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Michael J, Esq.
Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience:  Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
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Hello, Our vehicle was impounded under an archaic ordinance

Customer Question

Hello,

Our vehicle was impounded under an archaic ordinance in Lakewood that allows a special team of law enforcement officials to seize property based on hearsay evidence. The city attorney finally agreed that there was no basis for a case and to return the vehicle but we are still being charged about 1500 dollars in impound fee's.

We would like to file a motion to have those funds returned. We are supposed to have the motion filed by tomorrow afternoon. The paper work we have states that the reason for the vehicle being seized was because we knowingly violated the (Public Nuisance and Abatement) Ordinance in Jefferson County and demands that we sign an agreement to that affect before they will hand the vehicle back.

The violation their speaking of was that the person (not the owner of the vehicle) who was driving did not have a valid license. We understand the violation (even though we had no idea he had no license - didn't ask.) but according to their affidavit, the reason that they pulled him over was that he was picking up a prostitute in a bad neighborhood. The so called "prostitute" is another friend of ours who is no such thing. They were also wrong about what time they say the incident occurred. And they were wrong about the accusation that the driver was picking up a prostitute as well as where they say he did it. It can be proven that he picked her up from an entirely different location that the affidavit states and at an entirely different time. The only stop they made, just before getting pulled over was at McDonalds to get a "McFlury".

The point we'd like to make is that even though they are trying to justify the fee's and inconvenience with an otherwise valid citation (Driving while under suspension), they could have had no idea that he was driving under suspension had they not pulled him over in the first place and that the probable cause they speak of (Picking up a hooker) was insufficient and untrue.

Questions:

1.) What would be the best way to word and submit the motion to contest the actions of the "Public Nuisance and Abatement" unit?

2.) Can we pay the lot fee's and pick up the vehicle and THEN file the motion and still have any hope of getting the money (since they will not hand it over unless we sign a document that states that we agree to the culpability of the incident)?

Sincerely,

Matthew
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Michael J, Esq. replied 2 years ago.

Michael J, Esq. :

Hello - Thank you for contacting JustAnswer. My name is Michael; I look forward to helping you with your criminal problem today.

Customer :

Hi Michael. :)

Michael J, Esq. :

I'm sorry to hear about your situation. Unfortunately, I don't believe you are going to prevail on your motion. Even though the probable cause for the stop may not be correct ( and therefore the charge should be dropped), the fees incurred based on the impounding of the vehicle based on the driving without a license will most likely stand.

Customer :

What do you think?

Michael J, Esq. :

However, I can help you word the motion anyway. :)

Customer :

I figure as much. But we'd like to file regardless as a matter of civic duty at this point.

Michael J, Esq. :

I understand. You would start by stating the facts of the stop, date, time, charge, etc. Then the facts about impounding the car. Then you should state the finding by the city attorney that there was no basis for the case, and therefore the fees associated with the impound should be relieved.

Michael J, Esq. :

If you pick up the car, you'll almost certainly not be granted the money in return.

Michael J, Esq. :

However, you should certainly speak with a local attorney before you act.

Customer :

Yeah. They have it setup that way intentionaly I'm sure.

Michael J, Esq. :

Agreed.

Customer :

Ok, should we provide any and all of the proof that we have about them being wrong about the time and the scenerio?

Michael J, Esq. :

No, because the city attorney has already made that determination, correct? That the probable cause was bogus?

Customer :

Can we request a hearing on the motion and be assured the opportunity to attend the hearing so they don't just read the motion and come to a determination without a discussion?

Customer :

Sorry, too soon.

Michael J, Esq. :

Yes, you can. You'll need to file the motion, draft a notice of hearing, serve the motion and the notice to the opposing party, and speak with the clerk and make sure you have the correct date.

Customer :

Yes, but he only said it on the phone. the affidavit does not admit to their fault.

Customer :

So it's a seperate form and process to request the hearing but must be completed simultaniously?

Michael J, Esq. :

Yes

Michael J, Esq. :

Remember I'm speaking in generalities, as there is no attorney-client privilege here. :)

Customer :

Sorry for the disjointed conversation. Yes on both accounts? How can we obtain a record of his admission? (I'm sure thats impossible but had to ask.) ...of course.

Michael J, Esq. :

You can't, but you can state that he admitted it on the phone.

Michael J, Esq. :

Yes, there is a separate notice of hearing form.

Michael J, Esq. :

It needs to be served.

Customer :

Just to be thorough about these general proceedings. Both documents need to be submitted to the court for scheduling. and then, served to the opposing party (Public Nuisance and Abatement Unit)?

Michael J, Esq. :

The motion and the notice of hearing, yes.

Customer :

(The unit is directly accountable to the city attorney)...thank you very much for your help. I'll write an outstanding review for you. :)

Michael J, Esq. :

Good luck!

Michael J, Esq. :

Really hope it works out.

Customer :

Thanks. ;)

Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience: Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
Michael J, Esq. and 11 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi Michael, Unfortunately I was not able to be there when the woman I referred to as "we" in the previous question, not quite understanding that he was not on her side, went to the city attorney and had a discussion about filing the motion. He of course deterred her with bold statements and threats. He told her that he didn't need probable cause (bonus if she would have gotten that statement in writing) and that "arrests were made that way all the time" (unfortunately true I suspect - please see the attached document from the impound lot that states that "if a hearing is requested, it is the burden of the state to prove that there was probable cause to legally impound the vehicle") and that if she filed the motion, even after picking up the vehicle, that he would continue to leverage that unconstitutional ordinance again, only this time against the rest of her property and income. I know you guy's don't get paid much for doing this so I'm willing to give a small bonus for the help but I feel some background is warranted so you know your doing a great service to the community for helping us. This woman is nearly 80 years old and uses the vehicle to make runs to supply food banks for the poor. She had loaned the vehicle out to a friend (in this case, the driver implicated in the violation) to take another friend (my girlfriend - who is in "some" trouble due to her addictions and whom I am advocating with another issue all together on here. But who, I know for a fact is not and has never been a prostitute - I've known her for 23 years so I think I would have known.) out to run some errands (ironically to see her probation officer, hence the public record of her actual whereabouts at the time of the alleged incident (as yet unknown to the city attorney). And to add credibility to myself, I take a great deal of pride in my integrity. I served honorably in the Marine Corps for 8 years and have worked on and off for the government and other esteemed organizations (it's unfortunate that statement doesn't sound as good as it should any more. lol.). And, after having some of my own problems with alcohol and addiction for many years following the last divorce I had 10 years ago from my now "girlfriend/ex wife", I have now been clean and sober for nearly 3 years. I am in contact with all of these folks specifically as a positive influence to help them in their recovery (which they are all doing very well with I'm happy to say) but their backgrounds make them easy targets for continued harassment by the authorities, regardless of how well they are doing now. I also stepped into this issue in particular because of my respect for the sweet old woman who is also doing her part to help this community of citizens in need, not to mention I have some familiarization with the system having worked as a digital forensic investigator for a law firm in southern Colorado for a small period of time. I encourage you to view the final draft of the motion that I prepared for the old woman to submit (but didn't) as well as the document that the impound lot gave her upon delivery of the vehicle. I would like to continue to fight this but after what she told me about her conversation with the city attorney. And the fact that she unwittingly handed him a copy of the motion (giving him the details that he would need to formulate an argument in court, ugh.) not having yet submitted it to the court for a hearing. I know that the only reason for him to "settle" with her and then make threats about what more he would do if she didn't accept the "deal" he offered is because he knows (as he's already admitted over the phone to her without knowing I was working on this) he hasn't got a "real" case. I suppose the only question I have now is whether he can really continue to move on to pursue her property etc. now that all initial charges have been convicted and sentenced and she has already taken his offer (under duress and threat of financial harm) and picked up the vehicle for the price of the fee's incurred for storage during his ill conceived investigation? A couple of side notes are that they only said they were conducting a "prostitution operation" in the area and did not name my girlfriend as anyone other than "a female" (Surely because she has no record of prostitution on file) that "the driver picked up on the corner" (simply untrue according to public record of her whereabouts at the time)in the affidavit (attached) for the investigation, yet to quote the city attorney's words to the old woman as per her hand written notes, "The driver was caught picking up a hooker" (even though no charges were ever filed to that affect. And, to reiterate, the impound receipt (attached) clearly states that the sole purpose for the hearing would be to obligate the state to prove the legality of the impound with probable cause (also contrary to the city attorney's statements that no probable cause was necessary). I know it's a lot for this inexpensive service but I have to believe it's worth a try since none of us have a lot of money except the old woman and she gives more than enough back to the community already so none of us would ever ask her for more than she already gives. Perhaps a referral to another organization would be helpful if you or no one else is prepared to help us with this. Thank you in advance, Michael, for any consideration and help regardless
Matt V.
Expert:  Michael J, Esq. replied 2 years ago.
Matt -

I reviewed both of your documents. As sorry as I am to say it, I think she is out of luck here. As of right now, I believe there is probable cause for the impounding of the vehicle. It was impounded because the driver was driving without a valid license. Although whatever charges resulting from the "prostitution sting" were dropped (or never filed), it doesn't change the fact that the person shouldn't have been driving, and I don't see any Judge waiving the fees on this. Moreover, she has already agreed to the deal and I suppose agreed to be liable for the impound fees.

On the other hand, you have nothing to lose by filing your motion. It's definitely worth a try.

Good luck,

Michael
Customer: replied 2 years ago.
I wasn't able to scan the affidavit of the officers account of the incident, but what it says is that the reason they were pulled over the vehicle is that "the driver picked picked up a female on the corner". This is what they say their probable cause is. Not that he was driving without a license. My argument is that they could not have known he was driving without a license until after they had pulled him over, and that they had no probable cause to do that since it is a lie (that can be proven to be a lie) that they spotted the driver picking a female up on the corner. Unless what your saying is that the "impounding" had probable cause because of the no license issue regardless of whether the no license issue should or shouldn't have happened in the first place because of no probable cause for them to have found this out.

Also, are you sure we have nothing to lose by filing, because he threatened to go after her property (house) and income if she filed this motion. I need to know if he can really do that under this ordinance. And it seems to me he wouldn't feel the need to threaten if he didn't feel threatened himself. Makes me think I have him on the defensive. I really wish she wouldn't have given him a copy of the motion prior to filing it. :\
Expert:  Michael J, Esq. replied 2 years ago.
Yes, what I'm saying is that the impounding of the car had to do with the license, regardless of whether the stop should have happened or not (which also hasn't been determined) At this point, there is PC for the stop (no one has ruled otherwise), and therefore there is definitely PC for the impounding of the car.

I can't comment on the city attorney's threat, as I've never heard anything like that before. Since he is in charge of taking the case forward, I'm sure he can try to make her life hell in any method under his power, but I'm not sure how he could go after her home and income (other than if she refused to pay, a judgment could be issued against her, garnishment of her income, seizure of property to satisfy the judgment, etc)

Michael

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