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Phang, a partner at Arrastia, Capote & Phang, says any new technology [regarding Sunpass catching speeders] will come under major scrutiny.

Defense attorney and former prosecutor Vincent Duffy isn't particularly fond of the idea, but he says red light cameras have certainly set a precedent.

"The government is now sanctioning citizens because their property, not them, but their property that they own has been involved in violating a non-criminal statute," he said. 

But how would that work, to prosecute property? What exactly was the lawyer getting at?

Original article: http://www.wlrn.org/post/why-you-dont-get-speeding-tickets-your-sunpass-and-why-evanbenn-owes-us

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    They aren't prosecuting the property, they are prosecuting the owner of that property for something the property does (assuming that the owner is responsible for the property at all times, even if they are not in control of it). – Ron Beyer Mar 6 '19 at 16:58
  • It's not actually what's happening here, but FWIW, if the government wants to seize property, you will see cases labeled something like "US vs 50 bags of flour". So that's what "to prosecute property" would normally mean. – pboss3010 Mar 6 '19 at 17:49
  • I suppose the difference is money: Parking tickets are less expensive and not worth taking to court, but speeding tickets are indeed expensive. – Jossie Calderon Mar 7 '19 at 14:28
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The suggested system of using the timestamp on the electronic toll system to detect and ticket speeding would have no obvious way to determine who was actually driving. It would only log the transponder ID, which can be matched with the vehicle license plate, and thus with a registered owner.

In many ways this would be not unlike a parking ticket. There is no record of who parked a car illegally, so the owner is responsible by default.

The same applies to tickets generated by red-light cameras. The picture shows the license plate, but not the driver, so the ticket goes to the registered owner, even though someone else may have been driving. This also means that violation points cannot be assessed against anyone's driving record, because there is no proof of who is driving, unlike a ticket issued in person by an officer.

The article also points out issues with accuracy and reliability that would need to be addressed before a court would accept such a new system as sufficient evidence to base a fine on. The system was designed for toll collection, and may not have been designed to meet the standards n4eeded for court evidence.

Presumably, with such a system, if the owner knows who was driving on a given date and time, the owner could insist on being reimbursed by the actual driver, if it was someone else, and if the owner could show that the car had been stolen at the time of the ticket, no fine would be assessed against the owner.

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The relevant sections of Florida law are distributed through chapter 316, on traffic control. Red light cameras, known as a "traffic infraction detector" can be used to enforce the laws pertaining to "traffic control devices". If you run a red light and an officer catches you, you will have violated §316.074, and the elements of that violation can be proven beyond reasonable doubt, in particular there is no question as to what person committed the violation. A red light camera faces the problem that there can easily be doubt as to that person, if the picture does not include the driver. The practice of assuming that the registered owner is the driver is metaphorically "prosecuting the property". It requires a special legal provision where a person can be convicted of an infraction without proving that the individual violated the law.

There have been challenges to such prosecutions such as Idris v. Chicago, where it was asked and answered

Is it rational to fine the owner rather than the driver?  Certainly so.

The court rationalized this saying that

an owner can insist that the driver reimburse the outlay if he wants to use the car again (or maintain the friendship)

(Civil forfeiture, unrelated to traffic infractions, is also known as "prosecuting property", since the property itself is the defendant).

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How other jurisdictions handle it

It Australian jurisdictions, red light and speeding camera violations come with a pre-populated Statutory Declaration for the registered owner to nominate the person who was in control of the motor vehicle at the time. If they are unable or unwilling to do so, then they are fined because its an offence not to know who is in control of your motor vehicle without reasonable excuse (e.g. like it was stolen at the time).

The fine for a red light camera is $456 plus 3 points off your licence (lose 12 points in 3 years and you lose your licence). The fine for not knowing who is in control of your motor vehicle is $2,200.

In essence, the law makes you responsible for knowing who you allow to operate your property.

As for the suggestion that the photo show the face of the driver. Photos that do show the face cannot be used in Australia. This is the result of a successful civil suit against the state of NSW by a gentleman whose wife opened a penalty notice and the photo showed his mistress driving his car.

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