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:
- California Vehicle Code 23152a — Driving Under the Influence
- California Vehicle Code 23152b — Excessive BAC
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.
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.