DUI Overview...

You got arrested for a DUI... what happens now?

The police have arrested you for drunk driving. You blew into a breath machine or gave a blood sample. The police officer took your driver’s license and gave you a temporary license. They released you with a notice to appear in court in a few weeks. What happens now?

A typical DUI case follows a similar chronological pattern. The merits of your case, however, depend on your particular facts. Keep in mind that EVERY drunk driving case is fact driven. Different facts give rise to different defenses. Some cases certainly may have a different pattern. But most will go like this:

I. The Traffic Stop & DUI Investigation

Often, it begins when the police officer pulls the suspect over for an alleged traffic violation such as speeding, weaving, running a stop sign, or some sort of problem with the vehicle like a defective tail light. When the DUI officer approaches the driver, he immediately notices “objective symptoms of intoxication." These include an odor of alcoholic beverage on the suspect's breath, bloodshot and watery eyes, and thick and slurred speech. The suspect will often admit to having consumed a few drinks that day or evening.

The officer begins his DUI investigation. He tells the suspect to step out of the vehicle and perform a series of field sobriety tests (FST’s). This may include the validated and standardized tests - the eye test called the Horizontal Gaze Nystagmus (HGN) test, the walk and turn test (WAT) and the one leg stand (OLS). It may also include additional field sobriety tests that are not validated like the finger-to-nose test and the finger count. He may then 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, and not mandatory. But in reality, few officers really inform their suspects of this. In addition, most citizens pulled over for DUI are not aware that the FST’s are voluntary, and not mandatory, as well.

II. The DUI Arrest

The DUI officer claims the suspect "performed poorly" on the FST’s. Furthermore, the PAS reading shows the suspect may be above the legal limit. Based on this, the DUI officer "forms the opinion" that the suspect is under the influence and cannot operate a motor vehicle safely. The officer then arrests the suspect for DUI, and has him/her take another “evidential” breath test at the scene or takes him/her to the police station (or hospital) for a breath or blood test. Under California's "Implied Consent Law," someone lawfully arrested for DUI must submit to a blood or breath test. If the officer suspects drugs, a urine test may be used. Refusal to submit to a test can subject the arrestee to stiffer court penalties and possibly a one-year (or longer) drivers license suspension by the DMV.

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 or weeks. If a breath test is chosen, the officer sees each reading immediately after the suspect blows into the machine. A proper test requires two readings. The officer may or may not inform the suspect of the result.

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:

• VC §23152(a), Driving Under the Influence; and/or
• VC §23152(b), Driving with a .08% or higher BAC

III. Hiring an Attorney

You have three options for representation in DUI court: (1) use the public defender (if you qualify), (2) represent yourself or (3) hire a private attorney.

A. The Public Defender

Many people are critical of public defenders. Many see them as county employees (same as the DA’s) that simply "herd people through the system" and “don't really care”. This perception, for the most part, is wrong. Most of the public defenders I know are very good lawyers. They know the judges, the prosecutors and court system where they practice.

However, there are serious disadvantages to the public defender in a case as specialized as a DUI. First, you may not qualify financially for their services. The Public Defender is reserved for “indigent” clients. You will have to disclose your financial information in open court so the judge can make the determination of indigency. Second, most of the public defenders in DUI cases are novices in this area of law and do not have the knowledge to successfully defend your case. Third, a public defender is assigned to your case. You generally cannot select a different one if the two of you don't get along. If the one you’re assigned is fresh out of law school (and often they are), you won’t be able to change. Fourth, 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 rarely devote the sort of time, energy and resources in preparing your DUI case, the kind that a good private lawyer can. It's not that the public defender wouldn't like to. But in reality, they have way too many cases, responsibilities and pressures so that this sort of devotion to any particular case becomes impractical. They simply don’t have the time. They walk into court each day with maybe a hundred cases on calendar that day. How much time can they devote to yours?

B. Self-Representation

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 area of law as a DUI.

A good DUI lawyer can (1) discover 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 he/she is, or how much reading he/she does, a lay person accused of DUI is never going to be able to do this as effectively as a skilled and competent DUI specialist.

C. Private DUI Lawyers

Private attorneys who specialize in DUI defense are, without question, the way to go. They keep up with the latest ever-changing laws, strategies, and defenses. The issues in DUI’s are scientific and very technical and require a substantial amount of time and effort to keep up with. A good, private, DUI lawyer will spend the time and effort to do so.

You will find that lawyers in the central valley charge anywhere from $500 to $8000 for misdemeanor, first-time, DUI’s. As with anything, you get what you pay for. A good DUI attorney can do wonders. But you won't find a DUI lawyer in Fresno or the surrounding areas 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, and do nothing to cultivate the sort of defenses that can alter the outcome of the case. In short, if you can afford one, a good private attorney, who devotes his practice to DUI’s, is definitely the way to go.

IV. The DMV Hearing

After the DUI arrest, the officer takes away the suspect's driver's license and gives him/her a pink colored 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.

A DUI SUSPECT HAS 10 CALENDAR DAYS TO CONTACT THE DMV and request a hearing. Once the hearing is requested, the license suspension is automatically postponed or “stayed” pending the outcome of the hearing. The suspect can choose an “in-person” hearing or a “telephonic” hearing. I recommend you always request an “in-person” hearing.

The DMV hearing takes place in an office at one of the local DMV Driver Safety Offices. A DMV hearing officer acts as the judge in your hearing. 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:

1. Was the person driving a motor vehicle?
2. Was the person lawfully stopped and arrested?
3. Was the person's BAC at or above a .08 at the time of driving?

In the appropriate case, I may subpoena the arresting officer to testify, and/or have the client, or an expert criminalist or toxicologist for the defense testify. All hearings are recorded and questioning the officer at the DMV hearing will generate a transcript of sworn testimony that can be used to later to negotiate the case with the prosecutor, and/or to prepare the case for a possible trial.

V. The Arraignment

At the bottom of your citation is a date to appear in court. This is an arraignment. 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 most 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 future pre-trial court dates several weeks later.

At this point we investigate and begin to develop the defenses and favorable issues in your case. This preparation may include:

• Reviewing the details of the police reports with you
• Obtaining further documents and reports (if needed) from the prosecution
• Interviewing third-party witnesses
• Obtaining the maintenance and calibration history and logs of the breath machine(s) used
• Examining the scene of the traffic stop
• Having a defense toxicologist/criminalist analyze the blood or breath results
• Drafting motions to be presented in court 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 and (3) negotiate the case with the prosecutor and 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 prepares the case with an eye on 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 and bring the documents to court. Some judges may now require you to be there for a plea and sentencing, however, in most cases, you won’t have to be in court.

VII. Jury Trial

Everyone has a right to a trial. That is, to force the prosecution to prove their case “beyond a reasonable doubt.” You may decide, after we discuss your case and possible defenses, to have a 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. I will discuss with you all the advantages and disadvantages, risks and benefits.