “complaint,” the court has 90 days from the date the complaint was issued to serve it.  If the ticket is not served in that time, and the driver does not waive service, the ticket will be dismissed.

3. Take Defensive Driving School.

You may opt to take defensive driving school, aka defensive driving diversion, if you are eligible (no commercial drivers license, have not taken the class for an Arizona ticket within the last 12 months).  This is a 4 hour class that can be taken online, and upon completion the ticket will be dismissed and no fine will be assessed.  The class costs around $200, and the court receives a substantial portion of that fee. This class can also be taken anytime after you receive the photo radar ticket in the mail, even after the ticket is served, if it is served.  You can go to azdrive.com for a list of class providers.

4. Hire an attorney to fight the ticket.

You can hire an attorney before or after service of process, but an attorney is often able to achieve better results if they get involved in the case before service of process occurs and before the driver inadvertently waives any defense arguments. All to often drivers call our office after they have taken some action that has harmed their case, and that could have been avoided had they spoken to us first.

In short, you have no obligation to respond to a photo enforcement ticket unless you have been served or you have waived service.

The short answer is “NO, you do not have to name the driver.”

There are two types of photo radar documents that you can receive in the mail.

The first is a “traffic violation notice”. The notice simply states that a violation is alleged, but that the police are uncertain of the identity of the driver. This notice would also include a request that you name the driver. You have no legal obligation to respond to this notice, and certainly no duty to name the driver.

The second type is a “traffic ticket and complaint.” This is basically a mailed ticket, and it would name you as the driver.

The first type of notice, the one asking you to name the driver, can easily be ignored. Until a ticket or complaint is actually filed against the driver, nothing will happen. If you simply do not respond, they will never know who to issue the ticket to.

The second kind of document, the one that is an actual ticket, will include several coupons for you to mail in to the court. We would recommend that you not mail anything to the court until you speak with an attorney. Otherwise, you may unwittingly waive some of your rights.

One of those coupons tells the court that you were not the driver. Mailing this in to the court will generally NOT HELP, as the typical response from the court is “you cannot be excluded as the driver, and you are expected in court.” Not only will the court not accept your assertion that you were not driving, but by mailing in that coupon you have also waived the requirement that the court serve you. In other words, by mailing in that coupon, you have agreed that the Court does not need to serve you, and that you will appear in court to answer the charges (or pay the fine, or take defensive driving diversion).

Fortunately, a photo enforcement case in which you were not the driver is a case you can win. You have the best defense — you didn’t do it. However, don’t make it easier for them by signing away your rights by waiving service.

The image above shows a Notice of Violation. It is important to know whether you have a Notice of Violation or a Traffic Ticket and Complaint (seen below) because you deal with each differently. When you receive a Notice of Violation, it means the people who sent it to you don’t know who the driver was, and therefore do not know who to issue a ticket too. So they send you a Notice of Violation asking you to tattle on the real driver so they can issue a ticket to that person.

Despite what it appears to say on this Notice, you have NO LEGAL OBLIGATION to respond to this notice. If you ignore this Notice, odds are excellent that no ticket will ever issue and this will be a non-issue. You see, the State (whatever government entity sent you the notice) only has 60 days from the date of the alleged violation to issue a ticket. If those 60 days run and they never know who the driver is, no ticket will ever get issued and nothing will happen to you or the driver.

A Traffic Ticket and Complaint is different from a Notice. When you receive a traffic ticket and complaint, it means there is now a court case involving the named driver. See our discussion near the top of this page about the 4 options available when you receive a traffic ticket and complaint in the mail.

Photo enforcement devices have been banned on state highways in Arizona. They can still be found on surface streets in many cities throughout Arizona though. Scottsdale and Paradise Valley are particularly prolific issuers of photo enforcement tickets.

Service of process refers to the procedure through which the State provides a driver formal notice of a photo radar ticket. (When discussing traffic tickets, the “State” is who issues the ticket. Your case name will be “The State of Arizona v. Named Defendant”, even though the ticket may have been issued by the Scottsdale Police Department, for example.) There are rules governing how the State may accomplish service of process, and when the State fails to conform to the rules, we can often take advantage of those errors to get a case dismissed.

How is Service of Process accomplished?

Service of process in a photo radar case may be accomplished several ways:

Personal service.

Personal service means that an individual who is licensed with the state, known as a licensed process server, comes to the defendant’s residence and delivers a copy of the photo radar ticket to the defendant.

Substitute service.

Substitute service means that an individual who is licensed with the state, known as a licensed process server, comes to the defendant’s residence and delivers a copy of the photo radar ticket to someone of suitable age and discretion who lives with the defendant.

Waiver of service.

When you first receive a photo radar ticket in the mail, you will notice that the State wants you to mail something back to the court with your signature that acknowledges you received the ticket. This is known as a “waiver of service”. The State is trying to scare you into mailing something to the court that waives the State’s obligation to serve you. If you mail a waiver of service to the court, the State no longer has to serve you by personal service. By waiving service, you also waive any arguments your attorney might have been able to make about you not being correctly served.

Alternative Service.

If the State tries to personally serve a defendant but cannot make contact with the defendant or a co-resident, the State will go back to the court and ask for an order for alternative service. The important thing to know is that if you receive a second copy of your ticket by mail, or if you find a copy taped to your door, it is almost certain that court believes you have been served and you need to take action.

How long does the State have to serve you?

The State has 90 days from the date your ticket is filed with the court to get you served. Please note this is not 90 days from the date of violation. You can find the date your ticket was filed with the court by either looking it up online (except for Paradise Valley), or looking on your ticket near the printed signature near the middle of your ticket.

Why is Service of Process important?

Here’s why service of process is important: Service of process is how the court acquires personal jurisdiction over a defendant. Without personal jurisdiction, the court has no authority to take action against a defendant. If you are not served within 90 days of your ticket being filed with the court, and you do not waive service, your case will be dismissed because the court never acquired personal jurisdiction. If you are not served correctly, and you have not waived service, your attorney may be able to argue that service was improper and get your case dismissed.

Alternative service is just what is says – an alternate way of serving a photo enforcement ticket when the standard means of service has proven impracticable. Normally, service may be accomplished in three ways, all described in detail above:

1. Waiver of Service.
2. Personal Service.
3. Substitute Service.

If all of those methods of service are unsuccessful, the process server may submit documents to the State describing attempts at service, and the server’s belief that further attempts would be impracticable. If the prosecution thinks it important enough, they may file a motion requesting permission to serve by alternative means, and the court will issue an order authorizing alternative service.

Most people are all familiar with being pulled over and being handed a ticket by an officer (yup, that officer is personally serving that ticket). Requiring the photo enforcement complaint to be served was intended to create an equivalent procedure in those case types — but in practice, it has not worked out that way. Too many times, the photo enforcement complaint ends up being served on someone who is not the driver and who may never tell the driver of that ticket.

The current law, A.R.S. § 28-1602(E), reads:

“In addition to any other means authorized by the Arizona rules of civil procedure, alternative service of process must be sent by certified mail with an additional copy by regular mail and a notice must be posted on the front door of the business or residence and, if present and accessible, a residence’s garage door.  Service of the complaint is complete on filing the mailing receipt and proof of posting in the court having jurisdiction of the violation.  Notwithstanding any other law, a person’s driving privileges may not be suspended or revoked as a result of a citation that is served by alternative service of process under this subsection.”

Usually the best option for a photo enforcement ticket is to wait and see if you are served, and if you are served, then take defensive driving school.

If you are not eligible for defensive driving school, then it may make sense to fight your ticket. This is especially true if you are one of the unlucky drivers to receive a whole bunch of tickets all at once. If you received 8 tickets in a short time frame, you are facing a license suspension due to the accumulation of points and will probably want to do anything you can to beat those tickets and avoid the points.

Fighting a photo enforcement ticket is different than fighting other types of tickets. We often beat these tickets on legal technicalities, rather than the specific facts surrounding the violation. As a result, it can be very helpful to involve an attorney, not only to make the specific legal arguments, but to also make sure you don’t inadvertently waive any rights.

We take several approaches to fighting a photo enforcement ticket. If the defendant is served, we look for errors in the service process and we make sure the State complied with the statutory requirements for service in every way. We challenge the identity of the driver. We are sometimes able to make constitutional arguments depending on the facts of the case. Sometimes we are able to negotiate an improved outcome, especially when several tickets were issued in a short timespan. Unlike a traffic ticket issued by an officer, a driver does not have immediate notice of the violation and is thereby deprived of the opportunity to immediately change their driving behavior. Sometimes we even take these cases up on appeal if we believe the trial court made an error.

Law enforcement regards these systems as effective and efficient methods to keep roads safe, but these devices have nothing to do with safety.

Found in vans along the side of roads or installed at intersections, photo enforcement systems measure the speed of cars passing by. If a motor vehicle is detected traveling faster than a specified speed threshold (usually 11 mph or more over the speed limit, and 6 mph in school zones), the camera activates and captures images of the passing car. The data are reviewed by law enforcement or government contractors and citations are issued. These devices when located at intersections also attempt to capture red light violations.