In a document dated Wednesday, March 22, and signed by Attorney for the City of Damascus Beau Wilcox, the city responded to charges that it was in violation for the Arkansas speed trap statute. As expected, in the document he asserts several points which show the city should not be found in violation of the statute.

The response was, in turn, to findings by Twentieth Judicial District Prosecutor Cody Hiland that the city was in violation of the statute, submitted by his office and over his signature Feb. 22. The violations in Hiland’s findings are due to Damascus city revenues from fines being in excess of the 30 percent of city expenditures, one of the two possible ways a city can be found in violation of the statutes. The other method, that over 50 percent of the speeding tickets written by the city are for less than 10 mph over the speed limit, the investigation found did not apply to Damascus.

The investigation into Damascus, initiated in June, was undertaken by Hiland’s request to the Arkansas State Police, which gathered the information Hiland used in his determination. In Hiland’s notice to Damascus gave the city 30 days to respond to the finding. The statute itself, Arkansas 12-8-401, does not require the prosecutor to give a 30 day response window. Hiland was earlier quoted that this was done in the interest of fairness. The speed trap statute is considered the only one in Arkansas law where the prosecutor has a judicial role in determining guilt or innocence and determining punishment.

The city’s response finds the findings of violation in error in three areas: That the statute does not take into account Damascus’s unique situation with a major highway running through town, that the investigation incorrectly derived the figures showing it in violation of the statute’s 30 percent rule, and that the statute is itself so vague as to be unconstitutional.

Wilcox points out that the city, population 382, has a major north-south artery in Arkansas Highway 65 running through town

Damascus is bisected by Highway 65 for just over 1.6 miles per Wilcox’s argument, with a 45 mph speed limit inside town. North and south of town Highway 65, in recent Arkansas Highway and Transportation Department study, shown to have as many as 20,000 vehicles per day during peak travel period, with 16,000 per day during ordinary times, the speed limit is 60 mph. Damascus has two signs on the north and south of town, one in yellow showing a slow to 45 mph ahead, and a second at the start of the 45 mph speed limit.

From the response: “Damascus encounters substantial traffic that could be characterized as atypical of small Arkansas towns or cities. Highway 65 is well traveled by tens of thousands of motorists annually within the state who commute to and from work in larger metropolitan areas, freight carriers who travel from Louisiana to Missouri and even further northward, and tourists who are bound for attractions like the Buffalo River, Greers Ferry Lake, and Branson, Missouri.”

No stoplights or other traffic control exist on Highway 65 where it runs through Damascus.

On the second point, the 30 percent rule, the response cites the numbers generated by the state police investigation are “being used incorrectly,” the response states. The response states the numbers include monies generated by those violating the city’s Unsafe Driving ordinance, passed in 1989, which covers a range of moving and nonmoving violations.

Here the argument becomes more technical. Cited in the response is “…fictitious or expired vehicle tags, defective equipment, moving violations such as improper passing of a School bus or law enforcement vehicle, misdemeanor Driving While Intoxicated, Driving on Suspended License, Failure to Appear and Failure to Comply/Pay warrants, and all misdemeanor criminal offenses that do not involve the operation or use of a vehicle.”

When fines for these violations are taken out, the response states, the city is at 32.4 percent in violation for 2013, but down to 27.8 percent by 2015. The response takes this further, that by removing the city’s water department revenue, “… which to be fair, skews the overall statistical data to the point of being untenable. There seems to be no colorable legal justification, per the statute, to segregate the financial data in Such [SIC] a fashion.”

Wilcox had made this same assertion to the Damascus City Council in its most recent meeting: That the numbers used to show violation of the 30 percent rule did not take into account this revenues from those who, for whatever reason, either did not appear in court or did not pay their fines, generated a significantly larger fine as a warrant for these violations were issued. These violations would not exist, Wilcox presented to the council at its March 14 meeting, if the person had obeyed the law after violating the Damascus speed limit.

Finally the response details failings in the constitutionality of the speed trap statute, stating “… by analyzing data multiple ways, the ASP [Arkansas State Police] and the Prosecutor have essentially confirmed that the statute itself is unconstitutional under the so-called ‘void for vagueness’ doctrine. The statutes are plagued with incomplete and ill- or inadequately defined language, which inherently places the ASP, the Prosecutor, and Damascus in the position of trying to compile data and then extrapolate a finding therefrom without critically necessary guidance on how to do so.”

This has been consistent in any public statements by the city including those by Wilcox: That the statute itself is vague in showing the specifics in what is used to calculate the 30 percent rule - which by Hiland’s office’s investigation Damascus is violating.

The response goes on to call out several points which show the speed trap statute to be legally suspect, includings the seemingly arbitrary 30 percent figure, the use of a prosecutor as the judicial authority and the vague nature as to what, exactly, is a “traffic offense.”

The response’s conclusion, after a spate of legal language, concludes: “… that the statistical analysis is inconclusive or in fact does not support a finding that the City of Damascus is in violation of the aforesaid statute: and that any penalties or sanctions referenced in Paragraph 9 of the Findings be altogether withheld or held in abeyance pending further investigation.”

The statute permits one of two types of punishments to be levied by the prosecutor, either ordering a city found in violation of the statute to “cease patrolling any or all affected highways,” or “order that all or any part of future fines and courts costs received from traffic law violations or misdemeanor cases” be placed in a fund for maintenance and operation of “public schools located in the county.” Hiland has not indicated which of these actions his office will order.

The 30 day response window to Hiland’s Feb. 22 finding ends Friday, March 24, with February being a 28 day month. Hiland’s office had not responded to the Damascus response, or issued it final ruling, at press time.