DUI - Arrest

After a traffic stop and any field sobriety tests, the first stage of the criminal process in a DUI case begins when a police officer places the suspect under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.

A police officer may usually arrest a person in the following circumstances:

• The Police Officer Personally Observed a Crime
• If a police officer personally sees a person commit a crime, the officer may lawfully arrest that person. For example:
• A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver's alcohol intoxication level is more than twice the state's legal limit for safe operation of a vehicle. The police officer can legally arrest the driver for DUI.
• The Police Officer Has "Probable Cause" To Arrest

When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed (or is about to commit) a crime, the officer may arrest that person. This belief, known as "Probable Cause", may legally justify a DUI arrest in certain situations where strong indications of DUI are present, but administration of a chemical test is refused or is otherwise not possible. For example:

A police officer pulls over a vehicle that is being driven erratically. The officer notices empty beer bottles in the back seat and the strong odor of alcohol on the driver's breath. Though the driver refuses to submit to a Breathalyzer test, the officer may lawfully arrest him or her based on a probable cause belief that a DUI has been committed.

DUI - Booking & Bail

Booking

After the Arrest process, a DUI suspect is usually taken into police custody and "booked" or "processed". During "booking", a police officer typically:

• Takes the criminal suspect's personal information (i.e., name, date of birth, physical characteristics);
• Records information about the suspect's alleged crime;
• Performs a record search of the suspect's criminal background;
• Fingerprints, photographs, and searches the suspect;
• Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect's release; and
• Places the suspect in a police station holding cell or local jail.

For DUI suspects who are placed in jail, the first priority is usually getting out. A DUI suspect will usually be able to obtain pre-arraignment release through Bail or "Own Recognizance" Release.

Bail

Bail is a process through which an arrested DUI suspect is allowed to pay money in exchange for his or her release from police custody, usually after booking. As a condition of release, the suspect promises to appear in court for all scheduled criminal proceedings -- including arraignment, preliminary hearing, pre-trial motions, and the trial itself.

If the DUI suspect is not allowed to post bail at the police station immediately after booking, a judge may decide later, at a separate hearing or the arraignment, whether to allow release on bail. The bail amount may be predetermined, through a "bail schedule," or the judge may set a monetary figure based on:

• Suspect's DUI record and criminal history;
• Seriousness of the DUI offense, in terms of injury to others
• Suspect's ties to family, community, and employment.

If You Cannot Afford Bail -- Bail Bonds and Bond Agencies

A DUI suspect or the suspect's friends and family may put up the full bail amount as set by the court, or a "bond" may be posted in lieu of the full amount. A bond is a written guarantee that the full bail amount will be paid if the suspect fails to appear as promised. Bonds are usually obtained through a bail bond agency that charges a fee for posting of the bond (usually about 10 percent of the bail amount). Bail bond agencies may also demand additional collateral before posting the bond, since the agency will be responsible for paying the full bail amount if the suspect "jumps bail" and fails to appear as promised.

DUI - Arraignment

After the arrest, booking, and initial bail phases of the DUI process, the first stage of courtroom-based proceedings takes place -- arraignment. It is important to note that in DUI cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong and little leeway for a plea bargain exists.

During a typical arraignment, a person charged with DUI is called before a criminal court judge, who:

• Reads the criminal charge(s) against the person (now called the "defendant");
• Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
• Asks the defendant how he or she answers, or "pleads to", the criminal charges -- "guilty," "not guilty," or "no contest";
• Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
• Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Also at the Preliminary Hearing, the prosecutor will give the DUI defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and copies of a police officer's notes taken during field sobriety tests.

DUI - Plea Bargains

Although exceedingly rare in DUI cases, the possibility always exists that any time prior to trial the case will be resolved through a plea bargain between the government and the defendant. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Though usually discouraged in most DUI cases, plea bargains are actually encouraged in the criminal court system as a whole, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

What Kind Of Plea Bargain Might Be Made?

To illustrate how a "plea bargain" might be reached in a DUI case: suppose Dan is arrested and charged with DUI. A "plea bargain" might be reached in Dan's case in one of two ways:

The prosecuting attorney handling the case approaches Dan and his attorney, and offers to allow Dan to plead guilty to a less serious charge, such as reckless driving or an "open container" violation;

OR

The government's evidence against Dan is so strong, and the injuries suffered by Dan's DUI crash victim so serious, that Dan agrees to plead guilty to the original charge of DUI, in exchange for a less severe sentence than he would likely receive if a jury found him guilty at trial.

DUI - Preliminary Hearing

Usually held soon after arraignment, a preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

What to Expect at the Preliminary Hearing

In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or "prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government's witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor's case is not strong enough, so that the case against the defendant must be dismissed before trial.

Preliminary Hearing - Not in Most DUI Cases

It is important to note that most DUI cases do not reach the preliminary hearing stage. In the majority of such cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong.

Furthermore, a preliminary hearing may not be held in every DUI case in which a "not guilty" plea is entered. Some states conduct preliminary hearings only when a felony is charged, and other states utilize a "grand jury indictment" process in which a designated group of citizens decides whether, based on the government's evidence, the case should proceed to trial. Last but not least, though exceedingly rare in DUI cases, the possibility always exists that any time prior to the preliminary hearing the case will be resolved through a plea bargain between the government and the defendant.

DUI - Pre-Trial Motions

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

Remember that most DUI cases do not reach the preliminary hearing stage. In the majority of such cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong.

Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?

What Arguments are Made During Pre-Trial Motions?

While specific possibilities are endless, following are some examples of pre-trial motions that might be made in a DUI case:

• The defense asks the judge to keep out of the case ("exclude") marijuana "joints" that the defense argues was obtained through an illegal search of the defendant's car.
• The defense argues that a confession made by the defendant should be excluded, because it was made to a police officer who failed to advise the defendant of his Miranda rights.
• The defense argues that Breathalyzer test results should be excluded, because the testing procedure used by the arresting officer was clearly flawed.

DUI - Trial

In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the defendant committed the crime in question. A trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction of the defendant. A trial also represents the defense's chance to refute the government's evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.

(Note: Though a trial is the most high profile phase of the criminal justice process, most criminal cases are resolved well before trial -- through "guilty" or "no contest" pleas, plea bargains, or dismissal of charges. In particular, most DUI cases do not reach the trial stage. In the majority of these cases, the arraignment usually represents the first and last time the defendant will be in court, as most DUI offenders choose to plead guilty or enter into a plea bargain in order to avoid a trial, especially if the government's evidence is strong.)

A complete criminal trial typically consists of six phases:

1. Choosing a Jury

2. Opening Statements

3. Witness Testimony and Cross-Examination

4. Closing Arguments

5. Jury Instruction

6. Jury Deliberation and Verdict

Choosing a Jury

Except for rare cases that are heard only by a judge, one of the first steps in any criminal trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning.

DUI - Sentencing

After a person is convicted for DUI -- whether after a guilty plea, plea bargain, or jury verdict -- the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a person convicted of DUI, including:

• Payment of fines
• Incarceration in Jail (shorter-term)
• Incarceration in Prison (longer-term, if DUI causes injury or death)
• Probation
• Suspended sentence (takes effect if conditions such as probation are violated)
• Suspension of driver's license
• Community service
• Drug/alcohol rehabilitation

Sentencing usually takes place almost immediately after a DUI conviction, with the sentencing judge receiving input from the prosecutor and the defense in some cases. The sentencing judge will consider punishments and sentencing ranges identified in applicable Vehicle or Penal Code statutes, as well as a number of case-specific factors, including:

• Defendant's DUI record and criminal history
• Impact of the DUI on any victims (i.e. whether injuries or death resulted)
• Defendant's personal, economic, and social circumstances
• Regret or remorse expressed by the defendant

DUI - Appeals

An individual who has been convicted of DUI may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: "Briefs" and the "Record"

In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. Learn more about Appeals and the Writ of Habeas Corpus It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

DUI - Expungement

Expungement is a process through which the legal record of a criminal conviction is "sealed," or erased in the eyes of the law, after the passage of a certain amount of time or the fulfillment of certain obligations. After expungement, a criminal conviction (and in some cases even an arrest) ordinarily need not be disclosed by the person convicted, and no arrest or conviction shows up if a potential employer, educational institution, or government agency conducts a background search of an individual's public records.

In some legal proceedings, such as during sentencing for any later crimes, an expunged conviction may be considered as proof of a "prior conviction."

The laws pertaining to expungement of DUI arrests and convictions vary from state to state, so interested persons should conduct additional research or talk to an experienced attorney about eligibility for expungement, and the procedure followed in a specific locale.