A review of the proposed ordinance (before the substitute) reveals that Councilor Winter understands the due process problem that we've been talking about, at least as far as the separation of interests and the appearance of conflict of interest. The basic idea is to create an appointed position of Chief Hearing Officer, who would be selected by the mayor and approved by the council. He would be responsible for hiring all of the hearing officers in the department. The Chief Hearing Officer could only be removed for "malfeasance" or "misfeasance."
(Sidebar)Councilor Winter's approach seems to fix the problem of the Almighty Mayor having influence over hearing officers however; it doesn't address all of the problems associated with receiving a fair hearing. The most obvious problem is that the accused is denied the ability to present a viable defense, particularly in the case of speeding violations.
Perhaps Councilor Harris would like to apply for the job after October. Although there seems to be mounting evidence that Mr. Harris might qualify for removal on those terms as well.
In the State of New Mexico it is required that misdemeanor charges such as speeding are witnessed by a sworn law enforcement official. The creation of a parallel civil justice system by the City of Albuquerque circumvents this requirement.
You are probably thinking... so what? We've all seen someone hauling @%$ down the street and thought where's a police officer when you need one?! There's certainly a crime and a witness; but for the pesky state law that requires an officer to witness the crime that jerk would be doin' time. Ok... maybe not a trip to the big house, but at least their wallet would be a little lighter.
Remember, running red lights and even speeding are considered petty misdemeanors. The requirement that a law enforcement official witness this type of crime protects everyone from being the victim of harassment on a regular basis. Without it, anyone with an axe to grind could make an accusation against anyone they dislike without regard to the allegations validity. Further, these accusations wouldn't be known by the accused until well after the alleged crime.
We don't know about you, but we drive the Eye Mobile down a lot of roads with a lot of different speed limits and go through a lot of different intersections. We can't specifically remember ANY of them from today, much less a few days ago. If some miscreant decided that they wanted to see us punished for something, anything we'd be an easy target because, while we make every attempt to obey all traffic laws, we can't tell you the exact speed limit on every street, or tell you for sure that we haven't accidentally run a red light in the last few days.
Mayor Marty and his minions over at RedFlex count on this, in fact they even go so far as to limit the defenses that you have to just three.
1. The vehicle was stolen or otherwise being driven without your knowledge or permission at the time of the violation. You must have a police report or other reliable evidence to avail yourself of this defense.
2. The ownership of the vehicle had lawfully been transferred and conveyed from you to another person before the time of the violation. To assert this defense, you must identify the transferee and provide proof of conveyance.
3. The evidence does not show that a violation was committed involving the subject vehicle.- City of Albuquerque Notice of Violation
In other words, if your vehicle has not been stolen or sold to someone else, you have to rely upon the evidence provided by the prosecution (the city and RedFlex) to prove your innocence because you have been denied the opportunity to gather independent evidence by the fact that most drivers don't know about the "violation" until at least 10 days after it occurs.
Don't get us wrong, we're not criticizing the councilor's attempt to do something to fix the program it's more than anyone else has done thus far. In fact The Mayer (Councilor Mayer) withdrew her proposal O-07-87, that would have lowered fines before it was heard Monday. Of course that would be like putting lipstick on pig, but she didn't even have the courage to follow through on that miniscule attempt to make the scam-eras more palatable.
A step in the right direction... maybe. But we're still of the opinion that the scam-eras and their accompanying quasi judicial system have got to go. Until drivers have the opportunity to know they've committed a crime at the time of the crime's commission they will continue to have to rely upon the state and their contractors for their defense; both of whom have a direct financial interest in providing evidence that the "violator" is guilty. The scam-eras aren't justice, they don't even improve safety... it's time that the Almighty One and the council admit that they screwed up instead of continuing to screw the public.