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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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My son is in the Marine Corp and received a DUI in California.

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My son is in the Marine Corp and received a DUI in California. He cannot afford a lawyer. He's heard about diversion agreements and thinks this might be his best option. How does he go about obtaining one.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 6 years ago.
Sherry,

My thanks to you and your son for his service to our country. My youngest son is in the Army, currently serving his second tour of duty in Iraq, so I appreciate what your son is doing.

Since your son is an enlisted Marine, he is probably eligible for appointment of a public defender. He should definitely ask for one when he goes to court on September 4th, reather than trying to represent himself. A DUI conviction will have long term consequences for him, both in the Marine Corps and otherwise in his life. He really needs the assistance of an attorney.

Even if the court does not appoint a public defender, your son should still ask for additional time to consult with a private lawyer. He can obtain a low cost consultation with a private attorney through the local bar association's lawyer referral service.

Is his case in San Bernardino County? If you let me know which county and which specific court, I will give you more specific information on how he can contact a lawyer and/or what alternatives might be available for dealing with his case.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 12 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
Yes, it is San Bernardino County. Does that let you know the specific court? I'd like for him to receive counsel but the people that he's contacted seemed so "iffy." (For lack of a better word.) And way too expensive for him.

Any additional advice about how to get a public defender or more time to consult with a private lawyer would be much appreciated.

Where are you located?

I'm on my way to work but will be able to check back for your answers later and very much want to continue this conversation.

I love that your son serves too. Thank you and him!
Expert:  P. Simmons replied 6 years ago.
Hello

Mr Reilly asked me to provide some Marine specific info and I am happy to do so.

If your son was demoted it is likely he went through what is know as NJP or Non Judicial Punishment. This is an administrative process that can allow the Marine Corps to take some pay or rank from an individual but without criminal consequences.

There is a method to appeal this, and if your son is ultimately acquitted of this offense (not diverted or lesser offense) he can apply to his commander with proof of the acquittal and will have a least of chance to get some of his rank back. This would help him significantly if he decides to make a career of the Marines.

Best of luck

Expert:  Jim Reilly replied 6 years ago.
San Bernardino has 13 court locations. Most likely, he is appearing in the one closest to where he was arrested, but that is not always the case. A complete list of the SB Superior Courts is on the court webpage at:

http://www.co.san-bernardino.ca.us/COURTS/flash.asp

Regardless of which court he is in, the San Bernardino County Bar Association Lawyer Referral Service can arrange a low cost initial consultation with an attorney who specializes in defending criminal cases. Their website contains complete information on how to arrange for such a consultation:

http://www.sbcba.org/findalawyer/referral.html


Even if he cannot make arrangements to meet with a private attorney prior to his court appearance on the 4th, he can still ask for the public defender at that appearance. If he can go to the appropriate branch of the PD's office (that is, the one in the specific court where the case is pending) before the court appearance, they may be able to do an eligibility interview in advance, which would enable the court to actually appoint the PD at the next appearance. This is not, however, required -- he can simply ask for the PD at that appearance, the case would be continued for a short time and the interview conducted in the interim.

Information about the SB County PD's office is available at:

http://www.co.san-bernardino.ca.us/PublicDefender/

If he calls the appropriate branch, they will give him information about how to best proceed with a request for appointment of the PD.

I am in Marin County, north of San Francisco, so too far to represent your son.

I did ask Mr. Simmons to provide some additional information about the USMC aspects of your son's situation. He is a retired Marine JAG officer and very knowledgeable about military law. I appreciate his stepping in to help out in that regard.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 12 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
Hi Jim. I wish you were near Cole, my son, so you could represent him. is my next question. Of course, we'd love to see this acquitted so that he can appeal his NJP. He passed the field test but blew a .13 on the breathalizer. (they listed it as a .08 on his ticket though.) In my mind, these are the facts therefore he would be found guilty. How does a person get acquitted if the test results are there in black and white? He says they didn't read him his rights but that just seems like it would be a "his word against theirs" kind of thing. BotXXXXX XXXXXne: why pay an attorney if he is guilty of this offense. Can he really be acquitted if indeed he'd been drinking?

Thanks for the JAG input. Cole does want to make this a career and is extremely concerned about achieving the type of promotions necessary to stay in by his 2nd reenlistment.
Expert:  Jim Reilly replied 6 years ago.
Sherry,

Thank you for the expression of confidence, but it is unfortunately not practical for me to represent Cole in this case.

It sounds as if the .13 was on the field breathalyzer (sometimes called a PBAT), which is only a preliminary test. The ticket probably indicates .08 only because the law prohibits driving with a blood alcohol level .08 or above. The PBAT is generally not admissible in court and Cole should have been asked to submit to a regular breath, blood or urine test after he arrived at the police station. The result of that test would be the one that is used in court, if the case were to go to trial. Do you know if such a test was administered and if so what the result was?

As I mentioned, the law does prohibit driving with a blood alcohol level .08 or above (in California, it is actually a separate offense from driving under the influence). So, Cole could be convicted of either or both of DUI and driving with a .08 or above. Since he did well on the field sobriety test, the likelihood of an acquittal depends primarily on the officer's observations of his driving and the results of the full BA test. If it is .09 or above, a complete acquittal is more difficult, since he could conceivably be acquitted of the DUI charge, but convicted on the.08 or above violation.

As for the reading of his rights, you share a common misconception ... unless the cops intend to question a suspect and want to use any statements against him in court, there is actually no requirement that they read him his rights. The rights advisement is a prerequisite to the use of a suspect's statements against him, but actually is not otherwise required.

Merely drinking is not enough for a conviction, but if the test result is .08 or above, a complete acquittal is difficult, though not impossible. At the very least, it is worth discussing this with an attorney who can review the entire case file and advise him regarding the possibility of being completely acquitted.

You're welcome for the JAG answer. Philip is a good guy and an excellent attorney. His advice about the military consequences of this situation suggests that fighting the charge has potential benefits within the Marine Corps which may justify doing so even if there is no certainty of an acquittal.

Good luck to you both on this and to Cole in his Marine career.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 12 other Criminal Law Specialists are ready to help you

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