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    When you have been arrested for DUI there are two things that can affect you and your privilege to drive. The first are civil or administrative penalties that are imposed by the Department of Licensing or “DOL”. The second are criminal penalties that are imposed by the criminal court. Think of them as completely separate proceedings.

    Civil Administrative Procedure
    Criminal Procedure (Court)
    FAQ

    Civil Administrative Procedure (DOL)

    The first proceeding you will typically need to deal with is the Department of Licensing, or DOL. This is separate and independent from any criminal court proceeding or penalties. The DOL will be attempting to suspend your license even if criminal charges have not been filed.

    When the officer punched a hole in your license he turned your drivers license into a temporary license good for only 60 days. The Department of Licensing or “DOL” will then be suspending your driver’s license. This will happen automatically unless you request a hearing. The length of the suspension will vary depending on whether you took or failed to take (“refusal”) the breath test and whether your license has been suspended in the past for DUI. If it is your first offense and you took the breath test the DOL will suspend your drivers license automatically for 90 days unless you request a hearing.

    The officer should have given you a hearing request form at the time of your arrest when he punched a hole in your license. This form is used to request a hearing before the DOL to contest the suspension of your license. If the officer did not give you a form, you can find a copy on this website under News and Information or we can give you a copy at your initial consultation. It is critical that you send in the form in a timely manner with a check for $100.00 in order to contest your license suspension.

    This office will represent you at all phases of your DUI, including the DOL hearing. If you win the DOL hearing, there is no license suspension and you can obtain a new license. If you lose the DOL hearing, the suspension will go into effect. You will have some options, however.

    If you lose the hearing you can appeal the DOL decision. This appeal must be done within 30 days of the DOL’s decision. Whether or not this is a good option in your case will depend on the facts and circumstances of your particular case.

    If you lose the hearing and the suspension goes into effect you can obtain an occupational permit unless it was a “refusal.” An occupational permit will allow you to drive to and from work and in the course of employment. You are only entitled to the occupational after serving the first 30 days of the license suspension. For instance, if you are suspended for 90 days, you could get an occupational that goes into effect for the last 60 days of your suspension but you would be without a license for the first 30 days. You will be required to maintain high risk insurance (SR 22 ) to get your occupational.

    After your license suspension you will be able to get a new license after paying a re-license fee and providing proof of high risk insurance (SR 22).

    Dealing with the Department of Licensing and the maze of technicalities can be daunting. It is important to have an experienced DUI lawyer on your side helping you every step of the way.

    Criminal Procedure (Court)

    The criminal process will start when you are given notice of your first court date. This can take anywhere from a few days to a few weeks depending on the police agency and the court. You will get a letter or a summons in the mail giving you notice of your first court date which is called an arraignment. It is very important that you make your initial court date or the court could issue a warrant.

    In some instances, your initial court date will be written on the bottom of the citation or ticket that the officer gives you. The court date written on the bottom of the citation may only be a day or two after your arrest, so look at the court date carefully. It is critical that you appear at your first court date or the court could issue a warrant.

    1. The Arraignment
    2. Pretrial Hearing
    3. Motions Hearing
    4. Readiness Hearing
    5. Trial
    6. Sentencing

    The Arraignment

    Your first court appearance is usually an arraignment. At your arraignment the judge will usually advise you of the maximum penalty, minimum penalties and your trial rights. You will be asked your name and asked to enter a plea of “guilty” or “not guilty.” You will also be asked to decide between a “bench” or “judge” trial, or a “jury trial.” You should enter a plea of “not guilty” and ask for a jury trial in order to preserve all of your rights until you have had an opportunity to retain an attorney

    At the arraignment the judge will decide whether you will be released on your personal recognizance or whether bail will be set. The judge will also decide whether any conditions should be imposed while your case is pending.

    The conditions that could be imposed will depend on your individual case. The conditions can include not driving after having consumed any alcohol, not consuming alcohol or non-prescribed medications, not drive unless you are properly licensed and insured, AA meetings, or installation of an interlock device. Not all of these conditions will be imposed on every case. The conditions that will be imposed on you case will depend on the facts and circumstances of your case.

    The judge or the court staff will then give you your next court date. Your next court date is typically called a pretrial hearing.

    Pretrial Hearing

    Your pretrial hearing is scheduled at the time of your arraignment. By this time, your attorney has thoroughly reviewed the “discovery” or police reports in your case. The purpose of the pretrial hearing is to give the prosecutor and your attorney an opportunity to discuss the case and make sure that the prosecutor has provided all of the necessary information. Plea bargains can be discussed at this time as well.

    Very often, your pretrial hearing will be continued to another date. There can be many reasons to continue your pretrial hearing. Typically, an attorney will continue a pretrial hearing to obtain additional information such as missing police reports, medical evidence, police video tapes, interview witnesses, obtain alcohol evaluations, complete the defense investigation or to continue negotiations.

    If a continuance is not needed in your case and there is no plea bargain is reached in your case, the next hearing is your motions hearing.

    Motions Hearing

    A motions hearing is a hearing in front of the judge with the prosecutor present where your attorney can legally challenge the prosecutor’s evidence in your case by bringing a motion. There are many different motions that an attorney can make and what motions are brought will depend on the facts and circumstances of your individual situation. These motions can include but are not limited to challenges to the stop of your car, the field sobriety tests that were administered, the arrest, and the breath test. The purpose of the motion is to exclude various pieces of evidence the prosecutor will use to try and convict you of DUI.

    If your attorney is successful in litigating these motions and evidence is suppressed or excluded, it can result in dismissal of the charges or a more favorable plea bargain offer. If the charges are not dismissed or no acceptable plea bargain has been reached, your case will usually be scheduled for trial. Just before your trial date, the court will typically schedule a “readiness” hearing.

    Readiness Hearing

    A readiness hearing is a hearing in front of the judge with the prosecutor present where the parties decide if the case is going to trial, continued or some plea bargain reached. Often times, the readiness will be continued if the prosecutor or the defense is not ready due to one or more witnesses being unavailable, ongoing negotiations, additional information or additional investigation that is needed. If all of the parties are ready for trial, the judge will typically assign a date and time for the trial.

    Trial

    A DUI trial can last anywhere from 1 to 4 days, depending on the number of witnesses and the complexity of the case. Additional motions may sometimes be brought at this time depending on the facts of your case.

    The next step is selecting a jury called voir dire. Both the prosecutor and your attorney can questions prospective jurors to ensure that they can be fair and impartial to both sides. Both the prosecutor and the defense can excuse jurors that cannot be fair and impartial.

    After the jury is selected, the prosecutor gives their opening statement. This is a summary of what anticipated evidence. Your attorney can also give an opening statement at this time or wait until the defense case begins.

    The prosecutor presents their case by calling witnesses. The defense is allowed to ask questions of the witnesses through a process called “cross examination.” After the prosecution has presented all of their evidence they conclude their case by “resting.” The defense can then being to present their evidence if they so choose. The defense is not required to present any evidence and can simply rely on the lack of proof or inadequacy of the prosecutor”s case.

    After all of the evidence is presented, the judge instructs the jury on the law of the case. The prosecutor and the defense present their closing arguments and the jury then commences deliberation, or a discussion of the law and the evidence. Deliberation can last a few minutes to days, depending on the jury. The jury can vote to acquit, convict or be deadlocked (unable to reach a unanimous verdict).

    If you are acquitted, you are discharged from any further obligation to the court. If you are convicted, the next step will be sentencing which can take place after the trial or on a different date. If the jury is deadlocked, the prosecutor could dismiss the case, retry the case or offer a more favorable plea bargain.

    Sentencing

    Sentencing is a hearing at which time the judge imposes your penalty. This will depend on the facts and circumstances of your case but if you are convicted of DUI, the mandatory minimum sentence for your offense will usually be imposed.

    Criminal Defense

    Rene Cespedes has the knowledge and experience to accept a variety of criminal cases. We represent clients in the municipal, district, superior and federal courts.

    This office will represent individuals on cases such as VUCSA’s and drug related offenses (Possession of Marijuana, Possession of Cocaine), assault, domestic violence, Driving offenses in including Vehicular Homicide, Vehicular Assault, Reckless Driving, Negligent Driving, DUI, Theft and Fraud Offenses, and juvenile crimes.

    The process that these cases take from investigation to the end of your case will depend on where the case is filed and whether it is a felony or misdemeanor. The possible penalties will also vary depending on whether the charge is a misdemeanor, gross misdemeanor or a felony.

    Misdemeanor offenses such as Negligent Driving in the First Degree, have a maximum penalty of 90 days in jail and a $1,000.00 fine. This does not mean that this will be imposed-it is only the potential penalty.

    Gross Misdemeanor offenses such as Reckless Driving, DUI, Possession of Less than 40 grams of Marijuana, Minor in Possession of Alcohol, Assault 4, Assault 4-DV, and many other domestic violence offenses have a maximum penalty of 365 days in jail and a $5,000.00 fine. Again, this does not mean that this will be imposed-it is the potential maximum penalty. There can be other consequences as part of a conviction. For instance in the case of a DUI or Reckless driving there is loss of license. In the case of a domestic violence charge your right to have a concealed weapons permit or own a firearm will be taken away.

    Felony offenses such as Possession of Cocaine, Possession of more than 40 grams of Marijuana, and more serious charges of domestic violence carry much more serious consequences depending on the seriousness of the offense. It is important that you consult with an attorney to discuss the potential penalty.

    Misdemeanor Procedure
    Felony Procedure
    FAQ2

    Misdemeanor Procedure

    The Arraignment

    Your first court appearance is usually an arraignment. At your arraignment the judge will usually advise you of the maximum penalty, minimum penalties and your trial rights. You will be asked your name and asked to enter a plea of “guilty” or “not guilty.” You will also be asked to decide between a “bench” or “judge” trial, or a “jury trial.” You should enter a plea of “not guilty” and ask for a jury trial in order to preserve all of your rights until you have had an opportunity to retain an attorney.

    In some instances, we can waive your arraignment and enter your not guilty plea administratively. We do this to avoid an additional court appearance for our clients especially, if they are working or have children at home. We can do this on most cases that are not domestic violence or DUI.

    At the arraignment the judge will decide whether you will be released on your personal recognizance or whether bail will be set. The judge will also decide whether any conditions should be imposed while your case is pending.

    If the court imposes bail you can typically post cash or bond. This means…

    The conditions that could be imposed will depend on your individual case. The conditions can include not driving after having consumed any alcohol, not consuming alcohol or non-prescribed medications, not drive unless you are properly licensed and insured, AA meetings, or installation of an interlock device. On domestic violence cases, the court can order an “no contact order.” This would prohibit the accused from having any contact with the alleged victim in the case. Not all of these conditions will be imposed on every case. The conditions that will be imposed on you case will depend on the facts and circumstances of your case.

    The judge or the court staff will then give you your next court date. Your next court date is typically called a pretrial hearing.

    Pretrial Hearing

    Your pretrial hearing is scheduled at the time of your arraignment. By this time, your attorney has thoroughly reviewed the “discovery” or police reports in your case. The purpose of the pretrial hearing is to give the prosecutor and your attorney an opportunity to discuss the case and make sure that the prosecutor has provided all of the necessary information. Plea bargains can be discussed at this time as well.

    Very often, your pretrial hearing will be continued to another date. There can be many reasons to continue your pretrial hearing. Typically, an attorney will continue a pretrial hearing to obtain additional information such as missing police reports, medical evidence, police video tapes, interview witnesses, obtain alcohol evaluations, complete the defense investigation or to continue negotiations.

    If a continuance is not needed in your case and there is no plea bargain is reached in your case, the next hearing is your motions hearing.

    Motions Hearing

    A motions hearing is a hearing in front of the judge with the prosecutor present where your attorney can legally challenge the prosecutors evidence in your case by bringing a motion.. There are many different motions that an attorney can make and what motions are brought will depend on the facts and circumstances of your individual situation. These motions can include but are not limited to challenges to the stop of your car, any statements that you may have made or 911 calls . The purpose of the motion is to exclude various pieces of evidence the prosecutor will use to try and convict you of the offense.

    If your attorney is successful in litigating these motions and evidence is suppressed or excluded, it can result in dismissal of the charges or a more favorable plea bargain offer. If the charges are not dismissed or no acceptable plea bargain has been reached, your case will usually be scheduled for trial. Just before your trial date, the court will typically schedule a “readiness” hearing.

    Readiness Hearing

    A readiness hearing is a hearing in front of the judge with the prosecutor present where the parties decide if the case is going to trial, continued or some plea bargain reached. Often times, the readiness will be continued if the prosecutor or the defense is not ready due to one or more witnesses being unavailable, ongoing negotiations, additional information or additional investigation that is needed. If all of the parties are ready for trial, the judge will typically assign a date and time for the trial.

    Trial

    A misdemeanor trial can last anywhere from 1 to 4 days, depending on the number of witnesses and the complexity of the case. Additional motions may sometimes be brought at this time depending on the facts of your case.

    The first step is selecting a jury called voir dire. Both the prosecutor and your attorney can questions prospective jurors to ensure that they can be fair and impartial to both sides. Both the prosecutor and the defense can excuse jurors that cannot be fair and impartial.

    After the jury is selected, the prosecutor gives their opening statement. This is a summary of what anticipated evidence. Your attorney can also give an opening statement at this time or wait until the defense case begins.

    The prosecutor presents their case by calling witnesses. The defense is allowed to ask questions of the witnesses through a process called “cross examination.” After the prosecution has presented all of their evidence they conclude their case by “resting.” The defense can then being to present their evidence if they so choose. The defense is not required to present any evidence and can simply rely on the lack of proof or inadequacy of the prosecutor”s case.

    After all of the evidence is presented, the judge instructs the jury on the law of the case. The prosecutor and the defense present their closing arguments and the jury then commences deliberation, or a discussion of the law and the evidence. Deliberation can last a few minutes to days, depending on the jury. The jury can vote to acquit, convict or be deadlocked (unable to reach a unanimous verdict).

    If you are acquitted, you are discharged from any further obligation to the court. If you are convicted, the next step will be sentencing which can take place after the trial or on a different date. If the jury is deadlocked, the prosecutor could dismiss the case, retry the case or offer a more favorable plea bargain.

    Sentencing

    Sentencing is a hearing at which time the judge imposes your penalty. This will depend on the facts and circumstances of your case but in certain circumstances (for instance, DUI) there are mandatory minimum sentences that must be imposed.

    Felony Procedure

    If you believe that you are under investigation for or have been charged with a felony, it is critical that you have an attorney as soon as possible. Often times, having an attorney to help you can mean the difference between being stuck in jail and being released. There are a couple of different ways that you may learn that you are under investigation for or could possibly be charged with a felony.

    The first is if you are being held in custody on a 72 hour hold. If law enforcement has probable cause to believe that you have committed a felony offense, they can hold you in custody for up to 72 hours while thei investigation is completed and submitted to the prosecutor for a determination if felony charges will be filed. Often times you will have a “first appearance” where the judge will determine if there is “probable cause” to believe that you committed a felony offense. If the judge determines there is no probable cause to believe that you committed a felony offense you could be released. If the judge determines there is probable cause to believe you committed a felony offense or some other lesser offense you can be held. The judge will typically set bail at this stage of the case.

    The second way that you may learn that you have been charged with a felony offense is by receiving an arraignment letter. The letter typically advises you must appear in court on a date and time certain. You will be asked your name and asked to enter a plea. After you enter a plea, the court or the court staff will give you notice of your next court date which is typically called “case setting.”

    1. Case Setting
    2. Omnibus Hearing
    3. Trial
    4. Sentencing

    Case Setting

    After arraignment a case setting hearing will typically be scheduled. Case setting is an informal hearing where the prosecution and the defense have an opportunity to discuss the case. By this time, your attorney should have had an opportunity to thoroughly review the police reports, discussed them with you and begin the negotiation process with the prosecutor. Any outstanding discovery or other reports is exchanged at this time. If a resolution is reached a plea can be entered, otherwise the case is set for trial and an omnibus hearing is scheduled.

    Omnibus Hearing

    An omnibus is scheduled when a case has been set for trial. Between case setting and omnibus, an attorney will typically investigate the case further by interviewing witnesses and obtaining additional necessary documentation. At this stage, motions can be noted and scheduled and if both sides are prepared for trial, the case will then proceed to trial.

    Trial

    A felony trial can last anywhere from 2 days to 3 months, depending on the number of witnesses and the complexity of the case. In most felony trials, motions may sometimes be brought and heard prior to selecting the jury.

    A motions hearing is a hearing in front of the judge with the prosecutor present where your attorney can legally challenge the prosecutors evidence in your case by bringing a motion.. There are many different motions that an attorney can make and what motions are brought will depend on the facts and circumstances of your individual situation. These motions can include but are not limited to challenges to the stop of your car, any statements that you may have made or 911 calls . The purpose of the motion is to exclude various pieces of evidence the prosecutor will use to try and convict you of the offense.

    If your attorney is successful in litigating these motions and evidence is suppressed or excluded, it can result in dismissal of the charges or a more favorable plea bargain offer. If the charges are not dismissed or no acceptable plea bargain has been reached, the trial will start with jury selection.

    The first step is selecting a jury called voir dire. Both the prosecutor and your attorney can questions prospective jurors to ensure that they can be fair and impartial to both sides. Both the prosecutor and the defense can excuse jurors that cannot be fair and impartial.

    After the jury is selected, the prosecutor gives their opening statement. This is a summary of what anticipated evidence. Your attorney can also give an opening statement at this time or wait until the defense case begins.

    The prosecutor presents their case by calling witnesses. The defense is allowed to ask questions of the witnesses through a process called “cross examination.” After the prosecution has presented all of their evidence they conclude their case by “resting.” The defense can then being to present their evidence if they so choose. The defense is not required to present any evidence and can simply rely on the lack of proof or inadequacy of the prosecutor’s case.

    After all of the evidence is presented, the judge instructs the jury on the law of the case. The prosecutor and the defense present their closing arguments and the jury then commences deliberation, or a discussion of the law and the evidence. Deliberation can last a few minutes to days, depending on the jury. The jury can vote to acquit, convict or be deadlocked (unable to reach a unanimous verdict).

    If you are acquitted, you are discharged from any further obligation to the court. If you are convicted, the next step will be sentencing which can take place after the trial or on a different date. If the jury is deadlocked, the prosecutor could dismiss the case, retry the case or offer a more favorable plea bargain.

    Sentencing

    Sentencing is a hearing at which time the judge imposes your penalty. This will depend on the specific crime that you were convicted of, your past criminal history (if any) and the facts and circumstances of your case. In most felony cases there is a presumptive range that the court will impose.