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Can i reopen a dui case from January 2011?

Anaheim, CA |

not only was i stopped for no reason but i did a blood test expecting it would come out okay and when I went to the court date and they pulled us out in groups to read our consequences, the paper the guy gave me said i blew a .08. I asked him if this meant i could get it dropped to a wet and reckless and he said oh thats not right and took the printed paper and crossed out the .08 with his pen and put .18. I dont know how he could have even known what my bac was. after that i was rushed into the court with no one else to talk to & felt like i had no choice but to pled guilty since i couldnt afford a lawyer at the time. i recently got a copy of my driving record and it shows the .08 i had on the arrest date and then it says i was convicted of a .18. Is there anything i can do now?

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Attorney answers 6


First - I am confused youmsaid you took a blood test, but they told you you "blew" a certain level. Was it breath or blood? Or both? Was it the "official" test or the roadside test (the PAS- preliminary alcohol screening) device?

Ordinarily, once you enter your plea, you're stuck with it unless you can convince a judge why you should be allowed to withdraw your plea. Your problem is that you plead guilty a year ago. The law says that within 180 days of entering your plea, you can seek to withdraw your plea.

You're in a little different boat and if you want to try to do something, it will be a motion to vacate the plea. You'll need to convince a judge that you were mislead regarding your blood alcohol, etc.

I hope you still have the paperwork with the crossed out alcohol level, etc.

Unfortunately, this is not a do-it-yourself project. You're going to need a lawyer.



my apologies it was a blood test. and im not sure if i have the paper where he crossed it out but my driving record shows 2 different bac. I called to get a public defender before the court date & they told me i only get one if i plead not guilty at the first court date. also the guy that advised the group i was in said penalties are worse if you plea not guilty & are found guilty so in the moment it seemed like my only option. but if i had got a .08 i would have pled not guilty & fought it. no "buyers remorse", i just recently saw my driving report that has the two bac's & at the time i had believed the guy that said it was misprinted at .08. I guess I dont need to get a lawyer until I can verify my actual results, not sure how to do that. thanks so much for the advice! it helped a lot!


This scenario is the exact reason the people should not go to court without a lawyer. You should have asked for a public defender at the very least.

Also you waited so long to have "buyers remorse". You need to get an attorney to review this issue. You need to get in front of a judge before more time ticks away. The judge may have taken notes in the file that indicates the BAC was .18 which means the court was mislead too.

Good luck

The above information does not establish an attorney client relationship nor is it meant to provide legal advice.


If your attorney provided what is called ineffective assistance of counsel, that can be a ground to withdraw a plea. You should get a lawyer to assist you with this; it cannot be the same lawyer you had for the plea. On the other hand, if you were properly advised and have "buyers remorse," you will not be allowed to withdraw your plea. So you need an independent evaluation.


Did the judge not tell you that you have a right to an appointed attorney? If not, you could file a petition for writ of habeas corpus and your plea will surely be set aside. If you were advised of your right to a court appointed attorney and you still pled guilty, you really did yourself in. Pleading guilty to a DUI without talking to a lawyer is beyond stupid. With a good lawyer, like Mr. Dane, above, you have a long-shot chance of getting the court to allow you to vacate your plea.


The consequences of a DUI are very severe and last for a very long time. No one can just tolerate a DUI conviction that is an error, even if the error is in the BAC. That error has the potential to do too much damage over the course of your future. If the facts are as you say, you need to do what can be done to try and right this situation. You are fortunate to be in Mr. Dane's "neighborhood." He is just excellent. I recommend that you call him and get the ball rolling right away.

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.


I agree with Mr. Dane's assessment completely. You will need the documents you were provided with, and it is absolutely essential that you have an experienced attorney. Unfortunately, because this is now a post-conviction matter, you are looking at an increased expense when compared to what it might have cost had you gotten an attorney at the time. The attorney must now seek to set aside your plea and, if successful, your case will simply be re-opened and you will have to defend it.

I practice regularly in Orange County and know from experience that Mr. Dane is both well known and highly regarded by his peers there. If that doesn't work out, you're certainly free to call me.

No attorney-client relationship is established between this lawyer and the originator of the question. This answer is provided for informational purposes only and is provided purely to assist the questioner in determining whether to consult with an attorney to obtain legal advice specific to their matter.