• 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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