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.
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 4 | Chapter 5
CHAPTER 4: YOUR DUI CASE IN COURT
The citation you signed when you were released from jail, or your bail bond notice, requires that you appear in court for your arraignment. At the arraignment, the judge advises you of the charges that have been filed against you by the prosecution and informs you of your rights.
Your Rights In a DUI Case
Your rights in a DUI case are much the same as they would be in any criminal case in the State of California.
RIGHT TO AN ATTORNEY
You have the right to be represented by an attorney at all stages of the criminal proceedings. If you cannot afford an attorney, the court will appoint one for you; usually this will be a public defender. However, a public defender will not represent you before the DMV, only “court” proceedings. A private attorney will almost always include the DMV representation as part of the criminal case representation.
RIGHT TO A TRIAL
You have the right to a trial on the charge against you. This also includes the right to trial on any alleged prior conviction or other enhancements that may be charged against you as well. The right to a trial is the right to a trial by a jury of twelve people from your community, all of whom must agree to a verdict before you may be found guilty. (Note: If you have been arrested on Federal land and charged with a federal DUI offense, you do not have the right to a jury on a first offense.)
RIGHT TO OBTAIN EVIDENCE
You have the right to subpoena into Court evidence and witnesses on your behalf. You also have the right to testify on your own behalf if you want to do so.
RIGHT TO CONFRONTATION
You have the right to cross-examine and challenge any witnesses against you.
RIGHT AGAINST SELF-INCRIMINATION
You have the right against self-incrimination, which means the right to remain silent and the right not to testify against yourself. The prosecutor cannot call you to testify against yourself in court.
Be aware that these rights can be little more than platitudes unless you have a dedicated and resolved advocate at your side to properly guide you in their skillful use and exercise. They are there for your protection as well as for the protection of the collective members of our society.
Many times, DUI attorneys will waive your personal appearance at the arraignment under Penal Code Section 977. This allows you to appear before the court through your lawyer only, saving you the time and trouble of having to come to court. The case is then set down for further proceeding, usually a pre-trial conference date for several weeks later.
Once the court process begins, you will be before the court, which means your case will be in front of a judge. The judge is of critical importance to your case. 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.
At the arraignment, the judge will take a plea, either from you or through your lawyer, of “not guilty.” If you do not have a lawyer at the arraignment, the judge more than likely will not ask you for a plea until you have had an opportunity to consult with and retain counsel.
The only things the judge can do at the arraignment is 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 hear all pretrial motions that will be filed by your lawyer. The lawyer will conduct legal research and determine what are the appropriate motions to file that 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, 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 pre-trial conference, to attempt to settle the case by discussion with both the prosecutor and your lawyer. This is when plea bargaining and/or sentencing bargaining usually starts to take place. The judge presides over the trial ruling on legal questions, while leaving questions of fact to be determined by the jury.
Plea-bargaining is a compromise between the parties, the prosecution and the defense, on what plea you agree to enter in exchange for charges being dismissed. A plea bargain also usually involves a sentence bargain as well. Sentence bargaining is an indication from the judge as to the sentence which would be imposed if you agreed to plead guilty to a certain charge. Even if you agree to a “deal” with the prosecutor, the plea and/or sentence will still have to be approved by the judge. The judge has the final word on sentencing unless the prosecutor is going to dismiss the case in its entirety.
If your case is not settled or dismissed, then you will probably be going to jury trial. The judge presides over the trial by 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 based on pretrial rulings.
The trial judge may be the same judge you appeared before for the pretrial proceedings, or it may be a different judge who has never participated in the case before. In some courts, the judge handles the case all the way through from start to finish; while in other counties, the court has set up specialized departments, with each having a part of the case’s procedure to handle. In those courts, certain judges are assigned to preside over the trial of the case with different judges conducting the pretrial proceedings.
As electrifying and exciting as a jury trial may be, a good criminal defense lawyer wants to keep his or her client out of court as much as possible. But, sometimes a DUI case will have to go to trial simply because there is no other way to win except trial. If a trial is requested by you, then you will, of course, have to personally attend. A DUI trial in most of the Bay Area courts takes about 3 to 4 days.