Cheap Attorney Pit Falls – Part 1

by | Feb 17, 2016 | Blog, Criminal Law, Know Your Rights

There are numerous pitfalls to hiring a lawyer based strictly on the lowest price. This applies to serious felony cases handled at the superior court level, as well as municipal court offenses. It is important to keep in mind that even municipal court offenses can carry heavy penalties like loss of a driver’s license, jail time, probation supervision, and significant fines. In fact, DUIs carry greater potential penalties than many felony convictions, even though a DUI is a non-criminal, motor vehicle offense.

Additionally, most lawyers, and particularly the cut-rate ones, do not know how to advise clients of the so-called “collateral consequences” of a municipal court conviction. A case in point involves the simple possession of a small amount of marijuana. Aside from not knowing how to avoid or minimize the direct consequences of a marijuana possession conviction, consequences like probation supervision, loss of driver’s license, and jail time, very few attorneys are aware of the additional consequences of a conviction.

Three of the more common collateral consequences are the denial of: student loans, expungements, and felony diversion eligibility. Regarding student loans, a conviction for a marijuana or paraphernalia offense is often a basis for student loan ineligibility. The eligibility period is from one year to life, depending on the circumstances of the case. It takes a skilled attorney to find a way to have these charges dismissed or amended since they are the most serious charges that are dealt with in municipal court. Additionally, the Attorney General prohibits prosecutors from amending or downgrading these charges, with only the narrowest of exceptions.

Regarding collateral consequences and expungements, this is an exceedingly complicated and nuanced area of the law. For example, the principle benefits to having a marijuana charge amended to the offense of “wandering to obtain a controlled dangerous substance” is that it does not expose the defendant to a loss of driver’s license or additional fines related to drug offenses. Additionally, “wandering” is not considered a drug offense. Therefore, it can not be a basis for the aforementioned student loan ineligibility. An amendment to “wandering” can also save an undocumented defendant from deportation in a situation where a drug conviction would be grounds for removal from the country. Notwithstanding those benefits, for defendants considered “young offenders”, a conviction for “wandering” creates a five year bar to an expungement (being able to legally say that the arrest and conviction never occurred). On the other hand, a marijuana conviction for a “youthful offender” can paradoxically be expunged in just one year. Thus, it is important to hire an attorney with the knowledge and skill to not only explain these collateral consequences, but also the ability to help a client do a cost-benefit analysis regarding which disposition is best for their unique set of circumstances and priorities. Note that our courts do not require attorneys to explain these “collateral consequences” to defendants. Therefore, most attorneys have very little motivation to do so.

Regarding the third common collateral consequence, felony diversion eligibility, this is a very important consideration that is routinely over-looked by attorneys and judges in municipal court. Using a conditional discharge or conditional dismissal in municipal court means that a felony charge can never be diverted in superior court through the PTI program. Most attorneys are all too willing to take the easy route and accept a conditional dismissal or conditional discharge if it is offered, since it ultimately allows for dismissal of the present charge.