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Suburban Legal Myths
“I can’t be charged or convicted for mere residue.”
When evidence is actually found, particularly in a possession of a controlled substance case, a person doesn’t understand how he can be charged when residue is all that is found. Sometimes even if it’s not just residue, but a little small rock of cocaine, the person still can’t understand how he can be charged when so little was found.
There is some truth to the myth that residue is not enough to convict, but for the most part it is just a myth. On the flipside, a person usually cannot be found guilty of possession of paraphernalia if no residue is found on the alleged paraphernalia.
“It’s not like ___ killed someone!”
It is a common belief among the family members and friends of the accused, as well as the accused, that unless a person kills someone the accused should get little to no jail or prison time. Perhaps this is why a person who is sentenced to probation for a not so serious crime, doesn’t understand why after numerous violations of probation and or community control that he will do time. After all, “it’s not like he killed someone.”
These same people also believe that people charged with murder either end up having their cases dropped, or receiving a non-prison sentence, but in any event the killers usually end up doing less prison time than people who commit crimes where no one is killed. Causing people to say, “I could murder someone and get less time” or “I would have been better off killing someone,” or “Murderers get less time than that.”
It is a myth to believe that there are a bunch of convicted killers walking the streets, but with the draconian drug laws and various other minimum-mandatory sentences, and enhancements in place a person could kill someone and get less time than a drug addict.133
“Public defenders are not real lawyers.”
Many people believe that Assistant Public Defenders are not lawyers. Some clients refer to them as “Public Pretenders” and “Public Offenders.” These clients are often heard saying, “I want a real lawyer” (AKA private attorney), and “if I had a real lawyer I would have gone to trial and won.”
Some people believe that lawyers have to apprentice at the Public Defender’s Office before they can practice as “Real Lawyers.” The myth that Assistant Public Defender are not real lawyers is perpetuated first by the defendants assigned to the Public Defender’s Office, who no one ever believes except when they say Assistant Public Defenders are not real lawyers. Then by some Private attorneys who want people to believe if they have the Public Defender they will go to jail or prison forever so they should hire a private attorney, and even by some Judges who criticize Public Defenders.
Now all this negative press spreads into the community at large. And before long television shows are airing episodes demeaning Public Defenders. One aired a story where at first appearance it looks like the Judge is going to give the client the death penalty right there in the courtroom as her Public Defender stands around hopelessly not knowing what to do, and may even be getting ready to assist in the execution of her client. The tension mounts as the moment nears to the time the electric chair is going to be wheeled into the courtroom. Then at the last moment in comes a Superhero to save the day, or its equivalent–a high paid private attorney who shouts out some words while waving some papers around. The case is miraculously dismissed and an apology issued to the Defendant! This of course perpetuates the myth to the point that when it comes to the Public Defender the general public feels: You get what you pay for. And then there are ironically the times a person didn’t get what he didn’t pay for, and it was a good thing.131
The only basis in reality to this myth is this: some Assistant Public Defenders are right out of law school and therefore will not usually be as good as a more seasoned private attorney. But usually, neither will the brand new private attorneys who right after Law School open their own Law Firms. The Assistant Public Defenders are also overworked, and burdened with too many cases. They are similar to a chef who has to make dinner for a hundred people. No matter what there will always be some people who don’t like the food. But the truth is this: some Assistant Public Defenders are just as good as some private attorneys, and some are even better, and some are of course worse. In other words the percentage of Assistant Public Defenders who don’t perform up to standards is the same as the percentage of private attorneys who don’t.
A person’s probation cannot be violated for just committing technicals.
Most clients who do not violate their probation with new crimes think they won’t or shouldn’t be violated for just committing technical violations. They don’t think it’s a big deal that they failed to report in person, failed to file a monthly report, failed to make any restitution payments, failed to pay cost of supervision, failed to pay their fines or court costs,120 failed to complete their classes,121 failed to perform their community service,122 or changed their address without permission,123 left their place of residence without permission,124 absconded,125 or committed any other technical violations. The truth to this myth is unless the violation is willful and substantial then it doesn’t matter, and sometimes Judges understand that it’s worth giving the client a break as long as he hasn’t committed any new crimes.
Of course the clients who violate their probation with a new crime are always quick to point out that they’ve completed all their conditions of probations and have not committed any technical violations. Therefore, they mythically believe that they should not be violated for committing a new crime, especially if it’s just for what they consider a minor misdemeanor offense. The truth is that depending upon what the new crime is, some Judges will again give the client a break, but not always.126
“I can have sex with a minor if her parents consent.”
Some people actually believe that if the parents of a minor child give their consent to an adult to have sex with their child then the sex is legal. I’m not sure how one would go about getting consent from the parents, and whether or not the consent would have to be in writing, notarized and witnessed by two people, but I’m pretty sure DCF would try to take the child away if they could prove the consent was given. Consent is not a defense to statutory rape no matter who gives it.30 However, if the child is emancipated then as long as a person has consent from the emancipated child the sex is legal.31
The consent myth may find its truth from the fact that in certain situations for a person under eighteen to get married they must have the consent of their parents.32
“I don’t need no stinking license to drive a scooter.”
The Moped-Myth comes in and out of vogue every few years. People swearing that they were told by the person who sold them the moped, the manufacturer of the moped, a police officer, a lawyer, a Judge, their bunkmate in the county jail or it was written in the box it came in or in the operators’ manual, that it was legal to drive a moped without a driver’s license. But no one can call forth a credible witness or produce a box or manual supporting their claim.
Basically, if a person is driving a motor vehicle upon a highway,19 he needs a driver’s license. Only a golf cart,20 vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles are exempt from the license requirement.21 Just because it has a motor with a displacement of 50 CCs or less does not eliminate the need for a driver’s license to operate it. It just means it is not a motorcycle,22 and a motorcycle endorsement is not necessary to drive it. A driver’s license is needed to operate a moped,23 a go-ped,24 and even an ATV25 on a highway. Calling it a scooter, moped or go-ped doesn’t make a difference unless whatever it is called fits the definition of a motorized bicycle.26
A basis in truth to the Moped-Myth and the Scooter-Saga is fueled by the confusion found when people start reading Chapter 316 of the Florida Statutes, which excludes a moped and a motorized scooter from the definition of motor vehicle.27 But the rules of statutory construction dictate that the definition used in the chapter making the restriction (Chapter 322), unless deemed ambiguous shall be used before resorting to definitions found in other chapters.28 Obviously, another basis in truth to the Scooter-Saga is that a person can drive a motorized-bicycle without a license. The problem is that what most people are driving on the highway without a license is not a motorized-bicycle, despite all the unhelpful legal advice they claim to have been given to the contrary.
However, that bad advice could possibly be transformed into a basis for a Mistake of Fact defense29 when defending a suspended license case by arguing that the person mistakenly believed that he was driving a motorized bicycle. And if that works the Moped-Myth can become a reality.
“The police officer had no reason to follow me when he saw me pull out of a bar, and cannot run my tag without reason.”
Even though it doesn’t seem fair for a police officer to be allowed to wait for a person to drive away from a bar, follow that person, and then stop the person for driving in a manner that makes the officer think the person is ill, injured or impaired (or really just impaired or why else would the officer wait until the person left the bar), it still isn’t entrapment when the person is arrested for DUI.
And even when the three illusory I-words or buzzwords10 found on every officers’ cheat sheet (right along with such other fraternal favorites as: training & experience, spontaneous utterance, furtive movements, bulge, plain view, Officer safety, and odor of cannabis) do not exist, a police officer can still pull up behind any automobile for no reason and run its tag number.
And if the tag comes back registered to a person with a suspended license, or no driver’s license, the officer can make a lawful stop.11 Unless of course it is obvious that the person driving the car does not match the description of the owner.12 However, the officer does not have to try to confirm this prior to the stop, but if after the stop as the officer is approaching the vehicle he realizes the driver is obviously not the registered owner, then all the officer can do is make personal contact with the driver to explain the reason for the stop.13The officer cannot ask to see the person’s driver’s license14 or in any other way continue to detain the person, unless as the officer approaches he observes one of the aforementioned buzzwords15 or recognizes the person as being on the FBI’s Most Wanted List, having an active warrant16 or suspended license, and the information is not stale.17
Speed traps are not entrapment, either. Police officers can hide at night with their lights out in an unmarked vehicle to catch a person speeding.
These myths besides finding their basis for truth in the fourth amendment and entrapment also find their basis for truth in the belief that the police are not allowed to use trickery and deception to enforce the law. But as long as the police do not take it too far, trickery and deception are allowed.18
“She said she wasn’t a police officer.”
The next Suburban Legal Myth deals with the prostitution and/or drug deal scenario where someone asks the undercover police officer if he or she is a police officer and the officer says, ‘no.’ The defendant thinks that because the police officer lied about her true identity that the case has to be thrown out. The only possible basis in truth for this rather ludicrous myth that if true would hamper all undercover police activity7 is found in the defense of entrapment. 8
Most clients think that if an informant or under cover police officer set them up, then it has to be entrapment. They have trouble understanding that their predisposition to commit the crime tends to negate the entrapment defense. And that the negation is even more so with those who have a prior record for committing the same crime. 9
Of course, it is usually a good rule of thumb that if a person is even thinking about asking whether someone is a police officer, to not go through with the deal.
“I wasn’t read my rights!”
The most popular Suburban Legal Myth deals with the person who was arrested, but was not read his Miranda rights. He thinks because he wasn’t read those magical words that his triple homicide will get thrown out of court. Actually, he’s usually hoping his DUI will get thrown out.
Most of the time when a person complains about not having been read his rights, he had been placed under arrest and therefore was in custody.1 But he was not interrogated,2 or if he was questioned what he said was non-testimonial3 in nature. So the fact that he was not read his rights is irrelevant.
However, not being read Miranda rights can in some cases result in a successful motion to suppress a confession, and if without the confession the charge cannot get passed a Judgment of Acquittal, then the case will be dismissed.4 So there is a basis in truth to this myth.