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Is this just a clerical error or what can I do about it?
Anonymous5 views5 answers
I was charged with a DUII in Oregon. I went to my arraignment this past Monday and there was a statement on that piece of paper they give you that stated the State is objecting to Diversion because of a 2007 DUII conviction. First of all, that isn't me. This is my first DUII not my second. I spoke to the public defenders meadator and he said I needed to get an attorney to clear this all up, but why would they put someone elses wrap sheet in my file? Is this just a common mistake?
These types of mistakes are not "common," but they happen too often. As a former prosecutor, I can state that the Prosecutor's Office (DA or City Attorney) is like any other government agency. These offices are staffed by people that are overworked and underpaid for the work they do. Additionally, the Prosecutor's offices deal with an enormous case load. A large case load means more opportunities to make mistakes. As a result, mistakes happen all too often. Defense Attorneys, like myself, will recognize these mistakes and do our best to ensure they are corrected.
Remember in Oregon the defendant petitions for DUII diversion, it is not automatic. Additionally, you typically only have thirty days to file the petition. An attorney will be able to point out the fact that you are eligible, because the DA is using the wrong "LEDS" printout. An Attorney will also file the proper documents with the court and argue that you should be eligible for diversion.
You should also remember DUII diversion is not always the best option for a first time DUII offense. An attorney will tell you whether or not you should accept DUII diversion. Many DUII diversion cases could not be proven in court, so diversion is not a good option.
You should get an expereinced DUI attorney to help you. Having priors mistakenly alleged is not uncommon. Start with the name, is it similar at all? Next, check the date of birth. Is this person even close to your age. Also, see if there is any information concerning where the person lived. If all else fails, your lawyer can seek to have a hearing to determine identity, using booking phots or similar ways to show the earlier DUI was not you.
You need to get an attorney. The government makes mistakes all the time, you just need someone with the access required to resolve the identity mistake and to get you the best result possible. That may or may not be a diversion.
Diversion is a BIG DEAL, involving your promise to, e.g., drive no car without an Ignition Interlock Device (IID) for the next year, pee in a cup for at least 3 months and pay for "treatment" that you may or may not need, and have essentially ZERO alcohol for the next year. Sound like a big imposition on your life? It is! As Mr. Ross points out, DUII Diversion is not for every one. I also wanted to remind you to talk to a lawyer NOW, because you've got a 10-day deadline to fight the DMV-proposed license suspension if you blew over .08 or refused a breath test. In short, get a lawyer, a good lawyer, now.
Sorry to hear about the mix up. This only makes it more imperative for you to consult an attorney. Diversion is appropriate and desirable in the vast majority of cases but not all. Your attorney will be able to advise you regarding the pros and cons. Good luck.
