Being arrested for a DUI is an anxiety-provoking experience, especially if you’ve never been arrested before. And one of the most stressful parts of a DUI arrest can be not knowing what to expect. Every case is a little different, and states and even courthouses have different rules and penalties. But here’s a general step-by-step of what normally happens after a person is arrested for driving under the influence.
After making a DUI arrest, police typically take the motorist to jail. How long the motorist initially spends in jail before being released depends on the situation.
On a first offense, probably the most common scenario involves the motorist staying in jail for the night and being released in the morning. If the arrest happens Sunday through Thursday, a judge will likely order the person released the next morning without requiring bail—called “own recognizance” or “OR” release. However, a person who’s arrested on a Friday or Saturday generally must post bail or wait until Monday (when court is in session) to get out.
In states that have a cash bail system, the bail amount on a first DUI is typically $5,000 or less. You can either post bail yourself or pay a bondsman to post bail for you. Bail bondsmen normally charge a fee in the range of 10 to 15% of the bail amount.
There’s no shortage of DUI lawyers. The challenge is finding the DUI attorney who’s right for you. However you go about the process, it’s probably a good idea to talk to at least a few attorneys over the phone and have an in-person meeting with anyone you’re thinking of hiring. It’s also important to know that if you can’t afford an attorney, you generally have the right to a court-appointed lawyer. Based on your circumstances, you’ll have to assess whether it’s worth it for you to hire a DUI attorney or better to go with the public defender.
And it’s crucial that you avoid delay in getting started with your attorney search. Protecting your rights often involves prompt action following an arrest. For instance, a DUI arrest will normally trigger an administrative license suspension from the Department of Motor Vehicles (DMV). If you want to contest the DMV suspension, you need to request a hearing within a certain number of days (usually 10 days or less) of your arrest.
Generally, it’s prosecutors, not the police, who decide whether to file criminal charges following a DUI arrest. In most cases, the prosecutors do end up filing charges. But it’s not unheard of for prosecutors to throw out a case when the evidence is thin or there are problematic legal issues such as an unlawful traffic stop. Prosecutors typically have up to a year to file a DUI charge, but they usually make charging decisions soon after the arrest.
When you’re arrested for a DUI, you’ll usually be given paperwork telling you the date, time, and location of your first court date. Unless you or your attorney call the prosecutor’s office ahead of time, you typically won’t know until you show up to court whether you’ve been formally charged with DUI. When you get to court, there might be a docket list posted on the wall somewhere stating who has been charged. Or the prosecutor might make an announcement about who has and has not been charged once the courtroom opens.
If you haven’t been charged, you’re normally free to go home. But if the prosecutor did file DUI charges against you, you’ll need to stick around until the judge calls your case. When it’s your turn, you approach the podium in front of the judge. Assuming you haven’t already hired an attorney, the judge will typically ask whether you want to retain your own attorney or be represented by a public defender. If you opt to hire an attorney, the judge will usually give you time to do so by setting a new court date a week or two out. Public defenders are ordinarily in the courtroom ready for appointment.
Once you have your attorney, the judge will do the arraignment. The arraignment typically starts with you pleading not guilty. (Whether or not you ultimately admit fault, the starting point in most cases is to enter a not guilty plea.) The judge will also want to know whether you want to assert your right to a speedy trial. In misdemeanor cases, you generally have a right to a trial within 30 days or so of the arraignment. But most defendants who aren’t in jail waive their speedy trial rights, which allows the case to proceed on a slower timeline.
You won’t have to remember all the details of what needs to be done in court. Your attorney generally does all the talking. If you need to say something, the judge will address you directly or your attorney will let you know. Otherwise, it’s best to just stand there and let your attorney handle the rest.
On the day of arraignment, the prosecutor typically gives your attorney the police reports and any other evidence that’s related to your case. At the conclusion of the arraignment, the judge ordinarily sets another court date called a “pretrial hearing” at least a week out.
Between court dates, your attorney will generally review the police report and other evidence and do an assessment of your case. Based on the circumstances of your case, your attorney might recommend trying to reach a plea bargain with the prosecutor or taking the case to trial. Your attorney’s review might also reveal potential legal issues—such as an illegal search and seizure—that might be used as the basis for a motion to exclude evidence or to leverage a better plea deal.
In a DUI case, the goal of plea bargaining is generally to get the charge reduced (for example, to a reckless driving charge) or obtain the most favorable terms possible on the DUI charge. The actual haggling typically goes on in informal conversations between your attorney and the prosecutor, sometimes in the judge’s chambers. In most cases, you won’t be present for these discussions. Once negotiations have concluded, your attorney will present you with the terms of the proposed agreement. Then it’s up to you whether to accept or reject the deal.
If you decide to accept the plea bargain, you typically do so by signing or initially some documents indicating you understand certain rights (such as the right to a trial) and are giving up those rights. The judge might then ask you how you wish to plea, and you’ll say “no contest” or “guilty,” depending on the situation and the advice of your attorney. Next, the judge will sentence you according to the terms of the agreement.
DUI trials aren’t that common (most cases are resolved through plea bargaining). But if you opt to go to trial, you should expect to be in court for at least a few days. And, assuming you waived your speedy trial rights, it might be several months or more before your trial begins.
Typically, DUI trials consist mostly of the prosecution presenting the testimony of the arresting officer and lab reports showing the driver’s BAC. The defense normally challenges the prosecution’s evidence through cross-examination and, sometimes, by presenting expert witness testimony. At the conclusion of the trial, the jury decides whether the prosecution has proven the charge. If the jury finds you guilty, the judge will subsequently sentence you. (The sentence a person receives on a first DUI can vary quite a bit depending on the circumstances and where the person is convicted.) A not guilty finding, on the other hand, means you’ve beaten the charge.
This article provides an overview of some of the things you’ll likely experience in criminal court on a DUI charge. But there’s a lot more involved with the DUI court process. And remember, procedures vary quite a bit. So, if you’ve been arrested for driving under the influence, it’s always best to talk to an experienced DUI attorney in your area.
