PHOTO-RADAR: WHAT'S WRONG WITH THIS PICTURE? Frederick Grab* Reprinted from GLENDALE LAW REVIEW Volume 10, Numbers 1-2 Copyright - 1991 by Glendale University College of Law PHOTO-RADAR: WHAT'S WRONG WITH THIS PICTURE? FREDERICK GRAB* INTRODUCTION Photographic radar enforcement is the automated detection of speed-law violations utilizing a radar detection device (doppler radar) combined with photographic, or even videotape, equipment to record the violation and to permit subsequent identification of the offending vehicle and driver. While apparently first developed in Europe, photo-radar systems proudly hailed as being "Designed and Manufactured in the USA" are now being aggressively marketed. As of this writing, photo-radar systems are in use in at least five localities, while three states and at least nine additional localities are considering implementation. Manufacturers, local officials and prosecutors who favor utilization of photo-radar insist that its purpose is benevolent, i.e. the promotion of traffic safety through deterrence. The author questions this assertion within the context of California jurisprudence where the retributivist model of punishment prevails. If long prison terms fail to deter serious (p.52) felons, why is it to be assumed that a relatively minor fine will reform the otherwise law-abiding speeder? Even assuming that a fast driver is an unsafe driver and that specific speed limits being enforced are not artificially low to begin with, the "additional" consideration of government expense routinely arises whenever photo-radar is discussed. While proponents of the system frequently insist that photo-radar utilization is not a revenue raiser, it is difficult if not impossible to accept this representation. If the job could be done more cheaply by conventional means --i.e. by visibly present uniformed officers effecting traffic stops and issuing citations when deemed appropritate ù would any agency or municipality purchase or lease photo-radar equipment at all? It is readily apparent that claims of this kind, where made in good faith, reflect modern accounting concepts, rather than comparative cost. In short, while it may well be, as the Pasadena City Prosecutor has claimed, that photo-radar is not a revenue raiser on the city's ledger, it is unreasonable to believe that net savings do not result from its utilization. A violation of California speed laws is classified as an infraction. An infraction is a criminal offense, albeit one not punishable by imprisonment. The irony, and the real fault, of photo-radar enforcement is that it provides the usually law-abiding citizen who falls within its ambit with markedly less in the way of constitutional and procedural protection than is afforded the most heinous felon. Further, these deprivations are so severe, so violative of minimal notions of fairness, that it can only be the relatively minor penalty involved that has allowed the practice to escape appellate review thus far. It is the position of this article that photo-radar enforcement amounts to a wholesale violation of statutory and constitutional requirements in the interests, not of safety, but of economy. As modern constitutional law has unerringly taught, such a resolution is untenable. ISSUES The problems associated with photo-radar enforcement are perhaps (p.53) most easily summarized in terms of chronology. The first event in the process is, of course, the commission of the alleged offense and its detection by the photo-radar device. Thereafter, the photograph produced by the machine ù accompanied by or embossed with data reflecting the recorded speed of the vehicle, date of the violation, location, etc. ù is forwarded to the agency responsible for the issuing of the notice to the violator. It is submitted that several serious legal difficulties have already emerged at this early stage. First, it is entirely possible that the alleged violator may be unaware of the fact that he or she has been "caught" by the device. It may be that the accused first learns of the alleged violation several days after the fact. Elementary notions of due process require that the accused in any criminal matter be afforded an opportunity to make a defense to the charge. By delaying notification of the accused, the procedure makes it likely that the defendant will be denied the opportunity to make any defense whatsoever. If the alleged violator is not aware of the presence of the device at the time of the event, it is almost certain that the precise facts will be forgotten by the time of the arrival of the mailed notice. Defenses based upon true emergencies, e.g. severe illness, injury, escape from possible violence, etc., would, of course, be recalled in all probability. But lesser exigencies such as indigestion or lack of attention due to a dropped cigarette ù although possibly sufficient to convince a police officer to withhold a citation or even a judge to acquit ù would almost certainly be forgotten. It can be argued that this is precisely the dilemma faced by any criminal defendant charged after a lapse of time. The differences between the instant situation and that of the forgetful felon, however, are significant. First, and arguably most important, it is the state which creates the lapse in this instance by failing to adhere to prescribed statutory procedures for the enforcement of traffic laws. Pre-complaint delay in criminal cases is evaluated ù either as a matter of due process analysis or under the auspices of the speedy trial provisions of the Sixth Amendment ù on the basis of a balance between prejudice caused by, and legal justification for, the delay. Clearly, the delay her results from the choice of the municipality to utilize photo-radar equipment in lieu of the statutorily mandated live officer effecting a traffic stop and issuing the citation at the time of the event. Unless this choice is rooted in some (p.54) legitimate concern encompassed by the Vehicle Code ù and it is again submitted that economic savings for the municipality do not so qualify ù there can be no question that the total deprivation of any defense cannot be justified and the balance requires dismissal. As just noted, the California Vehicle Code provides specific procedures for the issuance of citations. An officer may, after effecting a traffic stop, cite the driver and obtain a written promise to appear, take the driver upon request or in unusual circumstances to the nearest magistrate, or release him or her. This procedure clearly envisions and permits the exercise of discretion of the officer in initiating the prosecution and allows a "warning" in lieu of citation. While it is not at all clear that a motorist is constitutionally entitled to the exercise of such discretion per se, it is apparent that routine speeders cited by means of photo-radar are being treated in a significantly different way than are speeders who encounter live officers. The state and federal constitutions preclude distinctions which impact arbitrarily or unfairly under their respective equal protection clauses. When the alleged violator receives his or her notice to appear, there is an indication to the effect that failure to appear ù or to mail back the specified fine purporting to represent bail ù will result in the issuance of a warrant of arrest. This leads to the second major heading of problems connected with photo-radar, jurisdiction. It will be shown that jurisdiction over the person, an absolute necessity in any criminal action, cannot be established by mailed service. In the absence of well-defined events not present when the notice is mailed, the municipality has no lawful power whatsoever over the accused and has no right to make good on its threat to issue a warrant of arrest. It must be assumed, however, that the average law-abiding layman, indeed the average lawyer, would be unwilling to press the Hohfeldian distinction between right and power and simply ignore the purported summons. Indeed, Pasadena City Prosecutor Courlandt Crabtree has been quoted as saying that no case in Pasadena has ever "gone to [the] extent" of requiring resort to warrant for failure to respond to mailed notice. The jurisdictional issue here is probably the most clear-cut problem associated with photo- radar enforcement, involving as it does no necessity of identifying and weighing state interests against individual prejudice. Regardless of a town's purpose in utilizing the equipment, if the procedure fails to confer jurisdiction over the defendant, the court cannot (p.55) proceed. But when the defendant makes his first court appearance, it is unlikely that he or she will ever be allowed to raise the issue. It has long been recognized that a motion to dismiss for lack of jurisdiction must be timely. Any general appearance whatsoever waives the issue of jurisdiction over the person, so that a special appearance for the purpose of challenging personal jurisdiction must precede any other action in the case. Thus, even assuming that the accused had some notion that the procedure which resulted in his presence in court was defective in vague terms which would translate into jurisdiction upon inquiry before the court, the first time the accused would stand before a judge would be after he or she had entered a plea of not guilty and trial was to commence. As noted, by this point in time, the jurisdictional claim would already have been waived. It will be recalled that the offense in question here is an infraction under California law, one which cannot result in imprisonment. As a consequence, the accused is not entitled to appointed counsel as a matter of constitutional compulsion. California, in fact, does not provide counsel for accused traffic offenders even if requested. It should be clear, then, that in most cases ù in all likelihood, nearly all cases in which the defendant is a layman, has no close friend who is a lawyer, or is not facing imminent loss of driving privileges ù the accused will not be in a position to assert his strongest and most expeditious defense to the charge, lack of personal jurisdiction. In several contexts, the concept of the appearance of fairness occurs. Respect for and obedience to law (p.56) and the legal process cannot be fostered by procedures that are deceptive, misleading or unfair. It is ironic that Pasadena and other municipalities rightfully concerned about public welfare and obedience to lawful restraints seek to promote these goals with methods which clearly capitalize upon the ignorance of their citizens and which present such obviously arguable legal question. Jurisdiction As early as 1899, the Supreme Court of California held that where a trial court has failed to obtain personal jurisdiction over a defendant, a judgment against him is "void for want of jurisdiction [and] should be set aside." The term "jurisdiction" itself has been construed to mean "the power of court to hear and determine, or the power to act in a certain manner" and to be "synonymous with the power to render a valid judgment against the person." "Personal jurisdiction depends upon three factors: (a) Jurisdiction of the state, (b) Due process, i.e., notice and opportunity for a hearing, (c) Compliance with statutory jurisdictional requirements of process. It is submitted that photo-radar enforcement actually violates the last two of these requirements, thus depriving the trial court of jurisdiction to hear the case and to render judgment. In general, jurisdiction over the person in a criminal case is "obtained by arrest either with or without warrant, ro by the physical presence of a defendant before the court, regardless of how that presence is obtained." Arrests, either with or without warrant, are consistent with statute, However, the Penal Code specifically exempts defendants in "all cases . . . of the Vehicle Code, in which a person is arrested for an infraction" from the ordeal of being taken into custody; such individuals are required only to present adequate evidence of identification and to sign a promise to appear. It is the face-to-face confrontation with the citing officer and the signing of the promise to appear, then, which serve to establish personal jurisdiction in the ordinary traffic case. The signing (p.57) of the promise to appear is, in effect, the equivalent of custodial arrest and establishes the power of the state over the individual in connection with the violation. Indeed, the Penal Code itself provides that "only if the arrestee refuses to present such identification or, refuses to sign such a written promise may the arrestee be taken into custody." Furthermore, a person stopped for a traffic infraction has the right, under the Vehicle Code, to demand to be taken "without unnecessary delay" before a magistrate. It should be clear, even at this preliminary stage, that the accused, cited by means of photo-radar, has lost a significant privilege due to the means chosen for enforcement. The due process aspects of personal jurisdiction are, in general, distinct form those deprivations of personal liberty or fundamental fairness which were alluded to above and will be expounded on later. In a jurisdictional contest, due process encompasses adequate notice of the charged offense and an opportunity to obtain a hearing, as flowing from the method utilized to bring the accused to the bar of justice. In the more substantive context, it is generally alleged that the state has either infringed or restricted fundamental liberty interests or engaged in shocking conduct in connection with a particular prosecution. What makes the photo-radar question interesting is the fact that the very problems which render personal jurisdiction problematic also infringe on several other aspects of the accused's ability to present a defense, separate and apart from the simple power of the state to hear the case and render judgment. In general, state and federal courts have held consistently that the manner in which an accused is brought to trial is of no cognizable legal concern. The so-called Fer-Frisbie rule recognizes that due process concerns are "satisfied when one present in court is convicted of crime after . . . a fair trial in accordance with constitutional safeguards." The rule has, however, admitted an exception. In United States v. Toscanino, "outrageous and shocking conduct" involving abduction and torture resulting in the international transport of a suspect was alleged. (p.58) In deciding that such allegations, if true, would undermine jurisdiction and require reversal, the Second Circuit noted that "deliberate, unnecessary and unreasonable invasion of . . . constitutional rights," when viewed with an eye toward the "proper administration of criminal justice" precluded the government to profit form its wrongs and required dismissal. The utilization of the "shocking to the conscience" standard of substantive due process in arriving at a dismissal is not new: to the extent to which the case stands for the proposition that outrageous government conduct may incur sanctions, the premise dates back at least to Rochin v. California. However, it also appears that Toscanino may well support the imposition of the remedy where there is a "causal connection" between the unlawful conduct and the conviction itself. This expansion of due process notions, referred to as the "due process ærevolution'" reflects the relatively recent recognition that due process of law no longer signifies merely "the defendant's right to a fair trial," but also requires that the government ù in some contexts, at least ù "be denied the opportunity to exploit its own illegal conduct." It has been argued that jurisdiction should be denied whenever it is obtained "pursuant to a demonstrably unnecessary extra-legal" procedure. While the authorities and comments considered in regard to the Fer- Frisbie doctrine deal with extradition, there appears to be no reason to restrict them to this context. Whenever jurisdiction over the defendant is obtained by fraud, deception, assertion of specious authority, ungrounded threat or similar overreaching, the same interests ù denial of unfair advantage to the state, deterrence of unlawful state practices, and respect for the law ù are implicated. Furthermore, the decidedly international flavor of the decision in Toscanino has not prevented its application within the borders of the United States. To be sure, the conduct of the state in utilizing photo-radar for traffic enforcement is not so outrageous as to shock the conscience in the way that tem is used in the cases following Ro Rochin v. California. However, it is also clear that serious question exists as to the legality of the (p.59) method under California statutes, as will appear. In addition, the refusal of the various municipalities to address the legal issues, the resort to deceptive threats clearly beyond lawful realities, and the apparently deliberate avoidance of appellate review smack of the very type of government overreaching arising in cases like Toscanino, albeit on a smaller scale. Moreover, the precise deficiencies in jurisdiction associated with photo-radar are the sources of additional and serious constitutional infringements going to the fundamental fairness of court proceedings and implicating values of even-handed state treatment of the accused. The former provide the "causal connection [with] the conviction considered above." Statutory Requirements As previously noted, a violation of California speed laws is an infraction, which, in trun is a criminal offense. As also noted, the Vehicle and Penal Codes provide for procedures to be followed after arrest for such violations, specifically the release of the detained person once identification has been verified and a promise to appear has been obtained. Indeed, a person violating any section of the Vehicle Code which is not a felony must be so treated, or else brought before a magistrate without delay. Moreover, the procedures specified in the Vehicle Code for traffic stops relating to violations not amounting to felonies have been held repeatedly to "provide the exclusive procedure to be followed after a warrantless arrest. . . ." It is therefore suggested that the form of service attempted by municipalities such as Pasadena which simply forward through regular U.S. mail a notice of violation and purported summons fails to comply with the third requirement for personal jurisdiction identified above, compliance with statutory jurisdiction requirements of process. Nevertheless, Pasadena's city prosecutor has defended the jurisdictional aspects of the city's procedure by analogy to zoning violations on the part of landlords. It is submitted that the latter category of cases is in all likelihood civil in nature, despite the possibility of quasi-criminal sanctions arising during pendency. In addition, landlords in general ob- (p.60) tain legal representation as a routine matter in connection with their interests, precluding the form of wholesale overreaching encountered in connection with photo-radar. Finally, as already suggested, the defects associated with personal jurisdiction in the photo-radar context are directly linked to serious deprivations of constitutional safeguards specific to the nature of the case itself. These considerations suggest that attempts to justify deficient process in terms of analogies to civil cases are unavailing. One interesting exception to the sign-and-release procedures specified in Division 17, Chapter 2, Article 2 of the Vehicle Code is to be fou;nd in the next article of the Code, entitled "Notice of Violation." This article deals with situations in which a trained peace officer determines after a traffic accident has occurred that one of the parties violated a provision of the code. In such circumstances, a "notice of violation" may be issued and personally served upon the violator, a copy of which may later serve as an accusatory pleading. Failure to appear upon the notice of violation cannot result in the issuance of an arrest warrant, however, unless notice of the filing of a complaint is served upon the accused. Under the terms of the code, service with such a notice of violation does not constitute an arrest. However, as noted, no arrest can result from the failure of the accused to appear upon the notice. This is in marked contrast with the explicit threat of arrest included in the mailed notice resulting from a photo-radar incident. Furthermore, when no appearance on a notice of violation has occurred, "proceedings shall be had as provided by law." That is to say that the usual requirements of process attach, and the case proceeds like any other. Thus, one cited pursuant to this procedure is given substantial opportunity to evalate the effect of the several notices requied before any intimation of arrest via varrant arises. Finally, the procedure (p.61) has been described as "merely an alternative procedure in situations to which it applies" as opposed to the sign-and-release procedure which is "the exclusive procedure where the preceding arrest was made without warrant and the offense was committed in a peace officer's presence." It is well worth noting that the California Attorney General's Office has expressed cocern about certain aspects of this procedure as well as several possible alternative methods of establishing jurisdiction in the same situation. By and large, these concerns arise out of the necessity of an arrest within the various code sections governing the commencement of prosecutions, coupled with the preclusion of warrantless arrests for non-felonies committed out of the presence of the officer. What emerges from these considerations, then, is the definite suggestion that the legislature ù in a mindful balancing of the right of even the petty offender to substantial justice against the interests enhanced by non-felony code sections ù requires some minimal contact between a live officer and the traffic offender before criminal action can commence. And while the procedures contained within Chapter 3 may in fact be insufficient to convey jurisdiction over the person, they are markedly superior in form to those utilized in connection with photo-radar and suffer from none of the additional constitutional infirmities. Even assuming that non-criminal methods of service were available to a municipality attempting to initiate prosecutions for speed law violations by means of photo-radar, the precise methodology relied upon, i.e. the mailing of a notice containing a purported summons, is clearly inadequate under any of the prevailing forms of constructive service for a number of reasons. It must be borne in mind that it is a criminal matter which is being considered. The remedy sought by the state, both sovereign and party, is a fine, i.e. a penalty, and not monetary damages in any way commensurate with an actual loss. Moreover, as already noted, the accused faces possible repercussions with respect to driving privileges as well as the threat of arrest for failure to comply with the command to appear. For all these reasons, the requirements for establishing personal jurisdiction in such cases cannot possibly be less onerous on the state than requirements which apply to ordinary litigants in civil cases. As service other than personal service by delivery of summons and complaint, are more stringent than the method utilized by municipalities like (p.62) Pasadena, which rely upon the recommendations of TMT, the PhotoCop manufacturer. The Code of Civil Procedure permits service by mail in civil actions. However, a copy of the complaint must be included in the mailing in order to comply with this section. It is by no means certain that Pasadena or any other municipality has in fact filed a complaint at the time the notice of violation is mailed. Indeed, assuming that TMT's promotional materials are accurate and that their service provider before any official, i.e. governmental, action has occurred at all. In any case, a complaint does not accompany the first notice of photo-radar violation. In addition, mailed service requires the inclusion of a postage pre-paid envelope in order to be valid. Since these requirements are not met in the photo-radar context, the purported service is invalid and therefore ineffective under the statute, even from a civil perspective. And since statutory requirements are not complied with, jurisdiction fails. Indeed, in civil cases it has been held that "strict compliance with the statutory procedures" is required to "obtain in personam jurisdiction by a form of constructive service." Even where the terms of the Civil Code permitting constructive service by mail have been complied with, the defendant may defeat jurisdiction by simply failing to return the acknowledgment of service. The only penalty incurred by the defendant for such action is an assessment of costs resulting from the plaintiff's recourse to "service in a more conventional manner." Clearly, then, the explicit threat of the issuance of a warrant of arrest for failure to appear on the basis of the mailed notice of violation arising out of photo-radar procedures is an empty one. However, even an attorney familiar with the principles of jurisdiction above might well be reluctant to put the municipality to its proof by simply ignoring the notice. As noted, while the right to issue the warrant may be non-existent, the power is not. A document purporting to emanate from a city or from a municipal court which carries the threat of arrest is a persuasive argument in favor of further consideration and action. And (p.63) here, of course, is one of the serious problems of ethics which arise out of photo-radar practice. When the layman, or even the incautious attorney, arrives in court to protect himself from the possibility of an illegal arrest, he will in all likelihood enter a plea and waive his right to move for dismissal for lack of personal jurisdiction. In other contexts, it has been held that a criminal defendant may not be forced to relinquish certain constitutional protections in order to exercise others. Even more obvious is the right of a defendant not to be tricked into the waiver of a viable defense on the basis of a threat of unlawful arrest in a case where basic procedural safeguards are withheld on the grounds that incarceration is not a dispositional possibility. The only other form of constructive service envisioned within the Vehicle Code concerns damage actions involving non-residents. Under this provision, personal jurisdiction may be established by mailing a copy of the summons and complaint to the defendant by registered mail. The failure to abide by the letter of the statutory requirements renders the purported service "wholly ineffectual" for the purpose of establishing personal jurisdiction. Again, the amount of process afforded the civil defendant under this alternative procedure exceeds that provided under photo-radar. Ad so, it again appears that even where the less stringent methods of the civil side are considered, more in the way of protection is provided the ordinary litigant than is given to the criminal defendant in a photo-radar case. Furthermore, the civil methods above are supported by their own statutory authority, while the photo-radar procedure appears to have been created out of whole cloth. Finally, even assuming that the above civil procedures could somehow be utilized in the criminal arena under photo-radar, the method actually relied upon by the municipality, i.e.. The mailed notice, fails to conform to any of the extant methods considered above. Since strict compliance is a prerequisite to jurisdiction, it is relatively clear that a municipality which mails its notice of violation to the accused has failed to perfect its power to prosecute its case. Constitutional Questions As suggested earlier, photo-radar enforcement arguably suffers from several substantive infirmities, separate and apart from the methods uti- (p.64) lized to bring the accused before the court. Both the state and federal constitutions prohibit the "state from depriving any person of property without due process of law." In the absence of an overriding state interest, persons subject to such deprivations "must be given a meaningful opportunity to be heard." It is the position of this article that the photo-radar notice procedure constitutes a denial of due process guarantees. The concept of pre-complaint delay was considered briefly above. Seen either as a due process issue or alternatively as one arising under the speedy trial guarantees of the state and federal constitutions, the values and applicable standard are the same. A defendant is subjected to a real potential for prejudice to his ability to obtain a meaningful hearing whenever state action results in delay of that hearing. The standard applicable to such an assertion is a balancing of prejudice against any justification for the delay. It is suggested that in many cases, prejudice, as used in this context, is absolute under photo-radar. The defendant who is unaware of the detection as it occurs receives his mailed notice days later, and it is very unlikely that the precise circumstances will be recalled, as already discussed. What then can the state, or the municipality, offer in the way of justification to permit this total deprivation of the right to mount a defense to the charge? Arguments to the effect that photo-radar increases safety by allowing for the detection of violations on the part of sharp-eyed speeders who might otherwise slow down at the sight of a patrol vehicle must be discounted in light of the legislature's refusal to allow unmarked traffic enforcement vehicles and speed traps. In other words, notions of fair play mitigate pursuit of even the laudable goal of highway safety. It would seem, then, that the only conceivable justifications available would be(1) increased number of citations and (2) reduced cost. The decision to forego the normal and statutorily prescribed method for traffic enforcement through reliance upon a uniformed officer making a stop, issuing a citation and obtaining a promise to appear simply cannot be explained in any other terms. The municipality is in essence saying that it is entitled to inflict significant pre-complaint delay upon the accursed cited by means of photo- radar because it can either increase its revenues (p.65) through greater volumes of issued citations or else save money through reduced enforcement staffing. These justifications, in turn, are economic in nature. But the United States Supreme Court has held that financial savings cannot justify otherwise unconstitutional state action. Again, despite the relatively minor nature of the prescribed penalty for speeding, the accused is entitled to all available fairness in his confrontation with the state. And where it is the state itself which creates an impediment to the presentation of a defense to the charge, monetary savings are insufficient to justify the deprivation. Equal protection questions are also raised by photo-radar enforcement. Under the applicable state and federal guarantees, classifications created by the state which result in disparate treatment of individuals must, at the very minimum, operate in a rational and non- arbitrary manner. Any differentiation in treatment must bear a substantial relationship to the purpose being advanced. Thus, a proscribed state action results from intentional and arbitrary discrimination on the part of state officials "whether brought about by the express terms of [a] statute or by its improper enforcement by duly constituted state agents." these requirement attach to "discriminatory acts of all branches of government, including the Executive." Therefore, any municipality utilizing photo-radar enforcement is subject to a higher standard of review under the familiar two-tiered equal protection analysis. In particular, such a classification is "subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of proving not only that it has a compelling interest which justifies the classification but also that the discrimination is necessary to promote that interest." It has been held that "the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution. . . are expressly or impliedly grounded in the State and Federal Constitutions and must by any (p.66) test be deemed æfundamental.'" it is therefore apparent that the prosecution in a photo-radar case bears the burden of establishing a compelling state interest to support the disparate treatment received by the defendant vis-a-vis all other accused speeders in the state as a result of the serious fair-trial deprivations just discussed, viewed from the perspective of equal protection analysis. That is to say that because the municipality has chosen to subject photo-radar defendants to prejudice (1) amounting to a denial of the fundamental right to be heard, and (2) not applied to other defendants accused of the same offense, strict scrutiny is brought into play. In this regard, it must be remembered that it is not the proscription of speeding itself which must be justified, but rather the various procedures ù from detection to judgment ù utilized under photo-radar which are the substance of the impermissible classification as well as the source of the prejudice. It is submitted that no compelling interest can be identified requiring resort to this method of enforcement. Even more insurmountable is the requirement of close tailoring. Again, the municipality is required to demonstrate the necessity of resorting to this precise method of enforcement in order to achieve, not a successful outcome in the particular case at bar, but rather the goals and purposes of the Vehicle Code. As already indicated, photo-radar does not appear to add to traffic safety at all, but is instead a cheaper method of enforcement. Thus, an alternative method of enforcement exits ù i.e. the statutorily prescribed reliance upon traffic stops by uniformed officers in marked patrol vehicles, combined with the issuance of citations upon promise to appear ù which not only eliminates the prejudicial discrimination but also appears to advance the legitimate purpose of the speed laws better than photo-radar enforcement. Again, it is submitted that economic savings on the municipality's part cannot stand as justification for reliance upon these procedures. Photo-radar procedures seriously undermine the accused's ability to mount a defense and therefore erode respect for law among normally abiding citizens. The courts have traditionally been unwilling to permit official lawlessness in the interests of efficient enforcement, even in far more serious situations. There is another aspect to the equal protection challenge to photo-radar enforcement. In California, traffic officers, indeed all peace officers, possess a wide range of permissible discretion in connection with the de- (p. 67) cision to arrest. In another context, the high court of this state has explicitly recognized the discretion afforded a traffic officer to release a violator with a warning, rather than issue a citation for the offense. The accused, brought to court by means of photo-radar, is absolutely precluded from explaining the situation tothe officer at the time of the occurrence and from possibly avoiding the inconvenience and risk associated with the filing of a court case by the municipality. In other words, since the interposition of the officer is eliminated under photo-radar, prosecution is automatic upon the detection of prima facie evidence of a violation by the equipment. It is suggested that such elimination of human intervention and discretion is analogous to automatic death judgments in capital cases, rejected on due process grounds by the United States Supreme Court. Thus, our highest court has held that the elimination of human discretion in connection with penalty determinations in the most serious cases prosecuted in our courts abridges the accused's right to the law's protection. Again, under photo-radar, it appears that a similar deprivation directed at ordinary citizens goes unremedied precisely because of the minor nature of the offense and the unknowing acquiescence of lay defendants unschoolded in adversarial technique and criminal procedure. While it may be true that this precise deprivation, viewed in context, may not in itself be of such magnitude as to be deemed "fundamental," it is so transparently arbitrary as to fail under the lowertiered rational basis test.. CONCLUSION It has been suggested that reliance upon photo-radar detection in the prosecution of speed law violations suffers from a number of related infirmities. First, jurisdiction over the person of the accused is not established by the method utilized, i.e. the mailing of a notice to appear. In this regard, the Vehicle Code provides detailed and exclusive procedures to be followed in connection with warrantless arrests of minor violators, and procedures utilized in connection with photo- radar enforcement fail to conform. It would seem that the threat of arrest which accompanies the mailed notice is apocryphal and calculated to intimidate the defendant into an appearance which is not only non-mandatory, but is also likely to result in the loss of the viable defense of lack of jurisdiction. Further, photo-radar enforcement seriously impacts upon the con- (p.68) stitutional rights of the defendant. The time lapse between the event and the arrival of the mailed notice may well result in the loss of any possibility of mounting a defense due to failure of memory. Since this loss is the direct result of the enforcement method chosen by the state, due process implications arise which require a balancing of the resulting prejudice against the state's interest in photo-radar enforcement in place of the traditional and statutorily mandated reliance upon a traffic stop effected by a live officer. In addition, reliance upon photo-radar creates a disparity in treatment between those prosecuted under its procedures and other speed-law defendants, thus presenting equal protection issues, as well. The fact that photo-radar procedures have escaped appellate review thus far is another surprising aspect of this complex picture. It has been intimated that a conscious decision to avoid such review has been made by at least one municipality. The strategy appears to be simply to dismiss "in furtherance of justice" all photo-radar cases in which a viable defense is presented. This approach, if it is indeed being utilized, suggests a conscious awareness of legal difficulties which are being concealed by those specifically entrusted with the protection of public rights. It also necessitates some form of overt and active assault upon a practice whose legality would be ascertainable by recourse to normal appellate avenues but for the tactic of selective dismissal. As has recurred too often in connection with this analysis, the penalties involved are apparently too minor to have warranted this assault to date. Photo-radar has exploited the uniquely American fascination with gadgetry in an era of reduced resources, and has directed questionable criminal prosecution at the class of individuals who least deserve that distinction, the normally law-abiding citizen. Significantly, the scofflaw who ignores his mailed notice will slip through the system because the threat of arrest is insupportable. Ultimately, such practices produce disaffection and cynicism. Surely, when viewed against the monetary savings resulting form their implementation, the price is simply too high. * Mr Grab is a deputy in the Office of the California Attorney General. He was admitted to the State Bar of California in 1978, after receiving his Juris Doctorate from the University of Southern California. The opinions expressed in this article are those of the author and do not reflect the position, views policy of the California Attorney General's Office.