Here are the questions to set the case for appeal and for the “fact” witness to destroy Georgia’s claims in the Keelah Jackson “driving on suspended” case or any other in which the main accusation is that the person behind the wheel is a “driver” or “operator” of a motor vehicle.
First, since the statute deals with the obvious terms — driver, motor vehicle, privilege — we go to the evidences needed to be in place for these terms to apply. If these questions are not on cross-examination, the officer will have to be subpoened as a witness in her case in chief, that is her half of the hearing or trial that begins when the state rests and the court tells her she may present her half of the case.
By Levi Thurston
She calls for the officer and once he is seated and sworn, she can ask the court to recognize the witness as the state’s witness, as he has already been qualified as a witness. The court will say “yes,” it will allow the witness to testify or will say the court recognizes the witness because the officer already has testified.
Anyway, the court will let him be sworn in and seated for questioning. So once he is seated then here is what I would get on the record.
Facts of for-profit activity
Question 1. From the scene of the stop and arrest do you have any facts you can testify to that the defendant was engaged in any for profit activity on the highway.De
Activity affecting the public interest
Question 2: From the scene of the stop and arrest do you have any facts you can testify to that the defendant was engaged in any for profit activity affecting the public interest.
(If the officer does not understand, ask, “Do you have any facts you can testify to the defendant was receiving any livelihood or profit for her use of the roads?” It doesn’t matter if he understands; that shows he is a incompetent witness. Repeat the question and ask, “What do you not understand about the question?” Restate if needed.)
If the prosecutor objects Miss Jackson will have to say,
Your honor, I get a chance to question the witness according to my theory of the case. I have a right to present a complete defense. This is a tax case, after all. If the prosecutor does not know the meaning of the words in the black-letter law of the statute, he cannot deny me full due process to question the witness according to the settled judicial decisions of the meaning of the words in the statute. I am code pleading the terms of the statute. The words have specific meaning in law — as the courts have ruled — and I have a reliance defense asking the state’s witness probative [meaning probing] questions according to the judicial interpretation of the law. The state got to ask the questions it wanted. So, I have a right to ask my questions and I don’t have too many — just some basic ones.
Interstate commerce facts?
Question 3: From the scene of the stop and arrest, do you have any facts you can testify to that the defendant was engaged in any interstate commerce on the highway?
(You may have to explain interstate commerce is it is commerce between two or more states. Commerce itself is the exchange of goods and services for compensation.)
Question 4: From the scene of the stop and arrest do you have any facts you can testify to the defendant was engaged in any intrastate commerce on the highway?
(This is commerce on the highways solely within the state of Georgia.)
Question 5: From the scene of the stop and arrest do you have any facts you can testify to the defendant was using the car as an instrument of commerce?
(If your witness and accuser doesn’t understand the question rephrase a little bit like this: Was the defendant using the car as a means to engage in interstate commerce on the highways, what about using the car as a means to engage in intrastate commerce — within this state — on the highway?)
An explanation: Now the reasons for the above line of questions is that when he answers “No” or doesn’t understand the questions, there is no privilege for which to demand a tax receipt. The car is not being used as a motor vehicle. Do not let the court know this fact until all the questions are asked. Let the prosecution close its own gates, hang itself on its own witness’ denial of the factual sufficiency of the elements of the terms of the statute.
There has to be commerce for there to be a privilege to tax, and only then can their be some enforcement if the tax isn’t paid.
If your officer witness wants to play smart aleck, keep your cool and ask another question.
Freight in car?
Question 6: At the stop did you observe any identifiable freight the defendant was carrying.
Question 7: What facts can you testify to showing the defendant was carrying freight for compensation.
Question 8. What facts can you testify to that anyone in the car paid fare money to the defendant for a ride?
At this point, you are not a driver which requires payment of a privilege tax and to show the receipt on demand pursuant to the state’s exhibit on demand statute.
Did defendant commit unsafe acts?
Question 9: Did you observe the defendant engage any unsafe activity?
Not having a tax receipt is not a threat to someone else nor a public safety issue. If the officer says, “You did not have a license,” ask: “Do you have any facts to which you can testify as to whether the defendant harmed anyone on the highway? Do you have any facts that the defendant threatened anyone?”
Again, if he says, “You did not have a license,” You reply, “Can you provide to the court for the record the names of anyone I threatened and what did they tell you?”
Question 10: Did anyone report to you the defendant was acting unsafe on the highway.
Question 11. Do you have any facts to which you can testify as to the defendant’s using the roads as an instrumentality of commerce?
If he doesn’t understand, rephrase: Do you have any facts that the defendant was using the roads as her place of business to carry on commerce?.
If no for-profit use of road, no tax receipt needed
The reason for these questions is this: Court cases address these exact issues. If the answer is yes to any of the above questions, taxation is involved and the person behind the wheel has to show a tax receipt on demand.
If there is no for-profit activity affecting a public interest, there is no privilege taxation for which a receipt has to be shown on demand. If no commerce is in view at the stop, the transportation code and taxation under it cannot be applied to the accused.
I will use material from court cases showing when the terms are applied, Motor vehicles are comprehensively defined, they are instrumentalities of commerce using the roads as instrumentalities of commerce, they are engaged in the unusual use of the roads as the place of business, they require registration, license plate, insurance, the cases say. “A license is a mere tax receipt to engage in the business designated.”
Here is an alternate framing of these questions from David Tulis.