DWI Law- Cheap DWI Lawyer's Client Allowed to Vacate Jail Sentence and Plea

What happens when a client comes to you after he has already hired another lawyer, and has already pleaded guilty and been sentenced? Most attorneys will turn that person away, and for good reasons. However, there may be another avenue available. In People v. Rivera, --- N.Y.S.2d ----, 2012 WL 17681 (N.Y.A.D. 1 Dept.), 2012 N.Y. Slip Op. 00043, the defendant hired a second attorney to vacate the plea, and the trial court agreed. On appeal, the court affirmed, writing:

"The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404 [1995] ).

"Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.


"The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case."

The appeals court unanimously affirmed the motion to vacate the plea. 

Editor's note: This case should serve as a warning to cheap-priced 'dumptruck' lawyers that fail to perform an adequate investigation prior to disposing of a case, that such conduct might fall below the standards of practice in their community.

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DWI Appeal - South Dakota Grants New Trial When Attorney Ineffective

In Engesser v. Dooley, --- F.Supp.2d ----, 2011 WL 4625986 (D.S.D.) the defendant was convicted of vehicular homicide. His appeal was denied. His first writ for habeas corpus was denied. His habeas relief in federal court was denied, and then the denial was affirmed on appeal. His second writ of habeas corpus was granted, but then reversed on appeal. His third state writ was denied. He then filed his second federal writ for habeas relief, and the district court in the instant case granted the petition.


The factual predicate of defendant's claim for a successive filing of a federal habeas petition (that he had newly discovered evidence that was not available during the previous filings), was made through the testimony of a new witness, who testified at the writ hearing that the defendant was not driving vehicle at time of crash. This witness, who testified he saw a woman driving vehicle just minutes before fatal crash, had not been contacted about the case until a few weeks prior to federal habeas evidentiary hearing, and his name was not listed as witness to crash or events preceding it.


The second predicate (i.e. a constitutional violation occurred during his case) was that. but for his attorney's ineffective assistance in failing to investigate and call two other eyewitnesses as witnesses to the fatal car accident at defendant's criminal trial for vehicular homicide and vehicular battery, no reasonable factfinder would have found defendant guilty; if the trial attorney had interviewed eyewitnesses and called them as witnesses, their testimony would have directly contradicted state trooper's assertion that defendant was driver of vehicle in accident, and only state court to have considered eyewitnesses' testimony and to weigh testimony against evidence presented at trial found their testimony would have changed the outcome of the trial.


Because of the above, the district court found that sufficient evidence established a violation and granted the petition.


Editor's note: this case represents a wonderful blueprint for how to prove up a successive petition for federal habeas relief. It is also a valuable lesson for attorneys as to their obligation to interview witnesses prior to trial and to call witnesses at trial when necessary.

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DWI Law - New York Says Falure To Cross on Field Tests Not Ineffective

In People of the State of New York v. Biro, --- N.Y.S.2d ----, 2011 WL 2279160 (N.Y.A.D. 4 Dept.), 2011 N.Y. Slip Op. 04856 the defendant was convicted of DWI and he claimed that his lawyer was ineffective. The lawyer did not challenge the legality of the stop, probable cause for the arrest, nor did he cross-examine the arresting officers on the field tests or chemical tests. The appellate court rejected that proposition:

"Although defense counsel did not cross-examine the officers concerning administration of the field and chemical sobriety tests, defendant fails to identify a single error in those tests with respect to which defense counsel should have inquired. Moreover, the record establishes that defense counsel's strategy was to challenge the People's allegation that defendant was operating the vehicle in question, an element of the charges against him. In accordance with that strategy, defense counsel elicited testimony during cross-examination of the officers that the vehicle was stopped and the engine was off when they approached it, that the vehicle appeared to be disabled and that the vehicle may have been operated by defendant's father, who was sitting in the passenger seat thereof."

Very little in regards to the facts was recited in the opinion, other than the fact that the vehicle was parked partially in the traffic lane of a roadway, thereby creating a traffic hazard. Additionally, the record also purportedly established that the police had probable cause to arrest defendant based on, inter alia, the odor of alcohol and the open container of alcohol in the vehicle, defendant's admission that he had been drinking and his failure to pass field sobriety tests.

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