Arrest - Did the officer have probable cause to arrest you?
Probable cause determination is based upon:
(1) Driving pattern;
(2) Admission to drinking;
(3) Objective signs of intoxication;
(4) Performance on FSTs;
(5) PAS results;........
o Arrest made --> taken to police station
o Mandatory chemical test (blood or breath) at police station
o Police report drafted and sent to the DMV and District Attorney's office for their review
Filing of Formal Charges
o Filing D.A. will draft and file a formal criminal complaint against you;
o Generally, charged under both CVC 23152(a) & CVC 23152(b);
o CVC 23152(a) = requires only impairment due to alcohol and/or drugs;
o CVC 23152(b) = blood alcohol content (BAC) at or above .08%
Arraignment - 1st Court Appearance
o First court appearance -- when charged with misdemeanor DUI, your attorney may appear on your behalf (under Penal Code 977(a));
o Obtain a copy of the complaint & police report;
o Enter a not guilty plea (to allow time for case review & investigation);
o Set next court date -- pretrial (generally, set about a month after your arraignment)
o 98% of DUI criminal cases resolve short of an actual jury trial -- during this pretrial stage;
o Case discussions & negotiations with D.A. and Judge;
o Legal Homework!;
o Pretrial Motions (further discovery requests; suppression of evidence, etc.);
o Investigation -- video/audio review; visit to scene; pictures; witnesses;
Case Resolved -- Probation Order
o Best offer has been extended by D.A. or Judge;
o Charge bargaining & Sentence bargaining;
o If case is not dismissed, an agreed upon resolution will be reached as to what charge(s) you will plead to and your sentence (or terms of probation);
o Probationary Terms -- court mandated alcohol program; court fines & fees; violate no law
o If for whatever reason an agreed upon resolution cannot be reached, the case will be set for trial
o D.A. or Judge offer goes off the table -- a 12 person jury of your peers will be assembled to determine your guilt or innocence....
o Not guilty --> case is over
o Guilty --> Conviction entered --> Judge rules on sentencing
[Misdemeanor first-time DUI -- maximum punishment is 6 months in County Jail and a $1,000 fine]
o Once all terms of probation have been met and completed, a motion under Penal Code 1203.4 may be drafted to "expunge" or clear your criminal record.
o An expungement changes and updates the disposition of the case to reflect a dismissal under 1203.4 of the Penal Code. This means the Court file, the California Department of Justice, and the FBI update their files to show the case has been ordered dismissed by the Court.
Additional resources provided by the author
I strongly believe that every person accused of a crime is entitled to an attorney who zealously advocates and fights on their behalf. Zealous representation requires subordinating all other interests — ideological, career, and personal — to the legitimate interest of the client - Matthew B. Wallin, Esq. - MBW@wklaw.com - 714-730-5300