DUI FAQ
Common Questions About DUI Cases
Q: I've been arrested under the suspicion of DUI. Do I need an attorney? Can't I just do it myself?
A: God, no. Handling any interaction with the criminal justice system without a lawyer is a huge mistake. If you are charged with any crime, you absolutely need an attorney. This is true whether you plan on pleading guilty or not. This right is so important that if you cannot afford a lawyer, the government will provide one for you.
Q: What is the process?
A: After you hire us, we will contact the DMV to schedule your hearing, and begin preparing for your defense in criminal court. The first court appearance is called an arraignment, where we will enter a plea of not guilty and argue any issues such as bail or other restrictions the district attorney wishes to place upon your freedom.
Q: How long will this take?
A: The average DUI case takes about 5 months from arrest to the close of the case, but it can vary greatly. We have had cases take as little as a few months and others that have taken years.
Q: Who can I talk about my case with?
A: You should only talk about your case with your attorney and their agents, such as paralegal and experts. If you talk about your case with anyone else, you put yourself at risk of making your situation worse. Attorney-client privilege does not extend to friends and family.
Q: Can I be found guilty at the DMV hearing and not at the criminal proceeding? Vice versa?
A: Technically the DMV does not find guilt or innocence, they simply decide whether or not to suspend your license. The DMV can still suspend your license even if the criminal case against you is dismissed.
Q: What is an APS hearing?
A: After a DUI arrest in California, you only have 10 days after your date of arrest to schedule a hearing, or you lose the right to challenge your arrest and keep your license. As long as you contact the DMV within 10 days of your arrest, you can have an APS (Administrative Per Se) hearing, which is an administrative hearing handled by the Department of Motor Vehicles to determine whether or not you should continue to be able to drive in the State of California.
Q: What is a temporary license?
A: After you are arrested for DUI in California, the police will typically give you a pink slip of paper, which will function as your temporary license. They will confiscate your physical California ID and you will not get it back until the close of your DMV matter.
Q: What is the worst outcome? Best?
A: The worst outcome would be that you are found guilty and receive the maximum sentence. The type of crime determines the type of punishment: for an infraction, a fine; for a misdemeanor, jail time and other penalties; for a felony, prison time. The best outcome is to have the case dismissed or to be found not guilty at trial.
Q: What are all of the APS hearing outcomes?
A: For a first DUI, there's typically a six-month license suspension. Drivers who refuse BAC (Blood Alcohol Concentration) testing face a one-year administrative suspension. After completing a 30-day hard suspension, a driver may be able to obtain a restricted license for driving to and from work. For a second DUI, there is a two-year suspension from the criminal court and a 12-month administrative suspension if you have a BAC of .08% or more. The two suspensions are generally allowed to overlap. You can apply for a restricted license after completing a hard suspension period of 90 days, or one year if the offense involved a drug DUI. For a third DUI, there is a three-year suspension that comes from the criminal court as well as a 12-month administrative suspension if you have a BAC of .08% or more. The two suspensions are generally allowed to overlap. You can apply for a restricted license after completing a hard suspension of six months (one year if the offense involved drugged driving).
Q: Who makes the decision at an APS hearing?
A: The decision is made by the DMV hearing officer, who acts as both the judge and prosecutor at the hearing.
Q: What is a critical needs license?
A: If your license is suspended by the DMV, you may be eligible for a critical needs license in some cases. Despite what many believe, a critical needs license is not limited to those under 21 years of age. In fact, you may be eligible for a critical needs license if you need to drive for education, medical services or employment, but only if reasonable alternatives for transportation are impractical, unavailable or too expensive. Under Vehicle Code § § 13353.8 (which applies to anyone) as well as under 13202.5(c) (for those under 21), a California driver can move the DMV to issue a restricted license in lieu of suspension based on a critical need to drive. A critical needs license is not easy to obtain, so you can help us help you, by supplying us with quality evidence as to the specifics of your critical need. For example, a current bus transportation route map showing the DMV that the closest bus stop is far away.
Q: What is an arraignment?
A: Following an arrest, an arraignment occurs in a courtroom in front of a judge or magistrate as the beginning of the criminal procedure. The purpose is to provide the accused with a reading of the crime with which he or she has been charged. The accused is also given the option to either proceed with a speedy trial, or waive that right. In most cases, our clients choose to waive the speedy trial right, though it is always decided on a case-by-case basis. In practice, the arraignment and the reading of the charges are typically waived by the attorney and the arraignment is treated as more of a procedural matter.
Q: Do I have to be at the arraignment?
A: For most traffic infractions and misdemeanors, we can appear on your behalf without you being present. Even if you are not required to be present, it is always important to be available by phone at the time of your hearing, in case we need to reach you. For felony cases, typically you must be present for all court dates.
Q: What's a pre-trial hearing?
A: This is a court conference between the lawyers and the judge, set typically a month after the arraignment to allow the defendant and his or her attorney the opportunity to negotiate a settlement of the case with the district attorney. If a deal can be reached, the defendant will change the plea to guilty or no contest, or the matter will be dismissed. If there is no deal reached, the court will set a trial date and your attorney will need to discuss the costs and next steps involved with proceeding to trial.
Q: Do I have to be at the pre-trial hearing?
A: For felony cases, yes. You must always be present for a felony hearing. For most misdemeanor and infraction cases, your appearance is not required, although it may be necessary in order to accept a deal and close the case.
Q: Do I get a jury trial?
A: If it is a misdemeanor or felony, yes, you have the right to a trial by jury if you want one. Infractions however, have bench trials.
Q: Is a bench trial or jury trial better?
A: In most cases we want a jury trial. This is true for a number of reasons, but perhaps most importantly, if there is only one person deciding your case, it only takes one guilty vote. With a jury, however, it would take 12 out of 12 to vote guilty in order for you to be convicted.
Q: What is a preliminary hearing?
A: In felony cases, you are entitled to a preliminary hearing in order to see whether the district attorney has sufficient evidence to proceed. At the preliminary hearing the district must establish via competent testimony and evidence that there is probable cause to believe that a felony has been committed and that the defendant should be bound over for trial in the higher court. The standards for evidence necessary to show probable cause are very low at a preliminary hearing, and therefore most defendants are bound over for trial. Even if you are bound over for trial, we may be able to accomplish important goals at your preliminary hearing.
Q: What is the worst outcome for a preliminary hearing? Best?
A: In felony cases, you are entitled to a preliminary hearing in order to see whether the district attorney has sufficient evidence to proceed. At the preliminary hearing the district must establish via competent testimony and evidence that there is probable cause to believe that a felony has been committed and that the defendant should be bound over for trial in the higher court. The standards for evidence necessary to show probable cause are very low at a preliminary hearing, and therefore most defendants are bound over for trial. Even if you are bound over for trial, we may be able to accomplish important goals at your preliminary hearing.
Q: What evidence will be used against me?
A: This is highly case dependent, and can include: Eyewitness statements made by parties to the case, Photographs Medical evidence
Q: I've never gotten a DUI before! Doesn't this count for something?
A: Not at all. You don't get a free one, no matter how long you have been driving. I have seen many people without lawyers say things to the judge like, “I am 58 years old and I have never been arrested before. Can't I have a break?” This is not an effective line of defense and is often met with an eye roll, as the court feels that you have wasted everyone's time. A strong defense requires knowing the lay of the land and how to accomplish your goals. We may be able to use your lack of prior convictions to your advantage, but don't expect leniency based solely on that.
Q: There was an accident involved and someone got hurt. What does this mean?
A: It means that your legal situation is extremely serious. An accident with injury can mean felony charges, in some cases, even murder. You need experienced legal counsel immediately.
Q: What is an interlock device?
A:Like a breathalyzer, an ignition interlock device measures the alcohol in a person's system. If the amount of alcohol detected by the device exceeds a pre-programmed level, then the interlock temporarily locks the vehicle's ignition. To start, the driver blows into the interlock device. If the sample is below the required threshold, then the vehicle will start as usual. If alcohol is detected, the driver must wait before testing again. While the vehicle is in motion, the device will beep periodically, signaling the driver to deliver a breath sample. The rolling re-test is designed so that a driver does not consume alcohol after performing the initial breath test. If alcohol is detected, the ignition interlock will not turn the engine off while the vehicle is in motion, as that would present a safety risk. Instead, the interlock device will signal the driver to stop by blowing the horn and flashing the lights.
Q: What is SWAP?
A: SWAP stands for Sheriff's Work Alternative Program. It is an alternative sentencing program that may be used in some cases to avoid time in jail.
Q: How is SWAP different than community service?
A: SWAP is offered in some cases as an alternative to serving time in jail for individuals that are eligible. The program consists of working in the community rather than serving jail time in custody. It involves activities like picking up trash, raking leaves and cleaning government property. Each 8 to 10 hour day worked counts as one day of jail time. SWAP eligibility is based on court orders, the type of charges, the number of days you are ordered to serve, any other cases pending, previous attendance history and a variety of other factors.
Q: Can I travel with a DUI?
A: Generally speaking, within the U.S., yes. You may have issues traveling to other countries, in particular Canada. If you need assistance with traveling into another country with a criminal conviction, we have a network of lawyers that can help you in the country where you are traveling.
Q: How can I get this DUI off my record?
A: An expungement (known as a “petition for dismissal”) is a motion under California law, typically via Penal Code § 1203.4. The process involves filing a petition to request that the charges against you be retroactively dismissed. If the judge agrees with the motion, he or she will vacate your conviction and dismiss the case. That means, if a potential employer asks you if you've ever been convicted, you can honestly answer no! The conviction is gone, as if it never happened. After the expungement is granted, an arrest or conviction ordinarily need not be disclosed by the person who was arrested or convicted. If you were never convicted at all, you may be eligible for sealing and destroying your record of arrest via a petition for finding of factual innocence.