EACH COURT IS SLIGHTLY DIFFERENT
CONSULT YOUR ARIZONA DUI DEFENSE LAWYER
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"Standing on the defensive indicates insufficient strength; attacking, a super abundance of strength... The opportunity to defeat the enemy is provided by the enemy himself."
- Sun Tzu The Art of War.
Edited by James Clavell.
When you are accused of a crime, you are no longer a citizen in the eyes of the government... you are an accused, a defendant.
In court, you are entitled to a presumption of innocence. Prosecutors, some judges, and many jurors don't see it that way. To them, you are guilty as charged. The process is a mere formality, an annoyance that must be tolerated. A ceremonial dance of "moral glory" prior to convicting you and putting you in jail or prison. Sometimes prior to murdering you in the name of the State.
Often jurors and people in general feel if you are in court charged witha crime, you must have done something. The old adage "where there is smoke there is fire" seems to apply to many as well. This is part of the attorney's job is to disavow people of this notion and remind them they could be in the same position as the accused.
The DUI Process in Arizona, like other criminal charges, is governed by the Arizona Rules Of Criminal Procedure. These rules set a basic framework for how your case will proceed through the courts. The process varies a bit from court to court, and county to county, but on the whole you can expect as follows:
|THE STOP AND ARREST||Most DUI arrests start with a simple traffic stop, either in the form of a traffic violation observed by the officer such as speeding, driving without headlights, running a red light, etc. Some arrests originate from a roadblock at a sobriety checkpoint. Some occur after an accident or breakdown. See "What Police Look For" for more information on the stop and arrest process.
Once you are arrested, the officer is required to read you your "Miranda" rights, which include the right to remain silent and to an attorney. You may be taken to a police station or hospital for a chemical BAC test, or this may be done at a mobile BAC station.
|THE BOOKING PROCESS||Most people arrested for simple DUIs will not be booked into jail. If you are you will be searched, fingerprinted, asked some routine questions, probably photographed (the "mug shot") and then locked up.
Friends and family of a person who has been arrested can get information from the jail as to where the person is being held, bail information, time and place of next court date, etc. The police always have the discretion to take you to the 4th Avenue jail and be put in custody. Clients describe this as a very unpleasant place to be because of the process and the other types of offenders that are present. It can be very uncrowded and the stories i have heard from clients that have gone through the 4th Ave. route is enough to scare anyone.
|INVESTIGATIONS FOLLOWING ARREST & CHARGING DECISION||For a simple first time DUI arrest, the police will likely have all the information they will need following your immediate release after processing (except that they may need to wait for the BAC results in the case of a blood test). Blood test results can take awhile and drug dui blood results can take months and even longer.
For some felony DUIs, however, the police and prosecutor's offices may need to investigate your prior criminal and DUI record, and ascertain the status of your license before deciding which DUI charge is right for your case. This may take some time, especially if you have an out of state license, or have a record in another state. You may end up charged at a city court and then have your case "dismissed", only to re-surface at the county level when they realize your driver's license was suspended at the time of the arrest.
When law enforcement has adequate information to issue the charge(s), they will generally file.& If you are arrested for a misdemeanor DUI, the police officer will often issue you a citation to a county justice court or a city municipal court, say Phoenix City Court and give you a court date immediately.
For felonies, the county attorney's office (often months later) will decide which charges are likely to "stick", and file accordingly. I have also seen cases charged at the felony level with no lab reports, i.e. no blood or breath evidence. This is less than ideal bordering on unethical, but it happens based on the officer's reports and often on the status of your driver's license (you were suspended) or you had a child under 15 in the vehicle. All felonies will be prosecuted in superior court, as opposed to justice or city courts, which handle primarily misdemeanors, petty crimes, and civil traffic citations.
|FIRST APPEARANCES, PRELIMINARY HEARINGS, ARRAIGNMENT AND BAIL||
If you are in custody after your arrest, you will generally be given a hearing within 24 hours. At this first appearance, the Judge will first visit the issues of Bail and other conditions of release. Bail is usually granted, the only question is how much? The main purpose of bail is to assure that the defendant will appear, your prior record including if you are on probation, have a history of failing to appear, etc. these all can affect your release conditions as well. If the defendant fails to appear at the next setting, the bail can be be forfeited (and the money lost), and a warrant will be issued for the missing defendant with a higher bail that can be expected.
For felony cases, a preliminary hearing is necessary, except when the charge is initiated by a grand jury indictment. An indictment is a group of citizens inn a room that have been picked to serve as Grand Jurors and they are given the basic outline of your case, usually by one police officer in a felony dui case. If probable cause is found, a "True Bill" is given and then the indictment is issued.
If the charge has been brought by the prosecutor (the usual case) the filing is called an "information", then a preliminary hearing and a status conference will be set. This is now usually set in the South Court Tower in Downtown Phoenix. If there is a preliminary hearing, the Judge will decide if there is sufficient evidence ("probable cause") to send the case to Superior Court for trial proceedings. As a pratical matter, cases rarely have preliminary hearings anymore in Superior Court, if one is asked for by the attorney, then the prosecutor's office will just send the case to the Grand Jury (get the indictment) and the process starts with a new arraignment. The case is then sent to the Dui Center that is currently on the 8th floor of the Central Court building in downtown Phoenix at 201 West Jefferson. The dui center is currently staffed by two judges and they serve a two year rotation.
At the arraignment, a defense attorney can make a motion that his/her client be released on "OR" or on their "own recognizance. This is ideal, because if granted, then the Defendant will not have to post bail. Factors that weigh in favor of an OR release include ties to the community, prior criminal history or lack thereof, standing in the community. The fact that an attorney has been hired may indicate to some Judges that you are taking the charges seriously and are committed to appear and act responsibly. Also, pre-trial service release maybe imposed and if so, you will be be asked to provide random U. A.'s based on a color coded system that if your color comes up, you must give a sample that day.
The arraignment itself is where the Defendant is formally informed of the charges in open court, and asked to enter a plea. The plea must be guilty, not guilty or no contest (which is essentially the same as guilty). If the defendant does not answer, the court will enter a plea of not guilty. With very few exceptions, we recommend entering a plea of not guilty at any DUI arraignment in Arizona. In Felony cases, the not guilty plea is basically automatic, the stakes are too high and the volume of people called at this appearance does not allow for any other plea than a not guilty.
|PRETRIAL CONFERENCE||At the pretrial conference, your attorney will have a chance to negotiate with the prosecutor. Expect your attorney to attend several of these appearances due to the time it takes to interview police officers, obtain blood or breath evidence, records of the testing equipment used, etc. If the State offers a "deal," your attorney should then discuss that deal with you and explain the pros and cons of taking it. It may be possible to get a better deal by pushing the litigation further and not accepting a deal at the pretrial conference. On the other hand, it may close the door to any "deal" other than a guilty plea. A plea of guilty as charged is not to be considered a "deal" (in our opinion) unless there are greater charges that can be added if you don't accept, or if the punishment the State is offering to recommend is less than what you would likly get if you went to trial and lost. Very often the offer is simply plead to the charge (upfront) and that is where the real work comes in by working diligently on the case and finding legal flaws that produce better results and outcomes.|
|MOTIONS OR EVIDENTIARY HEARINGS PRIOR TO TRIAL||At motions or evidentiary hearings (which are almost always brought by the defendant's attorney), the Judge will decide such issues as the admissibility of certain evidence (whether the Jury will be allowed to learn about the breath test, for example), as well as certain procedural issues. Depending on the nature of the motion, the arresting officer and/or other witnesses may testify at these hearings. Sometimes the defendant will testify such as in a right to counsel violation but frequently the testimony will be just from the State's officers.|
Most DUI trials are tried to a jury. As a DUI defendant in Arizona, you have an absolute right to a trial by jury (and so does the State as strange as this may sound). In rare instances, it may be to your advantage to waive your right to a jury trial and opt for a bench trial (a trial to a judge). If a judge trial is held, the issue is often technical in nature and better left to a judge. An example I recently had was whether the witnesses would show up for the trial and give a time of the accident (the witnesses did not appear and the client received a much better outcome).
In all trials, both jury and bench, the judge decides all issues of law and procedure. In a jury trial, the jury decides the issues of fact based on instructions given by the judge. In a bench trial, the judge is the sole finder of fact.
JURY SELECTION: In a jury trial, the first (and arguable most significant) thing is the selection of a jury. A pool of potential jurors supposable representing a cross section of the local society (i.e., "a jury of your peers) will be brought in. From this group of people, the jury that will hear your case will be selected. Depending on the court, the judge, your lawyer and the State's lawyer will ask each juror questions. The judge maybe be highly restrictive in this area and allow for a relatively brief period of time for questioning. From their answers, the attorneys will try to determine bias for and against their client. If a juror shows obvious bias and can't put that bias aside to fairly determine the case, that juror may be excused (eliminated) from the jury pool "for cause." If cause is not found, either lawyer may remove the juror using a preemptory challenge, which can be exercised for almost any reason (not race). It is important especially given the limited amount of time for jury selection, to remove the most obvious people that will not be favorable to your case. They may not be biased enough for cause, but the attorney can remove a limited number in the preemptory phase of the jury selection.
JURY SELECTION, in my opinion, is the most critical portion of the trial. You can pick one juror who is dead set against convicting, and the best the State can do his "hang" the jury and cause a mistrial (after which the charges may be brought again). You can also pick a juror who has hidden prejudice against DUI defendants, and will always side with the State no matter what the evidence shows. If this is the case, unless the juror caves in during deliberations, you have no chance of winning an acquittal (a not-guilty verdict). Jury selection can be random and you are "stuck" with the pool you have for the particular trial. Certain areas of Maricopa County tend to have better jurors than other parts of the valley as well. I would much rather try a case in Tempe than Gilbert.
OPENING STATEMENTS: The opening statement is a chance for both the prosecutor and defense attorney to give the jury a preview of the evidence to come. It can set the tone for the entire trial. The prosecutor has the burden of proof, and therefore gets to go first. The defendant's lawyer can either make an opening statement directly following the prosecutor's opening, or wait until the prosecutor has submitted all of the State's evidence and rested. Depending on the circumstances, it may be prudent for the defense to defer the opening statement until after the State has rested in order to 1) see what the evidence shows; and 2) keep an element of surprise. Often I like to give a very general opening because you do not want to "tip" your hand to what you plan to present or attack.
PRESENTATION OF THE STATE'S CASE: The prosecutor will then present the State's evidence. Usually, in a DUI trial, the prosecutor will present the case in chronological order, beginning with the officer who made first contact with you or the citizen who reported you. The arresting officer will almost always talk about how badly you were driving, or describe the accident scene, talk about the "signs and symptoms of impairment," including bloodshot, watery eyes, flushed face, slurred speech, the odor of intoxicating spirits. If you made admissions to the officer such as consuming any quantity of alcohol, that will be introduced. If you submitted to the field sobriety tests, the officer's training and experience in giving the tests will be discussed. Then the officer will tell all of the ways you failed the tests, and why it indicated that you were impaired. The officer will usually be asked to explain the concept of "divided attention," which roughly means that when you are chemically impaired you can't multitask (or divide your attention) between the many simultaneous actions and decisions that it takes to safely drive. Then the officer will be asked to talk about the warnings that he gave you, and whether you submitted to a chemical test or not. If you refused to take a chemical test, the implication will be that you refused out of a "consciousness of guilt." The presentations are often dry and have the "cut and paste" appearance.
At the close of the State's evidence, the Defense may make a motion to dismiss called a rule 20 because the State failed to present evidence which could lead to a conviction. Assuming that the case is not then dismissed...
PRESENTATION OF THE DEFENDANT'S CASE: If the Defendant's opening statement has been reserved, this is the time for the defense lawyer to make it. Then the Defendant's case is presented, if the Defendant puts on evidence. If the State's case is weak, sometimes it makes sense not to put on any additional evidence. The Defendant may testify, but can't be made to do so. Additionally, in some cases, we advise our clients to utilize an expert witness to refute or explain evidence such as breath or blood tests. A good expert can go a long way in demonstrating that the breath or blood evidence is not nearly as accurate as presented.
CLOSING ARGUMENTS (SUMMATION): The closing arguments are the last part of the trial where the lawyers have a chance to sway the jury towards their point of view. Closing arguments are presented in three parts. The prosecutor argues, then the defense attorney argues, and then the prosecutor gets the last word (again, because the State has the burden of proof). Closing arguments are the "highlight" for the defense attorney to (usually) point out that reasonable doubt has not been met in the State's case.
JURY DELIBERATIONS: After the closing statements, the jury retires to the jury room to discuss the case and render a verdict. Assuming they reach a verdict, it is then read in open court. If they can not reach a verdict, then the jury is considered to be "hung" and the case ends in a mistrial. A mistrial generally results in a new trial but often plea discussions take place to avoid having to go through another trial on the same case.
|SENTENCING||Sometimes sentencing occurs immediately after a guilty verdict (in a misdemeanor case) or a plea of guilty or no contest. Other times there is a delay of up to 30 days before sentencing. If the case is a felony, then there is at least a month before sentencing so a pre-sentence report can be written by the probation dept. The probation dept. will write a report and make a formal recommendation as to the sentence. At the sentencing hearing, the judge will consider factors that might make him/her deviate from the standard or "presumptive" sentence.|
|APPEAL||Based on legal issues brought out during a pretrial motion, or at trial, a Defendant may appeal a conviction all the way up to the Supreme Court. After a trial there is a 14 day period to put in a notice of appeal and then a whole new appellate process takes place. An attorney can also make a motion after trial that the verdict was against the great weight of the evidence and should be overturned (if there was a conviction). This motion is made before the formal appeals process, however, this motion is rarely granted, but in the right case may be a decent option.|