LEGAL GUIDE
Written by attorney Susan Marie Hearne

DUI - What Our DUI Attorney can do for You

Additional resources provided by the author

How a Criminal Case Starts 1. Usually, the police cite or arrest someone and write a report. This report summarizes the events leading up to the arrest or citation and provides witnesses’ names and other relevant information. Defendants generally do NOT have a right to get a copy of the arrest report, but their lawyers do. The reason for this is to protect the identity of witnesses. This is another reason why it is important that a defendant charged with a misdemeanor or felony have a lawyer to represent him or her. 2. The prosecutor then decides whether to file charges and, if so, what charges to file. The prosecutor decides whether to charge the crime as a felony or a misdemeanor. The prosecutor can file charges on all of the crimes for which the police arrested the defendant or can decide to file fewer charges or more charges than were included in the arrest report. 3. Because defendants have a right to a speedy trial, the prosecutor must generally file charges within 48 hours of the arrest when the defendant is in custody (in jail). Weekends, court holidays, and mandatory court closure days do not count against the 48 hours. Also, the deadline for arraignment depends on what time of the day you were arrested, so talk to a lawyer to find out exactly when the prosecutor’s deadline to file charges is. The Arraignment The arraignment is the first time the defendant appears in court. At the arraignment, the judge tells the defendant: • What the charges are, • What his or her constitutional rights are, and • That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge. The defendant may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”). • Not Guilty means the defendant says he or she did not commit the crime. Sometimes, defendants enter a plea of not guilty as a strategic decision during plea bargaining or because they want to go to trial and force the prosecution to prove its case beyond a reasonable doubt. • Guilty means the defendant admits he or she committed the crime. The judge finds the defendant guilty and enters a conviction in the court record. • No Contest means the defendant does not contest (disagree with) the charge. This plea has the same effect as a guilty plea, except the conviction generally cannot be used against the defendant in a civil lawsuit. If the defendant is in custody at the time of arraignment, after the defendant enters a plea (responds to the charges), the judge will: • Release the defendant on his or her “own recognizance” (which means the defendant promises to return to court on a specified date), OR • Set bail and send the defendant back to the jail until the bail is posted, OR • Refuse to set bail and send the defendant back to jail. “Bail” is money or property that a defendant puts up as a promise to return for future court dates. When setting the amount of bail, the judge takes into account the seriousness of the crime, whether the defendant is a risk to the community, and whether he or she is a “flight risk” and likely to run away. After the Arraignment In misdemeanor cases, if the defendant enters a not guilty plea, after the arraignment and before the trial: The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer. Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial. The defendant can change his or her plea to guilty or no contest. The judge and lawyers from both sides may talk about how the case can be resolved without going to trial. 
In felony cases, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called “the Information.” Then, the defendant will be arraigned, a second time, on the Information. At that time, the defendant will enter a plea and proceed to trial. Before the trial: The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer. Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial. The defendant can change his or her plea to guilty or no contest. The judge and lawyers from both sides may talk about how the case can be resolved without going to trial. Pretrial Sentencing If your case settles before trial, you’ll be sentenced by a judge. Your sentence will be based on the law, the suggestions of the DA and the advocacy of your attorney. Probation Most people convicted of misdemeanor are granted probation as part of their sentencing. Probation allows you to avoid incarceration if you agree to abide by certain conditions and fulfill specific requirements. Our Attorneys will represent you at your probation hearings.

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