Can I insist my lawyer act NOW: incorrect license revocation

[scherado]

(My state is New York.)

Hello all. This is my first post. I think my question is simple: can I ask--and insist that--my lawyer attempt to get my license revocation reversed prior to my next scheduled hearing?

My license was revoked at an arraignment hearing 1.5 months ago for a 1192.4 Driving while ability impaired by drugs. I submitted to a blood test the night of arrest, the results of which was not available at the arraignment and, to date, has yet to return. My prior convictions are (all New York):

1/91, 1192.1 - Driving while ability impaired by alcohol

8/92, 1192.3 - Driving while intoxicated

10/99,1192.2 - Driving with a BAC .08 (disposition: DWI class E felony)

My current charge, dated 7/30/09, is written on the Uniform Traffic Ticket as follows:

11924 Driving w/ability impaired by drugs second offense

At the arraignment, the judge was uncertain about whether he must or may revoke my license and asked the prosecutor, "what are we doing with these now?" She (the prosecutor) seemed uncertain and there was some mumbling about "second offense" and the judge decided, yes, that he must revoke.

After not being able to explain the grounds for the revocation to several people over the past weeks, I decided to answer the question for MYSELF! I found the following concerning "the mandatory and/or permissive suspension of your driver's license while the case is pending." (source: [url=http://www.dwilawny.com/license_issues.html]Peter Gerstenzang: New York Criminal Defense Attorney, Suspended License, License Revocation[/url])

The first statute -- the so-called "prompt suspension law" -- is applicable to a person who is charged with DWI and who is alleged to have had a BAC of .08% or more at the time of his or her arrest.

A second statute is applicable to a person who is charged with DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence and who either (a) has been convicted of any violation of VTL § 1192 within the past 5 years, or (b) is charged with Vehicular Assault or Vehicular Homicide in connection with the current incident.

A third statute is applicable to a person who is charged with DWAI, DWI, DWAI Drugs or DWAI Combined Influence and who is alleged to have refused to submit to a chemical test.

As I read it, there are no grounds to take my license as none of the above apply and, in particular, the time since my previous 1192 conviction EXCEEDS 5 years.

I asked my public defender about this and she looked it up and acknowledged [that] she thought, incorrectly, that the length specified in the second statute was 10 years and then she offered without any prompting from me that writing a letter to the judge would hasten the return of the blood test--implying that that was not a desirable thing. I said, "I will do THAT". THERE WAS SILENCE; I repeated that I want to pursue the return of my wrongfully revoked license NOW and she THEN DENIED saying or implying that anything could be done prior to my next appointed hearing.

My question is: can I force her to attempt to get my license back before my next hearing? Of course, I assume that I am correct in that he, the judge, had no grounds to revoke.

Thank you for any responses!

State: New York

[HighwayMan]

Your attorney should be doing your bidding, within reason.

I don't normally get involved in DWI cases much after the arrest, and I can't say I am that familiar with that part of the VTL. I have limited time right now to read through it, but since you seem reasonably intelligent why don't you just look it up yourself?

[url=http://www.assembly.state.ny.us]New York State Assembly[/url] - then click on "bill search and legislative information", then on New York State laws. The VTL is listed there in its entirety.

This website is usually unavailable from something like 1 to 5 am daily.

When I have some time I will see if I can find out more for you, but I'm sure one of our other esteemed regulars will beat me to it.

[scherado]

Originally Posted by HighwayMan

Your attorney should be doing your bidding, within reason.

I don't normally get involved in DWI cases much after the arrest, and I can't say I am that familiar with that part of the VTL. I have limited time right now to read through it, but since you seem reasonably intelligent why don't you just look it up yourself?

[url=http://www.assembly.state.ny.us]New York State Assembly[/url] - then click on "bill search and legislative information", then on New York State laws. The VTL is listed there in its entirety.

This website is usually unavailable from something like 1 to 5 am daily.

When I have some time I will see if I can find out more for you, but I'm sure one of our other esteemed regulars will beat me to it.

HighwayMan, I thought of responding to your response, but thought better of it.

Thank you...

...I must admit that I should have provided a verbatim portion of 1192: I thought I conveyed that my lawyer "looked it up"; but, I was wrong--I did not convey adequately.

Damn! You made me do it anyway...and I've gotten the better of myself!

[tranquility]

You cannot "force" a professional to not use their judgment. That is their ethical duty and what you hired them for. You can ask strongly because, in addition to their professional responsibilities, they are being paid by you.

If you're not happy with your representation, you hire a different lawyer.

[BigMistakeFl]

Mein Gott! I hope you don't get the suspension reversed. Please let us know so we can avoid driving in your neck of the woods.

[scherado]

Originally Posted by tranquility

You cannot "force" a professional to not use their judgment. That is their ethical duty and what you hired them for. You can ask strongly because, in addition to their professional responsibilities, they are being paid by you.

If you're not happy with your representation, you hire a different lawyer.

This is not going well. I know this because I try never to quote MYSELF on forums; this is the second reply about which I am "forced" to do so:

Originally Posted by scherado

I asked my public defender about this and she looked it up...

(emphasis added)

Originally Posted by VeryVeryBigMistake

Mein Gott! I hope you don't get the suspension reversed. Please let us know so we can avoid driving in your neck of the woods.

I'm happy to report that I am clean and sober now.

Thanks for sharing, Sparkie. You can be proud in that there is a chance that at least you, VVBig, read my post!! Contrats.

[tranquility]

This is not going well. I know this because I try never to quote MYSELF on forums; this is the second reply about which I am "forced" to do so:

And then, that the attorney is a public defender. So, I will be "forced" to do the same:

You cannot "force" a professional to not use their judgment.

So, to reiterate, no. You cannot insist ANYTHING beyond your plea and if you agree to a stipulation, deal or anything else which requires your agreement.

If you read many of the public defender blogs out there, you will find one of the major things they complain about is clients (or their families) insisting things. (That and demanding on going to trial on a sure loser rather than taking the deal.)

[kay1330]

i hope for the sake of your fellow citizens that 3 strikes and you should be out. are u an alcoholic? i only ask because your scenario sounds like many alcoholics that i know, they figure driving is a right.

[scherado]

Originally Posted by tranquility

And then, that the attorney is a public defender. So, I will be "forced" to do the same:
So, to reiterate, no. You cannot insist ANYTHING beyond your plea and if you agree to a stipulation, deal or anything else which requires your agreement.

....

I DID "force" her to do exactly what I wanted and I didn't even ask.

How?

The day after she refused to even admit that she introduced the idea of writing the judge a letter to inform him of his (really HER) error I said this on her voicemail:

"I called to ask you whether you had written the letter to judge [---] informing him of his error? Tomorrow I will come to your office to ask you in person and I will walk the 20 miles to get there and we all know why I will be walking"

She returned my call very quickly and said she will have the letter by the end of the week and it won't be necessary to walk here tomorrow.

I JUST ATE MY SECOND LAWYER FOR LUNCH IN AS MANY DAYS--though it was the same lawyer

THANKS ALL FOR NOTHING

Several of you have, apparently, reading comprehension problems. You know who you are.

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To Kay:
I stopped drinking 5 years ago, thank you very much. The previous 3 DWIs I was plastered. This DWAI I was not even close and I blew a 0 for the breath test.

This year alone, I have nearly been run over several times by people ALL talking/using their cell phones.