The Criminal Process for Driving Under the Influence
The Criminal Driving Under the Influence is also know as Drunk
Driving, DUI (Driving Under the Influence), DWI (Driving While
Intoxicated), OUIL (Operating Under the Influence) and others.
Driving Under the Influence most often refers to Alcohol, but
can include legal and illegal narcotics.
The criminal process for Driving Under the Influence can be complex
and confusing. It is important to know your legal rights. The
best way to be informed is to contact a criminal attorney as
soon as possible. A criminal defense attorney will understand
the law as it relates to the crime you've been charged with,
and will be able to help you in making informed decisions as
your case moves through the process.
Many of the common elements of a Driving Under the Influence
Process are below:
The Traffic Stop
You may be stopped for questioning by the police. A traffic stop
is not the same as an arrest because, although you may be detained,
you aren't moved to a different location. During a stop the police
officer may ask you questions, but you have the right to refuse
A police officer can pull your vehicle
over for suspicion of Driving Under the Influence. Once pulled
over the police officer will follow training procedures and law
enforcement practices to determine if you are suspected of driving
under the influence. If the police officer requests that you
perform sobriety tests both physical field sobriety tests and
Breathalyzer test. You can refuse to take these tests, but there
are consequences that can range from immediate lose of your driver’s
license to arrest. The consequences differ state to state and
a criminal attorney should be consulted for your states statutes.
The Vehicle Search
A search warrant authorizes police to conduct a search of a specific,
place such as your residence. In order for a warrant to be issued
by a judge, "probable cause" is necessary.
Probable cause to search means that:
It is more likely than not that the specific items to be searched
for are connected with criminal activities
Those items will be found in the place to be searched
Warrantless Searches: The general
rule is that warrants are required for searches. But search warrants
are not required for the following:
Searches incident to arrest: Police officers are permitted
to search your body and/or clothing for weapons or other contraband
when making a valid arrest.
Automobile searches: If you're arrested
in a vehicle, the police may search the inside of the vehicle.
To perform a complete search of the vehicle (such as in locked
glove compartments, for example), probable cause is necessary.
circumstances: Searches may be conducted if there
circumstances" which demand immediate action, such as
to avoid the destruction of evidence.
Plain view: Police do not need a search warrant when they
see an object that is in plain view of an officer who has the
right to be in the position to have that view.
Consent: If you consent to a search of your body, your vehicle,
or your home, police are not required to have a warrant. You
aren't required to consent to any police searches.
In order to be arrested, there must be what's called "probable
cause." This means that there must be a reasonable belief
that a crime was committed and you committed the crime. An
arrest warrant is not necessary.
After you're placed under arrest, constitutional rights protect
you. Two important rights to be aware of are right to remain
silent and the right to have an attorney. After your arrest,
you aren't required to say anything else to police or investigators,
until you have an attorney present. You must be given the opportunity
to contact an attorney.
Under the Miranda Rule, if you are in police custody you must
be informed of specific constitutional rights before interrogation
begins. Those rights are as follows:
The right to remain silent
The right to have an attorney present during
The right to have an attorney appointed if
you are unable to afford one
Important to note is that Miranda rights do not have to be
read until you are taken into custody. That means that the
police can question you before being taken into custody, and
anything you say at that point can be used against you later
After you're arrested, the police will bring you to the police
station for the booking process. You'll be fingerprinted and
asked a series of questions, such as your name and date of
birth. You'll also be searched and photographed. Your personal
property such as jewelry will be catalogued and stored.
Appointment of an Attorney
In California, if you cannot afford to hire an attorney, and
if you are charged with a crime that is punishable by incarceration,
an attorney will be appointed to defend you. Usually a public
defender will be appointed as your attorney.
Once a public defender has been appointed to defend you, you
may ask the court to appoint a substitute attorney if you and
your attorney are having such serious disagreements that your
relationship is jeopardized. But you are not entitled to choose
a particular attorney as appointed counsel.
Once criminal charges are filed,
you'll make a court appearance, which is known as an "arraignment." If
you are incarcerated, this will usually occur within 72 hours
of your arrest.
During your arraignment, you'll be asked to enter a "plea" to
the crime you've been charged with. California pleas and corresponding
Guilty plea: If you plead "guilty," you're
admitting to the facts of the crime and the fact that you
were the one who committed that crime.
Not guilty plea: A "not
guilty" plea asserts that
you did not commit the crime with which you were accused.
After your plea, a pre-trial or trial date will be set.
No contest plea: A "no contest" plea
indicates that, while you are not admitting guilt, you do
not dispute the charge. This is preferable to a guilty plea
because guilty pleas can be used against you in later civil
In California, you may "stand mute" instead
of making a plea. The court will then enter a plea of not
guilty. By standing mute, you avoid silently admitting to
the correctness of the proceedings against you until that
point. You are then free to attack all previous proceedings
that may have been irregular.
If you plead "guilty" or "no contest," there
will not be a trial. You'll then be sentenced.
During the arraignment, the court will also:
Refuse to set bail; or
Release you on your own personal recognizance, which means
that the court takes your word that you will appear when necessary
for later court obligations
"Bail" is money or property
put forth as security to ensure that you'll show up for further
In California, bail can be paid:
You have a right to a speedy trial under the Sixth Amendment
of the United States Constitution, which requires that the
trial be held within a certain time frame after a person has
been charged with a crime.
This right can be waived by asking
for additional time for the preparation of your defense. Speedy
trial rights in California, with exceptions, a defendant should
be brought to trial in California within 60 days for both felony
and misdemeanor crimes.
Many prosecutors will consider "plea agreements," although
it's not legally required. If you don't reach a plea agreement
with the prosecutor, your proceedings will move toward the
Usually, if you are charged with a crime punishable by six
or more months of imprisonment, you have the right to a jury
trial. This right may be waived by:
If you request a bench trial, the judge will perform the fact-finding
function that is usually performed by the jury.
If you're found guilty after a trial, you're entitled to an
appeals process. This process varies depending upon the crime,
but there are always time deadlines by which you must file
In California, in criminal cases not involving the death penalty,
you generally have 60 days following the judgment to file an
appeal. Appeal of death sentences is automatic.
There are numerous reasons for an appeal from a guilty verdict
in a criminal case, including what's called "legal error." Legal
error may include:
Allowing inadmissible evidence during the criminal process,
including evidence that was obtained in violation of your constitutional
Lack of sufficient evidence to support a verdict of guilty
Mistakes in the judge's instructions to the jury regarding
You may also appeal due to misconduct on behalf of the jurors,
or if there is newly discovered evidence to exonerate you.
In California, if you entered a
plea of guilty or no contest, you may only appeal if the following
conditions are met -You filed with the trial court a written
statement under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds relating to
the legality of the proceedings that occurred in your case.
The trial court has filed a certificate of probable cause for
the appeal with the clerk of the court.
In California, under some circumstances, you may be able to
have your criminal records expunged, which means that you may
be released from further criminal penalties and disabilities
such as a loss of voting rights. In some cases, expungement
involves sealing and/or destruction of records.
After a period of time you may be eligible for an expungement
You have successfully completed probation, or
You were convicted of a misdemeanor and have fully performed
any sentence, or
Charges against you were dismissed or you were found not
If you are eligible for an expungement following a conviction,
the court may enter an order setting aside your guilty plea
or a verdict of guilty and dismissing the case. You may also
petition to seal the records from public view. If you were
never convicted of an offense, you may petition the law enforcement
agency that has your records to seal and eventually destroy
In California – DUI Convictions cannot
be expunged. The conviction will automatically come off your
record after 10 years.