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How successful is an appeal on a motion to suppress? How successful is a motion to withdraw a plea?

San Francisco, CA |

A stand in attorney unsuccessfully argued for a motion to suppress on the grounds that the officer did not obtain a search warrant after doing a forced blood draw. The phlebotomist was terminated and therefore was not present to testify (she failed to show for the subpoena). My attorney was not present and my only choice was to plea or go to trial with a sit in attorney who had never been in trial before. (SF rule trial is immediate after motion to suppress) I need some assistance salvaging my case. Sentencing has been deferred for a month. Unfortunately, the attorneys did not litigate on whether the traffic stop itself was lawful, which I was hoping for. Moreover, I did not realize that I was pleading to all the charges and allegations. My career hangs in the balance.

Attorney Answers 4


  1. This is a complicated question requiring a much more thorough analysis of your case. Assuming the forced blood draw was part of a DUI case, the law has changed significantly recently. The bottom line is that you need to consider firing your current attorney and hiring another. Based on what you've described, it certainly sounds as if you have a chance. Good luck.

    Jasen Nielsen


  2. As we discussed you need another attorney to go over your entire matter. A withdrawal of a plea is possible - but is difficult .

    Andrew Roberts (818) 597-0633/ (805) 496-7777


  3. I would be less than pleased that a stand-in attorney argued the motion, unless I was told that beforehand. And then having to make a decision about having to go to to trial with an inexperienced attorney just adds insult to injury. Motions to withdraw plea are long shot motions at best. I would would suggest talking to some experienced DUI attorneys before deciding whether to fire your current attorney. Discuss with them your motion to withdraw your plea and see what they say. I would also check any written retainer agreement you have with your attorney and see what it provides as to who would represent you, It may well be that you agreed in writing that another attorney could represent you - maybe one of his associates. Good luck.

    The information and legal suggestions made herein do not in any way create an attorney-client relationship. The responses provided herein discuss general principles of law and should not be relied upon by the asker in making legal decisions. Only an attorney who has met with the asker and fully reviewed the facts and circumstances of the asker's individual case should be relied upon for legal advice. If you find my suggestions helpful, please mark the appropriate box as helpful.


  4. Penal Code 1018 says that the court "may" grant a motion to withdraw a plea for "good cause shown." One common argument is that you were not aware of all the consequences of the plea. This argument is strongest when you can represent that your attorney failed to inform you of a significant penalty (such as jail time, a probation term, etc.). The argument is weaker when based upon collateral consequences (such as the effect on your employment), because the court may find that you should have ascertained that before entering the plea.

    I would consider getting a new lawyer for the motion to withdraw, it sounds like your "stand in attorney" was not very effective.

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