DUI with Injury Conviction Appeal

Asked almost 5 years ago - Walnut Creek, CA

I fell asleep driving and hit a retaining wall causing injury to my passenger (girlfriend). She had a cut under her chin and required stitches. My BAC was 0.06 by blood test. I had no prior criminal record. I was convicted on 23153a and acquitted on 23153b by jury trial. I believe I was mislead by my lawyer through out the whole process. He kept telling me the suspension would be for 4 months and that I can get restrictive license. He never informed me that the suspension for DUI w/ injury is 1 year without restrictive license. If I had known about the severity of the suspension, I would have rather try for a 23152 plead (which my lawyer thought may have been possible). Do I have any chance of appealing my case based on misleading info from my lawyer?

Attorney answers (1)

  1. Brian Neal Gurwitz

    Pro

    Contributor Level 11

    Answered . Technically, you can't appeal on this basis since the record (trial transcript, clerk's minutes, etc.) will not show what your attorney did or did not tell you, what you would have done in response, etc.

    However, you can seek reversal of your conviction through a petition for a writ of habeas corpus. You would face a very difficult time doing this, but it is possible. You would have to show:

    1) Your attorney gave incompetent advice,

    2) Had he given correct advice, you would have agreed to plead guilty, and

    3) Had your attorney approached the DA, he or she would have offered you something better than what you received.

    Note that the law is VERY tough toward defendants in this situation. The California Supreme Court has repeatedly made clear that they don't want to allow convicted defendants with "buyer's remorse" about their decision to plead guilty (or not plead guilty) to easily avoid the consequences of their decision.

    Good luck to you –

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