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Colleen Grady
Colleen Grady, Attorney and Counselor at Law
Category: Criminal Law
Satisfied Customers: 507
Experience:  Attorney and Counselor at Law
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Can I sue a county solicitor in SC of 7th amendment? My 17

Customer Question

Can I sue a county solicitor in SC for violation of 7th amendment? My 17 y.o. son was arrested for DUI. He blew a 0.0 at police station. Waited there till 3:30 am for a DRE to observe him....never showed up so urine test taken at local hospital. Came back positive for pot.we hired a lawyer and I tracked down the former head of forensic toxicology for SLED after researching and finding a case in which he testified that the only test that can detect what is in your system at that time is a blood test. And pot can stay in urine for up to 30 days. We had 1 foot in the court room for jury trial when solicitor came up with plea deal of no DUI if son pled guilty to improper lane change (around a huge pot hole) He signed the agreement and paid his 500.00+ fine. Over and done. About 2 years go by and son get arrested 2 times for MIP as a passenger in a friends car. Permission granted both times to search the car.....no alcohol and the drivers/ owners were not charged with MIP....just moving violations??? As I am watching the dash cam video of these 2 arrest......both times when the police "radioed in" they are told that John has a DUI convection on SLED report! Therefore....the plea deal was a scam and my son was convicted of a crime he was innocent of....all with No TRIAL BEFORE An IMPARTIAL JURY. No TRIAL AT ALL? This has cost me thousands of dollars and a lot of embarrassment. But my son has been through hell...he was taking pre-law at The Citadel and when he returned for sophomore year....they had run random SLED Reports and his was one....so he was kicked out of The Citadel with no chance to ever return. He has become extremely depressed as he can't find a decent job or even get an apartment with that on his record. He is lost as his passion was law and his self esteem has him in the gutter. Not to mention family friends seeing his mug shots and telling John's friends not to go near "that trouble maker" Any advise on what to do....I am so made at the solicitor that "handled" the bogus DUI. And, by the way, our attorney brought this to that solicitors attention almost a year ago....nothing has been done as my family goes in debt, dark pit of depression for lost ambitions......His 7th amendment to to US Constitution via The Bill of Right was clearly violated and the domino affect is destroying him. HELP
Submitted: 7 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 7 months ago.

Hello. I will help you with your questions. I have been an attorney for 27 years and I was a prosecutor for 9 years. Please give me a short time. I have working on a complete answer to your question.

Customer: replied 7 months ago.
No problem....take your time. I've done some research on this type of law suit and it seems that a citizen of this state can sue a local agency without having it be a federal case. I'm going to try and get some sleep now.....probably/hopefully about 4.5 to 5 hours. I know my question is wordy and a bit rambling so feel free to ask me any questions that need clarifying
Thanks, ***** ***** good night
Mary
Expert:  Colleen Grady replied 7 months ago.

Mary, I will try to give you some strategies. Was this case over 2 years ago?

Customer: replied 7 months ago.
I am on vacation now but I can give you exact dates of all 3 arrest as it has consumed my life for too London. The "DUI" was on Dec. 30 2012......plea agreement and finds paid in Mid August 2013. Had already passed The Citadels background check for knob year. Then upon return to school in Aug. 2014.....the DUI had shown up on SLED REPORT and he was immediately kicked out for ever. We didn't know exactly what was going on....thought he had violated an honor code or something. Home he comes. Oct. 31 2014... MIP charge as passenger in a friends car. Gave permission to search and NOTHING Was there. Driver got moving violation am
Ned John goes to jail. I could hear on dash cam the John had previous DUI conviction and when police heard it. He handcuffed John and took him to jail. Then in May 2015....on Mothers Day....about the same story happened again. The solicitor in the DUI Case was made aware of SLED Report in May 2015.....nothing has been done. I know I repeated myself here. Did I answer your question?
Mary
Expert:  Colleen Grady replied 7 months ago.

Thank you, ***** ***** helps me. Have a good sleep.

Expert:  Colleen Grady replied 7 months ago.

One more question. When did you discover the information given you by the forensic toxicologist?

Customer: replied 7 months ago.
About the blood test vs. urine test? I have the notes at home but I'm pretty sure it was around June 2013.....about 6 months after "DUI" arrest. As we were preparing for a jury trial....which didn't happen due to the solicitor coming up with plea agreement.....
Expert:  Colleen Grady replied 7 months ago.

OK. Thank you. These time frames are important for certain options you have for Post Conviction Relief.

That helps. You go to sleep and I will work on this.

Customer: replied 7 months ago.
Thanks so much....and I guess good morning to you!
Expert:  Colleen Grady replied 7 months ago.

Yes. Just starting my day

Expert:  Colleen Grady replied 7 months ago.

I will give you information on a possible lawsuit. However, you need to do some research. Your son took a plea to improper lane change. You were there in court when this happened. He was there when this happened. You are entitled to the transcript of his plea in court. There must be court stenographic record of this. Here is the link to the court website explaining how to get the court reporter record:

http://www.judicial.state.sc.us/courtreporter/HowtoObtainTranscript.cfm

There is also a document that your son signed stating the lane change is his only conviction. Your son is entitled the document he signed. This document should be in the court record, which your son is entitled to. Contact the Clerk of the Court handling your son’s case to ask how to get this record. You can find the contact number on the court website.

If these documents state he pleaded guilty only to the lane change, this is proof that the SLED report is inaccurate. You need to find out why. Did the solicitor report the wrong information to SLED? Did SLED record the wrong information?

There is a process for correcting inaccurate records.

After your son took the plea to the lane change, the only conviction that should show on his SLED record is the lane change. The “arrest” for DUI will show, unless the Solicitor agreed to expunge the DUI charge. Here is what the law says about this:

SECTION 17-1-40. Expungement; retention of certain information by law enforcement or prosecution agencies.

A) For purposes of this section, "under seal" means not subject to disclosure other than to a law enforcement or prosecution agency, and attorneys representing a law enforcement or prosecution agency, unless disclosure is allowed by court order.

(4) If a person pleads guilty to a lesser included offense and the solicitor deems it appropriate, the solicitor shall notify the State Law Enforcement Division (SLED) and SLED shall request that the person's record contained in the National Crime Information Center (NCIC) database or other similar database reflects the lesser included offense rather than the offense originally charged.

If this was part of the court record or agreement, then the Solicitor should correct this information in your son’s SLED and NCIC.

We have to find out what the SLED report actually says so it can be corrected. If you have not already done this, here is how you go about it.

Correcting a mistake on SLED report - SC law provides a method for individuals to challenge the information on their criminal records if there is a mistake on a SLED report.

  • Contact SLED at(###) ###-####and request a “Challenge of Criminal History Record” packet.
  • Complete the application, provide picture ID, and submit a copy of the criminal record in question or a $25 money order to obtain a copy of the criminal record.
  • Get fingerprinted by a law enforcement agency and submit fingerprints to SLED.
  • SLED will accept or deny the challenge through an administrative review.
  • If SLED find errors, omissions, or cannot verify the accuracy of the record, SLED must accept the challenge and modify the record.
  • The individual challenging a record may seek an appeal of the decision of the administrative review by requesting one within 30 days of the denial of the finding by petitioning the Criminal History Administrative Appeal Board. A hearing will be conducted within 60 days and the individual seeking review may present evidence concerning the record. If the appeal is denied, the individual seeking review must be notified in writing of the reason for the denial.

You may also have to correct the national record, which is called NCIC.

The National Crime Information Center (NCIC) is the FBI record. This is called the Rap Sheet. SLED probably reported your son’s arrest to NCIC.

If there is a mistake in the SLED report, there will be a mistake in NCIC. You may request a copy of your RAP sheet by submitting a written request which includes the following information:

  • Proof of Identify: name, date of birth, and a set of rolled fingerprints obtained by a law enforcement agency.
  • Certified check or money order for $18 made out to the Treasury of the United States. I

Requests should be mailed to the following address:

FBI, Criminal Justice Information Services Division

ATTN: SCU, MOD. D-2

1000 Custer Hollow Road Clarksburg,

WV 23606

Your son has run out of time to challenge the conviction through the normal Appeals process. After a guilty plea, a defendant has 10 days after sentencing to appeal to the South Carolina Court of Appeals.

Under the SC Uniform Post-Conviction Procedure Act SECTION 17-27-10. , there is a possible Post Conviction Relief process you can use. Usually you have to file for this relief to the court that handled the case within one year of sentencing. However, there may be an extension in your case (C) If the applicant contends that there is evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence, the application must be filed under this chapter within one year after the date of actual discovery of the facts by the applicant or after the date when the facts could have been ascertained by the exercise of reasonable diligence. I am not sure if you fit into this exception with the toxicologist information. The sentencing date usually occurs after the plea date.

There is a process in place to file a complaint against the solicitor for failing to follow-up with the SLED correction. You notified the solicitor a year ago and nothing has happened. You can file a complaint with the South Carolina Judicial Department, Office of Disciplinary Counsel. This office is obligated to follow-up on complaints against attorney in the state of South Carolina. You need to write a detailed letter explaining your complaint. Here is the address and contact information:

Lesley M. Coggiola
Disciplinary Counsel Office Location:*****br />Suite 309
Columbia, South Carolina 29201
Telephone:(###) ###-####
Fax:(###) ###-####/p>

As for a lawsuit. There is a possible action for defamation. You need to find a defamation tort lawyer willing to take this on. Basically, if The Citadel relied on the SLED record (which was supposed to show only the conviction for changing lanes???), there is a possible claim for defamation of character. Here is a link to the South Carolina Bar Association Lawyer Referral program: http://www.scbar.org/Public-Information/Find-a-Lawyer. They pre-screen lawyers to make sure they are qualified. They will find an expert in this area and you can consult with the lawyer for $50 for the first half hour. If you don’t like the first referral, ask for another.

Please let me know if you have more questions. I will be happy to help more.

If, and only if, you are satisfied with my help, please rate my service.

Customer: replied 7 months ago.
I am just sitting down for the day. Have read some of your response and wanted to tell you that we never went to court....the plea agreement was given to our attorney and he called for us to come to his office to sign/ accept the deal. I will finish reading your email later tonight. Younger son had wisdom teeth pulled today and he is keeping me busy....and I'm tired!
Thanks,
Mary
Expert:  Colleen Grady replied 7 months ago.

So, you still can still get the written agreement from your attorney or the court. There will be a record. No worries.

Customer: replied 7 months ago.
I have a copy of agreement on my file. Wish I had brought it with me. I will be home on Saturday....Thanks..Mary
Expert:  Colleen Grady replied 7 months ago.

You are welcome. This information can be corrected. It should never have been left the way it was.