11/29/2006 4:01:00 AM Email this article • Print this article
Investigator challenges photo radar
By MARK LEWIS
The Daily Courier
A local private investigator is challenging Prescott Valley's use of photographic traffic enforcement and says he's willing to go to court.
Phil Whitehead, a 17-year veteran of law enforcement, sent the town a 10-point letter earlier this month citing several state statutes he says prove the illegality of automated enforcement.
Among other things, Whitehead interprets the law to mean that only police officers can issue citations and that parking a photo radar van on the sidewalk is illegal.
During a recent interview, Whitehead said he consulted with three attorneys before submitting the letter to the town and the Yavapai County Attorney's Office.
"All three attorneys concurred with its validity and accuracy," he said. "This was not just jumping off a table to make a splash."
Automated (or photographic) enforcement has existed in Arizona since 1987 when Paradise Valley became the first municipality in the state and nation to use it. Since then, the issue has been to court numerous times.
No legal decision in Arizona has stopped or significantly hindered any municipality's right to use automated enforcement.
Ivan Legler, town attorney for Prescott Valley, contends that Whitehead is misinterpreting state law. He crafted a written rebuttal to the letter citing numerous statutes and legal decisions supporting automated enforcement, which he forwarded to the Town Council.
"The implication is that no one in Arizona can use photo enforcement," Legler said. "It's a totally spurious argument. He is fundamentally wrong."
A few of Legler's points:
• Whitehead contends that, under state law, photo radar vans cannot park on sidewalks. Legler cites the exceptions in a state law stating that a vehicle may park on the sidewalk "if necessary to avoid conflict with other traffic," or "if in compliance with the directions of a police officer."
• Whitehead argues that, under state law, only peace officers may issue traffic citations. Legler contends that state law provides for "duly authorized agents of a traffic enforcement agency" to issue traffic complaints along with peace officers. The recent case of State v Jaime Rebecca Morrone supported the City of Scottsdale's use of a private contractor to issue citations. Unlike Scottsdale, Prescott Valley requires a sworn officer to sign off on every citation.
• Whitehead contends that automated enforcement violates a state law calling for uniform traffic rules throughout the state. Legler cites the 1990 case of Tonner v. Paradise Valley Magistrate Court, in which the Arizona Court of Appeals gave no indication that Paradise Valley lacked authority to use automated enforcement. Several state laws use specific language pertaining to "automated enforcement technology" and "photo enforcement systems."
Legler appeared baffled after comparing Whitehead's arguments to Arizona statutes and case law.
"Why would he think no one in the state would have raised these issues?" he said. "You may not like it, but it's not a violation."
Whitehead is unfazed. He referred to Legler's letter as "smoke and mirrors to make it sound like it's morally and legally justified when it's none of the above."
As a former police officer, Whitehead says he is upset that the police department is issuing its own officers citations for speeding.
He repeatedly emphasized that automated enforcement eliminates an officer's discretion in issuing tickets and is inciting tension between town residents and those sworn to protect them.
"They're under enough pressure already," Whitehead said about the local police, some of whom he calls friends. "They can't say anything because they're on the departmental food chain. That's why I'm saying this, because I'm not on the departmental food chain."