Beware of the Dragon Slayer

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I
don't represent many clients in misdemeanor cases anymore. Most
of my time is spent defending major felony cases. However, once
in a while I accept a misdemeanor case that is so obviously an injustice
that any prosecutor would immediately dismiss the case; or so I
thought.

I
should have known better. Having previously defended a woman whose
dog barked at a cow; a man who, without a permit, built a shed in
his backyard; a woman whose dog stepped on the grass of a no-dog
park; a girl who entered a state park without paying the three dollar
entrance fee — despite the broken fee collection machine; and a
man who hung a sign over his business in violation of the city zoning
ordinance, I should have expected a struggle. Sadly, I had been
told so many times, "The law is the law."

My
client was a wife and middle-aged mother of two young children who
she drove to school Monday through Friday. She also worked a full
time job located a substantial distance from her home. She had no
prior contacts with the law; until now.

She
called me about a month ago and told me of her past evil doings.
When she was a teenager living in another state, she accidentally
caused an automobile accident. As a result, that state required
her to purchase the expensive SR-22 insurance. She did. Many years
later, she moved to Arizona where she was informed she was not required
to purchase the SR-22 insurance. She didn't.

The
first state then suspended her privilege to drive and promptly notified
Arizona. Because she was suspended in the other state, Arizona suspended
her license as well. After being notified of the suspensions, my
client immediately paid a small fee to the other state and was reinstated.
At my client's request, the other state sent a clearance letter
to Arizona. Arizona informed her that they received the clearance
letter and everything was fine. Arizona didn't inform her that she
needed to pay a reinstatement fee. As a result, my client drove
for years without knowing her Arizona license remained suspended.

One
day, my client was the unfortunate victim of a small automobile
accident. After the police officer arrived to "help,"
it was discovered that my client's license was suspended. Despite
immediately paying the previously unknown but all important reinstatement
fee, my client was nonetheless charged with the crime of driving
on a suspended license. Being a "strict liability" crime,
it made no difference that she didn't know her license was suspended.

She
reasonably thought she could easily resolve the matter in court.
However, after being told by the judge that jail was an option and
a six-month license suspension was mandatory, I'm sure I was the
first phone call. I wasn't optimistic. It was an easy slam-dunk
for the prosecutor. I accepted her case and agreed to try and make
a deal to resolve it quickly. I thought maybe the prospect of my
client losing her job and her kids not being able to go to school
would resuscitate some long lost spark of compassion buried deep
in the spot where the prosecutor's heart used to reside. Yeah right!

My
client's case was assigned to Ms. Hitler for prosecution. My sentimental
requests for leniency were immediately smashed with an iron fist.
Ms. Hitler responded with the novel argument, "The law is the
law." Ms. Hitler was angered when I was not persuaded by her
favorite argument and indeed wanted to joust with her supervisor
instead. Not surprisingly, Ms. Hitler's supervisor Mr. Stalin was
equally unimpressed with my arguments. We were forced into a trial.
What fun!

As the trial began, I couldn't wait to discover what defense I would
argue to the judge. Incidentally, this is not my favorite way to
try a case. Ms. Hitler called the "helpful" police officer
to the stand who testified that she arrived at the accident scene,
obtained my client's driver's license and discovered it was suspended.
No cross-examination.

Ms.
Hitler then moved to admit a certified copy of my client's driving
record indicating it was suspended. I objected based on every reason
I could argue with a straight face. The driving record was admitted
and Ms. Hitler rested the state's case.

I
don't think Ms. Hitler enjoyed it when I then requested that the
court enter a judgment of acquittal for my client because the helpful
officer friendly didn't actually see my client driving. Just for
fun, I added that I wasn't calling any witnesses so there could
be no rebuttal testimony for the state. Because the judge wasn't
laughing and Ms. Hitler was getting even madder, I added that the
helpful officer was guessing about who was driving the cars. We
won.

After
the judge left the bench and my elated client departed, Ms. Hitler
felt obligated to enlighten me to the fact that, "Sometimes
the dragon wins." Upon further inquiry, I learned Ms. Hitler
wasn't initially certain whether my client or I was the dragon she
was referring to. Apparently, she was absent during "think
before you speak" class at prosecutor's school. Eventually,
she decided my client was the dragon.

The
twenty-five minutes of Ms. Hitler bashing that followed was worth
the price of admission for me. The slaying of the dragon slayer
was a quiet victory that day. One nice family was rescued from a
jungle of craziness inhabited by a helpful police officer and a
prosecutor who treats everyone equally.

December
31, 2002

Marc
J. Victor is a practicing criminal defense attorney with the law
firm of Victor & Hall, P.L.C. in Mesa, Arizona. He can be reached
through his law firm website.


     

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