Ineffective Attorney / D.A. Question

[Unhappy]

I've never been in trouble, I have only one ticket (for nots not so)ing a seatbelt as a passenger) and I'm in my late 50's. I work for CA Dept of Corrections and Rehabilitation. Six months ago I had taken my prescription meds as prescribed, about 8:00pm the night before, and the following morning I was driving on the freeway when I felt the effects of the meds still--so I pulled off of the frwy, turned around and got back on the frwy to get home when I felt what I thought was a 'blowout' as my car jerked. I continued to drive when I saw a red light and pulled over. Needless to say I was told that I was involved in a hit and run. No field sobriety tests were done (I hadn't been drinking anyway) and I was taken to the CHP office where I was arrested that afternoon on felony hit and run and felony DUI. I bailed out and I hired a law firm for a flat fee of $12,500.00. My attorney has never had a sit down meeting with me to ask me my side or what happened, as far as I know he doesn't have any of the accident reports, etc. I asked him if he wanted my copies as well as photos of my car and he declined---I was in the slow lane and the other vehicle was three lanes over to my left and he said I came across all three lanes spinning wildly and he couldn't brake in time and we collided--he t-boned my car on the right rear passenger side!! That means I was facing sideways on the freeway when he hit me and then somehow I was back in the slow.lane driving northbound when I was stopped (I don't know how I spun across three lanes during morning traffic without colliding with any other cars) and the collision auto repair mechanic showed me that I didn't have one bald spot or any nics on my tires and he stated that there was no way the car was spinning across the frwy lanes without evidence of it showing on the tires. At every court appearance my attorney has had me accept a time waiver and the last time I was upset about it because the DA didn't have any evidence of injuries to the other party and yet my attorney had me waive again and of course now the D A has his evidence against me. My attorney tells me the DA hasn't offered any plea deals until he sees how many drugs were in my system and my attorney said the D A finally "showed" him discovery-he said he didn't have copies yet but he saw it and there was alot. Now my pre-preliminary is in 3 weeks and when I asked my
attorney why haven't we hired a traffic investigator or why isn't he interested in the mitigating circumstances of the accident he told me that a traffic investigator wouldn't be that much help and that my car wasn't really important--that since I didn't remember the accident, the other party and the police, etc., were witnesses. I told him that I never said I didn't remember or that I blacked out or whatever, I told everyone that I thought I had a flat tire, a blowout, it's in all of the reports. I finally told him that I wanted copies of any and all documents pertaining to my case as well as discovery and he
e-mailed me a copy of what the DA filed against me in court. The DA has charged me with a third felony of DUI with a BAC of over .08% alcohol even though I hadn't been drinking and there is no alcohol in any test results! Also he charges that I was uncooperative, refusing to give my name and information to law enforcement which is an outright lie!! I have all of the reports and everyone of them state that I was cooperative and didn't resist, etc. My attorney told me that the BAC charge will get dismissed BY THE DA due to lack of evidence when it's proven that there was zero alcohol in my blood--I told him that's not good enough for me -why should the charge be dismissed due to lack of evidence when there's no basis for the charge to begin with? Can the DA charge me with BAC when there was none? Can he slander me with being uncooperative and refusing to give my name and registration, etc, when none of that is true? BTW, my attorney only represents me through the preliminary, so I asked him what was I getting for $12,500.00 besides no representation. He was going on an out of the country vacation starting today, but he kept telling me that 'we' don't want to tip our hand to the DA before the trial (he was talking like he would be representing me but I know that's not true. So besides my questions concerning the DA, I'd like to know your opinion on my attorney that seems to be sitting on his hands, leaving my fate up to the DA and what recourse I have.
Thank you,
Unhappy

 

[CdwJava]

I've never been in trouble, I have only one ticket (for nots not so)ing a seatbelt as a passenger) and I'm in my late 50's. I work for CA Dept of Corrections and Rehabilitation. Six months ago I had taken my prescription meds as prescribed, about 8:00pm the night before, and the following morning I was driving on the freeway when I felt the effects of the meds still--so I pulled off of the frwy, turned around and got back on the frwy to get home when I felt what I thought was a 'blowout' as my car jerked. I continued to drive when I saw a red light and pulled over. Needless to say I was told that I was involved in a hit and run. No field sobriety tests were done (I hadn't been drinking anyway) and I was taken to the CHP office where I was arrested that afternoon on felony hit and run and felony DUI.

Yes, one CAN take their prescription medication as prescribed and still be impaired to drive. A prescription level does NOT mean that you are safe to drive. In fact, most medications that might impair you come with strict warnings on not operating vehicles or machinery when under the influence of the medication.

What was the substance you were taking?

And since this is a FELONY DUI, obviously someone was injured as a result of the collision.

Keep in mind that you were apparently so out of it that you never recalled being IN a collision! That's pretty messed up, my friend.

I bailed out and I hired a law firm for a flat fee of $12,500.00. My attorney has never had a sit down meeting with me to ask me my side or what happened, as far as I know he doesn't have any of the accident reports, etc.

Getting them immediately doesn't make things move faster. Understand he likely has many clients just like you. The clock pushes priorities. In some counties these cases can take many months or a year or more. And your attorney can get discovery from the DA's office when they send it. The DA will send all the reports at some point.

Have you been arraigned? You say that you have had court appearances, what were these for? By the arraignment, your attorney should have gotten discovery.

Did the police or a hospital draw blood or urine? If so, what were the results?

That means I was facing sideways on the freeway when he hit me and then somehow I was back in the slow.lane driving northbound when I was stopped (I don't know how I spun across three lanes during morning traffic without colliding with any other cars)

Perhaps the other drivers were more aware of what was going and avoided the collision ... it's NOT uncommon to have something like that happen and still only involve a couple of vehicles.

and the collision auto repair mechanic showed me that I didn't have one bald spot or any nics on my tires and he stated that there was no way the car was spinning across the frwy lanes without evidence of it showing on the tires.

With all due respect to your mechanic, I doubt he is an expert in collision investigation and the damage analysis of a vehicle. The SCENE would have revealed those details far better than the mechanics observations well after the fact.

My attorney tells me the DA hasn't offered any plea deals until he sees how many drugs were in my system and my attorney said the D A finally "showed" him discovery-he said he didn't have copies yet but he saw it and there was alot. Now my pre-preliminary is in 3 weeks and when I asked my
attorney why haven't we hired a traffic investigator or why isn't he interested in the mitigating circumstances of the accident he told me that a traffic investigator wouldn't be that much help and that my car wasn't really important--that since I didn't remember the accident, the other party and the police, etc., were witnesses.

What help do you think a traffic collision investigator might be? Chances are, you will be paying him several thousand dollars merely to affirm what they already know - that you were in a traffic collision. We KNOW there was a collision. Apparently the tox results show you were under the influence of medications. So, you were in a crash, you were (arguably) impaired on meds, and someone was injured. That's a felony DUI. Unless the investigator can conclusively PROVE that you did NOT cause the collision, you are left with the same charges and having paid thousands of dollars for a report that your attorney will never use because it will only bury you.

MOST DUI cases plead out. Most cannot be won on the facts. Your attorney cannot manufacture a case that allows you to prevail if the evidence is strong. Apparently they have an investigation, forensic evidence, and witnesses ... that can be pretty damning.

I told him that I never said I didn't remember or that I blacked out or whatever,

And he will NEVER put you on the stand to testify to that because all it would so would be seal your fate.

The DA has charged me with a third felony of DUI with a BAC of over .08% alcohol even though I hadn't been drinking and there is no alcohol in any test results!

What code sections have you been charged with?

Also he charges that I was uncooperative, refusing to give my name and information to law enforcement which is an outright lie!! I have all of the reports and everyone of them state that I was cooperative and didn't resist, etc.

The section used for resisting, obstructing and delaying an officer is all the same section. There is no telling what the DA is basing that charge on, but, it is by far NOT your biggest concern as it is only a misdemeanor.

My attorney told me that the BAC charge will get dismissed BY THE DA due to lack of evidence when it's proven that there was zero alcohol in my blood--I told him that's not good enough for me -why should the charge be dismissed due to lack of evidence when there's no basis for the charge to begin with?

That's what the preliminary hearing will show. If there is no probable cause to support the .08 charge (assuming it's VC 23153(b)) then the court will not let that offense stand.

If you do not like your attorney, change attorneys. You may not get that retainer back, but, you have the option to change counsel. Understand that some cases just cannot be won and the damage can only be mitigated. It sounds as if they have a pretty strong case for felony DUI (drugs) with injury to another, and the felony hit-and-run. Your best bet might be to deal.

 

[Proserpina]

Wow...that was fantastic, Carl.

 

[mightymoose]

I'm not sure the argument for ineffective counsel was made.... or even applies if you haven't been beyond the assignment yet.

 

[CdwJava]

I think he's trying to argue that since he has not seen his attorney do anything, and the attorney allegedly waived time, that this is proof of "ineffective counsel." Of course, since the matter has not even gone to prelim, he still has a chance to CHANGE counsel if he chooses.