Drunk Driving Process and Procedure
Arrest: After a roadside arrest, the police officer will take an arrested driver to the police station for booking and likely for a breath test on a Datamaster testing device. After being booked and processed, the arrested driver will be incarcerated until at least the following day, when the driver will be released or arraigned before magistrate or judge.
Warrant: Often times, the police will submit a warrant request to the prosecutor's office. The prosecuting attorney will review the matter, and if approved, the warrant will be submitted to a judge or magistrate for judicial approval.
Arraignment: Arraignment can be held in person or video conference before a judge or magistrate. At arraignment, the defendant can plead guilty, not guilty, no contest or stand mute on the charges. The criminal charges and the maximum penalties are read to the defendant along with an advice of rights. Bond is set by the judge or magistrate at this stage of the proceedings. Defense counsel is permitted but not required at the arraignment. The prosecuting attorney is rarely present for an arraignment, but the officer in charge may be present to make a recommendation on the bond conditions. Some courts require daily PBTs as a condition of bond.
Preliminary Examination (felony only): Within 14 days of being arraigned, a defendant charged with a felony has an absolute right to a preliminary examination on the charges. At a preliminary exam, the prosecuting attorney must call witnesses to testify under oath as to the factual basis of the charges. The witnesses can be cross-examined by defense counsel. At the preliminary examination, the prosecutor must show probable cause to believe that a felony was committed and probable cause to believe that defendant committed that felony.
Pre-trial Conference: A pre-trial is a court date when the prosecuting attorney and defense counsel can discuss pending matters, disputed issues, and engage in plea negotiations. The defendant is required to be present at the pre-trial. Multiple pre-trial conferences are not unusual, and a final pre-trial is usually held in an effort by the court in order to resolve any pending matters prior to trial and hopefully to avoid a trial altogether.
The timing of various district courts vary greatly. Some courts insist that a trial date be set within only a few weeks, while other courts may not set trials for several months.
Motions/Evidentiary Hearing: A variety of motions may be filed prior to trial. A motion is simply a request made in writing to the court to take some action based upon the statutory law, case law, rules of evidence or other authority. A motion might be filed to compel production of videotapes or to suppress statements made by the defendant after the arrest. A motion may be made for an evidentiary hearing to determine whether a breath test is admissible. At an evidentiary hearing, defense counsel is permitted to question witnesses regarding the validity, authenticity and accuracy of evidence that will be relied upon at trial by the prosecuting attorney.
Jury Selection: On a misdemeanor charge, seven jurors are selected from a jury pool. The jurors are selected at random from the pool, and the prosecuting attorney and defense counsel are usually permitted to conduct voir dire. In some courts, the judge performs the jury voir dire. Voir dire is an opportunity to ask the jurors questions regarding their opinions and experiences in order to ascertain whether each individual juror is fair and unbiased. Either attorney can challenge a juror for cause, meaning that some experience or attitude prejudices that juror against or in favor of the defendant. The prosecuting attorney and defense counsel are also permitted a limited number of peremptory challenges, permitting each side an opportunity to remove a juror without providing a reason.
Trial: Trial may begin on the same day as the jury selection or within a few weeks of jury selection. Additional motions and hearings may be held prior to the trial and during the course of the trial. The trial begins with an opening statement, where the prosecutor and defense counsel each have an opportunity to present their version of the case. Defense counsel may reserve its opening until after the prosecutor closes on its proofs, meaning, after the prosecution has presented its evidence and witnesses and rests. At the trial, the prosecutor must prove each element of the offense beyond a reasonable doubt. The defense may or may not call witnesses at its option. Following the close of defense proofs, each attorney is permitted a brief period of time to present its closing. The closing summarizes the proofs and arguments of each party.
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