Refusal Conviction

[dallas71]

I live in Gloucester VA. On October 2014 I was arrested and charged with a DUI and Refusal charge. My court was in January 2015. Rather than apply for a court appointed attorney, I was able to hire an attorney. There was deal on the table to plead guilty to the DUI charge and the Refusal charge would be dropped. My attorney and I discussed my case and the consequences, I did not accept the deal. The day of my court, I was advised again by my attorney of the deal from the Commonwealth Attorney and reminded/told, that even if I win/beat the DUI charge, I could still be charged with the Refusal, lose my license for 1 year with no restricted license, jail time and a fine, I again did not accept and we proceeded with court. The DUI charged was dismissed and I was charged with the Refusal, ONLY, my license was suspended for 3 years, no restriction, not 1 year as I was advised twice. My attorney was surprised too. We went to the clerk's office to look at the code book and my attorney said that particular code had changed and he was not aware of it (not good for an attorney or me, right?!). I mulled it over a few days and decided to appeal my Refusal charge, my attorney (at the time) told me flat out, I would be wasting my time. So, at this time, I do not have an attorney, however, I have applied and qualified for a court appointed attorney.

My concern is, I was told that Circuit Court Judges don't like wasting their time with General District Court cases and things end up worse. What are the odds/chance that my appeal would be better?? What are the odds/chance my appeal will be worse?? My hope is to get my suspension reduced to 1 year versus my current 3 year suspension. I really, really want to have it dismissed, but I am trying to be realistic.

Please help/advise.

 

[Ohiogal]

I live in Gloucester VA. On October 2014 I was arrested and charged with a DUI and Refusal charge. My court was in January 2015. Rather than apply for a court appointed attorney, I was able to hire an attorney. There was deal on the table to plead guilty to the DUI charge and the Refusal charge would be dropped. My attorney and I discussed my case and the consequences, I did not accept the deal. The day of my court, I was advised again by my attorney of the deal from the Commonwealth Attorney and reminded/told, that even if I win/beat the DUI charge, I could still be charged with the Refusal, lose my license for 1 year with no restricted license, jail time and a fine, I again did not accept and we proceeded with court. The DUI charged was dismissed and I was charged with the Refusal, ONLY, my license was suspended for 3 years, no restriction, not 1 year as I was advised twice. My attorney was surprised too. We went to the clerk's office to look at the code book and my attorney said that particular code had changed and he was not aware of it (not good for an attorney or me, right?!). I mulled it over a few days and decided to appeal my Refusal charge, my attorney (at the time) told me flat out, I would be wasting my time. So, at this time, I do not have an attorney, however, I have applied and qualified for a court appointed attorney.

My concern is, I was told that Circuit Court Judges don't like wasting their time with General District Court cases and things end up worse. What are the odds/chance that my appeal would be better?? What are the odds/chance my appeal will be worse?? My hope is to get my suspension reduced to 1 year versus my current 3 year suspension. I really, really want to have it dismissed, but I am trying to be realistic.

Please help/advise.

What is the mistake of law that the court made? Doesn't look like anything. So therefore, an appeal would be a waste of time.

 

[FlyingRon]

First off Ohio, he doesn't need an error of law for an appeal from GDC. You're entitled to a de novo trial in the circuit court.

The error of law is that unless he has priors he hasn't disclosed here (prior DUI's or refusals), the maximum court ordered suspension is only supposed to be one year.
Three years suspensions require a prior in the past ten years.

What does your lawyer say?

 

[dallas71]

My apologies, yes there was a prior DUI - that's why I fought the DUI charge. Our intent in court was to get the whole case dropped/dismissed arguing that the stop was not justified. However, knowing that we could win one and not the other, I still moved forward, expecting my sentencing to be the 1 year restriction. So while there was no error with the court or law, there was error in what I was advised by my attorney twice. I have read the code since then, over, over and over. I do not want to waste anyone's time, let alone mine. However, I should be able to appeal the decision as my right to do so and not worry about a Judge thinking it's beneath them to really listen to my case.

First off Ohio, he doesn't need an error of law for an appeal from GDC. You're entitled to a de novo trial in the circuit court.

The error of law is that unless he has priors he hasn't disclosed here (prior DUI's or refusals), the maximum court ordered suspension is only supposed to be one year.
Three years suspensions require a prior in the past ten years.

What does your lawyer say?

 

[quincy]

So, at this time, I do not have an attorney, however, I have applied and qualified for a court appointed attorney.

...What are the odds/chance that my appeal would be better?? What are the odds/chance my appeal will be worse?? ...

These are questions for your court-appointed attorney, dallas71. There is no way anyone here on the forum can tell you what your odds are with an appeal.

Good luck.

 

[TigerD]

On what grounds are you challenging the suspension?

On a side note, you are very fortunate. In Missouri, we do not provide counsel for license revocation proceedings.

TD

 

[FlyingRon]

It's not a license revocation proceeding (the admin suspension is only a month or so). It's a MISDEMEANOR charge that he could have gone to jail for. Unless the Commonwealth waives the jail penalty he was entitled to a PD if he was indigent. If he was able to hire an attorney, he probably doesn't qualify (income wise) for a PD.

It's not that judges are biased against GDC cases, it's just that GDC is a cakewalk compared to the circuit courts. You are WELL ADVISED to have a lawyer. They won't put up with any procedural drivel form pro se defendants.

Of course, hopefully he is more forthcoming with his attorney than he is with us here. You were ill-advised or delusional if you thought you were only going to get a one year suspension. The court has NO discretion. The law says they "SHALL" (that's obligatory in legal speak) suspend you when you are convicted of a refusal when you have a prior.

What makes you think there is any basis to challenge the stop? The threshold is LOW and gets tougher

 

[Ohiogal]

First off Ohio, he doesn't need an error of law for an appeal from GDC. You're entitled to a de novo trial in the circuit court.

The error of law is that unless he has priors he hasn't disclosed here (prior DUI's or refusals), the maximum court ordered suspension is only supposed to be one year.
Three years suspensions require a prior in the past ten years.

What does your lawyer say?

I sit corrected.

 

[dallas71]

It's not a license revocation proceeding (the admin suspension is only a month or so). It's a MISDEMEANOR charge that he could have gone to jail for. Unless the Commonwealth waives the jail penalty he was entitled to a PD if he was indigent. If he was able to hire an attorney, he probably doesn't qualify (income wise) for a PD. - The jail time was suspended. I did not get a PD at the time because of my prior DUI and I was fortunate to be able to hire an attorney.

It's not that judges are biased against GDC cases, it's just that GDC is a cakewalk compared to the circuit courts. You are WELL ADVISED to have a lawyer. They won't put up with any procedural drivel form pro se defendants. Yes, it is my intention to get a lawyer, as I stated before I applied for a PD and was told I qualify. (I cannot afford another 3K or so for another attorney).

Of course, hopefully he is more forthcoming with his attorney than he is with us here. You were ill-advised or delusional if you thought you were only going to get a one year suspension. The court has NO discretion. The law says they "SHALL" (that's obligatory in legal speak) suspend you when you are convicted of a refusal when you have a prior. I was forthcoming with my previous attorney. And yes, I was ill-advised when I was told it was a 1 year suspension - that's why I am appealing. No, I am not delusional, no need to be rude.

What makes you think there is any basis to challenge the stop? The arresting officer stated he observed erratic driving and that I swerved into the lane to my right, however, the video tells a different story, so that's my basis. The threshold is LOW and gets tougher.I realize the threshold is low and tougher and had I been advised properly, perhaps I would have reconsider the deal.

I know these are questions, I need to ask my attorney, I was seeking for help/information/guidance, whatever I can get, from someone who knows more about this or perhaps has dealt or been through a similar situation.

It's not a license revocation proceeding (the admin suspension is only a month or so). It's a MISDEMEANOR charge that he could have gone to jail for. Unless the Commonwealth waives the jail penalty he was entitled to a PD if he was indigent. If he was able to hire an attorney, he probably doesn't qualify (income wise) for a PD.

It's not that judges are biased against GDC cases, it's just that GDC is a cakewalk compared to the circuit courts. You are WELL ADVISED to have a lawyer. They won't put up with any procedural drivel form pro se defendants.

Of course, hopefully he is more forthcoming with his attorney than he is with us here. You were ill-advised or delusional if you thought you were only going to get a one year suspension. The court has NO discretion. The law says they "SHALL" (that's obligatory in legal speak) suspend you when you are convicted of a refusal when you have a prior.

What makes you think there is any basis to challenge the stop? The threshold is LOW and gets tougher

 

[dave33]

dallas71, I do not believe you have a good chance at getting the desired result. Here's why...

The problem you have is not with the case or any specifics of the arrest or anything procedural. The problem (it seems to me and I may have completely misunderstood everything) is with the attorney and his lack of information. He advised you of the wrong maximum time your license can be suspended. You are unhappy with the sentence. This is a difficult situation and gives you no good options. You really have no basis for an appeal. The only legal recourse (as I see it) is to file an ineffective assistance of counsel. I do not know about your state, but these are almost never successful, in your situation it would almost certainly fail. goodluck.

 

[FlyingRon]

You really have no basis for an appeal. The only legal recourse (as I see it) is to file an ineffective assistance of counsel. I do not know about your state, but these are almost never successful, in your situation it would almost certainly fail. goodluck.

Dave, he doesn't need a basis for appeal at this point. This is Virginia and he was convicted in General District Court. Everybody in GDC has a right to ask for a de novo hearing in circuit court if they ask within (something like) ten days of the conviction. You don't need a reason. GDC is sort of like the small claims court of criminal charges, very informal and not a court of record (in fact, it is also the civil small claims).

 

[dave33]

Dave, he doesn't need a basis for appeal at this point. This is Virginia and he was convicted in General District Court. Everybody in GDC has a right to ask for a de novo hearing in circuit court if they ask within (something like) ten days of the conviction. You don't need a reason. GDC is sort of like the small claims court of criminal charges, very informal and not a court of record (in fact, it is also the civil small claims).

I see, thanks for clearing that up. I was under a mistaken impression. Heck, if no reason is needed why not try and get the suspension reduced?

 

[FlyingRon]

I see, thanks for clearing that up. I was under a mistaken impression. Heck, if no reason is needed why not try and get the suspension reduced?

Because there is no way to do that. If he is convicted with a prior the law says the court SHALL suspend him for three years. There's no judicial discretion there.
His only real hope is to be found not guilty for some reason. I've seen the probable cause challenged before, but it is rough. If you remember Randy Babbitt the director of the FAA got a DUI bust thrown out because the lawyers managed to challenge the justification for the stop (that was up in Fairfax County where the attorney density is admittedly higher).

 

[dave33]

Because there is no way to do that. If he is convicted with a prior the law says the court SHALL suspend him for three years. There's no judicial discretion there.
His only real hope is to be found not guilty for some reason. I've seen the probable cause challenged before, but it is rough. If you remember Randy Babbitt the director of the FAA got a DUI bust thrown out because the lawyers managed to challenge the justification for the stop (that was up in Fairfax County where the attorney density is admittedly higher).

O.k. now I completely understand. So, because the o.p. plead guilty and he got sentenced to the minimum mandatory, it would take a small miracle. Understood. Thanks.

 

[FlyingRon]

O.k. now I completely understand. So, because the o.p. plead guilty and he got sentenced to the minimum mandatory, it would take a small miracle. Understood. Thanks.

The plea is immaterial, he was found guilty. The judge had discretion in fine and/or jail time, but the suspension must occur at that point.