By Dale Gribow
With the holiday season upon us and Super Bowl Sunday around the corner, a lot of people will party and not use good judgment. They will drink too much and many will get stopped by the police checkpoints in the Coachella Valley. The most common question I get from a DUI caller is what is going to happen after they have been arrested?
A driver charged with Drunk Driving must understand that a DUI is a criminal offense that kicks into play 2 separate legal proceedings. The first is the Court proceeding requiring the driver and or his/her attorney to go to court and enter a plea of not guilty. The second is the DMV hearing. The court is looking to throw you in jail and the DMV is wants to take away your driver’s license. Because this area of law is new to almost all callers (and many attorneys) it is important they understand the many different parts of the two proceedings.
The following is a 10 step synopsis of a DUI STOP/ARREST:
Arrest, Booking and Custody: After your arrest the officer will take your license under the “Stop and Snatch” law and take you to jail where you will remain for 4-6 hours in a holding tank…normally. You will be fingerprinted and your picture will be taken for booking. The officer will give you a pink piece of paper in exchange for your CDL. This is your temporary license for 30 days. You are normally released on your own promise to return called an OR release though sometimes bail will be set on a more serious DUI.
Field Sobriety Tests and Chemical Tests: You will be asked to submit to a Field Sobriety Test at the scene as well as a breath test. The (FST) Field Sobriety Test requires you to walk the line; having the officer look at your eyes for a jerking motion; a finger to nose test; saying the alphabet and balancing on one foot. Both the FST and Breath Test at the scene are OPTIONAL and you can courteously opt not to take them. You would then consent to a Blood Test at the station or hospital.
DMV Hearing Request: The DMV hearing must be requested within 10 days of your arrest or you will lose the right to do so. This is set forth on the pink Temporary License you received when they snatched your driver’s license. Though you can do this yourself you are better off having your lawyer request the DMV date.
Retain a Local Attorney: For DUI’s in the greater Palm Springs area you should retain a LOCAL DUI attorney and not one from LA, OC or SD. They will not know the local DA’s and Judges and how to work the local system. Your local lawyer will review the police report to look for a way to get their foot in the door to keep it from closing on the driver and thus having DMV suspend the driver’s driving privileges. We recently had a case where the officer testified at the DMV hearing, which was recorded, and again at a Motion to Suppress Evidence in the courtroom. We had the court reporter transcribe what was said in the courtroom for us as well as ordering a copy of the DMV transcript. Both testimonies were totally different. Whenever we have a case with this officer we have a distinct advantage and the DA knows it. Of course we have not shared the name with other local attorneys. DUI’s can be complex and you need someone to review all the paperwork with a fine tooth comb.
DMV Hearing, Telephonic vs In Person: The hearing can be “in person” or “telephonic”. When your attorney requests the hearing he/she will ask for a STAY. Thus your temporary license which would have expired 30 days after the arrest will be valid until the results of the DMV hearing which will be about 45-60 days later. At the hearing your attorney will present your case and subpoena witnesses if necessary, including the arresting officer. However today you often have to pay a fee to get the officer to attend the hearing. Your attorney can argue for your license and driving privileges and DMV will then rule on whether or not the arresting officer had enough of a reason to stop you and take your license. Unfortunately the hearing officer is both the prosecutor and judge. They will not rule at the hearing but will instead send you a notice through the mail.
1st Court Appearance: It is called an Arraignment and you either plead guilty or NOT guilty. We always plead not guilty and get copies of the DA’s Discovery. This includes the police report, maintenance records of the breath machine and copies of the video mounted in the patrol car to see if it shows how well you were walking and performing the tests. After the arraignment the judge gives us another date called a Pre Trial. The arraignment stage is where you are formally charged with a DUI and a Driving with a .08 or higher Blood Alcohol level. Both charges are filed on all DUI’s. Note that in the Indio Court the DA will file .07’s even though the law is that driving with a .08 or great is the charge.
Pre Trial: This is the stage where some DA’s will offer a plea bargain. However the DA’s in Indio have marching orders to not reduce any charge and to request a maximum jail sentence. This is also the time when your lawyer can make a Motion to Suppress Evidence under Penal Code section 1538.5. At the Suppression Hearing your attorney can fight to have certain parts or all of the DA’s evidence thrown out… if your rights were violated.
Trial: Your case can be tried by a Judge or a Jury. Either way your lawyer can present evidence that will aid your argument and cross examine the prosecution’s witnesses to poke holes in their case.
Sentencing: The jury will decide if you are guilty and the Judge will impose a sentence if you are found guilty. In the Indio Court the sentencing demanded by the DA for a plea is a jail sentence starting with 10 days in jail and going up for each .1 on your reading over .10. Thus a .12 is 12 days and a .18 is 18 days in custody.
Jail vs Home Arrest: We would then work to trade the jail time imposed for home arrest with an ankle bracelet. You would be allowed to go to work for 8-12 hours a day and be home the balance of the time. The ankle bracelet can be obtained from the Riverside Sheriff’s Department by calling to reserve a date to pick up the ankle bracelet. You can also contact a private company called Leaders in Community Alternatives which as you can imagine is less aggravation.
