What is the Charge?
At the outset, we will assess what crime or crimes you are accused of committing. This will be determined by the prosecutor when they file the complaint against you.
A complaint is the name given to the paper setting out the alleged violations of law. The complaint is the legal document that brings you to court and starts the legal process against you.
Usually in a DUI case, you will be charged with two separate criminal offenses:
- Section 23152 (a) of the California Vehicle Code, driving under the influence; and,
- Section 23152 (b) of the California Vehicle Code, driving with a blood alcohol level of .08% or higher
You will also most likely have a license suspension matter before the DMV. This is not a criminal offense. It is a civil proceeding before an administrative agency, the California DMV.
The matter before the DMV will be brought under the Administrative per se suspension law. This is almost identical to the per se criminal charge, 23152 (b) driving with a blood alcohol level of .08% or higher, which you will also be facing in the criminal case.
In a DUI case, an arrest can be made in one of two ways:
- an on-view arrest; or
- after an accident where the police did not actually see the driving.
A court can also issue an arrest warrant. This is generally the case if you fail to appear in court after receiving proper notice to do so, or if you were previously on probation and failed to perform any conditions of that probation order.
Certain legal rules govern the arrest process and our office will analyze the controlling law to determine if a valid legal arrest has taken place and what remedies exist if you were not legally arrested.
The details of the arrest are important for many different legal reasons. We will be looking to legal defenses that either substantially or procedurally block the prosecution, which may flow from the arrest process itself.
The power that the judge has over your case is considerable. In the federal court that power is almost absolute.
The judge’s role in the case is to decide questions of law and to apply the law as fairly as possible to your case.
For most defendants, the first contact with the judge is at arraignment, which generally marks the first time one comes to court. Arraignment is nothing more than the judge advising the defendant of the charges that have been filed by the prosecution. Our office almost always waives your personal appearance at the arraignment so that you do not need to attend this court appearance. We then set the case down for further proceeding, usually a pre-trial conference date.
The only thing that the judge can do at the arraignment is to accept your plea, set bail and continue the case for further proceedings. The judge will not entertain any discussions as to the merits of your defense to the charges; those issues will be taken up at a later date in the litigation.
Later in the course of the case the judge will also hear all pretrial motions that will be filed by our office. We will conduct legal research and determine what are the appropriate motions to file to best serve your defense. These may include motions to limit or exclude certain evidence and to discover the evidence that the prosecutor intends to offer against you at trial. If there are such motions, and usually there are, then these will be later argued by counsel and ruled upon by the judge.
The success or failure of these various motions will, in large part, determine the legal strength or weakness of your case. The judge will then be in a position, later at the pretrial conference, to attempt to settle the case by discussion with both the prosecutor and our office. If your case is not settled or dismissed, then you will probably be going to jury trial. The judge presides over the trial ruling on legal questions, while leaving questions of fact to be determined by the jury.
If your case is in federal court, there is not a jury and so the judge becomes the final arbiter of both legal and factual issues. This is perhaps the area where the judge has the most power over your case. By the time the trial begins, the judge has determined how the trial will be conducted and what evidence will be received through pretrial rulings.
The Pre-Trial Procedure
Almost 60 to 70% of our cases will be settled without having to go to a jury trial. Therefore, the pretrial proceedings are very important in trying to get your case either dismissed or settled with a non-DUI disposition.
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, we seek to ensure we are in the 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 would not result in a dismissal of the case.
*If you have been arrested for a DUI with injury, then you may be charged with a felony offense.
A crime under California law, which carries a minimum sentence of at least one year in the state prison, is defined as a felony. Some crimes are defined in the Penal Code as “wobblers.” This means the prosecutor could charge them as misdemeanors or felonies. In a DUI with injury, 23153 (a) and or (b), the prosecutor can still charge the offense as a misdemeanor if little or no serious injury was involved.
All felony offenses are first brought before the court for arraignment, pre-preliminary examination motions and preliminary hearing. All felony charges have two levels of proceedings in California. They start in Superior Court where the judge sits as a magistrate to determine whether or not probable cause exists for you to be tried. If the judge finds that probable cause exists, then you are “held to answer” and arraigned again for trial.