TESTIMONIALS   The Virginian by Kelly Price A funny thing happened on my ride to work on a very cold Monday morning. I got pulled over and cited for not wearing an Authorized Helmet. The citing officer was one Officer Goode of Norfolk City Police Department. What was not funny was Officer Goode confiscated my beanie and left me on the side of Interstate 264. I was not a happy camper. So after the cop split I decided to ride to work ... free! Felt great! However, here in a strange city, real strange state (Virginia), didn't know a soul. Hadn't even found a law library. Bluntly stated, I had been in town a total of seven days! First thing I did as a stranger in a strange land was call a bike shop and this dude really hooked me up good! His name is Tom and he is the owner of Toms Custom Cycles in Yorktown, Virginia. I owe Tom a great deal of credit, so if you are even near Yorktown, Virginia, look him up. Great people! He provided me with a copy of Virginia approval procedure. He also pointed me toward the nearest public law library. With that information I was armed for bear. I wrote a motion to dismiss and filed it with the court and the Commonwealth Atorney's office. Now my motion requested the court to declare Virginia's lid law unconstitutional based on the following: -Violates Interstate commerce clause of the U.S. Constitution -Violated my Fourth amendment right to be free of unreasonable search and seizure. -Violates Federal law; Title 49. -Violates Federal case law; Juvenile Products v. Edmisten. I also threw in Buhl, Bianco and Easyriders for good measure. You know, cover all the bases. Face it, I'm from California, and I'm in Virginia only because my ship is there. At the time, I had no idea of the power of the Bianco decision was going to have in Virginia. But that comes later. Well, my day in court finally arrives. Myself and Officer Goode stand before the Honorable Judge Lawless (I'm not kidding that his his name) and before we can do battle, Judge Lawless states: "You have written a fine motion Mr. Prince. But ya see, I don't give written decisions and options. However, you do have some points which deserve to be ruled on. So, what I'm going to do is FIND you guilty and impose a $25.00 fine. Please step over to the clerk and sign your appeal paperwork ... it is ready to be filled out. " Holy shit Batman! In less than a minute, I'd been found guilty, appeal petition pre-filled out and I'm out the door. No biggie, I'm on my way to a court record, you know, written decisions and all that. Hot damn, I'm in the Big league. So, I called Tom and filled him in and also asked if he knew of an attorney who could carry the ball for me. Let me tell ya, it can be rough working 7 days a week, 14 hour days trying to get a 600 foot ship through overhaul and out of the shipyard on time and under budget (we didn't make it either). In other words, I needed some help. Well Tom gave me a number of an attorney up in Richmond who heard about me and my case and wanted to talk with me about it. Enter The Virginian I gave this attorney a call and damn if HIS name wasn't Tom as well. Tom McGrath, Attorney at Law or as I called him ..."The Virginian". We scheduled a meeting and got together. Cool dude. Real quick study. I explained to him that I was not interested in a not guilty appeal. I wanted the fucking law! Nothing less would do. We discussed strategy and I explained the Helmet Law Defense League (H.L.D.L.) and Bikers of Lesser Tolerance (B.O.L.T) battle cry of no list, no law. First question-We have a list. First answer-Can't have one based on interstate commerce clause, federal law, NHTSA doesn't approve anything and Juvenile Products supports and reinforces that. Next? What's this Bianco decision? Response; in two words- actual knowledge. It was and continues to be the lynch pin in the Easyriders decision. No Bianco, no injunction, period. With my new trial looming closer and closer Tom drafted a motion to dismiss based on HLDL's no list, no law concept, the Bianco case, Easyriders, Washington State v. Maxwell and Florida v. Yasko. All I did was provide those decisions, federal law and federal case law to Tom and he was off and running. Hell, I had them on disk and it would save time. Besides, We were a team! Don't ya just love it when a plan comes together? I damn sure do. Oh, before I forget, Tom took this case of mine and any lid law case ... pro bono. D-day finally arrives and we are in court. The Commonwealth is represented and believe it or not, an attorney from the Attorney Generals office is there as well. What happens, the Commonwealth asks the court to "null prose" our case. Tom goes absolutely ballistic in his objection, which by my watch lasted 6 minutes! Long time for an objection. The judge overruled Toms objection and granted the null prose. What that means is that the commonwealth of Virginia is not presently 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! Virginia didn't want my case to go to trial ... they would lose and they knew it! Tom was livid. Not a happy camper at all. But fear not readers, it gets better. As it turns out, Tom is defending 5 bikers who got beanie tickets in Richmond. Think about it, if one biker (me) with lawyer can scare the pants off the state, imagine what 5 bikers who have the same attorney and using the same arguments can do? I'll bet the A.G.'s lawyers were getting ulcers! Serves the bastard right! OK, so it's now the month of September and I can't get a ticket for love nor money. The cops won't come out to play. Tom gives me a call and proceeds to inform me as he is laughing over the phone that I had just been INDICTED by the Grand Jury, for the city and county of Norfolk. I thought he was kidding and than asked the stupid question of what had I been indicted for? He tells me the indictment is for (drum roll please) my HELMET TICKET back in March! Jesus Christ! To this 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! It just boggles my mind. Tom however, figures there is something rotten in Norfolk and does some real deep digging and hits pay dirt! The bastards 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 courts ruling stricken based on jurisdictional technicality! So Toms only resource is to beat them to the punch and that he did! Motion day was October 4, in circuit court, City of Norfolk. Judge William (hang 'en high) Rutherford presiding. Tom nailed the commonwealths 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 Commonwealths Attorney didn't get a chance to open his idiotic mouth! 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 in Richmond? Hey, hey, hey, Tom joined the tickets and went before Judge Lemons and during cross examination of the citing officer, Tom asked the cop if he could prove actual knowledge on the part 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 the hell is a cop, let alone the prosecuting attorney going to prove that? Answer; It can't be done! So, lets give credit where credit is due. Tom's a sharp attorney who knows a winning argument when he hears one. He saw the argument in HLDL's no list, no law idea and the Bianco decision. He took those ideas onboard, did his homework, went into court fully prepared and WON! Live Free ... Kelly Prince Return to previous page