Robotic Uninsured Driver Enforcement Could Automate Wrongful Prosecution

Legislature Authorized Robo-Cop Cameras in 2016

A new Robocop system of roadside cameras is set to begin issuing citations for driving without insurance in Oklahoma with only minimal human involvement. Legislators approved the program in 2016. The automated system is reportedly the first of its kind deployed anywhere in the US.

After the system goes live sometime in 2018, drivers can be cited based on automated database queries. Those who do not receive and respond to mailed citations may be arrested. They might be arrested even if they had proof of insurance in their vehicle when the automated system flagged them for a citation.

From the perspective of an Oklahoma defense attorney, the semi-automated police system appears riddled with gaps that virtually guarantee wrongful prosecutions. We will drill into details of the new law in another post. Let’s first take a look at how easily yet another policing-for-profit law can lead to wrongful prosecutions.

An Incentive for Injustice

Before the system is launched in early 2018, a Swedish company’s US subsidiary, Gatso USA Inc., will deploy mobile cameras in Tulsa and Oklahoma City. The roving cameras’ mission will be to find locations likely to yield the most citations. Of course, for Gatso, that means places where the company can make the most money. The company’s fees are based on how many violations are cited.

Legislators and district attorneys would argue the program’s goal is to reduce the prevalence of uninsured drivers in Oklahoma. Yet proceeds beyond contract fees and program costs go to participating district attorneys’ general operating budgets. It is easy to infer the program is designed to generate money for district attorneys. It might do so mostly at the expense of poor people.

A roving system designed to automatically detect the most uninsured vehicle violations will most likely gravitate toward lower-income neighborhoods. That selective geography alone promises to amplify any errors built into a system that tries to match state databases with driver’s license numbers collected by automated cameras. Here’s how.

Residents of low-income neighborhoods nationwide are already herded through revolving jail doors on repeated arrests for failure to pay court fees related to minor traffic violations. Minor traffic violations tend to be cited more in those neighborhoods because police patrol those neighborhoods more.

We can confidently estimate a curated artificial-intelligence system designed to seek out areas with high rates of apparent insurance violations will find those communities where residents are otherwise already targeted, prosecuted and routinely jailed for minor traffic violations.

Of course, some will argue that it doesn’t matter if poor people are caught more often without insurance. The law is the law. In this case, however, an imperfect automated system is poised to target low-income drivers for citations even though many might, in fact, be insured.

Let’s assume a hypothetical North Tulsa motorist does have car insurance. Yet our motorist bought from a low-budget insurance company that targets exactly those neighborhoods.

Arrested for Driving While Poor

Oklahoma’s new automated enforcement law only requires that 95 percent of Oklahoma’s personal auto insurance market be participating in the real-time Oklahoma Compulsory Insurance Verification System before police working directly with district attorneys start using remote cameras to write citations.

That means as many as 1 in 20 insured motorists might not be listed in the database used to automatically verify insurance. Among 20,000 drivers likely to be cited each month, as many as 1,000 could have insurance but not be listed in the preferred database.

Maybe our driver bought insurance, but the insurer is among 5 percent who do not report to the state system. Or maybe the agent is just not the quickest to report the new policy to the state. A delay could happen anywhere from an insurance agent’s office, to a slow website, to lag procedures datacenters use to synchronize newly entered data. Or maybe our driver’s budget-priced insurer is part of the market that does not participate in the compulsory insurance verification system’s real-time portal.

A privately owned camera spots the vehicle. Ostensibly, a police officer and perhaps a prosecuting attorney review the images. They verify that no insurance policy was on record at the time an automated camera grabbed an image and read a license plate. With a keystroke, they tell the system to send a letter, or maybe a citation.

The new law allows local district attorneys to join a statewide system operated by the Oklahoma District Attorney’s Council, or operate their own enforcement systems. We anticipate most will elect to join the statewide system – certainly the Oklahoma City and Tulsa judicial districts targeted for the initial roll-out.

The District Attorney’s Council as of late 2017 could not provide details about how their system would operate. They could issue warning letters demanding proof of insurance or go straight to the citation.

Let’s presume, as is more likely, the Oklahoma District Attorney’s Council issues citations. It doesn’t matter either way. If the letter threatened a citation and the vehicle owner did not respond, it would either be an idle threat or automated prosecution almost certainly would follow.

In our scenario, the driver does not respond. It’s not that the driver is a scofflaw, or that she neglected to update her address on motor vehicle records. She did that, as required. It’s just that the state’s vehicle registration system did not get her change of address letter until after a ticket had been issued. So the semi-automated citation went to her old address.

Any number of things could go wrong with the mailed citations. Until now, most traffic citations involve a driver signing a promise to appear in court on a certain date. An officer explains in clear terms the citation is a promise to appear in court at a certain time.

In the new system, mailed citations that demand a court appearance can get lost before delivery, get lost between stacks of junk mail or be delivered to the wrong address. A police officer never orders the person to appear, face to face, before a failure to appear warrant can be issued.

Proof of Legal Service Not Required

This is where the system falls apart. An insured driver who opens the citation letter has an opportunity to prove they had insurance or join a diversion program and avoid prosecution. Yet District Attorneys might not be required to prove they notified the accused of a court date before an arrest warrant is issued for a missed court date.   

Our hypothetical insured driver never got a letter – even though she complied with every part of the law. Because she never got the letter, the law-abiding mom does not appear for a court date she never knew about to answer for a crime she did not commit.

What does the court do? It issues a warrant, of course. Our driver who never broke a law is arrested on her way drop off children at school before she goes to work.

She can’t just show the arresting officer proof of insurance – that ship already sailed. Placing her in handcuffs, the officer politely tells her she can explain that to the judge. Meanwhile, police call a DHS Childrens’ Services caseworker to take custody of her children.

She misses work and loses her job. She forks over money for bail. Her children are in limbo while she is bum-rushed through the jail system.

To make matters worse, any other evidence police round up during the bad arrest is fair game. Courts have lately concluded evidence gathered in good faith by cops serving warrants issued by mistake can nonetheless admit such ill-gotten evidence in court.

She might be charged with constructive possession of a marijuana cigarette a neighbor’s child she was transporting to school stuffed nervously stuffed between the seats. Now law-abiding Mom is on the hook for possession of marijuana. The possession charge can complicate her effort to recover custody of her children. They remain in a state facility for days.

Argument from Ignorance is a Logical Fallacy

The new system of semi-automated insurance enforcement is based on a logical fallacy. Until now, drivers were required to prove they had insurance during a routine traffic stop. Police needed some other reason than demanding documents to initiate a traffic stop.

Contrary to popular belief, proving a negative is not always difficult within limited circumstances. A driver either did or did not provide proof of insurance when challenged. Failure to show proof of insurance on demand during an otherwise lawful traffic stop is a crime. An officer can prove a negative – a driver did not show proof of insurance – as factual proof that a crime of omission was committed.

Argument from ignorance is different than proving a negative. Argument from ignorance is a fallacy. In the new system, a contract attorney in Oklahoma City will allege he did not know if a Tulsa driver had insurance, so he hauled her into court to find out.

Now, prosecutors need no real probable cause to start a legal action that could lead to a bench warrant and arrest. There is no probable cause of a crime beyond the fact that a computer algorithm informed a for-profit that a low-income neighborhood was the best place to look for crime and then a computer could not find evidence no crime had been committed.

The new law tries to construct probable cause by fiat. The new law says an officer’s observation of photographs depicting a license number not found in the state database listing at least 95 percent of insured cars is probable cause that the likely owner of that registered vehicle does not have insurance. It is an argument to ignorance. Probable cause now means “I don’t know.” That is not probability. That is ignorance.

The new law asks the State to look for proof of insurance based on a limited set of facts. Ignorant of any facts to the contrary, the state assumes the drivers is probably breaking the law.

Probable cause is no longer based on a direct human observation. Probable cause now involves a person glancing at a photograph and matching data from two incomplete datasets – insurance records and motor vehicle registration records.

The few people looking over the computer’s work are employed by a District Attorney’s agency that has a fiscal interest in rushing to judgment. They now have a fast-track diversion program to administer justice without ever involving a court. Yet DA’s still enjoy the authority of courts and police agencies to arrest whoever falls through the cracks of their money-making diversion program.

Our scenario proposes only one of many ways insurance records and vehicle registration records might be less than accurate. Human errors when entering insurance information could result in omissions. License numbers of recently sold vehicles might be attributed to the former owner until the new owner updates the registration. Stolen license plates can become probable cause to arrest the victims from whom plates were stolen.

To make matters worse, media and watchdog organizations are not able to check any part of the automated system. The new law exempts all data gathered by the cameras from the state’s open records laws. That exemption might seem to protect drivers from privacy violations, but it also shields the for-profit company from public watchdogs’ efforts to uncover systematic mistakes.

Contact a Tulsa Traffic Ticket Attorney

We can only hope Oklahoma courts will reject the legislature’s ill-informed effort to effectively commission robots as police officers. Let’s hope they are not fooled to believe one or two individuals in Oklahoma City verifying hundreds of computer-generated citations each day are doing anything more than rubber stamping a computer’s output.

We hope Oklahoma media and watchdog groups will demand access to records that demonstrate how the new privately-operated citation system is administered. Voters, journalists and local officials alike need to know how many citations are issued, where they are issued and, especially, how many wrongful citations are issued. Diversion programs that keep names out of court records cannot be allowed to let District Attorneys hide systematic pseudo-prosecution or wrongful arrests from the public.

For more information, or for a confidential consultation about any matter involving a traffic citation in Tulsa, contact the Tulsa traffic ticket attorney at Wirth Law Office. Call (918) 879-1681 or send your question using the form at the top of this page.