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I just went to court for a DUI with refusal and lost. I want to file motion for new trial on these grounds

San Diego, CA |

The jury deliberated for 2 .5 hrs. just after 2 hrs the jury had a question that they wrote on a piece of paper and the judge read it to counsel on record. The question was
" can we find the defendant not guilty for DUI but find him guilty for refusing the the chemical test?"
The judge wrote back " NO" and sent it with the balif to deliver it to the jury.
I believe that the jury miss understood the judges answer and that is why they ruled Guilty.
I believe that the judge should have called the jury back into court and explained to them that if you find the defendant not guilty of driving then the refusal is a mute point.
In which case the judge inadvertently gave them the wrong answerer and they were forced to give a guilty verdict.
Is this a reason for a motion for new trial?

Attorney Answers 7

  1. It is possible that this a grounds for a reversal, what does your trial attorney think about the possibility of an appeal?

    I will be happy to speak with you at no cost with a phone or office conference. Please call my office at 619-231-0401 or visit my website at

  2. In addition to Mr. Neuharth's response I would add that it is vital that your trial attorney objected to the court's response to the question before the judge sent the note back with "NO" written on it. If your attorney did not engage in some kind of debate which made its way on to the record, you may not have a motion for new trial or appeal on those grounds. If the judge would not entertain argument or if he sent his answer back without consulting the parties, that would be arguably an abuse of discretion which could give rise to an issue in a new trial motion or appeal.

  3. It depends. Your counsel would have to object at that time to preserve the record. However, if the court refused argument on the instruction, or even a sidebar discussion, that could be potential grounds.

  4. Did your attorney talk to any of the jurors after the verdict was delivered? Sometimes jurors will stick around and talk to the attorneys about the case. If your attorney was able to talk to some or all of the jurors, he may gotten some information that might be useful in your motion for a new trial. By the way, by asking a judge to grant you a new trial, you asking the judge to admit they screwed up. Not too many judges willing to do that.

  5. I would have to agree with the other attorneys. Check with your attorney and see what their thought is in regards to filing the motion for new trial. You're really don't have anything to lose by filing the motion, so why not?

    I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California matter. Please call my office at 619-238-1905 or visit my website at

  6. Appeal post sentence might be the better option here given the fact the motion for a new trial is heard by the trial judge. But definitely first contact the trial attorney and then possibly a locally experienced criminal defense attorney to discuss the option of a motion for a new trial before sentencing.

    Good Luck!

    Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

  7. if there is circumstantial evidence that you were drivingyou will lose the appeal. If there were no evidence you would win

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