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LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation

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  • 07-27-2017, 09:15 PM
    cyr0nk0r
    LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    My question involves a traffic ticket from the state of: Arizona


    A few weeks ago I was pulled over traveling southbound on L-101 in the Scottsdale, AZ area. The officer was part of DPS (Highway Patrol)
    He was a motorcycle cop standing in the emergency lane (next to the HOV carpool lane) next to his motorcycle holding a LIDAR.

    I do not believe he performed a visual estimation of my car instead only relying on the LIDAR device but I'm not too worried about that since he will just say he did visually estimate my speed and there is no way to prove he didn't.

    My question is this. I have confirmed that the section of freeway I was traveling on is within the boundaries of the Salt-River Pima Indian Reservation. I am curious about any jurisdictional issues that I can bring up regarding this ticket. Obviously I feel I wasn't speeding which is why I'm going to fight the ticket at a hearing.

    I have looked through things but am hoping some people much more intelligent in the matter can help out. I am not sure if the Salt River Indian Reservation has an inter-governmental agreement allowing state troopers to operate on their land. I have found a IGA agreement between the highway patrol and a different indian reservation stating that any state trooper that operates on indian land must go through a training course directly with their tribe's police force before they are certified to conduct business.. even through they may be AZ POST certified.
    I am hoping that at my hearing the officer will not have been through this training, or if he has.. did not bring any proof with him to show that the training has been completed.

    I'm also curious about trying to find out specific Arizona rules, regulations, or statues that spell out how often the LIDAR units must be calibrated and tested.

    Any help?
  • 07-27-2017, 10:39 PM
    adjusterjack
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    I've lived in Phoenix since 1972.

    Trust me when I tell you that the 101 is DPS territory. Period.

    You're not going to beat the ticket raising that Indian land issue. Nor will you beat it by the "beat the ticket" Lidar challenge that you read about on the "beat the ticket" websites.

    As for the officer not visually estimating your speed how could he not.

    Traffic on the 101 (except for the rush hour slow down) routinely goes 70 mph in the 65 mph limit.

    You can't miss the leadfoots going 75 to 80 and getting ahead of everybody. I see it every time I drive the 101 and I drive it quite often.

    You know you were properly nailed, I know you were properly nailed, and the officer knows you were properly nailed.

    Take traffic school if you are eligible.

    Next time you are on the 101 set your cruise control to 65, get in the right lane and relax.
  • 07-28-2017, 11:52 AM
    cyr0nk0r
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting adjusterjack
    View Post
    I've lived in Phoenix since 1972.
    Trust me when I tell you that the 101 is DPS territory. Period.

    No thanks, I'd rather trust state statues and department rules and regulations.

    Quote:

    Quoting adjusterjack
    View Post
    You know you were properly nailed, I know you were properly nailed, and the officer knows you were properly nailed.

    :rolleyes:
    actually, you don't know.
    I have GPS records showing I was not speeding. While that *will* be a part of my defense in the hearing, I'm looking for other defense avenues as well.

    I took a look at some of your recent post history and you seem very confrontational with people and have a very pessimistic and negative attitude towards those looking for help or advice.
    Let's assume the whole 'innocent until proven guilty' is still actually a thing here in America and if you want to come in with preconceptions of guilt please take that to another post. Thanks.
  • 07-28-2017, 11:59 AM
    L-1
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting cyr0nk0r
    View Post
    I have GPS records showing I was not speeding. While that *will* be a part of my defense in the hearing, I'm looking for other defense avenues as well.

    When was the last time your GPS was calibrated as a speed measuring device prior to you being cited? Be sure to bring your calibration certificate to court as the judge will ask to see it. (Just a heads up.)
  • 07-28-2017, 12:33 PM
    Mr. Knowitall
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    A typical GPS is useful for pinpointing your location, but is not designed to accurately measure speed, let alone speed at a specific point in time. Authenticating GPS records and supporting the position that they are a valid measure of speed in court is, to put it mildly difficult. It will typically require expert testimony, the cost of which is disproportionate to the cost of paying a ticket.
  • 07-28-2017, 12:57 PM
    adjusterjack
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Report back with the results of your trial. If I'm wrong I will apologize.
  • 07-28-2017, 01:54 PM
    cyr0nk0r
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting Mr. Knowitall
    View Post
    A typical GPS is useful for pinpointing your location, but is not designed to accurately measure speed, let alone speed at a specific point in time. Authenticating GPS records and supporting the position that they are a valid measure of speed in court is, to put it mildly difficult. It will typically require expert testimony, the cost of which is disproportionate to the cost of paying a ticket.

    The GPS data is a tracking data directly from the car. I've done a few traffic tickets over the years (won some, lost some) but have never done anything with GPS. I'm unfamiliar with the need for an expert witness. Why would this be required? Where might I find a person like this?

    Why would the state not need an expert witness surrounding the LIDAR unit? (And no, the officer is not an expert witness)
  • 07-28-2017, 02:18 PM
    L-1
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting cyr0nk0r
    View Post
    The GPS data is a tracking data directly from the car. I've done a few traffic tickets over the years (won some, lost some) but have never done anything with GPS. I'm unfamiliar with the need for an expert witness. Why would this be required? Where might I find a person like this?

    Why would the state not need an expert witness surrounding the LIDAR unit? (And no, the officer is not an expert witness)

    You will need to satisfy the court as to the accuracy of your GPS with respect to tracking location and speed. There are few companies that will test and certify an over the counter or vehicle GPS to do this and as Mr. K pointed out, it will be expensive for you to do so and have their technician testify on your behalf. OTOH, because LIDAR results are used in court routinely, the units are tested and certified periodically and the courts routinely accept calibration certificates alone to that effect.

    Should you wish to challenge the findings of the technician who calibrated the LIDAR device in question, prior to trial you will need to seek discovery, obtain a copy of the curent LIDAR certificate, identify the technician and subpoena him to testify. I would use caution in doing this. Unless you are well versed in LIDAR devices, you will not know the correct questions to ask and it will appear you are doing this simply to prolong the trial and be a PITA because you are pissed that you got a ticket. Courts to not take kindly to such tactics.

    ,
  • 07-28-2017, 04:23 PM
    cyr0nk0r
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    It is good to know about the GPS expert witness, but I would like to steer the conversation back towards the jurisdictional questions.
    Indian Reservations are sovereign land. The state of Arizona and by extension state troopers cannot simply have jurisdiction on sovereign land just because its boundaries are within their state.

    Here is an example of an IGA between the AZ DPS and the Navajo Nation
    https://www.aisc.ucla.edu/iloc/resou...fAgreement.pdf
    If you look at section VII it states:
    Quote:

    Section VII Application for Certification
    A. The Director of AZ DPS, or his or her designee, shall complete and submit the
    NATION’s Peace Officer Commission Card form (Exhibit 1) for each AZ DPS officer
    who is qualified for a mutual aid law enforcement certification. An AZ DPS officer is
    qualified if he or she completes the required training pursuant to Subsection B,
    satisfactorily meets all requirements on the Peace Officer Commission Card form, and
    the Director of DPS, or his or her designee, submits a statement of qualifications that
    includes certification of a satisfactory background check conducted within the last five
    years of the date of the application and copies of a currently valid State of Arizona
    driver’s license and a valid Arizona Department of Public Safety law enforcement
    certification card for each applicant.

    B. AZ DPS officers shall complete a 16-hour training course at the NATION’s police
    academy, or at such other location agreed upon by the Parties, prior to receiving a mutual
    aid law enforcement certification by the NATION.
    I'm hoping something like this exists between AZ DPS and the Salt-River Pima Reservation

    Here is another document for the state of AZ tribal consulatation polices.
    https://www.azahcccs.gov/AmericanInd...onPolicies.pdf
    On page 67 it clearly states the following:
    Quote:

    Governors Office of Highway Safety recognizes the sovereignty of Tribal governments and their jurisdiction over lands within
    Indian County as defined by federal law. The definition in federal law includes all lands within
    reservation boundaries (18 USCA §1151). GOHS will not assert authority over Indian Country.
  • 07-28-2017, 06:21 PM
    L-1
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    If memory serves me correctly, Arizona police have authority to arrest non-Indians for traffic violations, See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1881);  Draper v. United States, 164 U.S. 240, 247, 17 S.Ct. 107, 41 L.Ed. 419 (1896), but they do not have authority to arrest tribal members on tribal lands.

    By any chance can you prove tribal membership?
  • 07-28-2017, 06:37 PM
    cyr0nk0r
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting L-1
    View Post
    If memory serves me correctly, Arizona police have authority to arrest non-Indians for traffic violations, See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1881);  Draper v. United States, 164 U.S. 240, 247, 17 S.Ct. 107, 41 L.Ed. 419 (1896), but they do not have authority to arrest tribal members on tribal lands.

    By any chance can you prove tribal membership?

    I am not native american. I was not arrested, just ticketed. It was 28-701a so it was a civil traffic ticket.
  • 07-28-2017, 07:03 PM
    L-1
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting cyr0nk0r
    View Post
    I am not native american. I was not arrested, just ticketed. It was 28-701a so it was a civil traffic ticket.

    I can't speak for Arizona, but in most states when you are issued a citation for a traffic violation, you have been arrested. However, instead of taking you to jail or before a magistrate to post bail, you are released on a written promise to appear (a citation).

    ,
  • 07-28-2017, 10:22 PM
    cyr0nk0r
    Re: Arizona LIDAR Speed Ticket on Indian Reservation by Highway Patrol
    Quote:

    Quoting L-1
    View Post
    I can't speak for Arizona, but in most states when you are issued a citation for a traffic violation, you have been arrested. However, instead of taking you to jail or before a magistrate to post bail, you are released on a written promise to appear (a citation).
    ,

    That may be the same here in AZ, not sure about the legal definition of 'arrest' in this context.
  • 07-29-2017, 11:41 PM
    PTPD22
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    I work for a Tribal agency, albeit it Washington not Arizona. But, I can tell you that when it comes to jurisdictional issues between Tribes and states, the agreements and laws are individualized. In other words, what is true for Tribe/Reservation A cannot be relied on to be true for Tribe/Reservation B, even in the same State. However, it would be rare for a Tribe that has a state or interstate freeway that passes through the reservation boundaries not to have an agreement granting state LE enforcement authority on said freeway. In some cases, the Tribes have ceded sovereignty for the freeway corridor – meaning the freeway is not even considered Tribal land. Other Tribes do not even have their own LE and depend on state or local agencies for ALL LE activities on Tribal lands.

    The bottom line is, you are going to have to find out the specifics of the agreement between that specific Tribe and the state. You cannot rely on agreements regarding other Tribes.
  • 07-30-2017, 01:55 PM
    cyr0nk0r
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting PTPD22
    View Post
    The bottom line is, you are going to have to find out the specifics of the agreement between that specific Tribe and the state. You cannot rely on agreements regarding other Tribes.

    True. I completely agree. What I'm really hoping for though is as a defense tactic during the hearing, when the officer states he works for AZ DPS and has jurisdiction to operate on the highway in question I'm going to object and ask that the officer/prosecutor provide factual evidence of this jurisdiction as it is within the boundaries of the Indian reservation and is sovereign land.
    I'm hoping that they aren't going to have any of this paperwork with them and won't be able to prove jurisdiction. Simply saying they have it doesn't mean anything unless they can prove it with evidence.
  • 07-30-2017, 03:13 PM
    L-1
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting cyr0nk0r
    View Post
    True. I completely agree. What I'm really hoping for though is as a defense tactic during the hearing, when the officer states he works for AZ DPS and has jurisdiction to operate on the highway in question I'm going to object and ask that the officer/prosecutor provide factual evidence of this jurisdiction as it is within the boundaries of the Indian reservation and is sovereign land.

    I'm hoping that they aren't going to have any of this paperwork with them and won't be able to prove jurisdiction. Simply saying they have it doesn't mean anything unless they can prove it with evidence.

    You might want to double check that strategy before you go into court. More than likely the officer will point to that section of Arizona law that gives him authority anywhere in the state to take action for violations committed in his presence. The burden of proving his authority is somehow negated when he crosses that invisible boundary onto an Indian reservation will then fall to you.

    Try this another way. Call the DPS office covering the area in question and ask for the Public Affairs Officer or Public Information Officer. Ask him for information on DPS authority to cite on state highways running through the reservation in question. While he is not an attorney, his is used to fielding all sorts of inquiries from the media and the public. I have not doubt he can point you to the information you are seeking. You can then research it from there.
  • 07-30-2017, 07:21 PM
    cyr0nk0r
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting L-1
    View Post
    The burden of proving his authority is somehow negated when he crosses that invisible boundary onto an Indian reservation will then fall to you.

    Oh?
    The burden shifts to the court to prove jurisdiction. Rosemond v. Lambert, 469 F2d 416
    The law provides that once State and Federal Jurisdiction has been challenged, it must be proven. Main v. Thiboutot, 100 S. Ct. 2502 (1980)
    Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted. Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150

    Quote:

    Quoting L-1
    View Post
    Try this another way. Call the DPS office covering the area in question and ask for the Public Affairs Officer or Public Information Officer. Ask him for information on DPS authority to cite on state highways running through the reservation in question. While he is not an attorney, his is used to fielding all sorts of inquiries from the media and the public. I have not doubt he can point you to the information you are seeking. You can then research it from there.

    I'd rather not tip my hat contacting the citing authority (AZ DPS) as I'd prefer to contact the Salt River Reservation's police department and ask about any governmental agreements they have with other law enforcement departments.
  • 07-30-2017, 08:59 PM
    L-1
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting cyr0nk0r
    View Post
    Oh?
    The burden shifts to the court to prove jurisdiction. Rosemond v. Lambert, 469 F2d 416
    The law provides that once State and Federal Jurisdiction has been challenged, it must be proven. Main v. Thiboutot, 100 S. Ct. 2502 (1980)
    Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted. Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150

    Oy vey! You seem to forget, the officer doesn't have to satisfy you as to his authority, he only needs to satisfy the court.

    So, what does it take to satisfy the court? Usually, referencing public law that addresses the matter will meet the requirement. It's not necessary for the person testifying to bring their law books to court. That's what the court is for. The court is knowledgeable as to the law and has their own set of law books to double check things if they forget.

    So if questioned by you, the officer will probably testify that he cited you pursuant to ARS 13-3883B, which gives him the authority to do so in Arizona. You can ask whether he had special permission to cite non-Indians on sovereign Indian Territory and no doubt he will tell you either he is unaware of permission being required, or if he's really sharp (because hie patrol area includes the reservation), he will point you to United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), which are United States Supreme Court decisions that ruled state courts have jurisdiction to punish wholly non-Indian crimes in Indian country. In any case, it will then be up to you to the refute his testimony and establish some special permission is required.

    At this point, the court (and not you) will determine whether the burden of proof has been met.

    Asking a question, solely for the purpose of demanding documents in substantiation of the response you get, when you know ahead of time those documents will not be present in court, is called playing gotcha. It is bad form and not looked upon kindly by the court, especially when you have the opportunity to subpoena those documents prior to court and refuse to do so just to play Perry Mason with the witness. Think twice before you make yourself look stupid in front of the judge. Remember, the purpose of a trial is to arrive at the truth of the matter and not to prove who is the quickest of wit.
  • 07-30-2017, 11:13 PM
    cyr0nk0r
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting L-1
    View Post
    It is bad form and not looked upon kindly by the court, especially when you have the opportunity to subpoena those documents prior to court and refuse to do so just to play Perry Mason with the witness. Think twice before you make yourself look stupid in front of the judge. Remember, the purpose of a trial is to arrive at the truth of the matter and not to prove who is the quickest of wit.

    AFAIK subpoena's are not available in civil traffic situations. You only have FOIA.

    I also fail to see how asking for corroborating evidence of testimony is bad form. If the officer testifies that the LIDAR device was calibrated but brought no documentation to prove it.. it's hearsay. Why doesn't this logic hold true if he says he is allowed to operate on sovereign land? If he is unaware of any IGA's between AZ DPS and the Salt Pima Reservation that isn't my burden to prove he is allowed to operate, it's the states. And if he is sharp he can quote those rulings. But I doubt he will have those memorized.. and if he doesn't... and the prosecutor doesn't know them either, or can't give documentation to show otherwise... I fail to see how objecting in that instance is bad form.
  • 07-30-2017, 11:35 PM
    Taxing Matters
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting cyr0nk0r
    View Post
    Oh?
    The burden shifts to the court to prove jurisdiction. Rosemond v. Lambert, 469 F2d 416
    The law provides that once State and Federal Jurisdiction has been challenged, it must be proven. Main v. Thiboutot, 100 S. Ct. 2502 (1980)
    Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted. Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150

    The problem is that U.S. Supreme Court and Court of Appeals cases state that where a crime is committed by a non-Indian against another non-Indian on Indian land the state that has jurisdiction over that. See United States v. McBratney, 104 U.S. 621, 624, 26 L. Ed. 869 (1881). The Supreme Court later in a footnote to another case indicated that this applies to victimless offenses committed on Indian land as well. “Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-Indians, see New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946), and victimless crimes by non-Indians.” Solem v. Bartlett, 465 U.S. 463, 465, 104 S. Ct. 1161, 1163, 79 L. Ed. 2d 443 (1984). And in a fairly recent case by the 10th Circuit Court of Appeals, the Court reaffirmed that position, explaining:

    The Supreme Court has not directly considered the issue of whether the federal courts possess jurisdiction over victimless crimes committed by non-Indians on Indian land. However, the Court has suggested in dicta that the McBratney rule applies to victimless crimes as well. The Court summarized the delimitation of state and federal jurisdiction over crimes in Indian country in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). “Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-Indians, and victimless crimes by non-Indians.” Id. at 465 n. 2, 104 S.Ct. 1161 (citing Martin, 326 U.S. 496, 66 S.Ct. 307); see Ross v. Neff, 905 F.2d 1349, 1353 (10th Cir.1990) (noting the “Supreme Court has expressly stated that state criminal jurisdiction in Indian country is limited to crimes committed ‘by non-Indians against non-Indians ... and victimless crimes by non-Indians' ”) (quoting Solem, 465 U.S. at 465 n. 2, 104 S.Ct. 1161). The absence of federal jurisdiction over victimless crimes perpetrated by a non-Indian in Indian country is explicit in the dicta of Solem and implicit in the holding of McBratney.

    United States v. Langford, 641 F.3d 1195, 1199 (10th Cir. 2011). Based on these cases, the state has the authority to cite you, a non-Indian, for a victimless offense (like speeding) that you commit on Indian land. Unless you can point to some Arizona law that restricts the state’s jurisdiction I think you will lose this argument.

    It is interesting to note that the Navajo enforcement agreement that you found and linked focuses on circumstances in which the state may arrest an Indian and when the tribe may arrest a non-Indian, which appears to reflect the jurisdictional limits discussed above. There was no need in the agreement to grant the state power to arrest a non-Indian for a crime not committed against an Indian because the state possesses that power already. Nor was there a need to state that a tribe may arrest an Indian for crimes committed on Indian land, as the tribe possesses that power already.
  • 07-31-2017, 03:01 AM
    L-1
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting cyr0nk0r
    View Post
    I also fail to see how asking for corroborating evidence of testimony is bad form.

    I believe I explained this to you in my last post. I'm sorry you are unable (or unwilling) to understand.

    I see we are now starting to venture down the the road to El Toboso. Best of luck Alonso Quixano.
  • 07-31-2017, 09:50 AM
    cyr0nk0r
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting L-1
    View Post
    I believe I explained this to you in my last post. I'm sorry you are unable (or unwilling) to understand.

    Wow, that's a pretty condescending statement. Is that what this forum really is? People come here for help and to ask questions and when statements are met with skepticism you ridicule people?

    @Taxing Matters,
    I would argue that the McBratney rule is not a law or statue. The court suggesting in dicta is an opinion of the court, not a resolution of law. Or am I interpreting things incorrectly.
  • 07-31-2017, 10:08 AM
    Taxing Matters
    Re: LIDAR Speeding Issued by the Highway Patrol on an Arizona Indian Reservation
    Quote:

    Quoting cyr0nk0r
    View Post
    @Taxing Matters,
    I would argue that the McBratney rule is not a law or statue. The court suggesting in dicta is an opinion of the court, not a resolution of law. Or am I interpreting things incorrectly.

    The U.S. Supreme Court in McBratney and the following opinions of the Court and the Courts of Appeals are themselves a form of law — case law. The courts in these cases are explaining the jurisdiction of the federal government, states, and tribes as set out in federal statute. Arguing to a court that a U.S. Supreme Court opinion isn’t law or isn’t relevant because it is not a statute will show the judge how little you understand U.S. law. When the Supreme Court has said that the state has jurisdiction, then the lower courts are bound to apply those decisions and also say the state has jurisdiction. It is this feature of our legal system — that the decisions of higher courts bind the lower courts — that makes U.S. Supreme Court cases so important and why they get so much attention in the press. So discounting the Supreme Court and federal courts of appeals decisions is not a good idea. Instead, you need to find Arizona law that says the state has has chosen to assert jurisdiction less than what federal law allows it. I’m not aware of any Arizona statute or case decision that says that, but you are free to research it and see if you can find something to support your jurisdiction argument.
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