Providing discreet and superior DUI defense for the discerning few since 1975.
If a DUI conviction is not an option; if a DUI conviction will destroy your life; then it is time to turn to a nationally recognized leader of the DUI Defense Bar—James Farragher Campbell.
An Overview of the Court Process.
|The Arrest||The Judge||Pretrial Procedure||Misdemeanor DUI||Additional Information|
|Felony DUI||Federal Charges||The DMV And Your Driving Privilege||California DMV Hearing Request||Is Your Case Worth Fighting?|
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: 1) an on-view arrest; or 2) 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.
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.
Your first appearance before the court will be the arraignment. The arraignment is simply the judge informing you of what offenses you are specifically charged with, and you informing 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 by the time of the arraignment then 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.
Once our office appears and the plea of not guilty is entered, the court will then set the case down for a pretrial conference. The aforesaid procedure at the arraignment 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.
After the arraignment we will be pursuing discovery. The discovery process is available for you to determine what evidence the prosecutor has to prove the charges. We will want to see if the prosecutor can prove all of the elements of the crimes you are charged with committing. If so, then you have to explore any and all legal claims, which may prevent the evidence from being used at the 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 our office, 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 settling date can give the parties one last chance to reevaluate their positions and decide whether or not to run the risk of trial.
*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 there does exist probable cause, then you are "held to answer" and arraigned again for trial.
If you have been charged with a federal DUI, and it is a misdemeanor, then you will be notified by the United States Attorney's Office that a complaint will be filed against you. It may also happen that you may be taken right away following your arrest before a United States Magistrate. A Magistrate functions in a misdemeanor case like a judge. You have the right to have your case tried before a United States District Court Judge, but this is rarely done in most misdemeanor cases. Usually your case will remain in the Magistrate's Court for all proceeding.
The procedure for a federal misdemeanor is rather straightforward. You will be arraigned, at which time you will be informed of the rights you have before the court as well as the charges which you are accused of committing. The court will ask for a plea, if counsel represents you, or the court will continue the case for a short period of time in order for you to obtain counsel for your defense.
Once a not guilty plea is entered, the case is continued for a pretrial conference or for a future setting date. At this time the court will be informed by the parties whether or not there is a settlement or disposition in the case. If this happens, then the case is resolved otherwise it is set for further litigation. Usually, pretrial motions will be set along the lines of what has been discussed in the preceding misdemeanor section regarding pretrial motions. It is not unusual for some pretrial motions to be brought and heard before substantial settlement talks can take place. If the case still is not resolved then it will be set for trial.
In a federal misdemeanor, you have the right to a jury trial if your punishment could exceed six months in jail. Otherwise, you only have the right to a court trial, that is, a trial presided over by the federal magistrate who will decide if you are guilty or not guilty from the evidence. In the four federal district courts located in California, you will probably not be entitled to a jury trial, only a trial before the U.S. Magistrate.
Is Your Case Worth Fighting?
You may, like many individuals, need your case defended no matter what the odds and no matter what the costs. If this is your thinking then read no further. Start searching for a good DUI defense lawyer now.
However, you may need to make a “costs vs. worst case scenario” evaluation before proceeding.
While it is true that a good to excellent DUI defense lawyer can greatly improve your chances of not ending-up with a DUI conviction, not all cases can be won.
If you are the person who wants to decide if your case is even worth fighting, then you may want to think about what follows below.
Please keep in mind that you may have substantive and or procedural defenses in your case which a DUI defense lawyer may use to get you a dismissal or a non-DUI disposition. In other words, you may have a defense to your case and not even know it. Most good DUI defense lawyers can also plea bargain your case and lower the actual charge that you end up pleading guilty to and or reduce the expected sentence that you might get without a lawyer representing you. As stated in other places on this site, it usually will not cost you anything to consult with a DUI defense lawyer, so why not do that, just so you know what your case might look like from a legal defense standpoint. It most cases this will help put your mind at ease, even if you think you might want to plead guilty.
There are many collateral consequences to a DUI conviction that do not have anything to do with the sentence the court imposes upon you. These are many and vary according to your occupation, business position, travel requirements and other licenses that you may hold.
Listed below are some things to consider in making any decision affecting the outcome of a DUI charge:
- A pilot of course will be impacted by a DUI conviction as well as any adverse action taken by the DMV.
- A lawyer, doctor or other medical professional may also face possible disciplinary action for a DUI conviction. Other licensed professionals may also face disciplinary actions from their licensing board.
- You may have travel restrictions from a DUI conviction. A DUI conviction will prohibit you from entering Canada for five years; and, may also effect your ability to obtain a foreign visa for travel to certain countries for a period of time.
- We have received reports of health and life insurances policy problems because of a DUI conviction.
- Under the DMV per se suspension law you will receive a license suspension of 4 months from the DMV administrative per se hearing, if you lost or did not contest the original suspension. The Court will also issue a suspension upon conviction of a DUI in the court case.
- The suspension will be for a year, if you have a prior conviction within 10 years or if you are found to have refused a chemical test after you were arrested.
- The DUI conviction will stay on your driving record for 10 years.
- If you are not a U.S. citizen, the conviction may impact and or affect citizenship application or status.
- If you are presently on probation for another offense, the arrest and or conviction may impact that existing grant of probation and subject that grant of probation to be revoked.
- Naturally, a conviction may impact and or effect your future or present employment.
- It will have an immediate effect on your car insurance, future car insurance and your ability to rents cars.
- It can under some circumstances have an impact and or effect future or present credit scores
There are other collateral consequences which might also apply, again depending upon the facts of your particular case. The above list could go on and on, just be aware that these things exist.
DMV And Your Driving Privilege
If you have been arrested for DUI and the police officer took your driver’s license at the time of arrest, or if you are an out of state driver and the police officer gave you a pink Temporary License/Notice of Suspension, then you only have ten (10) calendar days to contact the DMV and request a hearing; otherwise your driving privilege will be lost at the end of thirty (30) days.
It is always a good idea to contact a DUI defense attorney prior to contacting DMV, so that you can be advised on the type of hearing to request as well as the timing of such a hearing request. You may also be advised that it may be better for the attorney to contact DMV for you.
Please be aware that you have 10 days which is plenty of time to get in touch with a lawyer. Some lawyers may tell you that they will contact DMV for you, even though you have not retained them. This is not always in your best interest. You may end up retaining another lawyer to representing you and then the DMV hearing will have to be changed. You may be giving up or using a continuance request for no reason. If for some reason you do not hire a lawyer before your 10 days is up then, by all means, you must contact DMV yourself and request a hearing.
|San Francisco||(415) 557-1170|
|San Mateo||call San Francisco office of DMV|
|Official DMV site||www.dmv.ca.gov|
You must provide the DMV, at the time you make your request for hearing, with the following information:
- Your name and driver's license number.
- The date of arrest or notice of suspension, which you will find on the Notice of Suspension itself. It will also contain information regarding the county where you were arrested.
- Request either an in person or a telephone hearing.
*It is always wise however to contact a DUI Defense Lawyer prior to requesting a hearing.