Pulling a Fast One

A cluster of cities eager to cash in on photo-radar speed traps decides to sue the state.

Denver's decision late last month to inaugurate a potentially controversial photo-radar system comes just as four other Colorado municipalities are suing the state for cracking down on how they have used photo radar. An estimated 200,000 motorists in Denver may be more than a little interested in the topic, as the city intends to nab that many speeders annually with the high-tech system. That's in addition to the estimated 150,000 tickets now issued each year by real cops here.

"With this technology," says Cheryl Jacobs of the Denver Department of Public Works, "we can issue tickets 0.5 seconds apart, whereas an average traffic cop can issue only ten tickets an hour."

For a change, however, a higher level of government--the state legislature--tried to curb possible excesses in the high-tech surveillance system, which starts December 1. But the number of tickets may climb even higher than predicted if the state loses its current legal battle with Colorado Springs, Fort Collins, Westminster and Commerce City. The four cities complain that a law passed by the Colorado General Assembly in 1997, SB36, contains restrictions that make it impossible for them to operate photo radar.

The technology features unmarked vans that park along specifically designated roads. Inside is equipment that photographs vehicles that are allegedly speeding; both the driver and the license plate must clearly be shown for the subsequent mailed ticket to hold up in court.

Lawmakers set strict limits on fines, and statutes of limitation have prevented cities from assessing points penalties for photo radar. In addition, the law has prohibited cities from paying a per-ticket "bounty" to private firms that operate the system--an arrangement that had angered critics.

State officials say the municipalities should be happy that photo radar is still legal.

"The legislators tried to accommodate local concerns," says Solicitor General Richard Westphal of the Colorado Attorney General's Office. "Now these cities are using the restrictions we placed on photo radar as a vehicle to fight it. They say we're infringing upon their home-rule rights. But our concern is that this is a police-power issue. It's also a fairness issue. Having a box--a totally artificial device with questions about its accuracy and authenticity--taking photos that result in traffic fines raises concerns among many legislators."

The four cities filed suit in Denver District Court in January 1998; the attorney general's office unsuccessfully tried to get Judge Herbert Stern III to dismiss the case. He refused, and a trial is set to begin next May.

The cities' basic argument is that the state is overstepping its authority by interfering in local decisions. Behind that sentiment, however, is the cities' complaint that the state law makes it difficult for them to make photo radar economically feasible.

The City of Denver apparently has found a way--assuming that it can sting an additional 17,000 to 18,000 alleged speeders a month.

Denver's contract with Lockheed Martin IMS Corporation calls for the city to pay a flat fee of $225,000 every month, plus $7,500 monthly to lease three photo-radar vans. Bob Dorroh, head of Denver's Transportation Systems Department, says that under the current state law, the city needs to collect payment from those 17,000 to 18,000 violators each month to pay for the program.

Officials of smaller cities like Commerce City say they can't afford to operate photo radar if they can't pay contractors per ticket or aren't allowed to charge more than $40 a ticket. "It's proved to be the biggest stumbling block for us," says City Attorney Tom Merrigan of Commerce City. "The whole program was sold to the city council because it wasn't going to cost us anything. We're not trying to make money. Revenue is not the issue. The basic issue is that we want to slow traffic down. Denver has obviously found a way to break even where we couldn't."

Denver also has a plan to collect fines under the state law's tight time restriction. The legislators had curbed the cities' enthusiasm by ordering them to collect fines within ninety days or forget it. However, Dorroh says, Denver's city attorneys are working on an ordinance that would give police the power to place the infamous Denver Boot on vehicles belonging to alleged speeders who don't pay their photo-radar fines before that statute of limitation expires.

If the four smaller cities win their suit and overturn the state law, photo radar could begin generating enormous sums of money for them. Denver's bonanza would be even bigger. But Westphal says Denver and its little brothers shouldn't count on such a windfall.

"It's within the provision of the General Assembly to make a cut and shelve the whole thing," he says. And he testily suggests that this lawsuit might actually make things tougher for photo-radar proponents.

"I think there's a very real chance," he says, "that legislators who were pushing for an outright ban on photo radar might come back next session and see this recent action and decide to ban the whole thing because the municipalities don't respect the original concessions."

Of the four cities that filed suit, only Fort Collins has an active photo-radar program. Commerce City scrapped its program after the legislation was passed. Westminster and Colorado Springs never got theirs off the ground.

"This new legislation is a joke," says Merrigan. "For example, if a cop pulls you over going 30 mph over the speed limit, you're going to get a hefty fine and points on your license. If you get caught doing the same thing by a photo-radar unit, you only have to pay $40, the maximum penalty under the new law. There are no other consequences. I'd rather get caught by the photo radar, pay the fine and say what the heck. And let's face it: One of the biggest deterrents for speeders is getting points on their license and having their insurance go up. It takes the teeth out of the program."

Fort Collins has been able to keep its program running despite the legislative limitations. But City Attorney John Duval says it's been tough.

"It's reduced the effectiveness of the system in several ways," says Duval. "Not only has it limited the amount of the fine, but it's also impaired our ability to serve notice on unpaid tickets. Typically, the tickets are sent by mail, and if you ignore that first ticket, we've got to serve you in person. Before SB 36 was passed, we had one year from the issuance of the ticket to track the speeder down and collect the fine. If they didn't pay, we could have the DMV put a hold on their driver's license when they tried to renew it. It was a collection guarantee. Now we only have ninety days to collect on the ticket or it gets thrown out. The effectiveness of the program has been significantly reduced."

The cities that filed suit insist that they are concerned about the state's intrusion into local issues. "What it all comes down to is, we don't want the state stepping all over us," says Merrigan. "We're trying to assert that control of traffic on local streets is a local concern superseding state law."

Dorroh, who's been a traffic engineer for 28 years, agrees. "It's not the state's business," he says. "If you have a problem with traffic in Denver, you don't call the legislature. You call us."

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