Process Server Blues

It was a bad day for process server Cal Bowling.

Cal arrived at the Tempe Municipal Court on Tuesday, Sept. 30 at 1:20 p.m. with his wife, who sometimes accompanies him on his route. Courtroom #5 was still locked at 1:25 p.m. so after passing through the security check, he busied himself with his cell phone in the lobby area while his wife waited for the court room to open.

He was going to bat 0-2 today.

Courtroom #5 opened. Only two cases were scheduled for the 1:30-2:00 p.m. session. Both involved Cal Bowling. He could have saved time and parking meter change because both cases were doomed before things got started.

First up was a young woman named Megan. In traffic and photo radar cases, the defendant is nearly always shot down, provided the witness — police or process server — shows up. In this case, Cal testified that he went to the address; Megan wasn’t there so he served the woman who answered the door. Bizarrely, Arizona is just fine with this: you can serve just about anyone who lives at the address as long as they appear (to the server) to be (a) mentally competent and (b) not a child. Too bad Cal had the wrong address. Turns out Megan had moved in with her boyfriend recently and, though Cal had gone to the address on her driver’s license, she had notified the post office to have mail forwarded to her new address. Too bad for Cal, but he had to appear for the next case anyway, so it wasn’t a completely wasted trip. Yet.

Let’s review our notes about photo radar laws.

If you get flashed by a photo radar camera, you’ll probably (but not necessarily) get a letter in the mail within a week or so from the municipality — about 2/3 of photo radar flashes never get mailed. The letter will include a notification of what you supposedly did (drive too fast probably), a summons to stop by the court and pay a fine, plus lots of dire warnings in red ink along with pictures of you and your license plate. You will be provided several options…none of them good.

One of the options is to request a hearing to contest the ticket. Let’s just get this out of the way. People have been known to win such cases, but verrrrrry verrrrry rarely. Now, if you get a ticket from a patrol officer, said officer needs to physically show up to testify. But the photo radar camera does not show up — only a representative who can testify that the camera was working within its published specifications.

Cases addressing the legality of photo radar are limited. There is a very good theory that photo radar is unconstitutional because you can’t cross examine your accuser…the camera. But, quite frankly, no one’s going to win that case. You might as well argue that the federal income tax is illegal. Maybe you’re right, maybe you’re wrong. You’re not going to win.

However, issues of “service of process” or verification of the complaint are the focus of many Arizona challenges. And this is a battle you can win.

Arizona law requires that all complaints, including traffic tickets, be personally served. If you get stopped by a motorcycle cop he hands you a citation and you sign it, indicating not guilt or innocence but simply that you received it. You’ve been served. A first class letter doesn’t count. Sure, most people cave in and just pay, mostly because the municipalities put so much threatening language in their initial notice — and, after all, there you are, pictured with your cell phone to ear or burrito to mouth and staring like a deer in headlights — that you get scared. These letters are really, really formal-looking with lots of warnings and special red ink language and a technical explanation of how the photo radar works. And you pretty much know you were speeding anyway. It gives your exact speed.

Here’s what happened between your crime spree day and the day you got your letter from the city.

Once the violation was recorded, a private company (e.g., Redflex) collected the electronic data, including the photographs. One of their workers viewed the photos to determine whether the picture of the driver and license plate is good enough to use. If not, you’re off the griddle. If so, they forward the information to police and mail out either a civil traffic citation or a notice of violation, depending on the situation.

Police pass copies of the citations to the courts, and the clock starts ticking.

That ticking clock is very important.

Arizona law requires that once a civil case has been filed with a court, “proper notice” must be given to the defendant within 120 days. If not, the case must be dismissed.

Once those four months are gone, neither courts nor police take any further action. No points, no fine, no nothin’. You’re back in the good graces of society.

Since cities recognize that many people have gotten wise to the fact that the letter you got is not “proper notice,” there’s a chance that they will subcontract out a process serving company like AAA Landlord Service or AAA Photo Service to make it official. What are the chances? Pretty good these days. Seems to depend on the particular city how zealous they are.
(Note that the process servers don’t get the full four months to hunt you down, but the time may vary between cities.)

What you can expect
Here’s the sequence of action. You are driving along and see the camera flash. If the picture is good, you’ll get the dread letter a few days or a week later. In previous years, you’d also get a nice letter from a company called Angel Enterprises telling you how to beat the system, for a fee of $65. Angel found that they were legally entitled to all the names of people who got the tickets and used that to send their solicitation. Essentially the advice from Angel was “ignore the letter.” Good advice. But not foolproof.

The city of Scottsdale has this to say in their FAQs about photo radar (my emphasis added):

“All citations filed with the court are public record. Pursuant to Rule 123, the court is required to provide all requested records. Angel Enterprises purchases this information from the court on a regular basis. Unfortunately, we are unable to deny these requests.”

Interestingly, the city seems to believe that it’s “unfortunate” that public records are…public. This would be a little like saying “Unfortunately, our city council meetings are a matter of public record so anyone can have access to them.”

In any event, Angel seems to have discontinued this practice.

From the moment you get your letter, you should get out your calendar and mark the key dates starting with the date of the violation. That’s when your 120-day clock starts.

The process server, can show up any time in that period, but most likely in 2-3 weeks. They don’t come earlier because the city needs to give you a bit of time to respond to their initial wave of threats. Maybe you’ve been out of town for a couple weeks. Maybe you’re debating what course of action to take. Maybe you’re just in denial.

So figure you’ve got a couple weeks before battening down the hatches. At that point it’s mainly a question of cat and mouse with the process server.

If you live in a gated community or have a nice locked fence, you’ve got good odds in your favor.

A process server’s modus operandi is to try to reach you at home when you’re off-guard. Once you open the door, you’re dead meat. If he sees you in the house, dead meat. If anyone who lives there opens the door…dead meat.

The initial attempt often comes at 8 a.m.. and features a doorbell ring and what some people call the “police knock” — an urgent banging such as you might get from a neighbor who ran over to warn you that your car is being burglarized or your house is on fire. But, if the process server can’t get to your front door, he can’t knock. And if the gate is far enough away, he can’t announce himself, which, as you’ll see is critical.

If the process server is determined to get you, he’ll come back. Depending on the circumstances, such as how many outstanding tickets there are, he may come back several times. He’ll vary his times, probably mid-morning, mid-afternoon and dinner time. You can generally breathe easy after 9 p.m. and on Sundays unless you’re wanted for blowing up an embassy. But Saturdays are prime process serving days, especially Saturday mornings before 10 a.m. when you’re probably off work and haven’t started your errands for the day.

Process servers are supposed to follow rules.
But they don’t always.

They are not allowed to simply leave the citation on your doorstep while no one is home. The law says it must be given to either the defendant or a “person of suitable age and discretion” (usually interpreted as 14 or older) who also lives at the home.

If the server has been to see you a couple times he can either give up and cut his losses or raise the ante by catching you unawares.

Here is the key information you need to know. Although the server is supposed to personally hand you the court papers, he can actually serve anyone in the household who lives there. If you answer the door yourself and don’t identify yourself, too bad for you. He’ll take a look at the picture on the summons and hand you the paper. If you don’t accept them, he can leave them at the door. If your spouse, roommate or other non-drooling adult opens the door, he can leave the papers with them. If they don’t accept them or don’t even say a word, he can leave them at the door.

If he even sees you or one of the aforementioned non-drooling adults inside he may be able to leave the papers — what I call “serving your doorknob” — provided:

  • he announces himself as an officer of the court
  • he declares that he is leaving official papers.

This is very important. The process server is, in fact, an officer of the court. And you are not legally allowed to actively avoid service. You can, of course, simply leave town with your household and sit out the four months in your country home. Or you can be out gallivanting around a lot. That’s not avoiding service. That’s just not being home. Avoiding service is when you’re at home, the server knows you’re at home, and you don’t respond to his police knock and official notifications.

Maybe you’re in the back yard operating a chain saw. That’s safe. The server is not allowed to trespass or jump fences or the like.
Basically the server has to make a decision now, knowing that a judge may review the service in court. If your car is in the driveway and the server can see you through a window, that’s good enough for the court. But if the server is looking for a man and a woman is behind the window but not answering the door, that isn’t good enough — because the server can’t establish who she is or whether she lives there.

That’s why he has to announce that he’s an officer of the court with documents. He doesn’t have to shout it out…after all, who would want someone waking all the neighbors announcing that an officer of the court has a subpoena for you.

So, if you want to play the game — and this game isn’t for everyone, nor is it always practical to put a plan in practice for avoiding service, particularly if you have roommates or teenagers — your strategy is simple: don’t open the door to strangers. That’s a pretty good idea anyway, isn’t it?

The cost of a routine serve (a serve that is first attempted within 5-7 days of receiving the papers) can be as low as $20 and can go up to $100, but the national average is somewhere between $45 and $75. Figure that every time the server comes to your domicile, it’s costing him or his company some money — time and gas (though some servers now go about on bicycles!)

I don’t know the economics of what happens when a server repeatedly fails to deliver your papers, but one can well imagine that someone’s not getting paid.

Therefore, some servers cheat. And they usually get away with it. Why wouldn’t they? Most people get extremely afraid when they get official letters with lots of legalese in them and simply cave in. I talked to an officer at the Paradise Valley court one day, the lieutenant who is in charge of photo radar stuff. He said “A process server is an officer of the court. They’re licensed and bonded — why would they risk all that by swearing a false affadavit?”

To which we say: Because the likelihood of getting caught is almost nil. It’s your word against a licensed and bonded “officer of the court.”

The main way to cheat is to simply leave the papers in your doorway or slide them under the door, betting that you’ll succumb to fear and give up. He’ll go back to his office, file his Affadavit of Service, also called Proof of Service, have the office notarize it, and send it off to the court that requested it.

That’s bad. Because now the 4-month clock has stopped ticking and the court will set a hearing date if you don’t do anything and in a month or so when you don’t pay or fail to appear, your driver’s license will be suspended. Most people aren’t willing to risk that.

The waiting game is over
Of course you can challenge the service in court — and win — but it takes guts to keep playing. In his affadavit he’ll claim to have seen someone in the house and will note the description. He’ll claim to have announced himself. It’s your word against a licensed and bonded “officer of the court.”

So what happened with Cal Bowling?

Here’s how it went down. Cal had appeared in court about a month earlier and lost, simply because he had failed to give the occupant the two advisories noted above. The defendant (who had been away from the house at a St. Vincent dePaul breakfast function) produced a signed and notarized affadavit from the person who was in the house at the time stating all of the above. The judge looked up his rules and sent everyone on their way. Since more than 90 days had passed since the original citation, all charges and costs were dropped. However, there were three tickets that Cal was serving that day. The court, unaware of the other two, simply dismissed the first one.

When the parties re-assembled Sept. 30, it was to deal with the other two tickets. Why Cal thought that the law would have changed in the intervening month is anybody’s guess. Maybe he just likes sitting in court and feeding parking meters. In any event, the result was the same.

It’s nice to know that occasionally the law is observed.

Of course, some people say that the best way to beat a photo radar ticket is not to get it in the first place.

  
A few notes, courtesy of Wikipedia
“Service of process” is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body’s exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents to the person to be served.

Delivery is supposed to be made personally to a “person of suitable age and discretion” at the person’s residence or place of business
Due process is absolutely fundamental to our system of justice and the rule of law. People haven’t always had the right to know that there were legal proceedings against them. In some cases, they would only find out when magistrates showed up with the sheriff and seized their property, The Fifth and Fourteenth amendments to the U.S. Constitution prohibit the federal government and state governments from depriving any person of life, liberty or property without due process of law. Therefore the process server is “serving” the recipient with notice of their constitutional right to due process of the law.

Gated communities and apartment buildings have created a curious predicament for process servers, however, most are required to allow process servers to enter them.

Photo radar news updates 8/1/09:

1) Faithful reader DK reports that he tried out the spray coating device that is supposed to make your license plate unreadable by a photo radar camera. Results are not good for the company (which shall remain nameless to avoid giving them publicity)…or for DK. He reports that he put it carefully — as everything DK does is careful — on his three cars. The two that got flashed both received photo radar citations.  Another tech-savvy friend pointed out that these sprays are especially vulernable to even minor dust and road grime. I can’t vouch for that, but DK’s experience is quite factual. He used the spray; he got cited on two different vehicles.

2) Faithful reader KS received a citation in the mail for an incident where his girlfriend someone unknown to him was driving his vehicle. Her picture was reasonably clear, but his was not. We advised him not to pay since, in Arizona, the Driver Responsibility law says that the driver of the vehicle is responsible, not the registered owner. We also advised that KS might go into the municipal office and use the key phrase “That’s not me.” and we further advised that he shut his piehole about any other trick questions they might try to lure him into snitching on the driver in question (whoever that is).  KS took a novel approach, of which we are anxiously waiting to hear the results.  He took the form he got in the mail with all the bold face, red-print threats and warnings, and, in the section where it tells you to name the offending driver, he simply wrote in: “It’s not me.”  Way to go KS! That was a couple months ago. He hasn’t heard back from the municipality but we presume they’re too busy accosting jaywalkers and overtime parking miscreants to tell him his case has been dropped.

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