PoliscanSpeed: measurement data, vital records and traffic law order to be handed over
We were able to achieve at least a partial success in fine proceedings. Thus, by default, the administrative offenses authority, in this case the Karlsruhe Regional Council, refuses our request to inspect the files regarding the following evidence:
- Measurement file in original format on which the fine proceedings are based
- Token file and password
- Statistics file
- Total data set of the measurement series
- Life record of the measuring device used as defined by § 31 II No. 4 MessEG
- Traffic law arrangement of the speed limit
This practice has now been countered by the Heidelberg Local Court by way of a procedural order brought about by us:
[box]For the reasons:
[…] nevertheless, the person concerned must be enabled to check the reliability of the device used or have it checked. In particular, repairs shortly after the present measurement may indicate that an instrument defect was already present during the measurement and that this may have influenced the measurement result.
[…] The same applies to a statistics file from which it can be seen how reliably the measuring device used works.
[…] In principle, the administrative authority’s statement is also correct that traffic signs as general orders have an external effect independent of the traffic law order and must be observed by motorists. Nevertheless, when determining the fine, it must of course be taken into account whether the traffic signs erected are in accordance with the traffic regulations and thus whether the traffic regulations correspond to the local conditions in the sense of averting danger. In order to enable the defense attorney to make an appropriate argument, he or she must have access to the traffic law order.
[…] Finally, the party concerned or the forfeitor must also be given the opportunity to review the specific measurement. This, in turn, is only possible on the basis of the entire series of measurements in order to detect any irregularities.
[…] Data protection concerns, on the other hand, do not prevail. As a vicarious agent of a defense counsel, an expert is also bound to secrecy, which would have to be pointed out to him again when sending the data. In addition, it is not evident to what extent the interests of third parties worthy of protection would be affected to such an extent that inspection or sending of the data could be refused. First of all, the third parties whose data entered the measurement series have themselves to blame for this circumstance. Every road user knows that in case of a traffic violation his data will be recorded. If he wants to avoid this, he only needs to act in accordance with the law. Furthermore, it is not apparent how the rights of third parties could be infringed here. The vehicle data that can be seen in the measurement series – i.e. the vehicle license plates – can only be evaluated by the administrative authority, as only it has access to this data. Neither the person concerned, nor the defense attorney, nor the expert have the possibility to determine the owner data via the license plate number. There is even less possibility of finding out who is affected by the driver’s picture. Therefore, it is not comprehensible for the court that personal data of third parties could be protected by refusing to send the measurement data to a publicly appointed and sworn expert.[/box]
Interestingly, the measuring device used in this measurement is the identical device that was also used in a procedure of the colleague Zimmer-Gratz. A deviation of 11 km/h has been detected there.
We will now also have the local measurement checked by an expert.
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Günter Grüne
Rechtsanwalt | Partner
Fachanwalt für Verkehrsrecht
Mitglied der Arbeitsgemeinschaft Verkehrsrecht im DAV