Sunday - September 11, 2011

Considering the possibility of a class action lawsuit against the State of Florida/DMV/FHP for ticketting motorists for the usage of radar detectors in vehicles on Florida roads.

In 2007, Sen. Steve Oelrich attempted to pass a bill (SB2228) which, if passed, would have made the use of radar detectors in Florida illegal. He inaccurately stated that 9 states banned radar detector use where actually only TWO at the time did...the District of Columbia and Virginia. At the same time, the Florida Highway Patrol backed him. It was stated in various news articles spread about the state at the time that they would be able to ticket motorists for the use of the radar detector as a secondary offense along with a speeding ticket. This sounds suspiciously familiar...exactly like the tactic that the FHP is using now, even with SB2228 having long ago been killed, ticketing motorists for the use of radar detectors, anyway. Only now they're using the "Windshield Obstruction Law" (see here) to do what they were denied when the radar detector ban bill was killed. It seems that the Florida Highway Patrol WANTED to be able to do this, and they found a loophole to do it irregardless of the Senate's set intent, and we intend to call them out on it.

Since the FHP seems intent on doing what it wants, and in ignoring the clear intent of the precedence set by it's own Senate, then it seems a class action lawsuit is necessary to get control back. The lawsuit becomes necessary for the following reasons:

1. Where the Florida Senate actually killed Senate Bill 2228 by Senator Oelrich in 2007 to ban radar detectors in Florida, setting a "precedence" that their use is okay and accepted in the State of Florida; and,
2. For setting confusing, nonspecific, and contradictory laws (e.g., the "Windshield Obstruction Law", 316.2952, and the "TV Receivers Law", 316.303), which contain unfair, inexplicable loopholes for revenue-generating devices, which when combined with the Senate's precedence to allow the use of RDs, places motorists into a no-win, double jeopardy situation of unfair and unconstitutional bias against them if they attempt to use one; and,
3. Where the Windshield Obstruction Law's wording has been in the books for many years and no one has bothered to use it until now, it set a precedence that no one cared in all that time; and,
4. Where officers are ticketing some people under this law not only for having something mounted on their windshield, but actually atop their dashboards, too; and,
5. Where the windshield obstruction law is being used to call radar detector use on or around the windshield "unsafe" and an "obstruction"; and,
6. While at the same time offering no adequate or reasonable explanation as to how the SunPass toll device is somehow "safe" and NOT an obstruction, or how a GPS device (mentioned in the TV Receivers Law) is NOT an obstruction;
7. For placing citizens into a unconstitutional no-win, double standard, double jeopardy situation; and where the State of Florida does not seem to have to answer for it's own violation of it's own obstruction law;
8. For charging motorists a fee to USE a toll device that the windshield law would otherwise deem to be "unsafe" by it's use and positioning, except by the inexplicable "exemption" in the windshield obstruction law, to then collect a road use "tax";
9. Where the television receivers law (316.303) makes the use of GPS devices legal - which also happen to obstruct the view through the windshield, and which are often mounted upon or in front of the windshield in varioius places; and where even though they are exempted by the television receivers law, they should technically still be deemed "unsafe" and an "obstruction" by the windshield law, and thus, a conflict exists between the intent of the windshield law and the TV receivers law with respect to GPS use, too;
10. Where most of today's radar detectors have become more of a safety warning device, using "Safety Warning System" text displays, with the ability to warn motorists of safety obstacles ahead, such as bad weather, construction, approaching emergency vehicles, and even approaching trains;
11. Where many cities and counties across Florida and the US have spent thousands purchasing equipment to mount on their emergency vehicles which actually makes real USE of the SWS system; and where such use - having only one function: to be used with radar detectors - can be interpreted as a widespread, defacto "acceptance" within the state of the use of radar detectors;
12. Due to the FHP apparently operating out of control, of it's own, in defiance of the Senate's apparent intentions, where they are fining motorists $114 for having an radar detector mounted on a windshield, but NOT fining people for the use of the SunPass toll device mounted on the windshield - which said device is often mounted in the same positions, PER THE DEVICE'S OWN INSTRUCTIONS!

Looking for lawyers to work either pro bono or on a pay-only-if-you-win basis to extract logical and reasonable explanations and immediate remedies out of the Florida DMV / Highway Patrol system, and/or the State of Florida itself, and if no such thing can be adequately had, then if necessary, to begin a lawsuit.

We would like the lawsuit to seek:

1. To either outlaw the use of the windshield-mounted SunPass toll device, (which generates a good amount of revenue for the State), which would mean a loss of revenue opportunity for the State; and outlaw the use of GPS devices as "unsafe"; OR...
2. To seek to have our Legislation either revise the current Windshield Obstruction Law's words, and the Television Receivers Law's words, and/or to create more clearly- and fairly-worded NEW laws to prevent this sort of confusion and mal-use from happening again, and so that it is officially recognized by the Florida Senate that it did not intend for radar detectors to be penalized for, and to recognize that they have a very different usage today with respect to safety warning;
3. For the reimbursement of the fees/fines unfairly imposed upon motorists by the State to the motorists who were so charged;
4. To eliminate the points and expunge the said "violation" from their records entirely;
5. To issue written acknowledgements of the illicit behavior if any was found on the part of the State, Florida DMV, or the FHP, along with written apologies to the affected victims, with copies duped to the Press, with parts detailing planned measures that the State, DMV, and FHP will engage upon to make sure that something like this will not be allowed to happen again;
6. To seek damages, pain and suffering for unfairly and illicitely extracting those fees and fines and for incurring those unnecessary penalties from motorists - including for any jobs which might have been lost as a result of the "infraction" and/or points placed upon their record, or for any loss of use of vehicle use, etc.;
7. To reimburse the lawyers for their time and expenses.

MY ARGUMENT

Mind you, I'm not a lawyer, and I've ZERO in-court experience. So bear with me, here.

We've had a number of complaints from motorists about this over the past couple of years. It's picked up motion considerably across the State in the last year (2011). The complaints slowed almost to a complete stop in the months immediately after the posting of this page, but then began to pick up again a few months into 2012.

Most motorists have not fought this because the fines/penalties for the windshield obstruction were usually attached as a "package" issued at the same time as they were issued a ticket for speeding, so as to intimidate them into not challenging the ticket based upon the idea whereby if they fight the windshield obstruction part of the ticket and LOSE, then they would be losing on the entire ticket and forced to have the points permanently placed into their record. For this reason, NO ONE has so far challenged these tickets. We think that the FHP has to be aware of this and is taking advantage of it using fear and intimidation to get their way.

I get so tired of the conflicts in these modern-day Florida laws. They supposedly wish to regulate in the name of "safety"; but they often seem to allow commercial industries "exemptions" of one sort or another which are inexplicably there. That is, the exemptions are there without reasonable excuse placed within the text of the law to logically justify the stated exemption. In the case of the TV receiver laws, the only reason that I can come up with is...that it must be there to aid the commercial interests in their profit-making, and in the case of the GPS units, because they are nowadays in such widespread use across the board - including by the police. There seems to yet again be yet another commercial exemption going on, there, too.

In the case of the TV receiver law, you either go all the way or you don't. You don't say that TVs and computers are illegal to use while mobile, and then say, "...but if they're being used for GPS...Well then, why GEE! In that case, then NO; they're not illegal!" They're either a safety distraction or they're not. That's just absurd. It's two conflicting thoughts; a double standard; and it leaves motorists in the way of an unfair double jeopardy, catch-22 situation just waiting to accost them. An open computer is just as much distracting while mobile if it's being used for email, web surfing, geocaching, or for GPS. Why is a computer used for GPSing okay; but any other use while mobile is NOT? Why is a standalone GPS unit allowed? Is it because the GPS device is not as obstructively large as a laptop; therefore, it's safer? So, with this law, we're judging safety based upon SIZE of the obstruction, and/or the amount of turn of the head required to view it? What is the reasoning going on here? That's not stated. So, being such a flawed law, itself - I have to note that the TV receivers law can't even be USED itself as example of the safety argument when that law's purpose is also vague and contradictory and cannot possibly be used as example until it, itself, is "fixed"?

In the case of the radar detector vs. the SunPass toll collection device, you either go all the way or not at all. Cops can't ticket people for having a radar-detector, and then tell them that they won't be ticketed for having a toll device. Both are the same size. Both are placed in the same exact place on the windshield. Both are obstructions. Period. The argument is either SAFETY; or it is not. You can't be "conveniently fickle" on that. Does the toll device come with some sort of brand-new, miracle-technology "stealth" device attached to it which somehow renders it invisible and which thus makes it safer to use than the radar detector? No. It is just as large and just as much an obstruction as the radar detector. Even the device's own instructions advise the motorist to place the device in the EXACT SAME PLACE upon the upper windshield under the central mirror where a radar detector's instructions also advise placement. But wait. The law insists that that cannot be done because such a positioning supposedly makes it an "obstruction". So then, why is the toll device okay to use, and the radar detector is not? Again...commercial interests/profits. In this case...profits to be made by the State. This is unfair.

And again...a double-standard, with double jeopardy. If the motorists obey the law, then they don't get to use a device that the Senate said was okay to use. If they USE the device, then they get a fine and points against their record for using what the Senate told them was okay to use. Whether used, or not used, they lose if they do use it; and they still lose if they don't use it. They don't ever win.

How about on the enforcement of the law? I would go even farther to argue that the officer is OBIDING of the law when he tickets the motorist for the use of the radar detector; but then he is actually in VIOLATION OF THE LAW every time he does NOT ticket the motorist for the use of the toll device TOO, because the toll device is most definitely an obstruction - in violation of the supposed very nature, intent, and words of the statute, REGARDLESS of the latter verbiage which makes attempt to "exempt" it. The law is in contradiction with itself and as such, is obviously invalid.

Laws must be made to be always clear. The intent must be plainly understood, and the entire law must constantly conform to the stated intent, without inexplicable exemptions, or the law then becomes biased to favor some, while completely and unreasonably unfair to others, and completely at the mercy of the local officer on the spot to then become the interpreter of the Legislators, which opens up any number of opportunities for misinterpretation based upon an officer's own personal, biased opinion of the moment, and even to mould it to fit his own personal idea as he so wishes it to, rather than for what was actually intended. Florida used to be good about this in years past. In more recent years, however, political interests now seem to govern laws more, and verbiage to explain WHY a law is present is often left out, leaving the reader to scratch his head, and very often...creating unintended victims and unnecessary suffering. Laws formatted in such a way should be illegal in themselves to even PRINT.

I argue that the windshield obstruction law should be immediately rescinded until such time as it can be reworded more clearly, logically, and fairly, and applicable in a more plainly obvious and honest fashion. Currently, it's use is in a more underhanded fashion, with FHP taking a definite advantage of the vagueties in the wording, while acting in irrationally stalwart discourse with the State Senate's VERY CLEAR AND OBVIOUS intent (by voting down Senator Oelrich's anti-RD law) that it did NOT intend for the use of RDs to be regulated. PERIOD. This particular precedence has throughout been deliberately and most blatantly ignored, even after having been pointed OUT to the FHP.

I would argue that the Florida Highway Patrol should be held responsible for it's own actions to take it upon itself to interpret the law in the way that it did, and to go as far as it did without, I assume, the prior counsel, or permission, of the Florida DMV to do so. The law clearly states that windshield obstructions are not allowed. Period. Therefore, be it radar detector or toll device, both are illegal under the specific intent of the law with regards to safety. Therefore, they need to go back through each case and ticket each motorist again who used a toll device, and collect the fines, and apply the points against their record.

One could intervene here and argue that the Florida Highway Patrol cannot POSSIBLY be held to be responsible for the mistakes of the Legislators and their fallability in the wording of the law.

At that argument, I would actually AGREE, and point out that the argument is ABSOLUTELY CORRECT. In the same way that the FHP cannot POSSIBLY be held to be accountable for the mistakes of the Legislators in their incorrect verbal composition of the law, so too the MOTORISTS cannot be held accountable. Therefore, the motorists MUST be paid back for any unjustly-accrued fines, and any points unjustly assessed removed, and their records cleared of any indication of the infraction.

As for where all that money is going to come from...I would recommend the budget of the FHP. I still cannot discount the responsibility of the rogue Commanders in concocting this scheme. They knew all of the details of the law, and all of the conflicts in the law, saw the loophole, and made the conscious decision to do this, regardless. I personally wrote a number of emails to the Division Commanders, and to the Florida DMV. I have proof (in the IP logs from my website counters) that both agencies visited my web site repeatedly after the email and were aware of the situation AFTER I brought it to their attention. DMV seemed complacent, CC'd my email back to FHP, and deferred back to the FHP for the response. The FHP attempted to evade escape of any responsibility by stating the literal word of the law. Still, they did not HAVE go after it. No one forced them. No one broke their arms to do it or held a gun to their heads. They were not INSTRUCTED by the State or by the DMV to do it. They could have made attempt to try to play more fairly considering their knowledge of the confusion and the vageueties within the law. They did not. They did it of their own. This is suggested by the fact that the ticketing campaign has been confined to just a few rogue divisions along the I-4 corridor in Central Florida, and occuring nowhere else in Florida. I have received no complaints from users OUTSIDE of that corridor. It seems to indicate that this was their own idea. It becomes obvious that they were not operating under the instruction of the DMV or the State itself. They definitely weren't operating with fair consideration of the motorist in mind, but were apparently motiviated more by the potential for additional revenue.

Thus, I argue that it should still be the FHP which is held to be responsible. If they have to sacrifice brand new vehicles for one year in order to pay these innocent victims back; then so be it. That's not the victim motorist's problem. And at the same time, the Commanders will now have a valuable lesson learned - what NOT to attempt in the future, and that if caught, there can be very costly reprimands that they will forever be remembered for.

Regardless of the vague verbiage of the law, the Highway Patrol could have left it alone, and CHOSE not to. They're not completely innocent, here. The Florida DMV may also share some responsibility, here. But to my knowledge, they did not ask the FHP to proceed with it, and the FHP acted without their knowledge or authority until I, personally, brought it to the attention of the DMV.

The motorists, however, are ONE-HUNDRED-PERCENT innocent.

I should add that, as noted in some related press articles over this, the FHP has been attempting to use this as a means of garnering additional revenue. In making attempt to justify it, they touted "safety" as being the concern, and how radar detectors "encourage" motorists to speed. I'm personally not aware of ANY real studies which actually support this, and view the additional detail as opinion on the part of the officer being interviewed, and having nothing at all to do with the problem at hand. Whether the motorists were speeding or not at the time, and whether a detector CAUSES people to speed is not at issue here, and not a part of this complaint. Speeding is a separate infraction which has nothing at all to do with the use of the use of the detector or of the toll device, nor with the windshield obstruction law; and to this particular complaint we will consider those arguments as nonsequitor to the issue at hand - the unconstitutionality of ticketing motorists for the use of one device upon a windshield, and not the other device; and so shall not herein be addressed. They're for another courtroom entirely. Whether an RD encourages one to put their foot down or not is for another courtroom, not this one.

POSSIBLE REMEDIES

There are a few possible remedies to take care of this problem that come to my mind:

1. Add the line "This section shall not be construed to be applicable to the use of radar detectors." This allows the statute continued use while still offering the State of Florida possible chance at revenue-making with their toll collection devices, and the devices would not have to be destroyed after all of the money spent on making them.
2. Destroy the statute entirely for being overly vague and unfairly broad. Settles everything all at once, and still allows the continued use of the toll collection devices, which should again make the State happy since it depends upon those toll revenues.
3. The Senate could reverse it's thinking entirely and make all RDs illegal to use on Florida roadways. But then we're all back here again quibbling the unconstitutionality of making one device illegal while exempting the use of the toll device upon the windshield for State profit.

Obviously, Optiion # 3 is out.

The State went through a lot of effort and spent a lot of money on having the toll devices created. The State has a vested interest in collecting the tolls to help the State run. Holding everyone to the letter of the current statute would inevitably mean pointing out the unconstitutional unfairness of allowing the State of Florida a commercial opportunity while penalizing everyone else. And in remedy it would inevitably mean that the State itself would ALSO have to be fined for every occurance of the use of the toll device, and for encouraging the commission of this infraction on a widespread scale. Am I incorrect, or isn't the act of encouraging people to blatantly and repeatedly violate a statute actually a CRIME in itself? It brings about an almost mandatory ABSURDITY in what would have to be remedially done - motorists ticketed for past use of the device, the State being panlized and fined, the State having to pay everyone back for the purchase of the device, and even the refunding of all tolls collected using the device up to that point, etc. Obviously, this method of remedy (Option # 2) is out. The State might well be forced into bankruptcy.

It seems MUCH easier to utilize Option # 1 and just add a very simple short line to this statute to bring it into compliance with the aforementioned Florida Senate's PLAINLY CLEAR intention to NOT penalize motorists for the use of radar detectors.

The motorists STILL would have to be paid back for the fines they were accosted for, and the records of their supposed "infraction" expunged. And here's an absurdity for you: In the case of motorists who happened to have their licenses removed because this pushed them over some limit, you can see the opportunity for a slew of problems that this whole incident now opens up. What if the loss of the license caused an undue hardship which cost someone their property, their homes, or their lives because they couldn't afford something because they couldn't get a job after losing their license and were unable to drive to obtain one? No matter WHICH of the options is chosen, it opens up opportunity for lawsuits. Oh! And their licenses will have to be REINSTATED, too. This entire fiasco potentially affects such a great MANY things. It was just FAR too risky and should never have been attempted at all by the FHP. There was just way too much risk of getting caught at it and too much risk of all of the aftermath consequences that the Division Commanders obviously didn't think it important to consider. There were always other more legitimite options to make revenue available.

...How about ticketinig motorists for making improper lane changes while in the middle of a turn? There is vast...VAST money-making opportunity, there. It would have been so much easier, completely risk-free, and a lot more legal.

These complaints are not "unreasonable". Our ideas are not "unreasonable". We do not understand how the Senate can imply one thing and how the State of Florida can then allow, fully understanding this and the irregardless if it, to continue to unfairly ticket people for radar detector use. Motorists are being confronted with what amounts ultimately to a double standard, one that they have no means of defense against under the FHP's oft-used excuse of sticking to the letter of the law.

We wish to know if the FHP concocted this idea of it's own, without the official prior conference AND approval of the DMV or of the State of Florida. We seek to investigate and confirm where the idea to do this initially came from. We ultiimately wish to know if the Florida DMV or the State of Florida were aware of what the Florida Highway Patrol was doing; and if they were (FHP is a subdivision of the DMV), we would like proof of the written correspondence between the agencies. If the higher agencies were not aware, then it becomes apparent that the FHP acted independently, alone and without the express consent of the State of Florida. That is, it did not allow for the proper research, or follow the proper procedures before enganging on the course of action that it did.

We would seek new legislation to specifically prevent this form of legal abuse of the system on the part of the State again in the future. A police department's job is to enforce the laws, not to interpret them on the fly, or to make new laws on the spot, a la Judge Dredd ("I am...THE LAW!"), or to find loopholes in them specifically with the intent of using them against the public. The State is aware of the descrepancy between treatment of RDs and treatment of the toll devices and to claim ignorance of this while simultaneously holding people responsible and accountable for improper use of one device upon a windshield and how it supposedly obstructs one's safe view of the roadway, and fining them and placing points into their record over it, while turning a blind eye to the use of the other device which iteslf is ALSO an obstruction under the definition of the same law, is absurdly and blatantly unfair.

There has been no official word from DMV or the State advising that they backed up this idea. The idea appears to be solely and completely on the part of the FHP.

Are there any lawyers out there willing to take this on? I believe in this cause. While I don't believe in speeding, I believe in clear legislation, and I do NOT believe in the abuse of laws not-so-clearly worded by authorities who are definitely smarter than that and who know better.

Let's put this in financial terms to help people better understand...

At $114 a ticket JUST for the obstruction of the windshield infraction, THIS is what it is costing citizens...or if you wish to look at it another way, how much the State of Florida would have to PAY BACK if they lost the lawsuit, not COUNTING damages, time, expenses, interest, etc.:

                     1000 tickets issued ... $    114,000
                   10,000 tickets issued ... $  1,140,000
                   20,000 tickets issued ... $  2,280,000
                   50,000 tickets issued ... $  5,700,000
                  100,000 tickets issued ... $ 11,400,000
                  500,000 tickets issued ... $ 57,000,000
                1,000,000 tickets issued ... $114,000,000

So you can see how fast this can add up over time, depending upon how "aggressive" the FHP is being in its campaign. And that's just reimbursing people for the actual cost of the ticket. It doesn't count legal fees, pain and suffering, etc. This could end up a painful thing for the FHP if not stopped NOW and it continues long enough to accrue too much. After a while, the cost could amount to an entire years budget. And note: "citizens affected" could mean anyone who lives in or OUT of the State, who may have just been passing through and who didn't even LIVE here.

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