Untruthful Public Defender?

[cchuneke]

What is the name of your state (only U.S. law)? California

I plead not-guilty to drug possession and under-the-influence of a controlled substance because I felt that my 4th amendment rights were violated. However, throughout the course of many court appearances my public defender would keep warning me that if I continued to pursue the not-guilty plea that the DA:
1- would take the Prop. 36 (drug treatment) offer off the table.
2- might add a charge of DUI to the other charges.
So my last appearance I said I wanted to at least see my blood test results to which she replied "why would you want to do that when they could add a DUI charge if it was positive". I then asked her if they did that wouldn't there have to be another arraignment for that new charge, to which she replied "no".
My question: can the DA add charges to your case after arraignment/before trial or was this woman lying to me?

Thanks

 

[latigo]

It shouldn’t be necessary for you to ask the state to see the BAC results. If your attorney was professionally competent she would long ago have discovered every piece of forensic evidence in the state’s file.

To suggest that the DA would only become aware of the BAC reading following your request is shear stupidity.

He either has the evidence to sustain a charge of DUI or he doesn’t and your attorney should know whether or not! How could she properly assess and advise you as to the DA’s proposal without knowing?

And yes, the DA definitely could add a separate count of DUI to those already pending.

 

[I_Got_Banned]

I suspect that the blood test results aren't in yet and the defendant wants to wait until those are out before he proceeds all while the PD is advising the defendant to take the Prop 36 diversion to make the whole thing go away.

If that is the case, then the only question that remains is this: Was it an illegal search (the 4th amendment violation that the defendant is claiming)? If it was, then one could assume that the PD would have already moved to suppress...

 

[Joshuaace2]

If that is the case, then the only question that remains is this: Was it an illegal search (the 4th amendment violation that the defendant is claiming)? If it was, then one could assume that the PD would have already moved to suppress...

Not an assumption I would make.

 

[cchuneke]

And yes, the DA definitely could add a separate count of DUI to those already pending.

So if this were to happen wouldn't there have to be another arraignment so that I could answer to this new charge?

She replied "no" to this when I asked her.


Thank you for the feedback...

 

[latigo]

Which squirrel cage did this “defense attorney” escape from?

Of course there must be an arraignment where a plea can be taken! Does she think that the court would set a trial date on a DUI charge in the absence of a plea of not guilty?

Or if a defendant is charged with aggravated assault and the victim subsequently expires as a result, that the defendant can be tried for a homicide without the state first amending the charges and arraigning the accused?

I wish I could tell you how to get this misplaced incompetent off the case, but I can’t. The best I can suggest is that you see if you can speak to the attorney that heads up the public defenders office in this particular jurisdiction. If what you say is true, the chief PD better be finding out.

And equally sad is that this person is undoubtedly drawing an annual salary from the public trough of at least a major five figure, if not six.

 

[garrula lingua]

OP, be careful of posting by non-attorneys who are so definite in their statements, such as latigo. You are getting wrong information and advice.

Yes, the Prosecutor can add misdemeanor charges - up to when the jury is sworn in.
Latigo is using felony charges as an example of why a misd charge can't be added.
Also, a Prosecutor in CA can dismiss the felony charges and refile with many added felony charges.

Bottom line is - this guy may be in a situation where he gets himself really screwed, based on incorrect advice.

Yes, Prop 36 can be refused. Some defendants are found to be eligible, but not suitable ... a Prosecutor can cause problems.

Yes, you can be screwed, if you are found guilty and passed up a reasonable plea deal. But - it's your decision, not your attorney's as to how you plead.
It's up to you. The attorney should know the law & that Judge and can advise you as to the potential penalties. But it's your risk, and you who has to live with the consequences.

PS. Prop 36 is usually a great deal for defendants. It allows the complete avoidance of a conviction. That's a hard offer to pass up - I'd be pretty darn sure that I'd win at trial and that the Prosecutor can't add any charges for which I don't have a defense, before I passed up a Prop 36 deviation for a trial on the merits.

You may be dealing with a PD who doesn't want another loss ...

 

[latigo]

the Prosecutor can add misdemeanor charges - up to when the jury is sworn in.

That statement expresses such an appalling ignorance of the rights and guarantees afforded the criminally accused under the 6th and 14th Amendments as to be unworthy of a rejoinder.

 

[Zigner]

That statement expresses such an appalling ignorance of the rights and guarantees afforded the criminally accused under the 6th and 14th Amendments as to be unworthy of a rejoinder.

Oh!!!! The irony!

 

[garrula lingua]

That statement expresses such an appalling ignorance of the rights and guarantees afforded the criminally accused under the 6th and 14th Amendments as to be unworthy of a rejoinder.

Tell us, Latigo:

In what state are you a licensed attorney ?

For how long did you practice criminal law as a licensed attorney ?