Chandler Criminal Defense

I recently finished working on a pro bono forfeiture case. The short story is that a guy puts a new engine and forks on a 1970s Harley Davidson in California in 1991. He registers it in California, and they give it a new VIN because the new motor serial number doesn’t match the frame. This is a common practice for motorcycles.

My client enters the picture in 1992 or 1993, when he buys the motorcycle. He registers it in California and operates it for years with no issues. He moves to Massachusetts and registers it with no problem. In 2004, he moves to Arizona to be closer to his children and grandchildren.

When he takes the bike to the Arizona MVD in 2007 (he didn’t ride it for a few years), the inspection officer notices the California VIN is different from the manufacturer VIN code and wants the bike to be checked out by a specialist. My client complies and brings the bike back for another inspection a few days later. This specialist is an Arizona Highway Patrol officer, and he decides the bike may be contraband and seizes the motorcycle.

When I met the client, the motorcycle had been in impound for months. I was confident that I could get the motorcycle back; after all, my client had a mountain of evidence proving that he bought the motorcycle in good faith and that California had applied a new VIN to the motorcycle. Other states would be required to recognize that VIN, right? Also, it would be pointless to take away a man’s motorcycle of over a dozen years, right? Not in Arizona.

The contraband statute is so incredibly broad that the Judge ordered the motorcycle be destroyed. The state argued two things: 1) that the California VIN was invalid because it altered the manufacturer’s VIN, and 2) that the forks may have been stolen in the 1980s.

Unfortunately, the burden of proof is on the owner to prove the state is wrong. California destroys MVD records after five years when no foul play is suspected, so it was impossible for my client to obtain the original California records. Ironically, that was due in part to the fact no foul play was suspected (in my opinion, correctly so).

We argued that California did its own investigation twice (when the new VIN was applied and when the bike was transferred to my client), and we brought up the fact Massachusetts had no problem with the motorcycle. How could Arizona, after nearly twenty years, be in a better position to determine if parts on the bike were stolen? Another frustrating aspect of the case was that everyone agreed that Arizona does things no differently when applying a state VIN to a vehicle.

After a trial and many motions, including a motion to reconsider that almost turned the tide, the state convinced the judge that we didn’t prove the forks weren’t stolen and didn’t prove the California VIN was sufficient. How could we? How does someone prove motorcycle forks weren’t stolen? Prove to me that your thirty year old lawnmower wasn’t stolen. You can’t. A receipt could be for an identical (but different) set of forks.

There’s a reason why the state should always have the burden of proof. They have massive resources. It’s the state’s courts.

In the end, the State of Arizona destroyed a man’s prized possession not because it was dangerous, not because it was going to be returned to the rightful owner, not because the man had done anything wrong, and not because the motorcycle had been used in a crime.

I think the implications of the ruling are terrifying.

The Consumer Product Safety Improvement Act of 2008 bans items for children that contain a certain amount of lead. It’s a seemingly great idea to protect kids, but unsurprisingly, the way Congress wrote it causes ridiculous effects.

The Act makes it illegal to sell ATVs and motorcycles to children under 12 because the children might eat the battery terminals, the frame, or tear apart the brakes and lick enough lead to kill or harm them. I’m not sure why kids are incapable of eating Mom’s car battery, which in almost all cases would be easier to get to than a bike or ATV battery, but no one asked me. Lead, while obviously a poor meal, is instrumental as an alloy in the manufacturing of certain materials. Quite simply, it has to be used to construct certain products.

The motorcycle industry, like most industries these days, is hurting. The Act makes it illegal for dealerships to sell the bikes in their showrooms. Lead is used in battery terminals, tire nozzles, and as a trace alloy in frames. Not only does this severely hurt the profitability of a dealership because of lost sales and worthless inventory, but it also hurts the sales of adult ATVs and bikes. If Dad (or Mom) can’t take Billy (or Suzy) with him (or her) on the weekends, then a lot of parents will have to stop riding.

A local dealer told me the Sierra Club was instrumental is passing the Act as a backdoor way of shutting down off road motorized activities. I don’t know if that is correct or just a conspiracy theory, but I have to wonder, especially after the motorcycle industry repeatedly alerted the government to the impact of the law and they made no attempt to cure the preposterous results. The Sierra Club did assist in pushing the Act.

Where does the act of defiance fit in? Malcolm Smith, a legend in off-road motorcycling lore, called the media and told them he was going to sell his youth ATVs and motorcycles in knowing violation of the Federal law. Malcolm faces severe penalties and possible prison time for his bravery.

The protest day was a success, as several ATVs and motorcycles were sold illegally. There was also a show of support by the many off-road racing celebrities who were in attendance. Malcolm carried a baggie of lead fishing weights purchased by his wife that morning to help indicate just how absurd our Nanny State’s nannying has become.

Here is a link to Mr. Smith’s website. He is a true American Hero in my book, and it was a courageous act of defiance. Oh, and thanks again Congress.

There’s been a good bit of news lately about Myrtle Beach trying to rid itself of bikers. I expected to hear a lot about it from bikers (here’s an account from a biker who engaged in a bit of civil disobedience), but I was pleasantly surprised to see at least one member of the blawgosphere pick up on the story as well (check out posts from Bobby G. Frederick here and here). Anyone who knows me or has had a look around my firm’s website realizes that both Adrian and I are avid bikers. I donate a lot of my time to fellow bikers and bikers’ rights organizations, so this Myrtle Beach business is right up my alley. Strangely, I don’t know what I’d recommend.

On one hand, I can understand why bikers might want to take a “screw ‘em, we just won’t go” approach. I imagine that will cost Myrtle Beach quite a bit of money. Sure, the powers-that-be can increase taxes or figure out some other way to bleed enough money from their constituents to scrape by, but the people who’ll end up having to pay those taxes won’t have as much cash as they used to. There will be plenty of hotel, restaurant, and bar owners who will start hurting. I wouldn’t be surprised if a few tourist shops go under. On top of that, if bikers really stay away, there won’t be any ticket revenue. I think Myrtle Beach will miss the bikers sooner or later. There’s something very satisfying to me about the idea of sticking it to the city that way.

On the other hand, if bikers want to take a stand and really get their message across, an act of large scale civil disobedience is hard to beat. Bikers who just ride through town sans helmet and later pay the ticket might as well not bother. They’d be helping the city. Fighting the ticket is what matters. If hundreds or maybe thousands of bikers get ticketed for not having helmets and every single one of them fights their ticket, what would happen to Myrtle Beach’s court system? The only reason civil traffic infractions generate a lot of profit is because most people roll over. It wouldn’t take that many bikers fighting their tickets to give the Myrtle Beach courts more than they could possibly handle. Most if not all of the bikers will lose, but hearings take time and cost money. The courts could try to cut corners, but I just don’t think it’s possible to cut enough corners to make a government traffic-ticket scam work when everyone’s contesting their infractions.

I think both options are entirely possible, as bikers are ridiculously organized. It may take ten of us an hour to gas up on a poker run, but thousands of us will jump all over a rights issue in a matter of seconds. Try writing something online criticizing bikers and see how long it takes you to get a response. I’ve never seen an online poll go in favor of helmets. On issues with only one pro-biker option, we mobilize quickly. It’s different when the best course of action for bikers isn’t clear. From what I’ve seen, there’s no single voice to be heard about Myrtle Beach. Rights groups have definitely taken up the cause, but they’d be a lot more effective if they acted as one. I hope that happens.

For what it’s worth, my advice to the bikers who are organizing the resistance is to crunch the numbers and base the decision on what’s most realistic. How many tickets would we need to fight to clog the courts? How many bikers can we realistically expect to participate in large scale civil disobedience? How much revenue will Myrtle Beach lose if bikers disappear? How much can Myrtle Beach afford to lose?

Personally, I’m hoping bikers as a group pick civil disobedience. I’ve been meaning to take a ride to South Carolina.