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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16314
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Can I file a motion to reopen a closed case or withdraw a plea

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Can I file a motion to reopen a closed case or withdraw a plea of guilty for a traffic court arraignment?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.
Hello Jacustomer,

It's almost impossible to get a plea back after you've given up most of your rights in order to take a negotiated deal and have already been sentenced. One big reason for that is the record that was made at the time of your plea would be used to impeach you if you tried to say that you did not know what you were doing. Judges do put defendants through an elaborate series of questions and answers specifically to thwart a defendant who looks to change his mind later. Additionally if you're past the 30 day window of opportunity to file an appeal, you lose a number of possible grounds on which to lawfully take back your plea.

There would have to be grounds -- like newly discovered evidence that you could not have possible known about at the time of the pleaand which would likely have led to an acquittal. You do have such material, but you should have known about that then. Nevertheless, given that you do have proof that you had actual insurance at the time, if what you wanted to do is reopen the case to have the lack of actual insurance amended to lack of proof of insurance, It is possible that the court would be willing to reopen the case to correct it. But it may also be a longshot. Either way, what you're going to need is a lawyer who can get the DA to agree to substitute the one count for the other. That may be easy or impossible. But usually if the deal is already cut, the judge won't offer much opposition.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16314
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 10 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi Fran,

Thank you for the advice. Let me clarify a few things:
  1. The "culprit" is actually my 19 year old son, who showed up with proof of insurance, but it was for the wrong car. All our cars are on the same insurance policy, but he grabbed the one for a different car than the citation was for.
  2. Being inexperienced, he plead "guilty" on both counts - 1) failing to come to a complete stiop and 2) lack of proof of insurance.
  3. He asked the judge if he could come back the same day with the right insurance paper. The judge said "no", and asked him if he could do it a different day, next week.
  4. My son said he couldn't, because he was flying back to college the next day, and would be gone for at least 2 months (until March).
  5. Judge then said "Sorry, there's nothing I can do then", so my son left the court room and paid the full bail amount that day, Jan. 6th. About $1100, out of which $880 for the lack of insurance!!!
  6. Based on the clerk's advice, he went home, wrote a letter of explanation to the judge, and attached the insurace papers and returned to the traffic office, handed in the papers to a clerk, with the understanding they would relay them to the judge.
  7. A few days later, after my son left for college, we get the "package" in the mail, asking my son to appear.
  8. I then went myself to the clerk's office and asked them for advice. One clerk said I needed a power of attorney from my son, and then I could maybe appear on his behalf.
  9. My son sent me a POA, which I attached to the rest of the papers, and went back to the traffic office. A different clerk said that's not gonna cut it, POA doesn't help, either my son has to appear in person, or pay a lawyer to do it. But he reluctantly took the papers and said he'd give them to the judge.
  10. That was two weeks ago, since then we have not seen or heard anything back. Supposedly, the papers (POA, proof of colelge enrollenment, letter of explanation, and proof of insurance) are "inside" with the judge.
So, now question is, what to do? Can we either withdraw the plea of guilty for the second charge only (given he did have insurance), or motion to reopen/reconsider the case? Since he was not in TRIAL, arraignment only, are those even an option?

My husband spoke to a couple of lawyers, but they want to charge $500 for this, and that is more than half the bail amount - plus they don't guarantee the outcome.

What do you think, now that I have explained in more detail? Or have I confused you more? I'm happy to answer questions, just want to help my son recoup his money, it's a lot of money he should not have paid! :(

Thanks,

Gabi
Expert:  Zoey_ JD replied 2 years ago.
Hi,

No, you haven't confused me but there is nothing at all that you can do.

Only your son or his attorney can do business with the court and/or advocate on your son's behalf. The judge has already indicated he'd take care of this for your son if he could come in. It now becomes a question of logistics.

Since only your son or his lawyer can get this case back on the calendar, and since the lawyer knows how to do get this done and can probably get this whole matter taken care of in the absence of your son, it's worth the cost of the representation. He may not be able to guarantee results, (I think he's very likely to succeed but I don't blame he's wise not to make promises over which he doesn't have complete control) but the motion will reach the judge and receive a ruling from him, which is more than a lot of pro se defendants can manage.

If it's worth doing at all, it's worth doing right.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16314
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 10 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
OK. So here are my questions:
  1. Can my son/lawyer still file a motion to reconsider, since - I was told - arraignments are NOT elligible for such things (i.e., motions, appeals, etc.), only trials. Is that true?
  2. Is it wise to wait first, till I get a response from the judge on the papers that were submitted to him - or should we file the appeal ASAP?
  3. If my son can write a motion/appeal letter, saying he could appear in front of the judge first week in March - and either I hand it to the clerk, or he mails it directly to the court - is that going to work?
  4. Last but not least, I see you are a "criminal law" expert, however, this is a "civil law" case - does it matter?
Thanks,

Gabi
Customer: replied 2 years ago.
OK. So here are my questions:
  1. Can my son/lawyer still file a motion to reconsider, since - I was told - arraignments are NOT elligible for such things (i.e., motions, appeals, etc.), only trials. Is that true?
  2. Is it wise to wait first, till I get a response from the judge on the papers that were submitted to him - or should we file the appeal ASAP?
  3. If my son can write a motion/appeal letter, saying he could appear in front of the judge first week in March - and either I hand it to the clerk, or he mails it directly to the court - is that going to work?
  4. Last but not least, I see you are a "criminal law" expert, however, this is a "civil law" case - does it matter?
Thanks,

Gabi





Customer: replied 2 years ago.
Hi Fran, did you get my latest message? And last, hopefully? :)
Expert:  Zoey_ JD replied 2 years ago.
Hello,

I just got this and was not aware that you asked an earlier follow up. I apologize.

I am a criminal attorney however, the answers I provided you with were not anything that would be wrong either way. The law, criminal or civil notwithstanding, requires that a lawyer advocate on behalf of a client or that an unrepresented defendant represent himself.

Traffic cases are sometimes civil, sometimes, criminal and sometimes administrative depending upon the state. In many driving without insurance is a misdemeanor, as it actually is in California. An arraignment -- which is the formal reading of the charges against the defendant and would indicate that this is, in fact, a criminal and not a civil proceeding. The more serious traffic violations are misdemeanors in most states -- leaving the scene, driving on a suspended license, reckless driving, dui, and so forth.

Anyhow after the charges are read to the defendant he is asked how he pleads. The only one that preserves all of his right is "not guilty." All of the others close doors, as he has already unfortunately learned. Very little more happens at an arraignment. If the DA has an offer, he can convey it and the defendant can take it or not. If not, the case is adjourned to another date, and sometmes to another courtroom. No motions are filed at arraignments because the arraigning judge is not generally be the one who is assigned to the case.

I think you won't hear from the judge at all, so you might as well go forward if it's convenient. If your son writes a motion, etc., then it has to be a motion. Motions are formal legal documents. The court can reject them if they are not accurate as to format and to law. While you could file it for your son if he prepared it, a judge is not allowed to have ex parte communication with regard to a case. A copy of what the judge gets should be given the DA who would have the right to oppose it.

It's entirely possible though that in a traffic proceeding laws are more relaxed. So I think at this point it's probably best that I opt out in favor of a California lawyer who could take you the rest of the way.

This should come out the way you want it to, but you're going to end up spending more than $500 in aggravation, and if it doesn't come out right, you're going to wind up having to pay more to undo it. I'd rethink letting a lawyer handle it. He could likely do this without your son at all.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16314
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 10 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi Fran,


I apologize for leaving this conversation without thanking you. Something else came up and I got completely sidetracked. Anyway, just wanted to let you know I decided to let my son try to appear in front of the judge, as he's flying home for spring break anyway, and wants to give it a shot himself. If he doesn't succeed, and depending on what the judge tells him, I might go ahead and hire an attorney to deal with it (if there seems to be any hope!).

What do you think?

Thanks again for your help.
Expert:  Zoey_ JD replied 2 years ago.
Hi Jacustomer,

I am sorry for the delay. I have other work I tend to in the mornings.

Yes, I think it's a better move to let him take care of it than for you to try to do it without him. He was the missing piece in the equation. Had his schedule matched the judge's a long time ago, it would have been taken care of.

Now, of course, who knows, as the judge is unlikely to have much recollection of this matter. But if your son finds that he can't accomplish what he's set out to do without a lawyer, sending him back with a lawyer would be the next logical step.

Good luck!
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16314
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 10 other Criminal Law Specialists are ready to help you

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