WHY THE “MARK WANDALL TRAFFIC SAFETY ACT IS UNCONSTITUTIONAL!

1. The Mark Wandell Traffic Safety Act was enacted as Chapter of 2010-80 Laws of Florida. It employs the use of "Red Light Cameras" to issue fines to the registered owner of a motor vehicle –NOT THE DRIVER--when a vehicle is photographed "running" a red light. The owner of the vehicle is liable for payment of the $158.00 fine unless s/he submits a "sworn affidavit" claiming one of several exemptions. The submission of a false affidavit is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 F.S. [Section 5.1(d) of the Act]. Section 5.(1)(b)b of the Act states the photograph "evidence…constitutes a rebuttable presumption against the owner of the vehicle." NO ATTEMPT WHATSOEVER IS MADE TO IDENTIFY THE ACTUAL DRIVER OF THE VEHICLE!!

2. The first violation of the fundament right to DUE PROCESS comes during the initial review of the photographic evidence and the determination of a violation. No notice to the alleged "violator" is given at this stage and a finding of liability is allowed to made by the equipment vendor. As said vendor has "a direct, personal, substantial, pecuniary interest in finding liability, the accused is deprived the Due Process right of having this finding made by a fair and impartial tribunal." See Tumey v.Ohio,273 U.S. 510,523 (1927) and Ward v. Village of Monroeville, 409 U.S. 57 (1972). While this initial determination may be reviewed by an officer, the same Due Process violations exist (no notice, no impartial trier of fact).

3. In Francis v. Franklin, 471 U.S. 307 (1985) the Supreme Court of the United States (SCOTUS) held the Due Process Clause of the Fourteenth Amendment 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U. S., at 364. This "bedrock, `axiomatic and elementary' [constitutional] principle,"…"prohibits the State from using evidentiary presumptions… that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element..." In Mullaney v. Wilbur "we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion…" Therefore, the "rebuttable presumption" in this Act is UNCONSTITUTIONAL. Further, in Coffin v. United States, 156 U.S. 432 (1895), the SCOTUS held "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." and "It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States." The Coffin Court traced this "presumption" back to the Book of Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. This Court also noted that "Roman law was pervaded with the results of this maxim of criminal administration" quoting "Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." The Court continued by stating "In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created." It should be noted here that section 318.14(6) Florida Statutes requires "The commission of a charged infraction at a hearing under this chapter must be proved beyond a reasonable doubt."

4. In The City of Miami v.Wellman, 976 So.2d 22 (2008), the Florida 3rd DCA (2008) held Miami’s vehicle impoundment ordinance "unconstitutional for three reasons: (1) it fails to provide adequate notice; (2) it applies an incorrect standard of proof; and (3) it fails to satisfy due process requirements by not providing an innocent owner defense." The Mark Wandell Traffic Safety Act is UNCONSTITUTIONAL for the same three reasons: The initial determination of violation is made without notice. It ignores the "presumption of innocence" doctrine as the correct standard of proof and instead imposes an UNCONSTITUTIONAL "rebuttable presumption". Fails to provided a CONSTITUTIONAL "innocent owner defense" (citing Department of Law Enforcement v. Real Property, 588 So.2d 957, 966 (Fla.1991), where the Florida Supreme Court ruled, "Lack of knowledge of the holder of an interest in the property that the property was being employed in criminal activity is a defense to forfeiture…"

5. In St. George, v. State of Florida, 564 So.2d 152 (1990), the Florida 5th DCA (1990) in a unanimous EnBanc decision, in his concurring opinion, Judge Dauksch, citing California v. Byers, 402 U.S. 424, 432, 91 S.Ct. 1535, 1540, 29 L.Ed.2d 9 (1971), noticed that SCOTUS concluded that: "A name linked with a motor vehicle is no more incriminating than the tax return, linked with disclosure of income ... it identifies but does not implicate anyone in criminal conduct although identity, when made known, may lead to inquiry that in turn leads to arrest and charge, those developments depend on different factors and independent evidence." And that: In "[O]ur accusatory system of…justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). This Act, with respect to proving vehicle owners innocence by submitting a "sworn affidavit", with a false affidavit being a misdemeanor of the second degree, is a "perjury trap" in violation of the fundamental right against self-incrimination. While noting "The Supreme Court of the United States has ruled that the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself provides the basis for the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.", and the "privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications..." the St. George Court held "Thus, an individual may invoke this privilege and refuse to answer official questions put to him in any proceeding, civil or criminal, formal or informal, only where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).

6. In Stacey v. Emery, 97 U.S. 642 (1878), Mr. Justice Washington defined, in Munn v. Dupont, 3 Wash. 37: probable cause in these words: "A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged." In addition, Chief Justice Shaw defines probable cause in similar language: "Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty." Ulmer v. Leland, 1 Me. 135. In Tibbs v. Florida, 397 So. 2d 1120 (Fla. 1981) the Florida Supreme Court, in discussing "the legal insufficiency of the evidence" the Court noted cases where: "reversal was based on the state's failure to place the defendants at the scene of the crime"; "the evidence of identity of the accused as being the guilty party [was] not satisfactory"; "Since every material element of the offense was not proven, the evidence was insufficient to support a conviction; guilt was not established beyond and to the exclusion of every reasonable doubt."; and, "the sufficiency of the evidence to establish the identity of the defendant as the perpetrator" was not established. In Florida v. Hepburn, 460 So.2d 422, Florida 5th DCA (1984), a DUI, hit and run case, the Fifth DCA ruled the defendants confession was properly suppressed "since there were no eyewitnesses to the accident and since the pedestrians did not know what hit them, there is no evidence which places appellee behind the wheel of the automobile which struck the pedestrians at the time the accident occurred. Without the statements appellee apparently made to Trooper LaForte on the day after the accident, there is no evidence that appellee was driving at the time she allegedly committed the offenses charged." In Florida v. Anderson, 536 So. 2d 1166, Florida 2nd DCA (1988), the Court held that "It seems irrefutable that identification of a perpetrator is material to his prosecution" and that "…misidentification is material in a criminal prosecution". Positive identification of the driver is required, not the owner of the vehicle.

FOR THE REASONS ABOVE, THIS ACT IS AN UNCONSTITUTIONAL PERVERSION OF THE LAW, PROVIDING FOR THE UNJUST ENRICHMENT OF GOVERNMENT AND THE RED LIGHT VENDOR’S, THROUGH THE PLUNDER OF THE VERY PEOPLE, OUR PUBLIC OFFICIAL’S WERE ELECTED TO SERVE!