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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

Posted

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 www.paulneuharth.com

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Asker

Posted

He said he has to think about it. It was very strange because as soon as the judge read it even the prosecutor was starting to congratulate my attorney. The judge even seemed happy about the question. everybody in the court room thought that because they were asking that in meant that they were leaning to "Not Guilty" the evidence toward a not guilty verdict was considerable.

Posted

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.

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Posted

He did not object. Because he is a lawyer and he and the judge & the prosecute are lawyers. They all know the law. It is an easy answer to comprehend for them. But for me. I did not understand i. My Lawyer had to explain it to me. The jurors did not have the luxury of having a lawyer with them. So they probably understood it as if they find me guilty of refusal then they have to find me guilty of Driving.

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

You seem to understand the general principle pretty well. Know that you can appeal a misdemeanor criminal verdict: it goes to the "Appellate Department" of the Superior Court. Here in SF there are attorneys who take this cases via appointment by the court. You might be able to get a court-appointed appellate attorney for this purpose. If your attorney did not object, he is not likely to file a motion for a new trial on the grounds you have suggested.

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Discuss it frankly with your attorney. If you are having doubts about your attorney's advice, get a second opinion. I would not - under any circumstances - want you to forego a motion for a new trial if an attorney who knows the record and the case suggests that it is advisable. I think we've reached the limit of my ethical ability to respond to your questions. I do wish you good luck.

Posted

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.

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Posted

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.

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Asker

Posted

I think it was just an over site on the judges part. None of us considered the laymen ears effect of the answer and how it could be comprehended to a group of Laymen people at 3:30 in the after noon on a friday.

Asker

Posted

*Layman

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Mr. Farina makes a good point: did your attorney talk to the jurors? It's very hard to set aside a jury verdict based on what jurors say about the process, but it is do-able on occasion.

Asker

Posted

I do not think he spoke to any of them.

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Then you will want to appeal. Here is a very nifty booklet put out by Orange County Superior Court which tells you how to appeal a misdemeanor verdict. You must file a "Notice of Appeal" NO LATER THAN 30 DAYS after your sentencing, so pay attention to that date. The booklet will tell you how to do it and where to get the forms: http://www.occourts.org/media/pdf/misdemeanorappeals.pdf

Asker

Posted

Do you think that those are grounds for an appeal? and if so I believe that the first step toward an appeal is a motion for new trial.

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Improper jury instructions are one of the most common bases for reversal on appeal. However, strategically, a motion for a new trial can "cement" a judge's bad ruling for the reviewing court. Most trial judges are loathe to admit error. In bringing a motion for new trial, the trial judge gets to think up all kinds of justifications for a bad decision which only makes the record "fuller" and better for the prosecution and less strong for you. Motions for new trial are not always the magic bullet that many non-lawyers think they are.

Asker

Posted

So are you saying that it is better to go strait to an appeal?

Joseph Salvatore Farina

Joseph Salvatore Farina

Posted

I think a better avenue would be a misdemeanor appeal rather than a motion for a new trial. New trial motions are not often granted and as Ms. Gutekunst correctly pointed out, it gives a judge a chance to explain his or her decision and justify his or her actions so that an appeal becomes more difficult to win.

Asker

Posted

Thank you.

Posted

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 www.lawofficeofwilliamdaley.com

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Posted

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

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Posted

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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