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

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

FELONY DUI

IF YOU HAVE BEEN ARRESTED FOR A DUI WITH INJURY, OR IF THIS IS A 4TH DUI ARREST COMMITTED WITH 10 YEARS, THEN YOU MAY BE CHARGED WITH A FELONY DUI 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.

There is little in your life, save a major health problem, that can even come close to destroying your life like a felony charge.  Little can prepare you for the anxiety and pressures that you will find yourself under while facing this type of charge. Why? Because, if you are convicted, you can be sentenced to state prison. Whether or not you actually serve a prison sentence will be discussed, but the pure pressures of the process is horrific.

After you have been arrested, the police will book you into custody.  If you are arrested on a felony, there are several ways in which you can be released. First, you can be released through a bail bondsman or by you posting bail. A bail bondsman usually charges you a premium for posting the bail-bond, and that is generally 10% of the actual amount of the bond. For example if your bail is $10,000.00 then the bondsman would charge you $1,000.00 as their fee for posting the $10,000.00 surety bail bond with the clerk of the court. The bondsman will usually also require some collateral against the remaining amount in case you fail to appear, making the bond subject to forfeiture.

If you make all your required court appearances, the bail bond will be set-aside at the end of the case. You will receive no return of the fee that you paid the bondsman because that is the money the bondsman earned in taking out the surety bond, similar to an insurance policy, on you.

If you post your own bail, or a friend or relative does so, the entire amount must be deposited directly with the clerk of the court.  The full amount will be returned to you at the conclusion of the case provided, of course, you have made all court appearances.

You could also be released through your promise to the court that you will return on a given date and time. This is called a court “OR” (a release on your own recognizance). This can be undertaken directly from the court when you first appear in court for arraignment, or from an “OR” project that interviews individuals after arrest who have been unable to make bail. They then complete an “OR” report that will go to the court which can either be approved or rejected by the judge.

In most felony arrests, “OR” is not easy to obtain, but if you are a first offender, have strong family ties to the community, have employment and no prior failures to appear for court, then there is a chance you could get an “OR” release. The type of charge you are facing, as well as the circumstances involved in the case, will be determinative of the judge’s decision to grant or deny an “OR” request.

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 proceeding 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.

Your first appearance before the court will be the arraignment. The arraignment is the judge informing you of what you are charged with and taking your plea. The court will not hear any defenses to the case at this time.

Once your lawyer appears and the plea of not guilty is entered, the court will then set the matter down for a pre-preliminary examination conference. This procedure, at the arraignment, can vary from county to county. For example, in some counties, the court will set the matter for a pre-preliminary conference as well as a preliminary hearing date right at the arraignment. Other judges will set the date for what is called a superior court review to see if there is a chance of a disposition, and then only later set a future preliminary hearing date if the case cannot be settled.

Following the arraignment, the discovery process is available for you to determine what evidence the prosecution has on you to prove the charges at the preliminary hearing and later at the trial. The defense wants to see if the prosecution can prove all of the elements of the charge against you.  If so, then you have to explore any and all legal claims which may prevent the evidence from being used at the preliminary hearing and/or the trial.

Sometimes, the evidence may have been obtained in violation of you rights 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 may be many other areas of protection that your defense lawyer feels should be litigated and determined by the court before you are asked to stand trial. If this is the case, then these points will be the subject of certain motions to exclude or limit this evidence at the preliminary hearing and/or the trial. These motions, in turn, will then be the pretrial motions which your lawyer will want to be heard prior to the preliminary hearing. In some situations, he or she may want to have the preliminary hearing first, then take these motions up for review to the Superior Court. The motions can also be calendared for hearing following the preliminary hearing in the Superior Court. There may be certain tactical decisions which dictate that these motions not be brought at the preliminary hearing. For example, in a motion to suppress evidence, the defendant is usually only allowed to have one evidentiary hearing; in other words, you can only call the searching police officer at one hearing to give testimony on the facts of the search. Your attorney may elect to hold off on this motion until after the preliminary hearing.  On other occasions, the motion may be made and heard at the preliminary hearing.

Sometimes, your defense counsel may want to use the motions as a bargaining tool with the prosecutor to see if a more favorable disposition can be reached.  Other times, these motions are used to improve the defense’s position at trial.  This is often the situation in accident cases.

In a felony case, you have the right to a review of the magistrate's ruling holding you to answer under Section 995 of the California Penal Code. Under this section, you have the right to have the magistrate's ruling, as well as other proceedings which took place prior to the holding order, re-examined to determine whether or not the holding order might have been illegal.

Once the pretrial motions are heard and ruled upon by the judge, your case should be ready to proceed to preliminary hearing. In some courts, the judge will want to set a further date for purpose of setting the actual preliminary hearing date. Often, this period of time between the hearing on the motions and the setting date will give the parties a chance to re-evaluate their respective positions and decide whether or not they should run the risks of proceeding further.

From your perspective, you will want to know if any pretrial disposition will involve county jail time or a commitment to state prison. Secondly, will the disposition result in you having a criminal record? What future consequences would the felony conviction have on your life? Will you lose your civil rights, i.e., will you still be able to vote, hold public office, possess a firearm, and keep any state licenses that you may have? Could the disposition expose you to civil damages? If you were charged with an offense which was in any way connected to an accident, or people were injured, you might end up exposing yourself to damages from a civil suit. You should take all of these factors into consideration when deciding whether or not the offer to plead is a good one for you.

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 agree to plead guilty to certain charges. The prosecutor can recommend a certain sentence if you plead, but the ultimate sentence which will be imposed upon you is within the sole discretion of the judge. The judge, of course, is bound to sentence you within the bounds of the law; i.e., the judge cannot give you a greater sentence than that allowed under the statute you agree you violated, nor can the judge give you a less severe sentence if required by the law.

Felony sentencing is governed in California under the Determinate Sentencing Act. The sentencing laws call for a predetermined set level of a sentencing range for every felony as defined in the California Penal Code.  For example, if you were to plead guilty or be found guilty by a jury of felony DUI, the Code would call for a sentencing range of 16 months, 2 years, or 3 years in state prison. Assuming certain rules of mitigation would apply to your case, the judge could then sentence you to a mitigated term of 16 months. If, on the other hand, the judge found that aggravating circumstance applied to you, then you could be sentenced to the aggravated term of 3 years. Otherwise, the court will always impose the middle term of 2 years.

If you are eligible for probation, the court will still sentence you to the determinate prison term, as set out in the above example, but the court can stay the execution of the sentence and place you on probation.  Sometimes, as a condition of probation, the court will impose a county jail commitment, which must be less than 1 year.

Remember, a felony is defined by law as a crime punishable by prison. Prison is an institution where you are kept for more than 1 year; county jail, on the other hand, is a custodial facility where you are kept for 1 year or less.

If applicable, the prosecutor can also allege an “enhancement.”

A sentencing enhancement may mean that more prison time could be added to the final sentence; it could also mean you would not be eligible for probation, even if you are a first offender; it could also mean that your sentence can be doubled in some situations. Sentence enhancements must be stated in the charging document. Your lawyer will advise you whether or not they apply to your case. Enhancements are covered by law and specifically defined in the Penal Code. Your lawyer will discuss these with you if it appears they apply to your case.

The preliminary hearing, sometimes called a preliminary examination, is nothing more than a judge sitting as a magistrate to determine two legal questions: (1.) Is there some reasonable evidence to show that a felony has been committed? (2.) Is there some reasonable evidence that connects you to that crime? If the magistrate finds a “yes” answer to the two questions above, then you will be held to answer on the felony charge for trial.

At the preliminary hearing, the prosecutor must produce the evidence needed to obtain the "holding"; in other words, just some reasonable evidence to connect you to the crime.

Most prosecutors will not put on a complete case at the “PX”; they will just want to show the bare minimum of the elements of the crime.

FEDERAL CHARGES

IF YOU HAVE BEEN ARRESTED FOR A DUI ON FEDERAL PROPERTY OR WITHIN FEDERAL JURISDICTION YOU MAY BE CHARGED WITH A DUI IN FEDERAL COURT

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 the United States District Court before a U.S. District judge, but this is rarely done in most misdemeanor cases. Usually, your case will remain in the Magistrate's Court for all proceedings.

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 plea is entered, which usually is "not guilty" then the case is continued for a future setting date, at which time the court will be informed by the parties, that is the defense and the prosecution, whether or not there is a settlement or disposition in the case. If this happens, then the case is resolved at that juncture and in accordance with the terms agreed to by the parties and approved by the court.

If, on the other hand, the case is not settled, then you will continue with the 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 whether or not you are guilty. 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.

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