Q: What will happen on my first court date and do I have to be there if I have a lawyer?
A: The first court date for a DUI charge is called an arraignment. On this day a plea will be entered to the charges (guilty, not guilty or no contest). Usually, the police reports and a list of drunk driving charges (Complaint) are obtained. The defendant in misdemeanor DUI cases will usually not have to be present if represented by an attorney. In felony DUI cases the defendant must appear.
Q. The police did not read me my rights, will my DUI case be dismissed?
A. Law enforcement personnel are required to read you your "Miranda rights" only if two criteria are met. You must be in custody (usually "arrested"), and you must be interrogated (questioned about the details of the DUI). A Miranda warning violation does not automatically result in the dismissal of a DUI case. The statements that you made after the stop for drunk driving could be suppressed and not admissible as evidence if you were "in custody" when the police questioned you..
Q. The police said I blew a.07%. Why was I still arrested and charged with a DUI?
A. An arrest for DUI in California can be made at any blood alcohol level. Some California counties routinely prosecute people with blood alcohol levels below a .08% Blood Alcohol Concentration (BAC). Often the decision to arrest is dependent upon the performance on the field sobriety tests (balance & coordination) and the driving pattern (weaving, speeding or an accident, etc.). An officer can arrest for simply being under the influence of alcohol or drugs with no reference to your blood alcohol level at all! The District Attorney would then file a 23152(a) CVC charge, which is simply driving under the influence of alcohol. Again, this would likely be based on the police observations of your driving pattern and performance on the field sobriety tests.
Q: If I have a good case, should I wait to contact the California DMV about a hearing?
A: No, the criminal case and California DMV suspension of your license in DUI cases are completely separate actions. You must request a DMV hearing within ten days of arrest to avoid an automatic suspension of your California driver's license by the DMV. Our firm can handle this for you.
Q: How can they charge me with DUI if they pulled me over for speeding?
A: The speeding offense provided the probable cause (valid reason) for the stop. If the law enforcement officer suspects you of driving under the influence after you are stopped (based on admissions, smell of alcohol or drugs etc.) you can be arrested for DUI in California . There is no requirement that police suspect you of driving under the influence prior to the stop in order to arrest you for DUI.
: If the officer does not show up at my initial court date will my DUI be dismissed?
A: No, a DUI is a misdemeanor in California not a traffic infraction. The initial court date is an arraignment and the police officer will not be present. In fact the police officer may not be present during the court proceedings until the date of trial if any.
Q: Is it true that you should refuse the chemical test in California?
A: No, absolutely not. You should never refuse to take a chemical test in California. A refusal to take a blood or breath test will result in the automatic 1-year suspension of your driver's license even if the DUI charge is dismissed. And if convicted a refusal can result in increased penalties including jail time. Also, the refusal can be introduced into evidence as "consciousness of guilt" of having too much alcohol in your system. This can be refuted by your defense attorney.
Q: Will the court count prior DUI convictions in other states against me?
A: Generally, yes. If the law in the other state is substantially similar to the law in California then a prior DUI or DWI can be used against you in California thereby increasing the penalties (jail time, greater fines and longer alcohol programs, etc.).
Q: What is a "Wet Reckless" Driving in California?
A: A wet reckless is essentially driving with some alcohol in your system that does not rise to the level of a DUI. This is a common plea bargain reduction for first time DUI offenders in California. The fines, penalties and probation are often less than that of a DUI, but a wet reckless will be considered as "priorable" offense for a seven-year period. Thus, if you get another DUI within ten years of a wet reckless the DUI will count as a second offense.
Q: Shouldn't I just plead guilty if my test results were over .08% BAC?
A: There could have been an error during the testing process that can only be uncovered during the discovery process. If you simply plead guilty based on the original test results you may be giving up your opportunity for a dismissal or reduction of the charges against you. Alcohol testing is not always accurate. Procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. Your attorney should explore all of your options and opportunities.
Q: How can I win a DMV hearing if my test results were over .08%BAC?
A: The DMV hearing is very concerned about whether all procedures by law enforcement were properly performed before suspending a person's driver's license. Testing is not always accurate, procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. All of these could result in a set aside of your suspension. The DMV hearing is crucial in California DUI cases. We are very successful in having our client's driver's license suspension set-aside and licenses returned to our clients.
Q: Why should I pay for a lawyer when I can get a Public Defender for free?
A: In order to qualify for the services of a Public Defender you must establish to the court's satisfaction that you are indigent (unable to afford to hire your own attorney). A Public Defender is an attorney assigned to a specific courtroom to handle all of the cases that day for the indigents who did not retain an attorney to represent them. Public Defenders are almost always very dedicated and may be experienced in your type of case. However, your case would be just one of many. Usually, hiring your own lawyer provides you with the most experienced attorney who can provide you with the best possible investigation and defense of your case and you are the sole focus of your attorney. And if you simply plead guilty, you may wonder for years if you could have had the charges against you dismissed or reduced to a lesser offense. You must ask yourself: "How would a conviction and having a criminal record affect me in the future?"
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