You Got Charged With DUI… What Happens Now?
The police arrested you for DUI. You gave a blood or a breath
sample. The DUI officer confiscated you drivers license. The
police released you with a notice to appear in court in a few
weeks. Where do you go from here?
Below is a brief overview of a typical DUI case, from the traffic
stop to the ultimate resolution of the case. Keep in mind that
every drunk driving case is different. Some may follow a different
pattern. But this is how it usually works:
I. The DUI Traffic Stop & Investigation
Typically, it begins when the DUI officer pulls the suspect
over for an alleged traffic
violation - such as speeding, weaving, running a stop sign,
or some sort of vehicle defect. The DUI officer claims that
when he gets face to face with the suspect, he immediately notices
"objective symptoms
of intoxication." These include an odor of alcoholic
beverage on the suspect's breath, watery and bloodshot eyes,
a flushed face and slurred speech. The suspect often admits
to having consumed some alcohol that day or evening.
The officer therefore begins a "DUI investigation."
He tells the suspect to step out of the vehicle and perform
a series of field sobriety
tests (FSTs). He may have the DUI suspect blow into a handheld
machine (called a PAS device), which gives a preliminary estimate
of the suspect's blood alcohol level. The DUI officer is supposed
to inform the suspect that taking the "PAS test" is
voluntary. But in reality, few officers really inform their
suspects of this. Moreover, unbeknownst to most citizens pulled
over for DUI, the FSTs are voluntary as well.
II. The DUI Arrest
The DUI officer claims the suspect "performed poorly"
on the FSTs. Furthermore, the PAS reading indicates the suspect
may be above the legal limit. Based on this, the DUI officer
"forms the opinion" that (1) the suspect is under
the influence and (2) the suspect's ability to drive a motor
vehicle safely is impaired. So the officer arrests the suspect
for DUI, and takes him/her to the police station (or hospital)
for a chemical test.
The DUI suspect chooses between a breath
test or a blood test. Under
California's "Implied Consent Law," someone lawfully
arrested for DUI must submit to one of these tests. Refusal
to do so can subject the arrestee to stiffer court penalties
and possibly a one-year (or longer) drivers license suspension.
If the DUI suspect selects a blood test, the blood sample is
forwarded to a crime lab for analysis. The result won't be known
for several days. If a breath test is chosen, the officer sees
the BAC reading immediately after the suspect blows twice into
the machine. Sometimes the officer informs the suspect of the
result, sometimes not.
Following the blood or breath test, the DUI suspect is booked
and later released - either on bail or a written promise to
appear in court on a future specified date. The arresting officer
completes his police report and forwards it to the prosecutor's
office for review. The prosecutor will decide what criminal
charges, if any, to file.
The two most common DUI Charges are:
III. Hiring An Attorney
You have three options as to representation in DUI court: (1)
use the public defender, (2) represent yourself or (3) hire
a private dui
defense attorney. I will discuss each in turn.
A. The Public Defender
Many people bash public defenders. Many see them as county
burnouts who simply "move people through the system"
and don't really care. This perception, for the most part, is
entirely wrong (indeed, in my experience, this perception is
true of more private defense lawyers than it is of public defenders).
Most of the public defenders I know are excellent and dedicated
lawyers. They know the judges, the prosecutors and "the
system" of the court where they practice. This insight
is valuable. While I served as a deputy district attorney, I
found some of my most formidable adversaries in trial to be
public defenders.
That said, there are serious disadvantages to going with the
public defender in a DUI case. First, you may not qualify financially
for their services. Second, you don't choose your public defender.
One is assigned to your case. If the two of you don't click,
the court will rarely allow you to select a different one. Third,
the public defender will not handle the DMV part of your case.
As I will explain, fighting the DMV part of your DUI case is
inextricably tied to fighting the criminal part.
Finally, and most importantly, public defenders can rarely
devote the sort of time, energy and resources to working up
your DUI case (from the beginning) that a good private lawyer
could. It's not that the public defender wouldn't like to. But
in reality, they have so many cases, responsibilities and pressures
that this sort of devotion to any particular DUI case is not
a luxury they can afford.
B. Self-Representation
An old saying goes: "He who represents himself has a fool
for a client." I don't know if I'd go that far. But suffice
it to say that it is almost never a good idea to respond to
a criminal charge without a good, experienced lawyer--especially
in such a specialized and technical matter as a DUI.
A good DUI lawyer can (1) spot (and develop) the favorable
issues in your case, (2) assess the value of your case in the
particular court and community where it's being heard, and (3)
negotiate the deal that will have the least harmful impact on
your particular life situation. No matter how bright s/he is,
or how much Nolo reading s/he does, a lay person accused of
DUI is almost never going to be able to do this as effectively
as a skilled DUI
defense attorney.
C. Private DUI Lawyers
You will find that lawyers charge anywhere from $500 to $10,000
for first-time DUIs. A few days after your arrest, your mailbox
will overflow with "jail-mail": letters and brochures
from lawyers offering to take your case for $2000…$1000…$495.
Some even send you coupons and monthly specials. Beware.
As with anything, you get what you pay for. A good DUI attorney
can do wonders. But you won't find a DUI lawyer with the knowledge,
experience and commitment to make a real difference in your
case at the low end of the price spectrum. You just won't. There
are no bargains. Most cheap attorneys will simply show up to
court and plead you out, but do nothing to cultivate the sorts
of defenses that can alter the outcome of the case.
In short, if you can afford one, a good private attorney is
definitely the way to go. But be ready to pay. Personally, if
(God-forbid) I got charged with DUI, there are only about ten
or so private DUI lawyers in the Los Angeles/Inland Empire (out
of hundreds) that I would consider. All of them charge between
about $4000 to $6000 for a pretrial retainer. If you're not
prepared to pay in this range, then, honestly, save your money
and go with the public defender or just represent yourself.
*Note: In their advertising and discussions
with you, many attorneys will make misleading claims. Beware
of lawyers who promise you certain results, or who claim they
can make "backroom deals" with judges or prosecutors
to get your case dismissed. Also beware of lawyers who display
the results of certain cases (showing a list of dismissals and
reductions). While those may be the results of a few cases over
the course of the lawyer's career, I can almost guarantee you
those are not the lawyer's typical results. Also, the advertised
results may be the result of lucky circumstances in certain
cases, rather than good lawyering.
IV. Setting the DMV Hearing
During the DUI arrest, the officer takes away the suspect's
California driver's license and gives him/her a pink form entitled
"Suspension Order and Temporary License." This form
serves as a (1) temporary license and (2) notice that this temporary
license will automatically go into suspension in 30 days unless
a hearing on the matter is requested.
The DUI suspect has 10 (TEN) calendar days to contact the DMV
and request a hearing. Once the hearing is requested, the license
suspension is automatically postponed pending the outcome of
the hearing. The suspect can choose an in-person DMV
hearing or a phone hearing. We suggest you always request
a live hearing.
The DMV hearing takes place
in a closed room at one of the local DMV Drivers Safety
Offices. A DMV hearing officer presides. You are entitled to
be present, along with your lawyer, and any witnesses that
may be called by either side. The hearing officer must decide
three things, all of which must be true before the license
can be suspended:
- Was the person driving a motor vehicle?
- Was the person lawfully arrested?
- Was the person's BAC at or above a .08 at the time of driving?
Typically, our law firm provides the hearing officer with a
written legal motion as to why a suspension should not be imposed.
In appropriate cases, we may call the arresting officer, the
client, and/or one of our own toxicologists to testify. Questioning
the officer at the DMV hearing generates a transcript that can
be used later to negotiate the case with the prosecutor, and/or
to prepare the case for a possible trial.
V. The Arraignment
This is the first court date. If the charge is misdemeanor
DUI, your attorney can appear for you (meaning you don't have
to be present) at this court date. The same is usually true
for all future court dates.
At the arraignment, your attorney (1) enters a plea of "not
guilty" on your behalf, (2) receives the initial set of
police and scientific reports, and (3) sets the case for a pre-trial
court date to occur a few weeks later.
At this point our staff investigates and begins to develop
the defenses and favorable issues in your case. This preparation
may include:
- Reviewing the details of the police reports with the client
- Obtaining further documents from the prosecution
- Interviewing third-party witnesses
- Obtaining the maintenance history of the equipment used,
such as the breath machine
- Reviewing the radio records and compliant history of the
arresting officer
- Examining the scene of the traffic stop
- Having our own toxicologist analyze the blood or breath
results
- Drafting motions to be presented at court and DMV hearings
VI. Pre-Trials & Motions
"Pre-trials" are court dates in which we (1) collect
further DUI reports and information from the prosecutor, (2)
argue appropriate DUI motions to the court (for example, that
the stop or the arrest were illegal), and (3) negotiate the
case with the prosecutor and/or the judge. If we reach a settlement
of the case that everyone is happy with (such as a reduction
to a lesser charge), we can enter your plea to the court.
There may be several pre-trials before the DUI case is resolved
or brought to trial. The process may take anywhere from a couple
weeks to several months. It is during this period that the DUI
attorney "works up" the case with a view to securing
a reduced charge or preparing a persuasive case for jury trial.
If a plea agreement is reached, we can either (1) bring you
to court to enter the plea, or (2) have you sign the relevant
documents in our office, have the documents notarized, and bring
the documents to court.
VII. Jury Trial
Most DUI cases get resolved short of jury trial. But some cases
go to trial. At a jury trial, 12 jurors are selected from the
community to hear the prosecution's case and the defense case.
The DUI lawyer cross-examines the prosecution's witnesses and
may call his own witnesses and experts to testify. All
jurors must be convinced beyond a reasonable doubt that
the accused is guilty before he/she can be convicted.
The decision as to whether to go to trial is entirely up to
the client. We will discuss with you all the advantages and
disadvantages, risks and benefits. For a discussion of potential
issues at trial, please see our section on DUI
Defenses.
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