Do your best my case was confusing.

Asked over 3 years ago - Los Angeles, CA

I was pulled over for swerving and asked if I had been drinking.I said no and was arrested and car searched.The cop open a lockbox with the keys and found a gun.After he found it he gave me a breathalyxer and I blew 0.04. At court he said I gave him consent.My public defender said say my side of the story and then ask for a 995 dissmissal but other lawyers were telling me you never talk at preliminary so I thought she was lying to me to help the cops.Now that I look back I think she was telling the truth.Why did those other lawyers tell me that and if the burden is on the prosecution could she have gotten the case dissmissed without my testimony or was it nessecary.Please answer both question with the little I gave.Thanks only get 800 words

Attorney answers (4)

  1. John M. Kaman

    Pro

    Contributor Level 20

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    Answered . I'm not going to second guess what your PD did or might have done. I will say that it is very difficult to get a dismissal at preliminary hearing because the judge only needs to make a probable cause finding. More often these findings are overturned at 995 hearings but this is still rare.

    I will say that you were listening to too many lawyers. If the PD was defending you you should have followed her advice. Shopping your case around to other lawyers and then refusing the PD's advice is misguided.

  2. Paul Bradley Tyler

    Contributor Level 11

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    Answered . I agree that you were listening to too many attorneys. Pay attention to your attorney of record since they are the only one that has all of the facts.

    As for testifying at a preliminary hearing, in 14 years I have never once had my client do that. Neither should you. As a general rule if the cop says that you gave consent and you say you didn't, the judge will believe the cop 100% of the time. On an issue of fact the judge will always believe the cop over the defendant, at least in my experience. Otherwise he has to find that the cop was lying.

    I'm sure your attorney was not lying to you to help the cop. No way. She was trying to tell you how to best defend your case, at least in her opinion.

    By the way, you raise the issue of a bad search through what is called a motion to suppress, not via a preliminary hearing. So if you want to pursue that issue you can do so anytime up to trial, if your attorney thinks there is a basis to do so.

  3. Robert Marshall Sanger

    Contributor Level 15

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    Answered . Well, I am reading between the lines here. But my bet is that the Public Defender was running a 1538.5 with the prelim attempting to suppress the gun. If that is the case, her advice would have been well taken. A defendant can testify at a motion to suppress evidence for the purpose of vindicating his constitutional rights and what he says cannot be used against him in the prosecution's case in chief if there is a trial (the Simmnons case).

    It is something that we do from time to time. I have a case that was just continued this week to next where I intend to call my client. It is a Franks hearing to traverse a warrant affidavit. We have already submitted a declaration by the client regarding misrepresentations of the police officers.

    When we call our client at the motion to suppress/prelim it is usually because we know it is the kind of case that will never go to trial anyway. That may be the case here -- either the gun comes in or it is suppressed. And if your client is the only person who can dispute the police officer, so be it.

    We have won a number of prelims over the years where we actually put on affirmative evidence and a few where we called the defendant even without a motion to suppress. But, this is obviously the exception to the general rule. The general rule is that you do not put on witnesses and you do not put the defendant on at a prelim.

    So, long story to say that I can find a plausible explanation for your Public Defender's advice. I can imagine other lawyers telling you they knew better. As the folks just said here -- better that you trust the lawyer who knows the case and is representing you. If other lawyers raise questions, fine but then talk to your actual lawyer about it.

    Maybe too late at the moment but, hopefully, the case is still open and you can recover. Good luck!

    This is not legal advice. In order to get legal advice, you need to retain a lawyer and establish an attorney... more
  4. Robert Laurens Driessen

    Contributor Level 20

    Answered . I agree with the other responses. You really need to listen to your attorney on the case and not a bunch of other attorneys that may only know bits and pieces of the case. It is extremely rare to have a defendant testify at a preliminary hearing as the burden of proof is so low. It is unclear what the status of your case is but it sounds like you want to pursue a motion to suppress.
    Robert Driessen

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