dui case process

FROM A DUI ARREST TO A VERDICT...DUI FROM A TO Z

Upon arrest you were given a blood or a breath test. Your drivers license was confiscated You were released with a notice to appear in court in a few weeks.

A STEP BY STEP guide to the criminal court & defense processes:

STEP 1: TRAFFIC STOP & INVESTIGATION

A DUI officer pulls you over for an alleged traffic violation (e.g., speeding, defective vehicle equipment, weaving, running a stop sign). The DUI officer claims that he or she immediately noticed "objective symptoms of intoxication (e.g., detected odor of alcohol on your breath, bloodshot eyes, slurred speech.) You may have admitted to consuming some alcohol during the day or evening.

A "DUI investigation begins." The officer told you to step out of the vehicle and perform a series of field sobriety tests (FSTs). He may have had you blow into a handheld machine (a PAS device which gives a preliminary estimate of blood alcohol level). By law, FSTs and portable breath tests are voluntary. The officer likely failed to reveal that information.

STEP 2: THE DUI ARREST

The DUI officer claims you "performed poorly" on the FSTs and that the PAS reading indicates you may be above the legal limit. The DUI officer then "forms the opinion" that you are under the influence and your ability to drive a motor vehicle safely is impaired. You are then arrested for suspicion of DUI, and taken to a police station or hospital for a chemical test.

You are given a choice between a breath test or blood test. Under California's "Implied Consent Law", DUI arrestees must submit to one of these tests. Refusal to submit to a chemical test will count as a "penalty enhancement", or aggravating factor, and cause you to lose your license for one year.

If you select a blood test, a sample is forwarded to a crime lab for analysis and results may take several days. Breathalyzers provide a BAC reading immediately after blowing into the machine.

Following a chemical test at the station, you'll likely be booked and later released - either on bail or your own recognizance ( OR ). The arresting officer provides his report to the San Diego District Attorney's office for review. The prosecutor then decides whether to pursue criminal charges.

The two most common DUI Charges are DRIVING UNDER THE INFLUENCE and DRIVING WITH A BLOOD ALCOHOL CONTENT OF .08% OR HIGHER.

STEP 3: YOUR DRUNK DRIVING DEFENSE

Driving under the influence (DUI or DWI) charges in San Diego can result in fines, driver's license suspension or revocation, and/or jail time. You may also be hit with new exorbitant insurance rates.

Your three options for court representation are to use the public defender, attempt to represent yourself, or hire a private DUI attorney.

Public defenders can rarely devote the necessary time, energy and resources to build up a defense for your DUI case (from the beginning) that a private DUI lawyer can dedicate. It's not that the public defender wouldn't like, it's just not realistic. Public Defenders have so many cases to defend, they don't have the luxury of ordering independent lab tests, calling expert witnesses and toxicologists, visiting the arrest scene, conducting research, etc.

DUI is a complicated and technical area of California law, and we strongly recommend you with both the dmv and criminal cases by hiring knowledgeable and experienced DUI lawyer to defend you.

As with anything, you get what you pay for. A "discount" or bargain basement attorney is rarely effective or committed to a case he undercharged for. Most will do little, if anything, to cultivate strong DUI defense strategies to fight your case.

A proven and effective DUI Defense Lawyer is an investment toward a charge that could affect you for the rest of your life.

STEP 4: THE DMV ADMIN PER SE HEARING

It is critical that you or your DUI ATTORNEY contact the San Diego DMV Driver's Safety Office within ten (10) calendar days of your DUI arrest to arrange a hearing to contest the suspension of your drivers license.

This is your chance to have your license suspension removed!

The San Diego County Driver Safety Office is located at:

• 9174 Sky Park Court, Suite 200
• San Diego, CA 92123
• Phone: (858) 627-3901

If you do not request an Admin per Se hearing within ten days of your arrest, you will have relinquished your right to challenge the loss of your driving privileges. If so, the suspension will take effect upon expiration of the 30-day temporary license issued to when you were released from jail.

The DMV proceeding takes place in a closed room where a DMV hearing officer presides. You are entitled to be present, along with your DUI lawyer, and any witnesses that may be called. In order sustain your license suspension, the hearing officer must determine that a) You were driving a motor vehicle, b) you were lawfully arrested and c) you had BAC at or above .08% at the time you were driving ( for minors under 21 years of age the BAC limit is .01% under San Diego County's zero tolerance laws).

Your DUI attorney will submit a written legal motion as to why a suspension should not be imposed, and call witnesses as the case warrants. If the arresting police officer testifies at the DMV license suspension hearing, a transcript of his or her testimony can be implemented in criminal court of your DUI case.

STEP 5: ARRAIGNMENT HEARING

This is the first court date. If the charge is a misdemeanor DUI, your drunk driving attorney can appear on your behalf and your attendance isn't required. The same is usually true for all scheduled criminal court proceedings on misdemeanor DUI charges.

At the arraignment, your attorney (1) enters a plea of "not guilty" (2) receives the initial set of police and scientific reports, and (3) sets the case for a pre-trial court date scheduled a few weeks later.

Your DUI lawyer will now begin investigating the state's case, determining defenses and favorable issues in your case, examining evidence, reviewing police reports, interviewing third-party witnesses, obtaining maintenance history records of the testing equipment used, consulting with expert witnesses, and any other investigations pertinent to your case.

trial date

Once a trial date is set, it is usually expressed as a "zero of ten date," meaning that the DUI defendant's right to a speedy trial will not be violated if the DUI trial begins within 10 days of that date. (If the tenth day falls on a Saturday or Sunday or holiday, the next court day would be the "last day" for trial.) Swearing in of the Jury Panel is the start of the trial.

STEP 6: PRE-TRIAL & MOTION HEARINGS

"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 an agreeable settlement such as a reduction to a lesser charge we enter a plea to the court.

There may be several pre-trial hearings before the DUI case is resolved or brought to trial. This process can may take up to several months.

Motions brought just before the commencement of a jury trial are often referred to as "402 Motions," in California (section of Evidence Code). The purpose of the pre-trial motions (also known as Motions In Limine) is to obtain a ruling before trial on any items of evidence that either side believes will be raised in trial. DUI defendants can and should expect that their lawyer will bring a number of pretrial motions just prior to jury selection, or even during jury selection (out of presence of prospective jurors). Your attorney is not required to give the prosecutor advance notice of these DUI motions, thus setting up a potential advantage for your team.

STEP 7: THE DUI JURY TRIAL

Most DUI cases are resolved without a trial by jury. If your case is heard before a jury, your DUI attorney will cross-examine the prosecution's witnesses and may call our own witnesses and experts to testify. All jurors must be convinced beyond a reasonable doubt that the defendant is guilty before he/she can be convicted. The decision to go to trial is entirely up to you, and your lawyer will advise you based on the facts in your case.

jury selection

With the resolution of pre-trial motions, the jury must then be selected. In California DUI cases, 12 jurors (and one or two alternate jurors) are chosen. ALL jurors must agree the prosecutor has proven each element of the case beyond a reasonable doubt. Reasonable doubt of the defendant's guilt must result in a verdict of not guilty. The jurors must be unanimous if there is to be a conviction; if they are not, that is referred to as a "hung jury" and often results in the dismissal of charges.

Jury selection commences with a panel of prospective jurors being sent to the courtroom. Generally, 45-50 prospective jurors will be sent. The clerk of the court will then "swear the panel," which is the technical commencement of the trial for purposes of the legally required speedy trial.

There will be at least 12 prospective jurors summoned the judge will ask each juror to give their answers to questions that are on a bulletin board at the front of the court (e.g., Juror I.D., job, area of residence, etc.) Some judges will hand out a questionnaire to the prospective jurors that bring out issues that are unique to DUI cases. The jury is selected by a process of elimination, to be described further below. The prosecutor and the DUI defense lawyer have a limited number of peremptory challenges, or challenges that can be used for any reason. In California DUI trials, each side has 10 peremptory challenges. If the DUI defense lawyer can get rid of a juror they don't like by using a challenge for cause, which are unlimited, it saves preemptory challenges, which are limited.)

Once the jurors have all introduced themselves, and answered some preliminary questions from the judge, the lawyers follow up by asking questions of the 12 or 18 prospective jurors. In California, the defense lawyer goes first.

Most knowledgeable DUI trial lawyers agree that many cases are won or lost in jury selection. Jury selection in DUI cases is the first opportunity for the drunk driving defense lawyer to create a rapport with their prospective jurors, and get these 12 or 18 strangers to start liking him or her and relate to the defendant. Most judges impose strict time limitations on the lawyers during the jury selection process. The skilled drunk driving defense lawyer will know that this is the time to start developing themes that will be brought to fruition later in opening statement, cross-examination, and closing argument.

After the defense lawyer questions the panel, the prosecutor does the same. Finally, at the end of the first round of questioning by the lawyers, the judge entertains challenges for cause. As noted, these challenges for cause are limitless, but tough to make. The DUI defense lawyer is required to show that particular juror simply cannot give the defendant a fair trial. The judge questions each lawyer about preemptory challenges, which are done in an alternating sequence, usually beginning with the prosecutor. Each side has 10 peremptory challenges available in California.

The jury is selected when either both the prosecutor and defense lawyer accept the 12 people seated, or both sides run out of challenges in which case the jury will consist of the 12 who are left. A skilled DUI defense lawyer will be the best resource regarding any DUI, DWI, or drunk driving case.

opening statements

After jury selection the parties to the DUI case make an opening statement. The prosecutor, having the burden of proof, goes first. After the prosecutor gives an opening statement, the defense lawyer has the choice of giving his or her opening statement then or after the prosecutor has concluded his case.

Defense lawyers usually give opening statement immediately, so the jury can have defense views in mind while hearing the prosecution. The Defense attorneys will emphasize prosecutor's obligation to prove each and every element of the DUI case beyond a reasonable doubt. The experienced DUI defense lawyer will take the opportunity to argue their case during this very important phase of trial.

It may not yet be clear whether it is advantageous for the defendant to testify.. Very often the most compelling evidence will be extracted from cross-examination of the arresting officer or prosecution expert.

case for the prosecution

The prosecution usually focuses on driving pattern, physical appearance, field sobriety test performance, and chemical test results. Expert cross-examination of prosecution witnesses can create reasonable doubt about how the defendant's performance in each of these areas should be viewed, and can shift the focus the defendant did to how professionally the tests were administered.

The arresting officer is most often the first witness. The officer will undoubtedly have some strong testimony against the defendant, otherwise the case would have been dismissed previously. It is usually the cross-examination of that officer that becomes the most hopeful portion of the defense case.

Jurors generally expect that witnesses will support the side that calls them. Some discounting of testimony usually takes place in the minds of jurors. Cross-examination in a DUI case is in reality more the lawyer testifying than an examination. The second witness for the prosecution is usually a chemist from the crime lab. He or she will testify regarding the breath or blood test, field sobriety tests, and impairment from alcohol. Cross-examination of this person can be extremely beneficial for the DUI defendants case.

the dui defense

Once the prosecution has rested, the defense attorney will make a motion for dismissal asserting that the charges are unjustified , often citing insufficient or discrepant evidence and a weak case from the State.

Generally speaking this motion is a long shot, but always worth the effort, and can potentially succeed in some instances. The DUI defendant can now call witnesses to testify in support of his or her case. This may include civilian witnesses who accompanied the defendant and can testify to the drivers lack of impairment from alcohol. An expert, who will scrutinize the field sobriety tests, chemical tests and offer an opinion that the defendant was under the legal limit and not impaired at the time of driving.

During the defense case may be called. The DUI defense lawyer is not allowed to ask leading questions of defense witnesses. Instead, it is the prosecutor's opportunity to ask leading questions of the defense witnesses while they are on cross-examination. It is paramount that witnesses be properly prepared to deal with this cross-examination. This, of course, requires the services of an experienced and specialized DUI attorney.

closing arguments

After witnesses have been examined, and evidence received, it The skilled DUI attorney will make the case that the prosecutor has failed to prove each and every element of the case beyond a reasonable doubt. The judge will generally read some jury instructions at this point. Most of the jury instructions that are used in DUI cases are standard.

A successful closing argument in a DUI case will touch on some of the key jury instructions that apply, such as guilt beyond a reasonable doubt, the defendant's out of court statements may be in doubt. In cases based on circumstantial evidence, if there are two reasonable views, the jury must adopt the one that indicates innocence. A superlative closing argument will include facts of law, as well as speaking with an eye to knowledge of jury psychology.

The prosecutor's argument is the first argument heard, and, because it is their burden, the last word also belongs to them.

jury deliberations

Jurors retire to deliberate the fate of the accused after the argument of both counsels and final instructions from the judge. If all jurors agree the defendant is guilty a guilty verdict is returned. If all jurors agree in the defendant's innocence, an acquittal, or not guilty verdict is returned. If all jurors cannot agree, this is a hung jury. This is a win for the defendant. Many cases are dismissed following a hung jury. Those that are not dismissed still may receive generous plea-bargain offers. It is rare that a hung jury case will be re-tried, though on occasion it is. That depends on the facts of the case, and how the jury is split. A skilled DUI defense lawyer will know the best course of action.