Dealing With a DUI or DWI Charge From Arrest to Sentencing

Sometime after your arrest for a DUI (driving under the influence) charge (often called "DWI", too), you'll have to appear before a judge for your "arraignment," which is typically the first court date. Depending on the circumstances—mainly, whether you're in jail or not—the arraignment might occur soon after your arrest (within a day or so) or weeks or months later.

With most criminal cases, there's not much to do before the arraignment happens. But with DUI cases, it's typically necessary to take action within days of the arrest to contest an administrative license suspension imposed by the Department of Motor Vehicles (DMV) that will otherwise go into effect automatically.

Here's some basic information about dealing with DUI charges, including how to contest administrative license suspension, what happens at an arraignment, and the options for resolving a DUI charge in court.

What You Need to Do Before a DUI Arraignment

Generally, implied consent laws allow the DMV will administratively suspend the license of any driver who's lawfully arrested for driving under the influence and fails or refuses to take a blood or breath alcohol test.

You can fight an administrative suspension. But if you wish to do so, you need to request a hearing with the DMV within days of your arrest. Each state sets its own rules, but drivers are normally required to request a hearing within 10 days or so of the arrest.

When you request a hearing, it typically puts the administrative suspension on hold, pending the outcome of the hearing. For drivers who don't request a hearing, the DMV will automatically impose an administrative suspension, which generally begins 30 days or so after the arrest.

Because DUIs carry several potential consequences, including jail, fines, and license suspensions, you might want to hire an attorney before your arraignment. An attorney can help you with your administrative suspension, and an attorney may be able to obtain the police report and begin plea negotiations with the prosecutor before the arraignment (depending on the jurisdiction and the specifics of your case).

If you end up with a public defender or another court-appointed lawyer (see below), they unfortunately can't help you with your administrative license suspension hearing because they are appointed only for the criminal case.

What Will Happen at Your DUI Arraignment

At the arraignment, the judge is supposed to inform the defendant of the charges and of certain rights. But arraignments aren't just for legal formalities. If the defendant is still in jail, the judge will normally set the bail amount or release the defendant without any bail (called "own recognizance" release). The judge will also want to know what the defendant plans to do about an attorney and will likely appoint a public defender or another court-appointed attorney if the defendant can't afford to hire a private DUI lawyer.

Next, the judge will normally ask how the defendant wants to plead. Typically, the options are guilty, not guilty, and "nolo contendere" (no contest). Although some defendants might want to plead guilty and get it over with, most will enter a not-guilty plea at the arraignment. At this initial point in the case, a not-guilty plea just allows the defendant to keep his or her options open—which is normally the best approach.

Some people might wonder if a DUI case can be dismissed at arraignment. Dismissal at arraignment is highly unlikely because the prosecutor likely hasn't had time to review the evidence in detail or to interview witnesses.

Options for Handling Your DUI Case

After the arraignment, it's time to decide how best to handle your case. This is where the input of an experienced attorney is crucial. Generally, it comes down to two options: plea bargaining and fighting the charge.

However, the two options aren't always mutually exclusive. In many cases, a defendant will try to beat the case by filing pretrial motions such as a motion to suppress evidence. And, if the motions don't get the desired results, the defendant might decide that plea bargaining is the best remaining alternative. Similarly, defendants who start out plea bargaining but aren't able to reach an acceptable deal with the prosecution might change course and opt to go to trial instead.

How DUI Plea Bargaining Works

Plea bargaining refers to the process by which a criminal defendant (or the defendant's lawyer) and the prosecutor reach a compromise. In essence, this compromise amounts to the defendant agreeing to plead guilty or no contest to a criminal charge in exchange for the prosecutor agreeing to penalties that are less severe than they otherwise could be following a conviction at trial.

Most DUI plea bargains result in the defendant pleading to a DUI charge. But in some states, it's possible for a person who's charged with driving under the influence to plea bargain for a non-DUI charge. When a defendant is able to get a DUI reduced to a reckless driving charge, it's sometimes called a "wet reckless." However, some states prohibit prosecutors from plea bargaining or reducing DUIs to lesser charges like wet reckless.

Typically, a defendant will be able to get a better plea bargain when there are some weaknesses in the prosecution's case or significant mitigating factors. And a defendant's bargaining power diminishes when the evidence of guilt is strong (and there don't appear to be viable defenses) or the offense involves aggravating circumstances (such as an accident or a high blood alcohol concentration).

How DUI Trials Work

A criminal defendant has a right to a jury trial, but in some cases a defendant might waive their right to a jury trial and choose a trial with a judge (called a "bench trial"). As with all criminal cases, the prosecution has the burden of proving DUI charges beyond a reasonable doubt. If the prosecution can't do this, the jury (or the judge) is supposed to acquit the defendant.

DUI trials typically take anywhere from one day to a week or so. Bench trials tend to be shorter than jury trials. The length of the trial also can depend on the jurisdiction, the number of witnesses, and how complicated the evidence is.

In a jury trial, the first order of business is jury selection. It often takes the defense and prosecution at least a full day to pick the jurors that will decide the case (the process gives both sides some control over jury selection).

Next, the defense and prosecution will present opening statements, in which they tell the jury what they believe the evidence will show. In a bench trial, the attorneys might skip opening statements.

The real meat of a trial is the presentation of evidence. In DUI cases, the prosecution—having the burden of proof—presents evidence first. Depending on the circumstances of the case, the prosecution might present chemical test results showing the amount of alcohol or drugs in the driver's system. And, it's pretty standard for the prosecution to call the arresting officer to testify about the reason for the vehicle stop and observations of impairment (such as poor field sobriety test (FST) performance and slurred speech).

When the prosecution "rests," the defense has an opportunity to present evidence. In many cases, the defense doesn't present any of its own evidence. Instead, the defense will argue that the prosecution didn't introduce enough evidence to prove the case. But it's also common in DUI cases for the defense to call expert witnesses to testify in an effort to cast doubt on the reliability of breath or blood test results. With some DUI defenses, such as the "rising-blood-alcohol" defense, expert testimony is crucial.

Once the parties are done presenting evidence, they get to make their last pitch to the jury or judge in closing arguments. In a bench trial, the judge often will make a decision about guilt or innocence immediately after closing arguments, but some judges may take the matter under advisement for a period to review the laws and facts.

In a jury trial, the judge will give the jury instructions about the applicable law (called "jury instructions"), and the jury will start their deliberation process. In most DUI cases, jury deliberations don't take very long—not even a full day. When the jurors reach a verdict (assuming they can reach an agreement), they'll inform the judge and shortly thereafter announce the verdict of guilty or not guilty in open court.

If the judge or jury gives a not guilty verdict, the defendant is free to go, and the case is over. And the prosecution won't be able to bring DUI charges again for the same incident because of the protection against double jeopardy in the Constitution. (However, in some states, your license may still be administratively suspended despite your not guilty verdict.)

If the judge or jury finds the defendant guilty, the case will proceed to sentencing.

The Sentencing Hearing

If the defendant is found guilty, the judge will hold a sentencing hearing. For a felony DUI, the hearing likely will be set out several weeks so that the probation office can prepare a sentencing report.

However, most DUIs are misdemeanors. In misdemeanor cases, it's possible the judge could hold the sentencing immediately after the trial, depending on state law and local court rules.

At the sentencing hearing, the prosecutor and defense attorney can introduce evidence to advocate for a specific sentence. The prosecutor's evidence might be the defendant's prior criminal or traffic record and statements from victims if there was an accident. The defendant's attorney might introduce letters or statements from people who can vouch for the defendant's good character and evidence showing that the defendant is already enrolled in substance abuse treatment.

Finally, before the judge gives the final sentence, the defendant is allowed to address the judge. This address is called the allocution. What to say during an allocution (and whether to make one at all) is complicated. Defendants should speak with an attorney about what to say because saying the wrong thing can bring much more harm than good.

Getting Help From a Lawyer

Whether you'd prefer to plea bargain or take your case to trial, think about getting an attorney to represent you. If you're unable to afford an attorney, ask the judge at your arraignment to appoint a lawyer. The consequences of a DUI are serious, so it's crucial that you get legal assistance to deal with your case.