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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85129
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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i was charged with a dui and was to appear for my final court

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i was charged with a dui and was to appear for my final court date yesterday. i had discussed possible plea arrangement before this date. My attorney did not show up. The judge asked if my lawyer was present. I said no. He then began to swear me in. The previous plea arrangement that i had discussed with my attorney was to get a restricted license right away,2 days in jail, 3 days community service the minimal court fine that could be paid in payments in order to get restricted license, assuming i provided a dui school certificate and sr22 insurance at yesterday's court date. By the way in my case here in Tennessee the arresting officers ordered blood to be drawn after i had refused consent. This refusal was documented in the police report. blood was drawn and came back at a .22 BAC. Now in my prior discussions with my attorney the blood withdrawal was illegal and would be suppressed.

The judge swears me in and states that he would like to seek 7 days of jail due to my high BAC. I stated that the blood work should be suppressed as in our preliminary plea agreement. I was working with a different DA and my attorney was not present. the judge get furious and stated if it was up to him i wouldn't be getting a restricted license. Demanded that all fines be paid in sixty days, before he would even consider a restricted license. He sentenced me to two days in jail. I am a first time offender of dui and have had a clean criminal record prior.

My question is this. How can the judge continue my plea arrangement or case when my attorney is not present. This seems to violate some kind of right to me? am i wrong here? what can be done about my attorney missing my final court date and me getting a different outcome due to the neglect? Can i ask for a refund my payment to my lawyer. And to make things clear, the lawyer was paid in full.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

1) Did you at any time ask for a CONTINUANCE since your attorney was absent?
2) Did you at any time waive your rights to an attorney before the Court?
3) Is this your first DUI?

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 1 year ago.

1) No i did not ask for a continuance. I was unsure on what to do. I did tell him i had an attorney and i was unsure where and why he was absent.


 


2) I have never waived my rights to an attorney.


 


3)Yes this is my first DUI.

Customer: replied 1 year ago.

also the judge has only been on the bench for a couple months.

Expert:  Ely replied 1 year ago.
Thank you. I am typing out your answer now; apologies in advance for the momentary wait.
Expert:  Ely replied 1 year ago.
How can the judge continue my plea arrangement or case when my attorney is not present. This seems to violate some kind of right to me? am i wrong here?

No, you are not wrong. However, the facts are more complicated than simply yes and no.

In TN, a first-time DUI Defendant faces a MISDEMEANOR A felony, with 48 hours of imprisonment. Keep this in mind as we go on.

The Sixth Amendment of the US Constitution states that someone accused of a crime has the right to counsel to defend him or her in criminal prosecutions. However, this clause applies to federal prosecutions only, not state prosecutions.

Under Argersinger v. Hamlin, 407 U.S. 25 (1972), counsel must be appointed in any case resulting in a sentence of actual imprisonment in a state court.

Finally, in Section 9 of the TN Constitution, it states that "in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel."

In short, one does have the right to counsel in TN if facing imprisonment, which was the case here, arguably.

One may wish to appeal the sentence or otherwise file for a new trial, based on lack of counsel and that counsel was not waived. It can get murky in that you are not indigent, however, the Courts often tent to treat the right to counsel as sacrosanct so this is a good argument, nonetheless. Of course, an attorney is recommended.

what can be done about my attorney missing my final court date and me getting a different outcome due to the neglect?

One has two options:

1) File a complaint against the attorney - here. This is not a lawsuit, but, the attorney may be punished by admonishment, fines, and/or even suspension based on the perceived grievousness of the matter.

2) File a malpractice suit (best done only after the criminal matter is over).

The statute of limitations for legal malpractice is one year from the time the cause of action accrues. Tenn.Code Ann. § 28-3-104(a)(2). Malpractice is defines when:

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

Kilpatrick v. Bryant, 868 SW 2d 594 - Tenn: Supreme Court 1993.

- - -

Can i ask for a refund my payment to my lawyer. And to make things clear, the lawyer was paid in full.

Yes, indeed, or likely, at least the party which was not used. Also, damages may be sought via the malpractice claims, including but not limited to any additional fees paid to a second attorney for the appeal.

For now, it is imperative to find an attorney to appeal the sentencing since one has only a limited time. May I recommend the TN Bar referral programs - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because 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 negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups for free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.

"Because disciplining a lawyer is a serious matter, it takes evidence - proof of misconduct - to justify disciplinary action, just as it takes proof before any member of society may be penalized for wrong-doing. Likewise, the action of the lawyer must constitute misconduct. An honest disagreement about how a case should be handled - or should have been handled - does not constitute misconduct, even if the outcome of the case is disappointing.


Neither does mistake. Like all others, lawyers are human and sometimes make mistakes. If a mistake causes a loss, the client may be able to recover the loss in a suit against the lawyer. But a mistake or error in judgment by itself is not misconduct."


 


 


How would missing my court date be judged in the previous text?


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

Customer: replied 1 year ago.

is there a way to file a compliant against the judge as well?

Expert:  Ely replied 1 year ago.
Thank you for your follow up.

How would missing my court date be judged in the previous text?

In the end, if this is taken to court, then it would be up to 12 jurors to make that decision. Frankly, missing court without a reasonable excuse which leads to one's client being injured is widely seen as negligence.

is there a way to file a compliant against the judge as well?

Yes - with the Board of Judicial Conduct - here. However, one may wish to wait until the underlining criminal matter is concluded, because one may end up back before the same Judge. Of course, one may file a motion to recuse the Judge as being biased due to the complaint being filed, but, this only complicates he matter. It is best to wait until the matter is simply concluded before filing any complaints.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because 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 negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups for free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85129
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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