Our office has from time to time received some tricky cases that border between criminal and civil matters. Examples: (1) Lady takes her sick cat to the Vet but later never pays the vet bill. (2) Parent takes kid to DayCare but fails to pay bill for several months of DayCare services. (3) Man with no insurance goes to dentist for teeth cleaning, gets teeth cleaned, then fails to pay dentist bill. (4) Lady gets car repaired by mechanic at auto garage and fails to pay bill.
I want to know what the general consensus is with other prosecutors out there. Our office would like to help many employers/vendors/service providers in our area but also don't want to create a snow-ball effect and be the county debt collector. Would most of you try and avoid these types of cases? Or have many of you taken them on and found ways to prosecute them under 31.04 (Theft of Service statute)?
I do file some of these, but only when I think that I have something that goes strongly to intent. For instance, a discussion between the thief and the vet tech about payment, including that the bill will be paid that date, then the person walks. Most of my businesses that want to file these cases have managed to train their staff pretty well to help make them.
I also take a hard look at my defendant; clean records normally get a chewing from my cops and a chance to pay.
Unfortunately, my judge does not believe in these cases at all. As a result, he sets the bond at $50, and even goes off the appointment list to find an attorney who will make a circus out of it.
this also comes up w/ Rent to Own-type rental service agreements. the Penal Code has specific provisions to target those who fail to make all of their payments and do not return the rented items, but prosecuting these cases putsour office in the position of being the lowest kind of bill collectors.
the suspects in these cases are usually paying way beyond the value of the item in question. for example, they're paying $25 a month for 48 months on a mattress that's worth $500. Sometime during the 3rd year of the agreement they stop making payments. Who really wants to be the prosecutor responsible for convicting a person of theft after they've paid ~$1000 for a mattress worth half that? Seems like we're going after the wrong thief.
thank G-d for prosecutorial discretion!
Some of these cases are valid,
We had sucess on the few narrow cases we have filed. I agree with the writer that focused on intent, but that can be murky too.
That sucess has the potential to open Pandors box with almost everyone in the County that has not paid fully for some service wanting to turn us into debt collectors with the ablity to get an arrest warrant.
Were do you draw the line? with the people that are out there to take advantage of business on one side and the unfortunate poor, and the people who are legitmately not paying for services that were not preformed or so poorly done that that payment is an issue for the civil courts on the other.
What about contractual situations? Could there be a breach by one party that leaglly alows breach by the other?
Many of these cases are better served in civil courts with a preponderance of the evidence standard, rather than the beyond a reasonable doubt.
Again the issue is where do you draw the line?
I think you have to be able to prove beyond a reasonable doubt that the intent to deprive the owner of the property was manifest at the time of the agreement.
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