Anatomy of a DUI

Anatomy of a DUI

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).

The Criminal Process

  • Initial Contact with Police/Arrest

When you are first contacted by police, but before they have decided they enough evidence to arrest you for DUI, they may ask you to perform field sobriety exercises (stand on one leg, touch the tip of your nose with your eyes closed, etc.).  You DO NOT have to perform these exercises and there is no 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 and either, and police are required to tell you that it is voluntary.

Performing these tests before you have been arrested only provides the police with evidence to use against you in court.  Do not volunteer to perform either of these pre-arrest tests.

  • 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.

  • Court

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.

At the arraignment, the judge will tell you what charges have been filed against you by the district attorney and you or your attorney will usually be given a copy of the police report and the criminal complaint, the official document prepared by the district attorney that spells out what you are charged with.

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 the next court date in your case. Often this will be for what is called a settlement conference. At a settlement conference, your attorney can discuss the case a possible settlement of your case with the prosecutor.

If your case is not settled, you and your attorney may decide to file certain motions with the court, such as a motion to suppress evidence against you that the police took illegally. If a motion to suppress evidence is granted by the judge, your case will usually be dismissed because there will not be any or enough admissible evidence to convict you.

And of course, in consultation with your attorney, you may decide to take your case to trial.

The DMV License Suspension Hearing Process

After a DUI arrest, the arresting officer will seize your driver’s license and issue you an order of suspension and a temporary driver’s license (pink in color).

The officer will send all the paperwork from your arrest to the Department of Motor Vehicles, triggering an administrative process that is completely separate from the criminal case.  In this process in a case involving a driver age 21 or over who is arrested for DUI, the DMV will suspend your driving privilege if it finds that:

(1) A police officer had reasonable cause to believe you were violating Vehicle Code section 23152 or 23153 (the drunk driving law);

(2) You were lawfully arrested; and

(3) You were driving with a blood alcohol concentration of 0.08 percent or more.

That temporary license (pink form) the officer gave you says that you have ten days to contact the DMV and request a hearing regarding your license suspension.  If you do not request a hearing within the ten day period, the DMV may suspend your license if it finds that the three items listed above to be true.

The hearing officer is not a judge or a lawyer. He or she is an employee of the DMV.   The hearing officer’s job is to decide whether to uphold the suspension of your license.  Unlike in the criminal court process, the DMV hearing officer performs the role of prosecutor and judge. The hearing officer will present the DMV’s case, question witnesses, and cross-examine the DUI client and his or her witnesses. The hearing officer also makes rulings on the admissibility of evidence and objections.

DMV hearings are unlike the regular court process. They have very specific rules and procedures and the process can be very confusing to the average person. This is why it is important to contact an attorney immediately after your arrest for DUI so that he can present you at your DMV hearing.