Overview

Overview: Understanding what is going on

DUIs are complicated because they involve both civil and criminal law and procedure. Civil law and its rules apply to the DMV hearings called administrative per se hearings. Criminal law applies to the court case because the charges brought against you may be infractions, misdemeanors or felonies, or a combination thereof. Infractions have only a fine and no jail time. Misdemeanors are crimes punishable by up to one year in jail and $1000 fine (plus assessments). Felonies are more serious and carry possible lengthy state prison sentences.

The DMV hearings have several other unique features. First, the hearings are “administrative,” meaning that there are relaxed rules of evidence (the legislature’s intent to make it easier to prove the case against you and suspend your license). Normally in law, for example, witnesses must testify in court and be subject to cross examination by the other side before what they say becomes “evidence.” But in DMV hearings, the DMV can use police reports without having the officer actually testify (“hearsay,” meaning an out of court statement offered for the truth of the matter). Second, DMV hearings are different because the hearings are conducted by hearing officers, not judges, who are DMV employees, are paid by the DMV and are both judge and prosecutor of your case. As shocking as this obvious conflict of interest and bias are, reviewing courts have ruled the DMV hearing system as lawful.

Despite the shortcomings of DMV hearings, there are ways to win. The DMV must prove three things to suspend your license: did the officer have reasonable cause to believe that you had been driving a motor vehicle with a .08% o blood level alcohol in violation of the DUI laws; were you lawfully arrested; and, were you driving with a vehicle with .08% blood level alcohol or more. We, however, only have to refute one of the three issues to win. Moreover, even if you lose the hearing, you may be awarded back credits that are retroactive against any suspension. The back credits are due you if the DMV violates its rules in setting up the hearing itself. Back credits that are retroactively awarded mean that your suspension could be drastically reduced or even eliminated! Also, you can reduce the four month suspension to one month or less if you enroll in a three month alcohol school, show proof of financial responsibility, and pay a license reissuance fee.

Your court case, because it involves criminal law, is very different from the DMV hearing. The US and California constitutions guarantee you procedural and substantive rights that must be respected, or your case could possibly be dismissed. The procedural guarantees include due process, receiving all the evidence against you, as well as any exculpatory information that shows that possibly you are not guilty of the crimes charged. Substantive protections offer you the opportunity of getting your case dismissed if the police lacked reasonable suspicion or probable cause in detaining or arresting you.

Your criminal case begins with the arraignment, the formal notice of the criminal charges against you. Many persons mistakenly think that the police officer, when writing down the actual offense or offenses for which you are arrested, determines what the charges are.

On the contrary, the district attorney has the sole discretion to bring all charges, whether or not they are listed on the police officer’s citation. That is why it is often critical, especially with low blood level alcohol results, to have your attorney get involved well before your court date, with the goal of persuading the filing deputy at the district attorney not to file charges.

Arraignments, your first court appearance, are important. At times, district attorneys do not appear at them. After reviewing the complaint, if your attorney notices that the case is “under charged,” meaning there are significant other charges that could have been filed but were not, your attorney may recommend to you to try to resolve the case at arraignment for a disposition that could be better at the arraignment stage than later on in the case.

In misdemeanor cases, following the arraignment, the attorney sets any motions (such as suppression of evidence because of constitutional violations) or review of police officer records (Pitchess motions, if the officer is suspected of lying or other improper actions). Then the case proceeds to pre trial conference (a meeting between the judge, district attorney, and defense attorney to discuss the strengths and weaknesses of the case with the goal of trying to resolve the case). The judge makes an offer to settle the case that you do not have to accept. If you reject the offer, then your case is set for trial. Felonies, because of the serious consequences, have additional safeguards for the accused called “preliminary hearings,” a review by a judge to determine if the evidence is sufficient to send the case to superior court for trial.

When a person has an attorney, the person does not normally have to attend court. I always recommend, however, that if you can, you go to court. Judges perceive attendance as a sign of respect for them. The first thing judges invariably ask the defense attorney is, “Is your client present?” Also, important issues may arise during the case while the attorney is in court. If you are there, these issues may be much more easily resolved.

As you see, your DUI case is unique because it involves both civil and criminal law, administrative and more formal court hearings, different rules of evidence and proof, as well as consequences that may be life long. Please do not proceed without an attorney. Your life, liberty and driving privileges are at stake. Please call me for a free, confidential and informative consultation. I offer high quality and affordable representation (flat, fixed fees with no hidden costs) and accept payments.