FREE CONSULTATION (916) 233-7346

DUI Procedure

Available for free, confidential consultations 24/7 at (916) 233-7346

The Anatomy of a DUI in Sacramento, Placer, Yolo, El Dorado and Colusa County

Understanding the overall big picture of the court system obviously is a great asset on your side. All DUI cases are unique in their facts. There are always multiple directions a case can take.  Sacramento DUI Lawyer Michael Rehm has significant experience in Sacramento, Yolo, Placer, El Dorado and Colusa County. Based on his experience, the following is a good indicator of what to expect.

 

THE ARREST

            There are numerous ways an arrest can occur. The consistent is that there is some contact with law enforcement and an arrest ensues. It is not always as simple as being pulled over while driving. Numerous arrests occur in DUI cases where the police never saw the individual driving.  Common scenarios are accidents where the California Highway Patrol responds to, or when a witness calls the police to report a drunk driver. Generally though, there is a witness to the driving or the defendant admits to previously driving the vehicle.

THE INVESTIGATION AND FOLLOW UP

Once there is police contact, generally law enforcement will testify that they observed some indicators of alcohol impairment, whether it be red, watery eyes, an odor of alcohol emanating from the person, slurred speech, etc.  Based on these observations, they will ask for the driver to perform field sobriety tests, including the Preliminary Alcohol Screening Device (PAS) breathalyzer.  This does not always occur, the police can arrest without asking for the breathalyzer as well.  Whatever the probable cause may be they are relying on, once the investigation is complete and an arrest occurs, law enforcement is supposed to request that the driver take either a blood or breath test. Whether the driver complies or refuses, the officer is supposed to fill the DMV Administrative Per Se suspension form, provide a copy to the driver, and forward the original to the DMV.

Law enforcement will then forward the arrest report to the District Attorney. The District Attorney will review the police report and the results of any chemical test and decide what the appropriate charges to file are. Normally, if you are arrested for a DUI, you will be charged with a violation of Vehicle Code 23152(a) and Vehicle Code 23152(b).

Vehicle Code 23152(a) deals with DUI cases relating to drugs, the combination of drugs and alcohol, or just alcohol. It is generally referred to as “common law drunk driving,” since the blood alcohol level can be below a 0.08% and the charge still applies. Obviously if you are a 0.08% or more, the charge applies as well, since it is further proof of driving under the influence.

Vehicle Code 23152(b) criminalizes driving with a 0.08% or more. This is the statute that most people are familiar with, it simply deals with what the blood alcohol level was at the time of driving. If you were a 0.08% or more at the time of driving, you have broken this law. Whether this level actually impairs you is irrelevant.

These are not the only charges that can be filed, but normally if you are arrested for these two charges, these are the same two charges you will see at the first court date, which is the arraignment.

 

ARRAIGNMENT

            The arraignment is the first court date. If you are charged with a misdemeanor, your Sacramento DUI Attorney can appear for you. If you are charged with a felony, you will have to appear alongside counsel.   If you do not hire an attorney, whether it be for a misdemeanor or felony, you have to appear. Normally, at a misdemeanor arraignment, you will be provided with a copy of the complaint. The complaint is the legal document that the District Attorney files in court that lists the charges against you.  Keep in mind that the charges against you can change. The District Attorney has up to one year in misdemeanor case to file charges against you, so additional charges that may not have been apparent form the police report initially, can always be filed within that one year period. You can also have charges reduced, or “amended,” to a lesser charge, such as “wet reckless” or “dry reckless.”

Once you have received the complaint, in most counties, with the exception of Sacramento, you will be asked to enter a plea. Sacramento normally does not require entering a plea until the case is set for trial.  Either way, the matter is normally continued to what is referred to as a pre-trial conference.

At the arraignment, your DUI Attorney should also find out which District Attorney will be in charge of your case and obtain contact information. If the District Attorney is present at the arraignment, defense counsel should inform the prosecutor what evidence needs to be obtained by serving them with an “Informal Request For Discovery,” which basically lists all evidence the defense is requesting.

A word of caution for the unrepresented.  In Sacramento County, if you are a multiple offender, it is not uncommon for the first court date to turn into a “bail motion.”  What generally happens for 1st and multiple offenders is they are arrested and released from custody with a court date in the future. They are not required to post bail.  Therefore, on the first court date, at least in terms of multiple offenders, the District Attorney has the right to request bail.  Depending on who the Judge currently is, the bail motion will either occur right away or will be continued for at least two court days for such a purpose. A bail motion is where the District Attorney asks for bail. Your DUI Attorney argues that you should stay out of custody while the case is pending without having to post bail. If you win, you continue to stay out of custody while the case is pending. If you lose, you will be taking into custody until you post bail, while the case is pending.   It is always advisable to have a bail bondsman present in court with the bail bond ready to go in cases where the court sets bail.

If you have a capable DUI Attorney, you will be prepared for any issues, including bail motions. If you do not have an attorney, and the court informs you that a bail motion is pending, ask for a public defender right away.

As stated before, these spur of the moment bail motions on misdemeanor cases, including DUI’s, in my experience only occurs in Sacramento County, not Yolo, Placer, El Dorado or Colusa.

PRE-TRIAL CONFERENCE

            Ideally, at the pre-trial conference, your DUI Attorney will have obtained all of the relevant evidence needed to adequately evaluate your case.  If it is a misdemeanor case, once again, your DUI lawyer can appear for you.  This is where negotiations really start taking place. By this point, you should have some idea of the strengths and weakness of your case, and should know either it is damage control scenario, or a case that looks like it could go further.

At this level, there are multiple options. Your DUI lawyer can either attempt to negotiate for a reduced charge or a reduction of the sentence or the case can be set for a number of pre-trial motions.  Of course, every capable attorney understands that both can be done. You can always attempt to get a reduced disposition, and if that fails, you can proceed to Plan B, which could be to set pre-trial motions. Just because you proceed with setting the case for a pre-trial motion or a trial, does not mean you have to give up on negotiations. Negotiations can take place all the way through a jury trial in some circumstances.

The Pre-Trial conference stage can go on for a while, and it is not unusual for multiple pre-trial conferences to occur before an agreement is reached.

 

PRE-TRIAL MOTIONS

            There are numerous pre-trial motions that deal with different aspects of the case, but they all mostly deal with the evidence in the case.  The following are a list of some of the typical pre-trial motions in a Misdemeanor case:

  1. Motion to Suppress Evidence: this motion deals with primarily 4th amendment issues. You are basically arguing that you were a victim of an unlawful search and seizure, and therefore the evidence obtained because of that unlawful search and seizure should not be allowed in court, or suppressed.
  2. Pitchess Motions- this motion is requesting that you be allowed to analyze the internal personnel files of the law enforcement officer, or officers, involved in the arrest.  It does not necessarily mean that the evidence will be used in court, just that you have the right to inspect the files to see if there is any helpful evidence. If you are dealing with a resisting arrest charge, or something to that extent, and the officer has a history of excessive force complaints, that is obviously relevant evidence that the jury should hear.  You will never know that evidence exists though without running a successful Pitchess motion.
  3. Motion to Strike The Prior Conviction-this is where you argue that a prior conviction(s) should not be held against you in regards to sentencing.  There are numerous situations where this can apply. All prior convictions have to be shown to be constitutional, in other words, that you knowingly and voluntary waiver of your rights with a full understanding that the prior would count as s prior. Many out-of-state convictions that the District Attorney alleges as a prior can be challenged through this Motion.
  4. Motions To Exclude the PAS, Breath or Blood Test- these are quasi-Motions to Suppress that directly attack the foundation by which the District Attorney uses to introduce these chemical tests into court.

TRIAL

            On every misdemeanor in California, you have a right to a trial by either a jury or in front of a judge. The decision on whether to proceed in front of Judge or a Jury is the defendants. In my experience, the Jury is always preferable.  A jury trial will be in front of 12 jurors. In order to find you not guilty or guilty, it has to be a unanimous verdict.  If the jury cannot all agree, a mistrial will be declared, resulting in a dismissal of the case.  Having a skilled DUI Attorney is the most necessary in front of a jury. When selecting an Attorney, try and envision who would perform well in front of a jury, and who would not. Generally, for a case to go all the way to a trial, at least 6 months will have passed, assuming the client is out of custody.

You do have a right to a “speedy trial.”  In California, this means that the Jury must be sworn in within 30 days of the arraignment when you are in custody, and 45 days when you are out of custody. This can also be a successful defense strategy if the District Attorney is not budging on negotiations. Put them on the clock, and generally the attitude changes.

 

No matter what stage of a criminal DUI case you are in, the services of a skilled Sacramento DUI Lawyer can make all the difference in your matter. Michael Rehm is available to discuss the facts of your case, and is available for consultations at (916) 233-7346