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CRIMINAL LAW PROCESS
Court Process
Investigation/Grand Jury – The first thing to happen is usually a call to the police which leads to an investigation by responding officers, or in some cases, a grand jury investigation.
Arrest/Citation/Indictment – Once the investigators think they have enough evidence to file criminal charges, you will be arrested and taken into custody, or will be provided with a citation or letter to appear in court on a specific date. The police may arrest you for what they think the charges support, but the prosecuting agencies (City Attorney or District Attorney) make the ultimate decision of what you could be facing in court.
Arraignment – Your first appearance in court involves you entering a plea, either “not guilty”, “guilty”, or “no contest” to the charges you are formally facing. Bail will often be a discussion at this initial appearance, as will other motions described below in “Defense Rights”.
Pretrial/Preliminary Hearing – In misdemeanor cases, pretrial hearings are then set. These are dates to come back to court for various issues, described below in “Defense Rights”, and for possible settlement. After the pretrial hearings, if the case is not settled or dismissed, the next court proceeding would be a trial. There are no preliminary hearings for misdemeanor charges. In felony cases, a preliminary hearing will be set. This is a hearing where the Judge listens to basic evidence of the case from the prosecution, and determines whether or not the case should still be in the court system. This is usually the first opportunity for the defense to cross examine the prosecution witnesses, which is why it should be handled by skilled attorneys who understand the entire process. This hearing can have a major effect on the case weeks or even months later.
Felony Arraignment – In felony cases, if the Judge decides there is enough evidence to keep the case in the system, you will be arraigned in the trial court approximately two weeks after the preliminary hearing. This is another appearance whereby you will enter a “not guilty”, “guilty”, or “no contest” plea.
Pretrial – These are additional dates to return to court to discuss various issues, such as those described below in “Defense Rights”, and for possible settlement.
Trial – In misdemeanor cases, you have a right to go to trial within 30 or 45 days of your initial arraignment, depending on if you were in custody at your initial arraignment. This can be a jury trial or a court trial if both sides agree to waive their right to a jury trial. In felony cases, you have a right to go to trial within 60 days of your second arraignment, again being either a jury or court trial.
Probation and Sentencing – After a settlement or a guilty verdict, the defendant is sentenced. Misdemeanors carry up to one year in jail, while felonies carry the potential for custody greater than one year. However, a court can also sentence the defendant to probation, which is less than the prescribed jail time maximums or guidelines.
Appeals/Expungements – A defendant always has the right to appeal a case or ruling, and in some instances, to request that the court “expunge” or remove the conviction from the person’s record (see “Expungements” page).
10 THINGS TO DO IF PULLED OVER FOR SUSPICION OF DUI
1. Use your turn signal and slowly and carefully pull over to the side of the road.
2. Stay in the car, keep your hands on the wheel, and calmly wait for the police officer to approach your motor vehicle. Do not attempt to leave your car and do not shuffle around in the glove compartment looking for credentials.
3. Act politely towards the police. Do not act as though you have anything to hide or that you have done anything wrong. Give a courteous greeting when you open the window to speak to the police and follow their directions.
4. When you are asked, produce your driver's license, registration and insurance card. Stay calm and remember that the police are watching to see how you perform the maneuvers involved in getting these credentials.
5. You have the right to invoke the Fifth Amendment, which means you have the right to refrain from answering any and all questions that the police officer asks you. If the police officer asks you if you have been drinking or if you had anything to drink or asks if you think you are drunk or not, simply tell the police officer that you are claiming your Fifth Amendment right not to incriminate yourself. Do not discuss where you were, what you did, who you were with, or whether you were drinking at all.
6. The officer might ask you to take a breath test immediately, but the test is merely a preliminary alcohol screening, and is not the breath test you are required to take. You may refuse to take this breath test without losing your license. In fact, the preliminary alcohol screening device is not very accurate for a variety of reasons. If you have had anything to drink, it is best not to take this test. Just be sure to tell the officer that you would like to refuse this preliminary screening test only and that you will submit to a blood or breath test at a police station. In California, you are required to submit to either a blood or breath test for alcohol.
7. Do not believe that by being candid with the police officer and telling him that you had one or two beers is going to be of help to you. Most people say they had a "a few beers". Police officers hardly ever believe that. When you are asked anything about drinking, politely decline to answer any questions concerning drinking or where you were or who you were with. Do not argue with the police officer, but instead comply with whatever he says.
8. Do not get out of your car unless you are asked to. Make sure that you don't stumble or trip when you get out.
9. Refuse to take any field sobriety tests, you are not required to complete any of these tests. The test I am referring to are the ones where they ask you to walk heel to toe or put your finger to your nose or close your eyes and put your head back. These tests are not designated to help you and you can refuse to take them. You can fail these tests even if you are not under the influence of alcohol because of the time of day, poor balance, a medical condition or poor vision. Do not take the test. Always politely decline to take the test.
10. If you have been arrested for a DWI/DUI it is very important to choose a lawyer who is competent and aggressive with skill & experience.