An arrest for DUI is only the beginning of a long process. The first part of the process happens after a DUI arrest in criminal court, while the second part of the process takes place at the Department of Motor Vehicles (DMV). Below, attorney Denis White explains what happens at
The Criminal Process
1. Initial Contact with Police
The first thing that happens is the police ask you a series of questions. (link to page titled: Pre-Field Sobriety Test Questions) While you will need to give the officer your license, registration, insurance and perhaps confirm your name and date of birth there isn’t much more you need to
tell them. Aside from avoiding answering questions that might tend to incriminate you, trying to have a nice conversation or being chatty with the police isn’t helpful to your cause either.
When you are first contacted by police, but before they have decided they have enough evidence to arrest you for DUI, they may ask you to perform field sobriety exercises (link to page titled: Field Sobriety Tests). You DO NOT have to perform these exercises and there is no actual penalty for not doing them. Before an arrest, police may also ask you to blow into a portable breath testing device in order to measure the percentage of alcohol in your blood. You DO NOT have to perform this test either (unless you are under 21 or are on DUI probation)and the police are supposed to tell you that it is voluntary.
Performing these tests before you have been arrested only provides the police with evidence that they will enter into their report and later use against you in court. Attorney White recommends that you do not volunteer to perform either of these pre-arrest tests but wants you to be aware that there is a downside. In all likelihood, the police will then arrest you and take you to jail based on what they call the totality of the circumstances and their belief that you are DUI. The DA may also treat your lawful right to decline answering questions or doing the field sobriety and breath tests as a sign of your guilt and then refuse to make you a reasonable offer to settle your case. What you do will be a judgment call that only you can make. If you decide to decline performing field sobriety tests and giving a breath sample on the preliminary alcohol testing instrument, I suggest you first ask the officer if the tests are voluntary.
If the officer agrees that they are voluntary and then you decline, it makes it more difficult for the DA to use this against you later. Hopefully, the questioning is captured by video and audio.
2. Arrest for DUI
Being arrested is never a pleasant experience. Some officers will treat you with a certain amount of respect while doing their jobs and others will not. The last thing you want to do is “flunk the attitude test” by giving the officer a bad time. This generally leads to poor treatment
of you and sometimes a more harshly written police report. At the point you realize the police have made the decision to arrest you, try to calm down and go with the flow.
3. Chemical Testing After Arrest for DUI
If police place you under arrest for DUI, California’s “implied consent law” law comes into play. The implied consent law basically says that when you drive a vehicle on California roads, you agree to consent to a chemical test if you are arrested for DUI. The implied consent law states
that you must be told that you have the choice of chemical tests to measure the percentage of alcohol in your blood. These test options include a breath test or a blood test, and in certain cases, a urine test. Police are also required to tell you that you can refuse such tests, but if you refuse, police must tell you that your driving privilege will be suspended by the Department of Motor Vehicles and your refusal can be used against you in criminal court. If you refuse this evidential test, the police will very likely get a judge to issue a warrant for a blood draw and will get the evidence anyway.
4. Jail & Bail
Each county has its own policies on whether people are released on their promise to appear for a future court date or whether they are required to post a bail bond. You will almost certainly have to post a bail bond if your case is a Felony. This may not be so if your DUI case is a
Misdemeanor. (Link to page titled: Misdemeanor Bail Policies in Sacramento, Yolo, Placer, Yolo, and El Dorado Counties)
Following a DUI arrest, police will write a report about what happened and they will send a copy of the report to the district attorney’s office. The district attorney is the criminal prosecutor for the state government. The district attorney’s office will decide which, if any,
charges to file against you following your arrest.
The first criminal court appearance after an arrest for DUI is called an arraignment. There are many instances where a case won’t be filed on time. You can’t invoke your right to a speedy trial or anything else because the DA has up to one year to file charges in Misdemeanor cases.
If you have posted a bail bond to get out of custody, keep your bondsman notified about what is going on with your case. If you are in custody, you must be taken to court within 3 court days.
In Sacramento County, court appearances are generally set about three weeks after the arrest date. If you elect to handle your case on your own, you may show up and be told to come back at a later date. The reason for not filing a case on time is generally because the lab results haven’t come back but it could also be that the DA is doing further investigation or waiting for reports from law enforcement.
Yolo County cases are set out two to three months after your arrest date. Even so, there are times when the DA isn’t ready to make a decision and you will be asked to return at a later date.
Placer County arraignments are typically set about one month after the arrest date. Just like the other counties already mentioned, there are times you’ll be asked to return at a later date for the reasons previously given.
El Dorado County arraignments are set about a month and a half after the arrest date. Here, if a case has not been filed in time for the first court date, you are not given a future court date. The clerk will instruct you to call the DA regularly until they make a filing decision.
At the arraignment, the judge will tell you what charges have been filed against you by the district attorney and you may be given a copy of the criminal complaint. This is the official document prepared by the district attorney that spells out what you are charged with. If you
have an attorney, he will obtain a copy of the police reports and provide you with a redacted copy. To get a copy of the police reports yourself, you will typically have to file a discovery request at the District Attorney’s Office.
If you do not have an attorney, the court may give you additional time to hire one or may appoint an attorney to represent you if you cannot afford one.
The court will also set a future court date in your case. This is often called a settlement conference. At a settlement conference, your attorney can discuss the case and possible settlement with the prosecutor. If you are not represented by an attorney, there really isn’t
If you are not able to agree with the District Attorney about a fair settlement, you and your attorney may decide to file certain motions with the court. The most common is a motion to suppress evidence against you. If a motion to suppress evidence is granted by the judge, your case will usually be dismissed. This is generally because there will not be enough admissible evidence to convict you.
You have an absolute right to go to trial. We suggest that, in most instances, you should obtain all the available evidence before you commit to going to trial.
The Law Office of Denis White can advise you on which course of action is best for your particular situation.