The ABCs Of DUI Defense: A guide for those arrested
by James Farragher Campbell, ESQ.

About The Author
Forward | Introduction | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 5

CHAPTER 4: YOUR DUI CASE IN COURT (cont.)

PRETRIAL PROCEEDINGS

The next subject I want to cover is “pretrial proceedings”; in other words, all the court proceedings that take place prior to the actual trial of your case.

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 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, the lawyer seeks to ensure that you are in possession of all of the evidence that exists in the case which the prosecution has in its possession. If a discovery order is violated, some sanction may be imposed by the court but, in all probability, it will not result in a dismissal of the case. However, a violation of discovery rules may place the prosecution in a tactically-poor position which sometimes can lead to a favorable settlement.

YOU ARE WELCOME TO READ BOTH SECTIONS ON MISDEMEANORS AS WELL AS FELONY CHARGES WHICH FOLLOW; BUT YOU WILL PROBABLY ONLY BE INTERESTED IN THE CHARGE WHICH YOU ARE PRESENTLY FACING.

IF YOU ARE CHARGED WITH A FIRST-TIME DUI, A SECOND-TIME DUI OR A THIRD-TIME DUI, YOU HAVE MISDEMEANOR CHARGES, AND SO SHOULD READ THAT SECTION.

IF YOU ARE CHARGED WITH A FOURTH OR SUBSEQUENT DUI OFFENSE, A DUI WITH INJURY OR DEATH, OR A VEHICULAR HOMICIDE, THEN YOU SHOULD READ THE FELONY SECTION.

IF YOU ARE CHARGED WITH A FEDERAL DUI, READ BOTH THE MISDEMEANOR AND FEDERAL SECTIONS THAT FOLLOW.

MISDEMEANOR DUI

IF YOU HAVE BEEN ARRESTED FOR A DUI FOR THE FIRST TIME, SECOND TIME OR THIRD TIME, AND IF THERE ARE NO INJURIES CONNECTED TO THE CASE, THEN YOU MAY BE CHARGED WITH A MISDEMEANOR DUI OFFENSE.

After you were arrested, the police booked you into custody. Typically, you were released on a citation release, without having to post bail.  A citation release is just like you posting bail. Your signature on the citation operates as a promise for you to appear on the date indicated on the citation. If you fail to appear as promised, this, in and of itself, is a separate offense apart from the DUI charges.

The other way you could have been released is through a bail bondsman or by you yourself posting bail. If you make all your required court appearances, the bail bond will be exonerated, e.g., set aside, at the end of the case.

If you posted your own bail directly with the clerk of the court, or did so through a friend or relative, then at the end of the case, and assuming you have not failed to appear, you will receive the entire amount of the bail back. If you posted a bond using a bondsman, then you will not receive any refund because the premium you paid was for the cost of the bond.

Your first appearance before the court will be the arraignment. As stated earlier, the arraignment is when the judge informs you of what offenses you are specifically charged with, and you inform the judge how you are going to plead. The court will not hear any defenses to the case at this time. If you already have a lawyer, then a plea of “not guilty” will probably be entered. If you do not 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.

If you cannot afford to hire a private attorney, then you can request that a public defender be appointed to represent you. Keep in mind that the public defender can only represent you in court; they can not represent you before the DMV.

Arraignment procedures can vary from county to county. For example, in some counties, the court 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. Whatever the local court practice, the matter is going to be continued for the possibility of a disposition short of trial. Generally, the courts hearing DUI cases are the busiest of all the trial courts in the county, so both the judge and prosecutor will want to see if a settlement can be reached in your case.

After the arraignment, the attorney will be pursuing discovery. The discovery process is available for you to determine what evidence the prosecutor has to prove the charges. Your lawyer will want to see if the prosecutor can prove all of the elements of the crimes you are charged with committing.  Information turned over by the prosecution on discovery enables your attorney to explore any and all legal claims which may prevent evidence from being used at the trial.

Sometimes the evidence may have been obtained in violation of your right to privacy; your rights to be free from unreasonable search and/or seizure.  Statements may have been obtained against your right against self-incrimination, or your right to counsel. There are many other areas of protection that your defense lawyer will want to litigate and determine before you are asked to stand trial. The determination of these issues may affect the outcome of the case and possibly lead to a more favorable settlement. If this is the case, then these points will be the subject of certain motions to exclude or limit evidence at trial. These motions, in turn, will then be the motions which will comprise your pretrial motions. These will then almost always be heard prior to trial and, sometimes, even prior to a pretrial conference. In some situations, defense counsel may want to have the pretrial conference heard first to discuss these motions with the prosecutor and the court in hopes of reaching a settlement offer. Local rules of court may dictate when such motions can be made and this will factor into counsel’s decision of which motions to file.

Even if the pretrial motions do not totally dispose of the case by a dismissal, the motions can still have a possible favorable impact by limiting certain evidence or strengthening a position which will come up at jury trial. Sometimes a motion may “lock-in” certain testimony, which later becomes invaluable at 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 your attorney, 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 setting date can give the parties one last chance to re-evaluate their positions and decide whether or not to run the risk of trial.

This is probably a good place to talk about the prospect of trial and what risks and consequences are attached to a decision to proceed to trial.

Factored into this decision are the following considerations: Will a pretrial disposition involve jail time? Will the disposition result in you having a criminal record? Could the disposition expose you to civil damages? (If you were charged with an offense which was in any way connected to an accident where people were injured or property damage occurred, you might escape jail, but end up paying a lot of money for the damages from a civil suit or claim).  Also, a major concern to most people is the impact a disposition will have on their driver’s license. You should take all of these factors into consideration in deciding whether or not the pretrial offer is a good one.

A plea bargain is an offer extended by the prosecutor to settle the case for a negotiated disposition. The prosecutor may be willing to drop certain charges if you plead guilty to other charges. The prosecutor can recommend a certain sentence if you plead, but the ultimate sentence imposed is always up to the judge.

The judge, of course, must sentence you within the bounds of the law; i.e., the judge cannot give you a greater sentence than allowed under the statute, nor can the judge give you a lesser sentence than the statutory minimum. As an example, certain driving offenses require that you spend a minimum amount of time in jail. The judge cannot sentence you to less than the amount of time set by statute.

Any plea bargain that the prosecutor extends ultimately will have to be accepted or approved by the judge. In most DUI cases the prosecutor is familiar with the particular judge and knows what he or she will usually impose as a DUI sentence. Almost routinely, the judge will approve such a misdemeanor disposition unless he or she feels it is very much out of line with the facts surrounding the offense. For first time offenses, the court, depending upon the county where they are charged, almost always gives defendants some uniform sentence. Repeat offenders, or a situation that is out of the ordinary, may see a different proposed sentence.

The concept of plea-bargaining comes in two forms. The first, as discussed above, is that you will accept a plea to a charge, and in return, other charges will be dismissed. For example, in exchange for a plea to “reckless driving”, the DUI charges would be dismissed.  You could thereby avoid the mandatory consequences attached to the DUI charges.

There is another aspect to plea bargaining: Sentence bargaining. Only the judge has control over the exact sentence imposed. The prosecutor cannot control the sentence, only the charge to which you agree to plead. Occasionally, the judge will impose a sentence different from what the prosecutor seeks. If this situation occurs, you will, of course, consult with your lawyer as to your options. It may be that such action by the judge will alter your decision about pleading guilty.

The dynamics of plea-bargaining, in both forms of a plea and a sentence, take place throughout the case. Usually, offers to settle are freely discussed as the case proceeds through litigation.

Once the best offer is made and approved by the judge, then you will have to make a decision as to the benefits and disadvantages to the offer to settle the case. This is, by definition, a compromise. In a compromise, both parties get something that they want and lose something they want. The question always is, what are you gaining or losing in the process?

While it is common for a client to ask us what our opinion is on the settlement, it is neither our role nor our proper place to tell you what to do. Whether you accept the deal or not is your decision and your decision alone to make. If you turn down the deal and go to trial and lose, it is you and not the lawyer that will pay the price of that decision. If you take the deal, thereby giving up your right to a trial, it is you, and not your lawyer, who will be wondering whether or not you did the right thing and might have won at trial.

After you have made the decision to go to trial, the pretrial proceedings in a strict legal sense, have come to an end. There will still be some motions, referred to as motions in limine, which will be heard before trial, but these are motions which can only be heard by the actual judge who presides over the trial. These motions seek to limit or exclude certain evidence before the jury.

Your Attorney will continue with the factual and legal trial preparation of the case as the trial date draws near.

go to page 3 | back to top