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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 87776
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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was arrested for public intox (in my driveway) and resisting

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was arrested for public intox (in my driveway) and resisting arrest-the officer who arrested me threw me down with such force, I required 8 stitches to my head and a broken thumb-thus the resisting arrest charge-on my second court date, they did not offer me a lesser charge, so it appears I am going to trial-do I have any chance of fighting these charges? No priors and was not given a BAC test-please advise...
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Are you going to have a Judge or Jury trial? Or you have not decided yet?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.

to be honest, I don't know...


 

Expert:  Ely replied 11 months ago.
J,

That is okay. I will explain in general. Apologies in advance for the momentary wait as I type out my answer...
Customer: replied 11 months ago.

it is a jury trial

Expert:  Ely replied 11 months ago.

do I have any chance of fighting these charges?

If Defendant is going to trial, then this becomes unpredicable. First of all, you have to understand that the primary question will be: is Defendant guilty of acting in a way that fits the elements of the charges alleged?

PUBLIC INTOXICATION under Penal Code 647(f) PC
The prosecutor would have to show that you were unable to exercise care for your safety or the safety of others, OR you interfered with, obstruct, or prevent others from using streets, sidewalks, or other "public ways."

Someone in your situation may wish to argue that you were not unable to care for your own safety AND did not obstruct anyone because you were on your own property...

RESISTING ARREST under Penal Code 148(a)(1) PC
The prosecutor would have to show that you were resisting, delaying, or otherwise obstructing a law enforcement officer while they were performing (or attempting to perform) their duties.

This is more subjective. Was there a struggle? This may be resisting arrest. But the officer's might in the arrest may be held against them.

In the end, the jury has to convict unanimously. It is very hard to get a unanimous guilty verdict on something. Also, the jury tends to vote with their heart as much as their head. A sympathetic jury may vote not guilty despite evidence to the contrary if sympathetic to police brutality, for example...

So there is a good chance at acquittal in many cases. This one seems subjective enough to go both ways. Trust your attorney and good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 11 months ago.

so, my lawyer will select a jury with the DA etc? Is it more favorable to have a jury trial? Will my injuries sustained be helpful to my case? Apparently, the DA did not investigate the case and offered me no plea which I found unusual for someone like myself with no priors. The resisting arrest charge was due to my head injury so I cannot sue later I suppose and why I was not offered a plea-

Expert:  Ely replied 11 months ago.
J,

Thank you for your follow up.

so, my lawyer will select a jury with the DA etc?

Correct. On the first day of the trial. The process is called voire dire.

Is it more favorable to have a jury trial?

Generally speaking - yes. A Judge tends to rule with cold, hard, legal logic. And the prosecutor only needs to persuade one person - the Judge.

The Jury tends to vote with heart as well as logic. And the prosecutor needs to persuade everyone for a unanimous verdict of guilty to win. And the persuasion has to be "beyond a reasonable doubt." This is not easy to do. So most Defendants favor jury trials.

Apparently, the DA did not investigate the case and offered me no plea which I found unusual for someone like myself with no priors.

Unusual, but then again, a plea deal is not a "right." The DA may not wish to offer it if they feel they have a strong case.

The resisting arrest charge was due to my head injury so I cannot sue later I suppose and why I was not offered a plea

I cannot say why you were not offered it. IF FOUND NOT GUILTY, you may possibly sue later for malicious prosecution, negligence, negligence per se, false arrest, and other related civil causes of action. But one has to be found not guilty or have the case dropped, first.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 87776
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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