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Bad Plea Bargain
My question involves malpractice by a lawyer in the state of: Ohio
Here's the story in brief:
This occurred in a court of no record (only motions/rulings/basic arrest record, etc in file) - no recorder/transcript.
DEF was arrested on the charge of DUI but no Field Sobriety Test was completed and DEF blew .07 in the police station and under duress. NO evidence of being in traffic / on the road. Arrest and initial arrival of police were in a private parking lot. DEF passenger was vomiting out of the passenger window. PD had a duty to "serve and protect", which is how they entered the lot and conducted examination/interrogation. All occurred Dec. 2007.
DEF's counsel - on advice from DEF urged to plea for Phys. Control Under the Influence - a unique law designed to "reward" drivers who pulled over / weren't found driving, rather than a standard "Reckless Oper." plea. Phys. Control carries no points/no suspension $250 fine, but requires a 3 consecutive day jail sentence or alternative 3 consecutive day driver intervention program ("DIP"). DIP is 3 days in a hotel - 8 hours of class per day - no outside communication., i.e, jail equiv.
Plea was taken on one condition = DEF, who resided (and still resides) in Colorado would complete 3 day DIP in Colorado - in lieu of costs associated with returning for trial. Nothing on record reflecting the same - 30 days to comply from date of issue.
Colorado has no equivalent "3 consecutive day" program. Judge thought since it was a "driver compact" state the program would be equal. No one checked including DEF , DEF counsel, judge, prosecutor, etc.
DEF contacted counsel who advised immediate return to comply. DEF wrote letter to judge indicating an interest in complying with the law - but not the costs associated. Judge replied issuing mandatory compliance to return or B/Warrant issued. B/Warrant then issued.
DEF returned - some 2.5 years later and was stopped - as a passenger - in a vehicle for stop sign violation in the same municipality. PD questioned DEF. DEF was cooperative and arrested to serve B/Warrant. 3 days in jail - AUTO - no questions asked.
2 days ago passed the 1 year Ohio statute on Legal Malpractice. DEF is currently a Plaintiff in Pro Per (Pro Se) in CO-State District - now with a good understanding of negligence.
Are there any attorneys that would draft an affidavit stating legal malpractice? DEF counsel owed a duty of due diligence. Further - does DEF (potential Plaintiff in legal malpractice case) even need an affidavit - as a reasonable person should have / could have known? Is the "affidavit" statute unconstitutional based on a person's right to litigate such a basic issue?
Thanks for your input!!
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Re: Bad Plea Bargain
Is this a homework question ?
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Re: Bad Plea Bargain
Well, if the court was of no record, their is really not court order to justify the warrant. If the warrant was served in the municipality, I would argue that there is no record of charges nor is there anything else that could be used against you in the case, proving that that guy committed a crime.
I would think that that court was a court of record because there is a paper trail.
I don't believe that the DEF has a case with the Due Diligence because there is no case at the present time to prove such. The DEF obviously took a plead deal, therefore accepting anything and all actions that occurred.
There is one thing that I would suggest, That Municipality had no jurisdiction in the case describe because a municipality cannot hold criminal cases, at least in the state of Texas as far as I know, this is one of the remedies for traffic or Transportation violations. Also, another thing that could be used was the fact that the man wasn't driving, a commercial term, and since the man wasn't being paid for driving, it isn't considered driving according to law, at all. Look at the words in the Law Dictionary such as blacks (Most Popular) and also, look at the word passenger, same thing.
Hope this helps.