TheBakersfieldCalifornian.com

It took two years and six trips to court, but Bakersfield resident Diane Bevacqua finally beat a red-light camera ticket.

And her victory could, at least for a time, help stymie prosecution of the tickets, traffic lawyers say.

"This could end up killing that whole program," said Bill Slocumb, a Bakersfield attorney, about ramifications of appellate decisions in Bevacqua's case and one in Orange County.

But local police, who prosecute the violations, say there'll be no impact.

Last month, Bevacqua's ticket was thrown out on appeal by Kern County Superior Court Judge Colette Humphrey in part because the photos and video used to convict her came from a private company -- not from a public employee, as one section of the state evidence code requires.

The city's red-light camera system, like most around the country, is owned and operated by a private vendor. For Bakersfield, that's Arizona-based Redflex Traffic Systems Inc., part of a global firm based in Australia.

Bevacqua, 56, who with her husband owns local business Wallpapers ETCetera, was making a left turn from eastbound Stockdale Highway onto California Avenue on the afternoon of Sept. 15, 2008, when the telltale bright flashes popped.

To this day, she believes the left-turn arrow she was looking at -- the pole-mounted signal on the corner -- was yellow.

"My whole contention was basically over the light," said Bevacqua, who represented herself in court. "I didn't want to get off over a technicality."

Despite pointing out apparent problems with the evidence in traffic court -- the photos were so blurry the citation identified the driver as male, for example, and neither the photographs nor videos contained images of the street-corner signal she thinks was yellow -- Bevacqua was found guilty.

She appealed and the case was retried. Bevacqua, meanwhile, had been learning to write briefs and prepare a defense after studying cases posted on www.highwayrobbery.net, a site devoted to red-light camera issues.

By the time a second conviction led to a second appeal, Bevacqua was able to point to a recently published appellate opinion out of Orange County involving the case of Tarek Khaled.

HEARSAY

In the Khaled opinion, the two methods generally used to get red-light camera evidence into court -- the "official records" and "business records" exceptions to the hearsay rule, as they're known -- were found unusable.

Those hearsay exceptions are needed because in red-light camera cases, the alleged violations weren't witnessed by a law enforcement officer. When you're pulled over for running a stop sign, on the other hand, the officer can testify to what he or she observed firsthand.

Both hearsay exceptions were torpedoed in the Khaled opinion. Records must be prepared by a public employee who is under a legal duty to make such reports, the panel wrote. And business records used to prosecute people can't have been prepared in contemplation of litigation.

"...The trial court abused its discretion in admitting these exhibits," the panel wrote.

R. Allen Baylis, the Huntington Beach lawyer who represented Khaled, said even though the opinion should "absolutely" be binding on trial courts in Orange County, he's still had problems getting it followed. That's changed a little, though, since a similar unpublished opinion was issued there in December.

Redflex and several cities wrote letters to the state Supreme Court asking justices to have the Khaled opinion depublished, but the court in August denied the request.

Redflex did not respond to several requests for comment on this story.

Prosecution tactics have adapted, as expected, in the wake of the Khaled decision, Baylis said.

"Stuff's really starting to get interesting now," he said of evolving arguments in red-light camera cases. "...I think these camera things are on the way out."

NO CHANGE

In Bakersfield, red-light camera violations are prosecuted by the Bakersfield Police Department.

Sgt. Mary DeGeare said there won't be any changes as a result of the Bevacqua opinion, which was not published and isn't binding. A published opinion can be cited by lawyers and argued as authoritative while an unpublished opinion can't.

"The officers in the photo enforcement assignment receive training which enables them to provide an adequate foundation for the admission of evidence used in those particular violations," she said in an e-mail.

About 7,370 red-light camera tickets were issued in Bakersfield in 2010, DeGeare said. Fines are currently $426 for a first offense.

While some critics have called the cameras a cash cow for the city, the system is currently bringing money only to Redflex.

Bakersfield pays Redflex a monthly fee of $38,356 for the cameras, which are installed in eight intersections around town (see sidebar for locations).

Under a new payment agreement in place since February 2008, the city gets to keep revenue in excess of what it sends to Redflex -- but there's a catch. If there's not enough ticket revenue to cover the city's payment one month, the on-paper "debt" is rolled over and paid down with future ticket money.

As of November, the city's overall account with Redflex -- since the pay plan started in early 2008 -- was in the hole $16,846.

The ultimate accounting that will determine whether the city makes money off the cameras won't be known until about July 2015, a year after the current contract term ends and after outstanding tickets have worked their way through the system.

In the end, if ticket revenues come up short, the city won't have to pay Redflex the on-paper debt.

One problem has been getting violators to pay. Monthly collection rates for Redflex tickets have dropped as low as 22 percent, DeGeare said, though they are usually much higher. The city has pursued ramped-up collection efforts that include the threat of garnishing wages and halting vehicle registration.

The department does not have current data prepared indicating whether the cameras have reduced serious accidents, DeGeare said, but will probably create a report to answer such questions. When The Californian wrote about the topic in early 2008, police said broadside accidents -- which can cause serious injuries -- had declined at intersections with cameras while rear-enders had increased, although the newspaper's analysis found a muddier picture.

The Redflex contract ends in summer 2014, but city officials could opt to extend it.

LOOKING AHEAD

Bakersfield attorney Phillip Gillet Jr., whose practice includes traffic law, said the Bevacqua opinion on its own isn't a big victory.

"One lone case is not going to do much," he said.

For one thing, the opinion isn't published.

"Lawyers aren't really allowed to cite it, and it isn't binding if they do," he said.

Nevertheless, trial judges sometimes follow what the appellate division says even if it's inconsistent with their view of the law, Gillet said.

The Khaled decision, which is published and can be cited, is only binding in Orange County, though a Kern County judge could choose to follow it, he said.

If local courts do start to throw out red-light camera tickets, Redflex and other firms will adapt.

"The companies have spent hundreds of thousands of dollars to install" the systems, Gillet said, and they'll find a way to get around the hearsay exceptions.

Slocumb, the Bakersfield attorney who also takes traffic cases, was more impressed with the opinions.

"It looks like the whole system is faulty," he said, adding that the legal arguments appear to hold water.

Redflex photos and videos weren't created by a public employee, he said, and as business records, "I cannot think of something that is more clearly created in anticipation of litigating."

Even though Bevacqua is unpublished, attorneys have a way to use it.

"We plagiarize the appellate decision and we just pretend we wrote it...there's nothing wrong with that," he said..

If you lose at trial court, no sweat: you go and appeal it, he said.

One issue will be finding a willing defendant.

For most drivers who get red-light tickets, the cost doesn't justify hiring a lawyer. Slocumb said he gets a case every two months or so.

Testing out the arguments in court will likely amount to double attorney fees, he added, since the expected appeal would amount to another trial.

But if enough people used the arguments, or if the court agreed the rules apply, the result could be a sea change.

For awhile.

The companies will eventually find a way to adapt, said Slocumb, who is also a former prosecutor.

"But for today, it looks like either change the way these red light (violations) are being enforced or change the law," he said.

For Bevacqua, she wishes her court victory had leaned more toward the issues she argued, but she'll take it.

She's not necessarily against the cameras -- "I'm the first to be muttering when someone else comes through" a red light, she said -- though she has developed some distaste for Redflex.

But while standing at the intersection where she got the ticket more than two years ago, she made it clear one thing has changed.

"I won't go left here anymore," she said.