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Photo radar citations require proper service to be enforceable

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GLENDALE, AZ (CBS5) -

A Glendale man says he got his license suspended over a photo radar ticket. He says he never knew about it because he wasn't properly notified. This case brings into question the legal process associated with Arizona photo radar tickets.

When you get a photo radar citation in the mail, you are under no obligation to take any action whatsoever. That is a request that you waive your right to be properly "served" the complaint. Until a court-ordered process server hands you that citation in person, it's as if it doesn't exist. But what do you do when the server claims he gave it to you and you know he didn't?

"I was in shock," Mike Greene said.

Greene opened up a letter from the MVD and found that his driver's license had been suspended. It was over an alleged photo radar ticket at an El Mirage intersection six months prior. He says that was the first he ever heard about the violation, so he called El Mirage for an explanation.

"She said the person that supposedly served me, said he recognized my picture, and so I was served," Greene said.

In the Declaration of Service obtained from the City of El Mirage, the process server claims he personally handed the violation to Greene at 1:30 PM on Sept. 15 at his home. Greene says he was not at home that afternoon and no one ever handed him anything - at any time.

"I'm 62-years-old, it's not like I'm trying to avoid anything. I would just like more explanation as to why this is happening," Greene said.

Susan Kayler, a Phoenix lawyer who specializes in photo radar cases, says the process server must hand the violation to the defendant. Sliding it under your door is not an option.

"If the process server just sees someone, down the street or nearby, and sees them go into the house, they can't just go to that house and tape the papers to the front door - that's not proper service," Kayler said.  

Kayler says in rare cases, after several unsuccessful attempts, a process server can get a court order that would permit the violation to be taped to the door, but the court order would have to be in the envelope and it would have to be mailed, too.

Since the court had proof Greene was served, a court date was set. When Greene didn't show, a judgment was filed and the MVD was required to suspend his license. Greene doesn't think the process server's word should have won out over his.

"He could just say that he delivered it when he didn't, and he gets his pay and can be lazy, and that's not right for us. I just think it's wrong, I think that they should have to prove to me that they served me," Greene said.

That is what that affidavit/declaration of service is: Proof you've been served. It must be filed with the court and you have a right to see it, but you're essentially guilty until proven innocent.

If you believe the process server is not telling the truth, the burden of proof is on you. If you can show the court proof that you could not have been served on the date and time on the declaration, with maybe a plane ticket or credit card receipt, a judge may throw the service and the violation out and your license would be reinstated. In this case, our viewer couldn't find any proof to back up his claim.

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