What Can I Expect At My First Court Appearance?

The first Court appearance on a DUI case is called an arraignment.  The purpose of this Court date is to allow the person accused, in legal terms a "defendant", to enter a plea to the charges filed by the local prosecutor.  The charges are contained in a document that is called a "complaint" and it is filed with the court that is closest to where the arrest took place.

The possible pleas that could be entered are guilty, not guilty and no contest.  If you have hired a lawyer to fight the case he or she will probably recommend pleading not guilty.  Why is this the best option?  We'll, in most cases the attorney will want to review all of the evidence such as the official police report, the breath or blood test records and any other evidence the state has.  In many cases, when the evidence is investigated there may be errors that occurred such as violations of the state regulations pertaining to testing or there may be a violation of your constitutional rights such as some illegality surrounding the arrest or the reason the officer pulled you over in the first place.

Once I plead not guilty does this mean I have to go to trial?  No, a defendant can change their plea at any time and most cases are resolved prior to a jury trial.  The attorney can often develop arguments and defenses that will allow them to negotiate a favorable deal such as a reduction of the charge or a reduction in the possible sentence imposed.  For example, in many drunk driving cases a key issue is the lawfulness of the initial stop, the attorney will want to carefully review the reports to determine if a motion to dismiss is appropriate based on a violation of the 4th Amendment.

Why can't my attorney get to see all of the evidence before the arraignment and be able to resolve the case at that stage?  Although in many cases counsel will receive some reports before the first a Court date, under California law a defendant is not entitled to full disclosure of the evidence until he or she is "arraigned" therefore although some reports may be acquired prior to the initial appearance, the DA does not have to provide everything until the arraignment.  Even at that stage some evidence may not be available.  For example, a blood result may not be reported by the laboratory for sometimes 60-90 days.  It is obviously prudent to wait for the results of that test before deciding whether to plead guilty or no contest.

What will be the next step after the arraignment ?  A subsequent Court date will be scheduled, usually called a pretrial, or it's possible that the arraignment will be continued to allow the attorney to review the discovery provided by the DA.  You will be contacted at a future date to discuss the case and go over your options.

Do I need to be there at the first appearance?  Generally no.  Unless the case is a felony, the law allows for attorneys to appear on behalf of their clients unless the judge orders it.  What are the circumstances where a judge can order a personal appearance?  When public safety requires the judge to set bail or impose conditions of the defendant's release.  For instance, if the accused has prior DUI convictions or is on probation then a judge can set bail an remand a defendant.  The judge can also require the defendant to attend AA meetings or enroll in an alcohol education program as a condition of his or her release.

Getting A Restricted License After A Second DUI In California

The mandatory suspension for a second dui in California is 1-2 years, however there is a way to obtain an early reinstatement of your driving privilege via an IID restriction.  What is this?  Well, it is a method to get a license after 90 days if your DUI involved alcohol, no drugs, and you were not on probation, took a chemical test and meet certain conditions.  Here is what you will need to do:

1. Get enrolled in the SB 38 18 month DUI program.  The classes must be started after the arrest date of the current case.  Sometimes the offender will start the school early, that is ok as long as you file the enrollment certificate with the DMV after the court conviction. Click here for a full list of DUI Schools in California
2. Make sure you have an SR-22 filed with the DMV.  An SR22 is nothing more than an official proof that you have the minimum required proof of insurance mandated by the DMV.  You cannot simply send in the little card you got from the insurance company, that will not be sufficient.  The proof must be sent in by the insurance company in order to comply with CA law.  Many insurance brokers can provide an SR22 even if you do not currently own a car or if you do and want additional coverage.
3. Install an ignition interlock in the car you will be driving.  This IID is mandatory and must be installed even if you do not own a car.  This allows you to drive anywhere you want as long as it is installed.  There is no restrictions for employment only or any other limitations.  For more information about this, go to our IID Facts Page.
4. You must pay a re-issue fee to the California Department of Motor Vehicles.  This fee  ranges from $140 to $240 dollars and must be submitted in order to receive your original license.
5. Ensure you have no outstanding tickets or "holds" on your license such as tickets you never paid or any FTA or failure to appear, back due child support, etc.
6. Make sure you understand that you will receive two letters from the DMV regarding the court and administrative disposition.  The first letter will often be from the local driver safety office which states the suspension is fir one year, how ever this will be superseded by the mandatory action flowing from the court conviction which will state the suspension is for two years.  The court action trumps the APS sentence and the time for the 90 days starts when the court conviction takes place, not sooner.  If you have any questions regarding the process contact Matthew

Long Beach DUI Arrests Up During Grand Prix Week

The number of arrests for DUI is always increased during special events such as the Toyota Grand Prix but this year the police were out in even greater force due largely to increased budgets for drunk driving enforcement.

The authorities report that arrests for other criminal offenses were also up this year.  Crimes such as public intoxication, urinating in public and assault increased greatly compared to recent years.  According to one local Long Beach a Criminal Defense Attorney , the statistics are in line with other communities such as Torrance and the beach cities in the South Bay.

The good news is that no deaths were reported during the event and the participants spent a record amount of money in the community which will go far to help the city fund other events and increase public safety.

The city prosecutor will be busy filing those cases in the coming weeks.

My Temporary License Will Be Expiring, Can I Continue To Drive?

When you were released after your DUI arrest you were given a pink temporary license.  That paper has allowed you to continue to drive  pending a DMV hearing.  But here is the problem, the paper reads it is only good for 30 days.  What do you do?

As long as you hired an attorney within the first 10 days or set a hearing then the DMV will stay the suspension which means that the temporary will remain valid until a decision has been rendered.  Often the state is slow to issue a secondary temporary or send a renewed license so in the mean time you can continue to drive on the pink license without worry.  Eventually the department will mail you a white piece of paper that will supersede the pink document. Many times the reason for the delay is that paperwork may be slow in arriving or the lawyer may be seeking a change of venue.

 In the interim it may be a good idea to obtain a CA ID card which will have a picture on it that can be used as an official ID card.

If you are pulled over and the officer runs your license it will come up valid.  However, the last thing you need is another ticket or violation so be be careful and do not get pulled over while the APS hearing is pending.

Is California's Implied Consent Law Unconstitutional?

In California, anyone stopped for a DUI is told that they are obligated to give a blood or breath sample because they consented when they were issued a license.  This is the backdrop for a new attack on the coerced taking of blood and breath by the police says one well known DUI attorney.

Indeed,  in Missouri v. McNeely  133 S.Ct. 1552 (U.S. 2013) the Supreme Court of the United States held that nonconsensual, warrantless blood alcohol testing was presumptively unconstitutional.  California has enacted a set of statutes that compels a driver to waive his right to demand the production of a warrant issued by an independent judicial officer, by mandating that the driver consent to a search under the threat of incarceration. The California statute misinforms the driver of his constitutional rights by telling him that he “shall consent” to a search, when presumably, according to the Constitution,  the driver has the right to refuse.

It is well settled that statutes that threaten jail unless someone consents to a warrantless search of their house are unconstitutional on their face. Even more indisputable is the fact that a person’s body is entitled to equal or greater protections than would a person’s house under the Fourth Amendment.  As stated in Katz v. United States, 389 U.S. 347, 351 (1967), “the Fourth Amendment protects people, not places.” There, the Supreme Court found a violation of the Fourth Amendment simply by the attachment of an eavesdropping device to a public telephone booth. Later cases applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's “reasonable expectation of privacy,”.   These precepts have been recognized in many published cases.

In summary, an implied consent statute or legislative scheme that criminalizes a citizen’s refusal and thereby coerces consent is not a suitable replacement for the Constitutional dictates of a search warrant application and review by a detached and neutral magistrate.  Reeder v. State, (2014) 428 S.W.3rd 924.  Indeed, many DUI attorneys are now challenging blood tests on these grounds and some Courts have been receptive to the challenges.

Are You On The DUI "Hot List" In California?

Unbeknownst to many, there is a list floating around out there that many people do not know about.   The California DMV has partnered with 35 law enforcement agencies across the state in an effort to keep suspended drivers with prior DUI convictions off the road.

The 'Hot List' program aims to keep the worst drivers off the road when it comes to driving under the influence. The DMV will provide agencies with lists of the driver license numbers of suspended or revoked multipled DUI offenders in their jurisdictions who will then create a list for their officers of the individuals most likely to re-offend.

The list will help law enforcement agencies to enforce DMV's licensing actions to reduce incidents involving suspended or revoked multiple DUI offenders. DMV Director Jean Shiomoto says that research shows 75% of drivers who are convicted of DUI continue to drive despite being suspended or revoked.

'Hot List' was launched in 2011 as a pilot program with 15 participating agencies. The California Department of Motor Vehicles and Office of Traffic Safety are now working to expand the program to include up to 50 law enforcement agencies across the state.

The "list" has many DUI attorneys alarmed.  The fear is that cops will target, stop and detain occupants of vehicles registered to these "hot list" subjects even if there is no proof they are driving.  The CHP and other law enforcement agencies involved have not commented.  

Why Is It Taking So Long For My DUI Case To Be Filed?

Many people are arrested and given a citation or notice to appear for a future Court date only to discover that the District Attorney has not filed charges and there is no case on calendar.  Interestingly, many people do not realize that when the police make an arrest they do not have the power to charge a person with a crime, only the DA has that ability.  Unlike a typical traffic ticket, a DUI is a misdemeanor that must first be reviewed and filed by the county prosecutor before the Court will calendar the matter.  So what are some of the reasons why a case may be delayed?

Perhaps the single biggest reason for prosecutorial delay is that they do not have all of the paperwork in the case.  Most DUI investigations include numerous reports by many different people and each person involved in the process will write a report.  For example, if a cop stops you and another officer shows up to assist in the field sobriety tests or to administer a breath test each officer will be required to write a report of their observations.

Moreover, if the case involves an accident, a different officer will sometimes prepare a report of measurements, witness statements or opinions about the cause of the accident.  When a blood test is given, their are even more people involved such as the person who drew the sample, the officer who transports the sample and delivers it to the lab,  the technician who does the testing and so on...
In some instances there may be two or more breath tests that need to be considered and the records of the machine may need to be obtained.

Many counties are backlogged and do not have the staff to expedite the compilation of all of the reports, evidence and other documents therefore delays occur.  Most attorneys will use this time to submit requests to dismiss or ask that evidence be re-considered or that a supervisor review the case for the possibility of a rejection of the case and dismissal.

You must be patient.  California law allows the DA a full year to file any misdemeanor DUI case and they can take all of that time if need be.  Even in cases where the blood test comes back lower than the legal limit of .08, the DA can file charges of impaired driving if the officer renders an opinion that you were impaired by the alcohol or drugs, prescription or otherwise in your system.