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

Van Nuys, 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 chemical test?"

The judge wrote back "NO" and sent it with the balif to deliver it to the jury.
5 minuets later the came back with a guilty verdict for driving and for the refusal.
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.

Is this a reason for a motion for new trial? or should I take it strait to appeal? I was not the driver of the car. There was a lot of evidence " eye witnesses " that saw me as the passenger of the car. The driver of the car came to testify that he was the driver. Eye witness came to testify that I was the passenger and the other guy was the driver. The prosecution only had circumstantial evidence.

Attorney Answers 4

Posted

You can appeal but you will lose. The judge's answer was entirely appropriate for the question asked. Furthermore it sounds like that's not your beef anyway .... it seems your beef is you weren't driving but were found guilty anyway. That's because the jury - the finders of fact - must have found your friend's testimony unconvincing and that you were the driver. There is no appeal on questions of fact determined by a jury; only for errors of law.

By the way, circumstantial evidence carries the same weight as direct evidence. As long as reliable and admissible, a case can - and often does - rely on circumstantial evidence alone. A jury is always instructed on this point. Did you not hear the judge read it?

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7 comments

Asker

Posted

I heard it the judge say it. the car was out of gas. I stayed with the car with the keys in my pocket. the driver went to go get gas. There was a witness that saw the driver 45 min prior to my arrest driving my car and me in the passenger seat. there was another witness that picked up the stranded driver 45 min after they took me and gave him a ride to where his car was 5 miles away from the scene. It was also proven that the cop lied in his report stating and describing ( in great detail) field sobriety test he claimed i did but when we saw the dash cam the test were not there. He also claimed I made statements that were not on the dash cam. the jury had to have misunderstood the judges answer.

Neil James Fraser

Neil James Fraser

Posted

Obviously I only know what you have told me about this case, but I would bet the reason the jury asked the question they did is because some of them were having problems with the concept a refusal in a DUI case creates a presumption of driving while intoxicated. Factually, I am wondering why, if all the information you relate was competently presented at trial, the jury decided there was sufficient other evidence that, to them, was more reliable. Some questions spring to mind like; 1. Whose car keys did you have in your pocket? (If they were your car keys and the car was yours too, that would have been problematic.) 2. Why do you think the fact someone else was seen driving the car 45 minutes before your contact with law enforcement proves anything? That alone does not constitute evidence that person was the driver at any other time. I'm surprised the judge allowed such testimony in. 3. Sam question as to picking up the stranded driver. In and of itself, it has no evidentiary value and is certainly not an affirmative defense. 4. Were you able to present evidence the dash cam video was either incomplete or altered? Did the cop explain the discrepancy? 5. The statements - verbalization is not always picked up by such cams. They are not installed for that purpose, but more for a visual record. You say the cop lied and this was proved .... in what manner was it proved? Or was the evidence merely conflicting? Furthermore, none of what you write has anything to do with the question sent out to the judge. If I understand your summary of events, the jury wanted to know if a refusal was a crime in and of itself. It's not. It merely raises the presumption of DUI. So the judge's answer was entirely proper. BTW, I am a defense attorney and have seen and heard many a tale in courtrooms. Evidence, whether direct or circumstantial, has to be considered and presented carefully and that which is of little or no consequence or relevance can actually backfire on you if the jury thinks you're trying to pull the wool over their eyes. I'm not suggesting you were but who was driving the car in question at other times really means nothing.

Asker

Posted

Circumstantially why would a sober designated driver switch places with a drunk person within a 45 min drive from malibu? there are no places to stop from Malibu to the Valley. I mean the car did run out of gas so obviously there was no stop for gas.

Neil James Fraser

Neil James Fraser

Posted

There can be many reasons why people do things and every person might do things differently, which doesn't really mean much as a basic proposition. However it is about as relevant as the question you pose is to guilt or innocence in your case. The jury would not have to answer that question to reach a verdict. Undoubtedly the prosecution disputed your version of events and, after deliberation, the jury decided their evidence was sufficiently strong to carry the burden of proof incumbent on them. There is nothing "circumstantial" about that why question from an evidentiary point of view. The jury only had to decide, from the evidence presented, who was the driver, not why. What about the other issues I was interested in getting your answers to?

Asker

Posted

Im switching to email.

Neil James Fraser

Neil James Fraser

Posted

OK

Asker

Posted

did u get my email?

Posted

1. If you are moving forward, always ask for reconsideration and tell the judge why. Why? Because you give him a chance to reverse/give a directed verdict after having heard the reason. AND it shows that you have exhausted all remedies AND it gets the fact on the record. Talk to your attorney about this.

2. Below are Criminal Specialists for LA County and Appellate Specialists for LA County. We regret that the Appellate specialists are not broken out into criminal and civil work accepted, and that there are about 5-6 civil specialists for every criminal specialist, so you have some calling to do.

Talk with your attorney and see if/ how far he will go with you on your path forward.

Then make a decision on whether you want to call the specialists below for any additional advice or information or estimates.

The clock is ticking. Don't delay in your enquiries or appeal decision.

Please remember to designate your question's BEST ANSWER.

Please remember to designate your question's BEST ANSWER.

Curt Harrington
Certified Tax Specialist -- State Bar of California Board of Legal Specialization
Electrical-Chemical-Mechanical Patent (Intellectual Property) Attorney
(562) 594-9784
http://patentax.com
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Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

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Posted

Did your counsel object to the court's response to the jury's question? If not, it is difficult to offer any optimism for your prospects on appeal. Did your counsel request additional instruction to the jury? Same problem, if not.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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Posted

I agree with the above attorneys. What the Judge said was legally correct. There was no other answer that could have been given. If the court had elaborated more fully, then the Judge may have been reversed depending on what language he/she gave. So on that ground you would lose because it is correct.

That said, since you aren't an attorney, you may have plenty of other issues that could have occurred during the trial that an appellate attorney could find, that you would not see. One of the above attorneys alluded to the fact that your attorney's failure to object could be problematic. That, in and of itself MAY be the issue you would want to pursue. This is an ineffective assistance of counsel claim and your current attorney, the one who did the trial, won't advise you where in the trial he/she aired. Ineffective assistance of counsel is a common appellate issue raised and requires a full evaluation of the entire record by an appellate lawyer to find this or other issues.

You do have time limits to file a Motion For New Trial and an Appeal. At a minimum your attorney should file a Notice of Appeal to preserve the time for you. Then you can have time to consult appellate counsel. The other issue you need to consider is that of cost. Appeals are NOT cheap. That said, if you want to pursue it, you need to have the entire record examined not just the issue you are aggrieved about.

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