Shawn Mills:
The DUI Process Ð A Brief Overview
What Is The Charge?
At the outset, we will assess what crime or crimes you are accused of committing. This will be determined by the prosecutor when they file the complaint against you.
A complaint is the name given to the paper setting out the alleged violations of law. The complaint is the legal document that brings you to court and starts the legal process against you.
Usually in a DUI case, you will be charged with two separate criminal offenses:
Section 23152 (a) of the California Vehicle Code, driving under the influence; and,
Section 23152 (b) of the California Vehicle Code, driving with a blood alcohol level of .08% or higher.
You will also most likely have a license suspension matter before the DMV. This is not a criminal offense. It is a civil proceeding before an administrative agency, the California DMV.
The matter before the DMV will be brought under the Administrative per se suspension law. This is almost identical to the per se criminal charge, 23152 (b) driving with a blood alcohol level of .08% or higher, which you will also be facing in the criminal case.
The Arrest
In a DUI case, an arrest can be made in one of two ways: 1) an on-view arrest; or 2) after an accident where the police did not actually see the driving.
A court can also issue an arrest warrant. This is generally the case if you fail to appear in court after receiving proper notice to do so, or if you were previously on probation and failed to perform any conditions of that probation order.
Certain legal rules govern the arrest process and our office will analyze the controlling law to determine if a valid legal arrest has taken place and what remedies exist if you were not legally arrested.
The details of the arrest are important for many different legal reasons. We will be looking to legal defenses that either substantially or procedurally block the prosecution, which may flow from the arrest process itself.
The Judge
The power that the judge has over your case is considerable. The judge's role in the case is to decide questions of law and to apply the law as fairly as possible to your case.
For most defendants, the first contact with the judge is at arraignment, which generally marks the first time one comes to court. Arraignment is nothing more than the judge advising the defendant of the charges that have been filed by the prosecution. Our office almost always waives your personal appearance at the arraignment so that you do not need to attend this court appearance. We then set the case down for further proceeding, usually a pre-trial conference date.
The only thing that the judge can do at the arraignment is to accept your plea, set bail and continue the case for further proceedings. The judge will not entertain any discussions as to the merits of your defense to the charges; those issues will be taken up at a later date in the litigation.
Later in the course of the case the judge will also hear all pretrial motions that will be filed by our office. We will conduct legal research and determine what are the appropriate motions to file to best serve your defense. These may include motions to limit or exclude certain evidence and to discover the evidence that the prosecutor intends to offer against you at trial. If there are such motions, and usually there are, then these will be later argued by counsel and ruled upon by the judge.
The success or failure of these various motions will, in large part, determine the legal strength or weakness of your case. The judge will then be in a position, later at the pretrial conference, to attempt to settle the case by discussion with both the prosecutor and our office. If your case is not settled or dismissed, then you will probably be going to jury trial. The judge presides over the trial ruling on legal questions, while leaving questions of fact to be determined by the jury.
If your case is in federal court, there is not a jury and so the judge becomes the final arbiter of both legal and factual issues. This is perhaps the area where the judge has the most power over your case. By the time the trial begins, the judge has determined how the trial will be conducted and what evidence will be received through pretrial rulings.
Pretrial Procedure
Most cases settle without having to go to a jury trial. Therefore, the pretrial proceedings are very important in trying to get your case either dismissed or settled for a plea to a non-DUI charge.
Pretrial procedures most often relate to the filing of motions that can dispose of the case without the necessity of a trial. However, there are other pretrial motions used for the purposes of preparing the defense that do not go directly to a dismissal of the case. An example of this is the motion for pretrial discovery. Here, we seek to ensure we are in the possession of all of the evidence that exists in the case which the prosecution has in its possession (Often, the initial set of reports provided by the prosecution does not contain the key pieces of evidence needed for an effective defense). If a discovery order is violated, some sanction may be imposed by the court.
Misdemeanor DUI
Your first appearance before the court will be the arraignment. The arraignment is simply the judge informing you of what offenses you are specifically charged with, and you informing the judge how you are going to plead. The court will not hear any defenses to the case at this time. If you do not already have a lawyer by the time of the arraignment, you can ask the judge for a continuance to obtain the services of an attorney. The judge will generally not ask you to enter a plea at this time without counsel and will generally give you reasonable time to secure the services of an attorney.
Once your attorney appears and the plea of not guilty is entered, the court will then set the case down for a pretrial conference. The procedures at the arraignment can vary from county to county, and sometimes from courthouse to courthouse within a county. For example, in some courts, the judge will set the matter for a pretrial conference as well as a jury trial date right at the arraignment. Other courts may set a date for a pretrial conference to explore the possibility of disposition and settlement before setting a jury trial date.
After the arraignment, your attorney will be pursuing discovery. The discovery process is available for you to determine what evidence the prosecutor has available to him/her to prove the charges. We will want to see if the prosecutor can prove all of the elements of the crimes you are charged with committing. If so, then you have to explore any and all legal claims, which may prevent the evidence from being used at the trial.
Once the pretrial motions are heard and ruled upon by the judge, the case should be ready to proceed to trial. Sometimes the court, or our office, will want to set a further date for the purpose of one last pretrial conference. This period of time between the hearing on the motions and the settling date can give the parties one last chance to reevaluate their positions and decide whether or not to run the risk of trial.
Felony DUI
A crime under California law which carries the possibility of a state prison sentence is defined as a felony. Some crimes are defined in the Penal Code as "wobblers." This means the prosecutor could charge them as misdemeanors or felonies. In a DUI with injury, 23153 (a) and or (b), the prosecutor can still charge the offense as a misdemeanor if little or no serious injury was involved.
All felony offenses are first brought before the court for arraignment, pre-preliminary examination motions and preliminary hearing. All felony charges have two levels of proceedings in California. They start in Superior Court where the judge sits as a magistrate to determine whether or not sufficient evidence exists for the matter to proceed to trial (This is called the ÒPreliminary HearingÓ). If the judge finds that probable cause exists, then you are "held to answer" and the case is sent to a trial court for pretrial and possible trial proceedings.
The DMV And Your Driving Privilege
One of the most important issues to address in your case will be your attempt to keep your driving privilege. For most people, this is looked upon as an absolute necessity and often may very well directly relate to your ability to make a living.
You only have 10 days from the date of arrest to request a hearing before the DMV.
If you do make the request, your license will be suspended once the 30 days expire on your temporary license. If you do make the request, then your driving privileges will remain in effect pending the outcome of the hearing.
The information set out below supplies the Department of Motor Vehicles with the information legally necessary to obtain a hearing. You do not have to supply any other information at the time you make the request in order to receive a hearing date or the stay of your license suspension. Your hearing request, however, must be made within ten days of the Notice of Suspension. The ten days are calculated by counting the first day as the first day after your arrest. As an example, if you were arrested on the 15th of the month, start counting on the 16th of the month as the first day, and the tenth day would then be the 25th of the month. Local numbers are found below. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney to assist you prior to questioning, and to be with you during questioning if you so desire. If you cannot afford an attorney, you have the right to have an attorney appointed for you prior to the questioning. Do you understand these rights?