OR - Photo radar challenge fails, will be appealed

Photo radar challenge fails, will be appealed
Wednesday, April 18, 2007
DAVID R. ANDERSON

BEAVERTON -- Tuesday's speeding ticket trial of police Officer Jessica Hull included accusations of misconduct by city officials and a challenge to the very foundation of Beaverton's photo-radar system.

None of that seemed to impress Municipal Judge John T. Mercer, who found Hull guilty of speeding on duty and ordered her to pay a $125 fine.

That's exactly what Hull's lawyers thought would happen. Now they say it is likely they will appeal to Washington County Circuit Court, where they can get the case out of Beaverton's legal system.

"We expected it; this is the city," said Mark Makler, the lawyer for the police union. "This is a way for the city to wash its hands."

City officials weren't available for comment after the two-hour trial.

Hull, 29, was accused of driving her patrol car 40 mph in a 30-mph zone in the 12400 block of Southwest Allen Boulevard on April 16, 2006.

City leaders, who agreed to pay as much as $5,000 for an outside lawyer to prosecute the case, have said they are taking a principled stand that no one -- including an on-duty Beaverton police officer -- is above the law.

Makler said the case is about attacking photo radar because it is not operated in Beaverton by active-duty officers but by retirees who aren't union members.

Hull, who did not testify, declined to comment after the trial.

James McIntyre, Hull's lawyer, accused city officials of misconduct.

He filed three motions requesting the case's dismissal. The most important, he said, was a contention that city officials violated state law when they fired the Multnomah County district attorney's office after a special prosecutor there told McIntyre the case would be dismissed.

Susan Isaacs, a private lawyer hired by city officials last week, responded that the city had the right to choose its lawyer. Mercer agreed.

The judge did not rule on a motion by The Oregonian and KGW-TV and joined by McIntyre to unseal an affidavit filed by the district attorney's office.

Isaacs argued for the city that it should remain sealed because it contains privileged information between district attorneys and city officials.

Norm Frink, Multnomah County chief deputy district attorney, would not comment on the affidavit or the reason for withdrawing from the case.

McIntyre also argued that the city violated Hull's right to a speedy trial. McIntyre cited the case of state Rep. Mitch Greenlick, who was ticketed for running a red light in Portland. The Oregon Court of Appeals ruled that 15 months between the citation and a trial violated the Portland Democrat's right to a speedy trial.

But Mercer ruled that the 10 months since the citation was issued to Hull was not an unreasonable amount of time.

McIntyre also attacked city leaders' operation of the photo-radar system, which uses retired police officers. He claimed Allen DeVault, a retired police officer who was operating the photo-radar van, did not qualify as a police officer under the state law that requires "uniformed police officers" to run the system. Records from the Oregon Department of Public Safety Standards and Training show that DeVault's certification lapsed in March 2003.

But Isaacs argued, and Mercer agreed, that DeVault didn't need to be certified to be considered a police officer for the city. Reserve officers, for example, are not certified with the state.

After Mercer rejected McIntyre's motions to dismiss the case, the trial consisted mostly of testimony from DeVault, police Chief David Bishop and a contractor who supplies the city's photo-radar equipment.

McIntyre did not claim Hull was responding to an emergency. Instead, he argued that the city had not sent the photo-radar equipment to the manufacturer to be calibrated for nearly 14 months. City policy is to calibrate the equipment about once a year.

But Mercer said DeVault tested the equipment that morning and it was working.

In the end, the judge said the traffic rules applied to Hull as much as any other driver that morning on Southwest Allen Boulevard.

David R. Anderson: 503-294-5199; davidanderson@ news.oregonian.com