LEGAL GUIDE
Written by Avvo Staff | Jul 11, 2014

Preliminary hearings in DUI cases

Being arrested for driving under the influence (DUI), also called driving while intoxicated (DWI) in some states, can be scary—especially if you know you're guilty. But like any criminal case, the courts must follow specific procedures.

These procedures protect your rights, among other things. Depending on the state (or federal property) where you were arrested and the specific facts of your case, one of those rights may be having a preliminary hearing.

What is a preliminary hearing?

A preliminary hearing is basically a mini bench trial—a trial held in front of a judge or magistrate, not a jury. But the purpose is not to decide if you're guilty. Instead, the judge will decide if your case should go to trial.

The judge decides this based on whether he or she feels the evidence presented by the prosecution is enough to justify the proposed charges. In other words, the judge has to believe the evidence meets several criteria:

  • That it shows it is more likely than not that you committed the crime, and

  • That it can convince a reasonable jury that you're guilty.

This is a lower standard of proof than the “beyond a reasonable doubt” standard the jury will use at a trial. Because of this lower standard, unless the evidence is very weak the judge is likely to send your case to trial.

Will you always have a preliminary hearing for a DUI?

No. State laws vary on the use of preliminary hearings:

  • Some states require them in all or almost all cases.

  • Some states don't allow them for a DUI case unless the charge is a felony.

  • Other states allow them but don't require them. In these states you must ask for one, usually within a specific amount of time after your arrest.

  • In some states the prosecution can choose to send your case to a grand jury instead. You have no say in this matter.

You also have the option of waiving your right to this hearing, although this may not be in your best interests. And pleading guilty at your arraignment automatically sends your case to trial, eliminating the need for the hearing.

In some jurisdictions, you may be eligible for an Accelerated Rehabilitative Disposition for a first offense DUI. Choosing this program generally also involves waiving your preliminary hearing.

It's usually a good idea to talk with a lawyer before waiving any rights or making a guilty plea. A preliminary hearing can be a valuable part of the discovery process. It allows you to start understanding the case against you early on.

Evidence and testimony presented can be helpful to you in preparing an effective defense. It can be especially helpful if a witness testifies differently at trial than he or she did at the hearing.

If you are scheduled for a preliminary hearing, make sure you show up for it. If you miss it without good cause, the judge may take it as a waiver of your right to the hearing and may even issue a bench warrant for your arrest.

What happens at a preliminary hearing for a DUI case?

A preliminary hearing works very similar to a regular trial, although state and federal statutes vary on what defendants (that's you) may do at one.

The prosecution presents its evidence and any witnesses it chooses to bring in.

Your lawyer may then cross-examine the witnesses and question the evidence (for example, the accuracy of a breathalyzer or blood alcohol content test). But the state may bar you from objecting to how evidence was collected (even if it was an illegal search). Not all states allow the defense to introduce evidence at this hearing, either.

The prosecution does not have to present all its evidence at this time. It may choose to introduce only enough to convince the judge that your case should go to trial.

A DUI conviction is serious and can affect the rest of your life. You face jail time and fines, of course. But it also leaves you with a criminal record that may affect your future eligibility for jobs, housing, and more. So it's important to talk with an attorney experienced with DUI cases as soon as possible after your arrest and before you plead guilty or waive any rights.

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