Most DUI offenses are misdemeanors so that the stages of a DUI criminal proceeding are the same as for any other misdemeanor.
- Stage 1 = The Arraignment
- Stage 2 = The Pretrial Conference
- Stage 3 = DUI Trial
The only time a DUI is a felony is if this is your fourth or more DUI offense in the past 10 years, if you had a prior DUI felony conviction or if the present DUI offense involved an accident with serious bodily injuries or a death.
Formally, an arraignment is where the charges against you are read in open court and then you are asked to enter a plea. This is time-consuming and unnecessary so even if you do appear with your attorney, your lawyer will ask the court to waive the reading of the complaint against you and enter your plea of not guilty. If you are present, the court will also advise you of your constitutional rights, including:
In most DUI cases, the defendant is not in custody and there is no issue regarding bail. Bail is a payment that is made by the defendant to ensure appearances at future court dates. Bail may be an issue if this is your third or more DUI offense or if there are other charges accompanying the DUI such as possession of firearms, assault, and possession of certain narcotics or others4.
If you appear without an attorney, the judge will ask if you can afford one. If you are unemployed or low income, you may be asked to apply for a public defender at no or low cost to you. The court is reluctant to have you represent yourself although you can plead guilty if you wish but only after you are fully advised of your rights and knowingly waive them5.
If you have an attorney, a benefit is that you do not have to appear at the arraignment, especially if you are entering a not guilty plea. Your DUI attorney will enter the plea for you and obtain discovery documents from the prosecuting attorney6.
The documents provided to you or your attorney include a copy of the complaint with the charges against you along with a copy of the police report and any witness statements obtained. You may also be served with a request for discovery at this time, or shortly thereafter, where your attorney is required to provide the prosecution with copies of witness statements names of witnesses who may testify at trial and documents you plan to introduce at trial.
After your not guilty plea is entered, the court will schedule a future court date for your pretrial conference.
Within a few weeks after the arraignment, the second stage of the DUI court process called the pretrial conference will be held. In the interim, your attorney has the option of filing certain motions based on the facts of your case as determined by the evidence that has been made available. For example, your attorney could file the following motions:
- Motion to recuse a judge—based on reputation as being strict on sentencing and/or hostile to defense attorneys for example7
- Motion to dismiss based on lack of sufficient evidence, jurisdiction or other grounds
- Motion for discovery if the prosecution objected to turning over certain evidence
- Pitchess motion to discover prior misconduct by arresting officer8
- Motion to suppress evidence such as illegally obtained admissions, unlawful search and seizure, failure by the prosecution to provide certain documents or other evidence
- Motion for change of venue (if high profile case for example)9
- Motion to obtain preserved blood or urine sample for testing
At the conference, the prosecutor will generally offer a plea arrangement10. If this is a first offense with no aggravating factors, the prosecutor will advise your attorney of the typical sentence imposed. This may be 48 hours in jail or community service, depending on the policies of that court, along with a fine of about $390 and participation in DUI classes.
In some cases, a plea to “wet reckless” ((VC 23103.5)) or dry reckless is substituted for a DUI, which is basically the same as a DUI conviction. If there are favorable circumstances to you or issues that could make a conviction difficult, a non-alcohol related offense can be negotiated so that you will face no jail time and none of the consequences of a DUI conviction. Two examples are pleas to “exhibition of speed,”11 or “reckless driving”12.
The DMV will have taken care of your license suspension if no challenge was made. If you did prevail at the APS or license suspension hearing, you have an excellent chance of having the DUI dismissed or the prosecution may offer a plea to a non-alcohol related offense or infraction where you will have no criminal record.
In regards to a plea agreement, your attorney can ask for community service in lieu of jail if jail is a typical sentence, though community service can take up a considerable amount of your time. If you have multiple DUI convictions, then your attorney will advise you that you are looking at months in jail unless you take your case to trial and prevail. A trial is often advisable in such cases absent a very satisfactory plea agreement if there are issues in your favor such as the validity of the stop and arrest, unlawful police procedure or conduct or issues about the breath or blood sample process.
The overwhelming majority of DUI cases are settled at this stage.
If you decide to plead guilty or enter a plea of nolo contendre (no contest plea that is the same as a guilty plea where you admit there is sufficient evidence against you), you are then asked if you are voluntarily waiving the constitutional rights that you were previously advised about. The court will then pronounce sentence. If you have prior DUI convictions, you may be referred for a presentence report regarding your alcohol consumption habits and other factors that may influence the sentence.
Otherwise, if there is no plea agreement and you continue your plea of not guilty, you and your DUI attorney are scheduled for a trial date.
It is said that everyone deserves their day in court. In a DUI case where there are issues that your attorney believes can sway a jury in your favor, then you should consider it. Of course, a jury trial is stressful but if you have some issues that are advantageous to you, then your attorney need only convince one of the 12 jurors to decide you are not guilty since you can only be convicted by unanimous verdict13.
Most DUI trials involve testimony from the arresting officer and officer or technician who administered the blood, breath or urine test if drugs were involved. The defense may or may not have you testify and if the chemical test is at issue, may retain an expert who will also testify. Most trials last no more than one to two days.
- Motions in limine—these are designed to keep certain evidence out such as inflammatory photographs, incriminating statements or even chemical test results (if granted, the trial may be over)
- Jury selection—each side has a number of peremptory strikes and then may strike jurors for cause (bias)
- Opening statements
- Prosecution presents its case with testimonial and documentary evidence
- Defense has opportunity to cross-examine witnesses
- When prosecution rests, defense may make a motion to dismiss
- If denied, defense may or may not present evidence such as putting the defendant on the stand and/or an expert in chemical analysis
- Rebuttal testimony by prosecution
- Defense rests
- Closing arguments by both prosecution and defense
- Reading of jury instructions to jury
- Jury deliberates and delivers verdict or is a hung jury
A hung jury means that not all 12 jurors have reached the same verdict. If this occurs, the prosecution has the option of not re-trying the case, re-trying the case or attempting a plea agreement, usually to a non-alcohol related offense and no jail. The defense could also move the court to dismiss the case, usually if the evidence was weak and all but one or two jurors voted to acquit.
Question: If I take my case to trial and I lose, will the judge impose a harsher sentence on me than if I had taken the plea offer?
Answer: That can happen in some cases such as where you have prior DUI convictions and the prosecutor offered you little or no jail time in return for a plea. The court is not bound by whatever plea agreement you had rejected. In first offense cases, it is unlikely the court will impose a harsher sentence other than possibly a higher fine. If you testified and the court felt you were lying, then you may face a stricter sentence. Aggravating circumstances will also enhance a sentence.
Answer: If you refused chemical testing, the prosecution can argue that your refusal was motivated by consciousness of guilt. This is embodied in a jury instruction that is read to the jury. However, the refusal by itself cannot be used to prove guilt. We can also argue that you had a credible reason for refusing such as an inability to blow into the device or confusion over the consequences of taking it. Also, the prosecution must introduce some other evidence that you were impaired such as slurred speech, unsteady gait, an inability to understand the officer or flushed face along with erratic driving conduct. Otherwise, you may well have an excellent chance of prevailing at trial or receiving a favorable negotiated plea offer.
Question: Shouldn’t I testify at trial? I have nothing to hide.
Answer: Whether to put you on the stand to testify is up to your attorney. If you have a prior felony, the prosecution will use that to impeach your credibility and try to instill distrust in the minds of the jury. If we do decide to put you on the stand, we will thoroughly prepare you for questions the prosecutor will likely ask, especially if you had been drinking. For instance, if you admit to feeling the effects of the alcohol at all, then the prosecutor will argue that that proves you were under the influence, especially if the officer observed some conduct that suggested any degree of impairment. Otherwise, if we feel the evidence against you is weak or that the state has failed to meet the burden of proof, we will not have you testify. You do have a right not to testify and this is told to the jury.
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- Gideon v. Wainwright 372 U.S. 335 (1963 [↩]
- Miranda v. Arizona 384 U.S. 436 (1966 [↩]
- Serna v. Superior Court (1985) 40 Cal.3d 239 [↩]
- People v. Arnold (1976) 58 Cal.App.3d. Supp.2 [↩]
- People v. Douglas (1964) 61 Cal.2d 430, 434 [↩]
- Brady v. Maryland 373 U.S. 83 (1963). [↩]
- CCP Section 170.6 [↩]
- Pitchess v. Superior Court (1974) 11Cal3d 531 [↩]
- Pickwick Stages System v. Superior Court (1934 ) 138 Cal.App. 448, 449 [↩]
- People v. West (1970) 3 Cal.3d 596 [↩]
- Vechicle Code 23109(c). [↩]
- Vehicle Code 23103 [↩]
- People v. Freeman (1994) 8 Cal.4th 450, 503-504 [↩]