Colorado photo enforcement (STILL) has legal issues

Previously I wrote about many of Colorado’s legal issues with so-called “Photo Radar” (a term for any type of speed photo enforcement). This session the legislature introduced SB26–152 to address some of the legal issues, including per-ticket payment disguised as hourly billing which was being used as revenue generator, to which the bill sponsor Byron Pelton previously stated “[W]e’re going to have to figure out how to close (the loophole) moving forward with this bill.”

Instead of closing that loophole, they ADDED an amendment on May 4th to allow FLAT HOURLY billing. I gave some public testimony on May 8th in the next committee concerning many of the issues I previously wrote about, as well as my concern about the hourly billing they had snuck back in and passed by amendment. Because I was a whole 3 seconds over time, they immediately cut me off when I brought that up. I found out exactly why they were so eager to cut me off mid-sentence, when they rushed an amendment striking the words “OR INDIRECTLY” from the paragraph that said “NOT INCLUDE ANY INCENTIVES, BONUSES, ESCALATORS, OR OTHER PROVISIONS THAT ARE DIRECTLY O̶R̶ ̶I̶N̶D̶I̶R̶E̶C̶T̶L̶Y̶ TIED TO THE NUMBER OF CITATIONS ISSUED OR THE AMOUNT OF REVENUE GENERATED.” — I was informed by a source that this is because CDOT’s vendor does hourly billing as well.

My other main concern was the lack of due process in each individual municipality’s AVIS hearings. As these are civil actions, you have no guaranteed right to discovery. As I previously pointed out in the towns that use photo radar, they’re just kind of doing whatever when it comes to ensuring the radar is actually calibrated and accurate on the day you were cited. There is no daily test of the equipment, the units typically get calibrated by third party private shops annually but the certificates themselves don’t really lay a foundation for the calibration. They often list test equipment with no serial number or NIST traceability. Emergent Enforcement Solutions, the vendor towns like Kersey and Hudson use, provides radar equipment from SmartMicro and an End of Line certificate the manufacturer deems valid for “24 months.” Recently Kersey got caught going past that 24 months on their NorthBound camera after a records request on May 13th revealed they had not recalibrated it, as I warned about in my previous article that it was coming due. After I posted about it on Facebook, they updated their website with a new calibration certificate, dated May 21st, 8 days after it should have been recalibrated. [It should also be noted the serial number (47165/2625004) listed on the new certificate is not the same serial number (0x0004A70B) on the original certificate]

My friend messaged me recently after he got a ticket from the Town of Simla. Most disturbing is to contest their $40 AVIS ticket, you have to pay $35 court costs AND go back to Simla to contest it in person:

Town of Simla Photo Radar Enforcement webpage

What also immediately stood out to me was their calibration certificates had the phrase “Speed accuracy comparison test performed with a certified laser.” — Were these cameras LIDAR? Their FAQ confirmed this:

The speed cameras use LiDAR to detect speed in combination with a high-resolution camera to capture the image.

This is a problem for them, because those calibration certificates were NOT from the Department of Agriculture. As discussed previously, while the lab does not certify police radar units, only thier tuning forks — they DO certify LIDAR. And their FAQ states:

You are required to submit your standards (tuning forks and LIDAR) on an annual basis according to CRS 35–14–107(g). There is a one year expiration date included on your certificate. You must submit your standards on or before this date.

FAQ Department of Agriculture, Metrology Laboratory

I started investigating and found that Simla, Avon, Vail, Basalt, Glenwood Springs and possibly others are using a vendor DacraTech, LLC that provides these Lidar Cameras. Their contracts specifically state annual 3rd party camera calibration/certification is performed by the Contractor onsite, nowhere does the contract ensure these cameras will be certified by the Department of Agriculture as required by Colorado law, CRS 35–14–107(g)

Basalt Vendor Contract with Dacra Tech, LLC

Glenwood Springs Vendor Contract with Dacra Tech, LLC

I did file a complaint with the Department of Agriculture over this egregious and fragrant violation of Colorado law.

In conclusion, we continue to have legal issues with these photo enforcement vendors and their equipment. Calibration certificates often lack foundation, aren’t being performed on time, or aren’t being sent to the state agency for calibration when required by law and instead are performed by an outside 3rd party contractor. AVIS hearings have no legal protections to ensure defendants receive due process and can properly challenge citations when obvious legal issues arise as they are civil in nature. The new bill, SB26–152 — which is still waiting for the Governor’s signature — did clarify that the driver, not the owner, is who is liable for these citations but a Florida court found even with it being a civil proceeding it’s quasi criminal as it punishes conduct and the burden shifting nature of the statute where the driver must prove they are not guilty is unconstiutional. Hopefully next session the legislature puts an end to these unconstitutional cameras.