The Cite: Court of Appeals of Arizona, Division 2, Department A. The STATE of Arizona, Respondent, v. Jose Luis Velasquez ORDUNA, Petitioner. No. 2 CA-CR 2008-0048-PR. Nov. 13, 2008.

The facts as taken from the opinion:

In 2001, Orduna was indicted on charges of aggravated assault with a deadly weapon or dangerous instrument, criminal damage, leaving the scene of an accident involving injury, driving under the influence of an intoxicant (DUI), driving with an alcohol concentration of .10 or more, and driving under the extreme influence of intoxicating liquor. The state offered a plea agreement allowing Orduna to plead guilty to aggravated assault, criminal damage, and misdemeanor DUI but withdrew that offer when Orduna absconded and did not appear at the change-of-plea hearing....

After he was apprehended, Orduna moved for an order directing the prosecutor to reinstate the plea offer. He asserted his counsel had inadequately explained it to him and suggested that he would have accepted the plea agreement and not absconded if counsel had been effective. The trial court denied his motion after an evidentiary hearing, and a jury found Orduna guilty of all charges except leaving the scene of an accident. The court sentenced him to concurrent terms of imprisonment, the longest of which was six years...

Analysis and commentary: It is extremely common in criminal cases, especially felonies, that the defendant blames the attorney upon conviction. While it is important to always work in the client’s best interest, it is also important to make sure that the client’s file is documented with every conversation.

For highly favorable plea agreements, it is also a good practice to put the terms of the agreement in writing and present it to the client. This will help avoid a misunderstanding about the terms of the plea agreement, and will also protect the lawyer in the even the client later claims that the agreement wasn’t presented.

This case occurred in Arizona. In Arizona criminal cases, a “Donald” hearing is available. At that hearing, the terms of the plea agreement are presented to the defendant on the record in open court, and the deadline for accepting the plea agreement is also stated. This protects the defense lawyer from claims such as the defendant in this case made. More importantly, it protects the defendant from an attorney who may have forgotten to explain the terms or the deadline.

As always, the most important thing to keep in mind when representing DUI clients is communication. It is better to repeat yourself several times than to risk your client either not hearing your message or not understanding it.