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Sunday, 29 November, 2020

The Virginian (final part of two)

Date: 01 October, 2010

By: Chief

To read part one.

Imageelcome back. Picking up where we left off —

All I did was provide those decisions, federal law and federal case law to Tom and he was off and running. I had them on disk and it would save time. Besides, we were a team. Additionally, I provided Tom the telephone number for the Easyriders attorney — Skip Raring. Don't ya just love it when a plan comes together? I sure as shootin' do. Oh, before I forget, Tom took this case of mine and any biker lid law case — pro bono.

The big day arrives

D-day finally shows up and we are in court. The commonwealth is represented and, believe it or not, an attorney from the Attorney General's office is there as well. As usual the court is in the 'hurry up and wait mode' which, as usual, drives me nucking futs.

Finally my case gets called. Jesus H. Tap Dancing Christ — it is about bloody time. And what happens is a classic case of 'trial by ambush', Virginia style. The commonwealth asks the court to "nulle prose" the case. Tom goes absolutely ballistic in his objection, which by my watch and chain lasted a full 6 minutes. Long time for an objection, ya know what I mean? The judge, in turn, overruled Tom's objection and grants the nulle prose (why am I not surprised).

What that all means is the Commonwealth of Virginia is presently not prepared to try the case, but reserves the right to bring the case to trial within a reasonable amount of time (12 to 18 months). Talk about a sucker punch. Now I was beginning to understand 'trial by ambush'. Puh-lease. Tom is livid. No, he is way beyond critical mass. Not a happy camper at all.

I truly believe the entire reason for the A.G.'s attorney being there was to ensure my case got torpedoed. The Commonwealth of Virginia didn't want my case to go to trial — they would lose and they knew it. But fear not readers, it gets better. Kinda.

As it turns out, Tom was also defending 5 bikers who got beanie tickets up in Richmond. Think about it, if one biker (me) with a lawyer can scare the pants off a state, imagine what 5 bikers who have the very same attorney and using the very same arguments can do? I'll bet the A.G.'s lawyers were getting ulcers. It would serve the egg sucking hounds right.

Something is rotten in Norfolk

And it ain't just Hampton Roads either.

Okay, it is now the month of September and I can't get a ticket for love nor money. The cops just won't come out to play. Tom gives me a call and proceeds to inform me, as he's laughing over the phone, I had just been indited by the Grand Jury in and for the city and county of Norfolk. I thought he was kidding and then I asked the stupid question of what I had been indited for? He tells me the indictment is for — (drum roll please) my helmet ticket back in March. Jesus Christ! To this very day I can't believe an attorney for the Commonwealth of Virginia would waste the time of a grand jury to indite a biker for a traffic ticket. The sheer audacity of it just boggles the mind.

Tom however, figures there is something really dirty going on in Norfolk and does some real deep digging and hits pay dirt. The mangy curs have set us up. By inditing me, the grand jury handed jurisdiction to the wrong court. So if the trial judge granted our motion and struck Virginia's lid law as unconstitutional, the Commonwealth attorney's office would move in and have the court's ruling stricken based on a jurisdictional technicality. Hence, Tom's only recourse is to beat them to the punch and that is exactly what he did (Tom plays the game by the rules and he is very, very good at it).

Another day in court

Motion day was October 4 [1996], in circuit court, City of Norfolk. Judge William (hang 'em high) Rutherford presiding. Tom nailed the commonwealth's attorney to the cross before the judge. Per Virginia law, the circuit court has appellate jurisdiction for traffic infractions — not original. The general district court has original jurisdiction. Words from the judge, "your motion is sustained." The commonwealth's attorney didn't get a chance to open his idiotic mouth.

It's over

With those words my case was finished. The commonwealth of Virginia thought they won, by losing. Oh baby are they ever wrong. Remember those 5 lid tickets up in Richmond? Hey, hey, hey, Tom joined the tickets and went before Judge Lemmon and during cross examination of the citing officer, Tom asked the cop if he could prove "actual knowledge" on the part of each of the 5 defendants. The commonwealth attorney interrupted and stated that no, the commonwealth could not prove "actual knowledge" as required by Easyriders — per — "Bianco v. CHP." At conclusion of trial, Tom moved the court for a written decision. The judge agreed.

Well, the decision finally came. Now the Commonwealth must be able to prove "actual knowledge." Just how in the world is a cop, let alone the prosecuting attorney, going to prove that? Answer; it can't be done.

So, let's give credit where credit is due. Tom is a sharp attorney and a very fine man who knows a winning argument when he sees one. He saw the power in:

He took those ideas on-board, did his homework, went into court fully prepared and won.

Thank you Tom — you are great attorney and an even better man.

[Ed. note: Please check out Virginia Coalition of Motorcyclists (VCOM) if you are considering riding your putt in or through Virginia. They have succeeded where a great many others have failed. Plus they are a great group of people.]

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