DWI Process

The arrest of a citizen is the first step in the DWI process. For an arrest to be legal, an officer must have a reasonable suspicion to pull you over (usually a traffic law violation). After you are stopped, the officer must then establish probable cause to arrest you for DWI. Probable cause is usually established from administering field sobriety tests. If the officer is not satisfied with your performance on these tests, the officer will make an arrest, place you in handcuffs and transport you to jail where the officer will request a breath or blood test.

Once you are arrested, you may have a right to post a bond and get released from jail. The bond amount depends on several factors including: the county of your arrest, your criminal history, and your charge (misdemeanor or felony). There are two main types of bonds. The first is a cash bond where you personally put up the entire amount of the bond in case in cash. The second type is a surety bond. This is where you use a bondsman. Once your case is over, you are entitled to most of your money back if you post a cash bond. Any amount paid to a bondsman is their "fee" for putting up the rest of the money for you.

CONDITIONS OF BOND: You may have certain conditions place on your bond by the judge or magistrate. The most common condition with a DWI bond is an ignition interlock device on your car. This is a REQUIREMENT of your bond if you are charged with DWI 2nd or if you had a breath or blood test over 0.15.

Cases are rarely dismissed by the district attorney's office. Almost EVERY DWI case will be accepted for prosecution. It usually takes 20-40 days from the date of your arrest before a misdemeanor DWI case is filed and you are issued a court date. A felony DWI must be presented to a grand jury. Therefore, the felony process is much longer. It can be several months before you are indicted and issued a court date.

Each court setting (dates you are required to attend court) has a specific name. These settings are known as: first appearances, announcements, plea settings, and pre-trial dates.

The first setting an accused citizen must attend is the "first appearance." At this setting, the court and the district attorney is informed whether or not you are represented by counsel. Your attorney will then speak with the prosecutor and request a copy of any police reports, videos and results of any breath or blood test. The district attorney's office will send all the information to your attorney in about one month.

The next few court settings are know as "announcements." There will usually be 2 or more announcement settings. The purpose of the announcement settings is to inform the court whether we are ready to set your case for a trial or a plea. Your presence at these settings may or may not be required depending on which court your case is assigned.

If you decide to plead guilty, the court will assign you a "plea setting". At this setting, you will enter a plea before the court. Then, you will make arraignments to pay any fines and court costs, meet with the probation department or make arraignments to serve out your sentence.

If you decide plead guilty, you will be given a "pre-trial setting". The pre-trial is usually held the Thursday before your trial date. At this setting, the judge will inform us whether or not your case will be reached on trial date. If it is reached, you will be required to show-up on the trial date. If it is not reached, your case will be reset. It is important to remember that there are other trials set the same day as yours. The oldest trial usually will be tried first.

There is usually two weeks to one month between each of the above settings. It is important to keep in mind that ONLY THE COURT controls the number of settings and the length between each setting. Attorneys DO NOT have the ability to change a court's settings.

You may not be required to attend all of the above settings. Your attorney's job is to attend ALL of these court settings on your behalf. In general, you don't have to do or say anything at these hearings.

I will hold a video review session with my client in every DWI case. At this video review, we will review all police reports and review the video evidence. After the review, I explain the legal and factual issues in your case. After that, I will give you my opinion of your chances of an acquittal if we take your case to trial and the pros and cons of going to trial versus entering a plea deal. It is then up to you to decide if you want to have a trial or plea guilty and accept the state's plea bargain offer.

If we set your case for trial, we will have a pre-trial hearing. This hearing gives your attorney a chance to file any pre-trial motions on your behalf and helps the judge to determine how long your trial is going to take.

Just because your case is set for trial, does not guarantee that your trial will held on that day. Most judges set many cases for trial on the same day. Judges give certain types of cases priority over others. For example, if someone is in jail waiting for their trial, their trial has priority over someone who is not in jail. Domestic Violence cases usually have priority over others. Older cases go before newer cases, etc.

If you plea "not guilty," you will have a trial in which either a judge or jury will determine whether or not you are guilty beyond a reasonable doubt. You may either have a trial in front of just a judge or a jury trial in front of citizens. In general, most trials are held before a jury.

The jury trial will start with vior dire or jury selection. It is the attorney's opportunity to talk with the potential juries about their thoughts and beliefs. In a misdemeanor DWI cases, the judge brings in about 20-25 people. From them, 6 jurors will be selected to sit on your case.

After opening statements, the state will put on their case. They may call as many witnesses as they wish, but in general will only have a few. Any officers on the scene, anyone working the breath test machine, any possible witnesses to your driving, and possibly the "Technical Supervisor" of the breath test machine may be called as witnesses.

After the state's case, we may or may not call any witnesses. You will have the opportunity to testify if you wish, but generally you do not need to do so. If you do not testify, the jury will be instructed not to hold that fact against you in your case.

If you are found guilty the case will proceed to a punishment phase. During this phase, the state may bring up your criminal history and make a sentence recommendation to the judge or jury. Most people have the judge assess punishment in their case because it is usually easier to predict how a judge will punish certain defendants. Juries usually give less punishment that judges. I always discuss the pros and cons of electing the judge or the jury to assess punishment with my clients prior to the beginning of trial.

You will be eligible for an expunction of your record if you are found not guilty. The expunction process requires filing and expunction request with the court and sending the expunction to law enforcement agencies to remove your arrest from all databases. Once you are found not guilty, I will guide you through the expunction process and clean your record.

As a general rule, it can be anywhere from 3-6 months before you must make a decision to plead guilty or set your case for trial. If you decided to set your case for trial, it can be anywhere from 4 months to over a year before your trial date. How long your DWI case lasts depends on several different factors. These factors include the county you were arrested in, the police agency that arrested you, the court your case is filed in, and the seriousness of your DWI (1st offense, 2nd offense, Felony, etc.).