Beware of the Dragon Slayer

by Marc J. Victor, Phoenix Criminal Attorney

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 Ð 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.

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.