I write to oppose the proposed rule change for several reasons, but primarily because the submission proposes to transform the present [b]driver[/b]-responsibility scheme into an [b]owner[/b]-responsibility scheme.
The proposal, in its own language, would deem a complaint served upon
[quote]mailing a copy of the traffic complaint to the address of the [b]registered vehicle owner[/b][/quote] (emphasis added)
The proposal does not specifically address the implication, but one must presume that it is the registered owner (irrespective of who was operating the vehicle) who would be deemed served, and who would presumably be held to answer for the complaint.
In this case, should the registered owner fail to appear, a default would be entered against the registered owner, without regard to who actually committed the violation -- a significant transformation of the impact of the law promulgated by a mere rule change.
Should the registered owner who is not the alleged violator appear and defend the action, it is possible that some courts may deem the rule change as permission to hold the registered owner responsible for violations committed with the owner's vehicle, without regard to who was driving. Alternatively, and perhaps more likely, limited judicial resources would be wasted (not to mention the time and effort of the registered owner) when registered owners appear and defend the action, when they are not the alleged violator, and courts hold that they cannot be held responsible merely because they are the registered owner who was served.
Another alternate implication of this ambiguity is even more troubling. It is possible to read the proposed rule change so that the alleged violator is deemed served upon mailing the complaint to the registered owner, even when the alleged violator is not the registered owner. This plausible interpretation of the proposed rule change would make a mockery of principles of due process and fair notice. Under this interpretation, since registered owners who receive the complaint by mail are under no obligation to take any action whatsoever, yet the alleged violator named in the complaint will bear the consequences, regardless of their lack of notice.
These significant problems are reason enough to reject the rule change here proposed.
Additionally, the following language from the proposed rule change produces another set of significant problems, without a proper check and balance:
[quote]Violation of Civil Traffic or Vehicle Regulation Laws Captured On State or [b]Local[/b] Photo Enforcement System[/quote] (emphasis added)
Pursuant to Rule 1, Rules of Procedure in Civil Traffic and Civil Boating Violation Cases:
[quote]Rules 38-45 shall apply only to photo enforcement cases that are commenced pursuant to A.R.S. § 41-1722.[/quote]
In turn, A.R.S. § 41-1722(A) requires that the Arizona Department of Public Safety
[quote]establish a state photo enforcement system consisting of cameras placed throughout this state as determined by the director to enforce the provisions of title 28, chapter 3, articles 3 and 6 relating to vehicle traffic and speed.[quote]
In other words, a "State Photo Enforcement System".
Importantly, A.R.S. § 41-1722(B) limits the civil penalty that may be assessed to $165 (plus the Clean Elections surcharge), and A.R.S. § 41-1722(D) prohibits using the violation for driving license suspension or revocation purposes. These limits reflect a judgment by the legislature to balance the procedural limitations of the State Photo Enforcement System with corresponding limits on the penalties that may be imposed.
The proposed rule change includes a minor modification to Rule 45, Rules of Procedure in Civil Traffic and Civil Boating Violation Cases, which, pursuant to Rule 1 only applies to the State system.
A.R.S. § 28-1593(A), as applicable to these types of cases, requires that a:
[quote]traffic complaint may be served by delivering a copy of the uniform traffic complaint citation to the person charged with the violation or by any means authorized by the rules of civil procedure.[/quote]
The photo enforcement practices of the political subdivisions of the State are not subject to the limits of A.R.S. § 41-1722, and therefore, should the proposed rule change take effect, the photo enforcement complaints issued by municipalities and counties could be deemed served by merely mailing the citation to the registered owner (again, with some ambiguity as to whether the registered owner then is deemed served and held to answer, or the alleged violator is deemed served even if they are not the registered owner).
Without the limits imposed by A.R.S. § 41-1722, this raises the specter of significant numbers of drivers who may have courts issue arrest warrants for their failure to appear to answer a complaint of which they have no actual notice (as they may be an alleged violator who is not the registered owner, or they may be an innocent registered owner who did not receive actual notice for any number of common reasons).
On occasion, this already happens, for which a personal service requirement acts as a limitation and balance, to significantly reduce the likelihood of error and increase the likelihood of actual notice to defendants.
The proposed rule change would eliminate this important backstop and check, with serious consequences to many, many more innocent drivers without actual notice. Among these significant consequences which already happen, but thankfully rarely, are arrest, conviction of a misdemeanor, significant fines, having their vehicle impounded, and the associated significant legal costs. Should service by mail be authorized, this is very likely to spur a significant increase in such consequences to actually innocent drivers.
For the reasons cited, this proposed rule change should be rejected.
-- Michael Kielsky
Counselor & Attorney at Law
Kielsky, Rike & Elgart, PLLC
86 W. University Dr., #107
Mesa, AZ 85201-5858
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