It has been quite some time since I’ve gone over the steps involved in a DUI case. This article will examine every part of the process following a person’s release from Jail as their case winds through the Judicial system. Because I intend to cover this subject in detail, and use some examples along the way, this article will be broken into seven (7) rather long installments. This first installment will focus primarily on getting out of Jail after a DUI Arrest, and will examine the Arraignment stage, which occurs right before, or, in other cases, right after a person’s release.
As a DUI Lawyer, part of my everyday experience involves handling DUI cases. I’ve handled so many that I can navigate my way through the process blindfolded, so to speak. Yet even as a Drunk Driving Lawyer who has handled thousands of DWI and related cases, I need to remember that for most people, a DUI Arrest is their first experience being taken to Jail, and having to deal with a Criminal charge.
Even for those facing a 2nd Offense DUI, such a charge is often only their second time dealing with the Criminal Justice system, and they were often too nervous the first time to recall everything that occurred, beyond remembering that things weren’t as bad as they feared. Now, facing a 2nd Offense, they know things are more serious.
Accordingly, we’ll do a step-by-step breakdown of what a person facing a real-life DUI, whether a 1st or 2nd Offense, will be dealing with once they have been released from Jai.
To keep things clear, we’ll insert 2 imaginary characters into this article, and sometimes refer to them: First-time Freddy, and Second-time Sandra. For the most part, the steps in each of their cases will be the same, but where either those procedural steps, or what they’re likely to experience differs, we’ll compare and contrast those differences.
One of the first things that can be different from case to case, and depends, more than anything else, on where a case occurs, is how a person gets out of Jail. In some jurisdictions, once a person’s BAC (Bodily Alcohol Content) is low enough, they’ll be released from Jail without having to pay a dime. In other jurisdictions, they might have to post a $100 Bond, called an “Interim Bond.” In some places, they might be held until a higher amount is posted. This might mean calling someone to come and post the money.
In still other jurisdictions, before a person is released, they are actually “Arraigned” on the charge. This means they go before a Judge or Magistrate.
An “Arraingment” is the first step in a Criminal case, and is an actual Legal proceeding where a person is formally charged with a Crime, and a Bond amount is set. At an Arraignment, the first thing that happens is that a person is told exactly what crime they’re being charged with.
They are then advised of their Constitutional Rights.
Most often, they are given a form, called an “Advice of Rights,” and told to read it, then to sign it. This form, as the reader can see by clicking the link in the previous sentence, details all of a person’s rights when facing a Misdemeanor charge. All DUI’s, unless charged as a 3rd (Felony) Offense or a DUI causing serious injury or death, are Misdemeanors. There are 3 types of OWI (Operating While Intoxicated, the actual and correct name for a DUI in Michigan) charges not involving accidents, child endangerment, injuries, or death:
- OWI 1st Offense
- OWI -Enhanced, or High BAC (this charge can only apply to a 1st Offense), and
- OWI 2nd Offense
There are 2 kinds of Arraignment:
- The first is where a person is actually brought into a Courtroom and faces a Judge or Magistrate.
- The other is where a person is put before a video camera at the County Jail or the Police Station, and faces the Judge or Magistrate via closed-circuit TV.
In some, albeit a minority of cases, and often those where the Arraignment is done by video, the person is simply read, or told what their Constitutional Rights are. Typically, the Judge or Magistrate will say something like this:
Mr. First-time Freddy, you are charged with the Offense of Operating While Intoxicated. This is a Misdemeanor punishable by up to 93 days in Jail, a Fine of up to $500 plus Costs, 6 Points on your Driving record, Driver Responsibility Fees imposed by the Secretary of State, and a Suspension of your Driver’s License that will also be imposed by the Secretary of State.
You have certain Constitutional Rights:
You are presumed to be innocent.
You have the right to a Trial, and to have that Trial held before a Jury, or, if the Parties and the Court agree, you can have that Trial held before a Judge, without a Jury.
You cannot be found Guilty unless your Guilt is proven beyond a Reasonable Doubt.
You have the right to a Lawyer, and if you cannot afford one, the Court will appoint one for you.
You may be required to repay the Court for that Attorney.
You have the right to remain silent.
If you have a Trial, no one can say anything about your exercise of the right to remain silent, and they cannot make any comment or draw any inference therefrom.
On the other hand, you have the right to testify on your own behalf.
You also have the right to use the Court’s Subpoena power to compel any witnesses that you may have to come to Court and testify on your behalf.
If you plead Guilty, you waive all the rights above, except the right to a Lawyer, and there will be no Trial of any kind.
If you are on Probation or Parole, any conviction that results from a Plea or Trial may constitute a Violation of that Probation or Parole.
You have the right to be released on Bond.
How do you Plead?
To which, by the way, Freddie should respond, “Not Guilty.”
The good news is that in almost all 1st or 2nd Offense cases where a person is released from Jail without having been Arraigned, they can skip, or waive any future Arraignment (meaning they will NOT have to go Court and face a Judge or Magistrate) if they hire a Lawyer BEFORE that date. “That date” will either be indicated on their Bond Receipt, Citation (Ticket) or will be subsequently sent by mail.
To be clear then, if First-time Freddy comes to see me, and tells me he had to post either $100 or even $500 at the Police Station, or Jail, and hasn’t yet had a Court date, I can file papers with the Court waiving his Arraignment and have a “Not Guilty” Plea entered on his behalf. This way, the won’t have to go to Court until the next step, called the “Pre-Trial,” to which I come along, as well.
A Pre-Trial is a very important step in the DUI process. Before we get into any detailed examination of the Pre-Trial, it will be helpful to understand that although the Pre-Trial is a “step” or stage in the DUI process, it is one that can be repeated more than once. Let’s use a comparative example:
Once an Arraignment has taken place (and independent of whether there was actually an appearance before a Judge or Magistrate, or the Arraignment was waived), it’s over, just like a birthday.
By contrast,, there can be multiple Pre-Trials. Technically speaking, a Pre-Trial is called a “Pre-Trial Conference,” because, in a Criminal case (and all DUI cases are Criminal cases), it means that the Prosecutor and the Defense Lawyer meet (i.e., the “conference”) and talk about how they can resolve, or work the case out, without it having to go to Trial.
In Part 2 of this article, we’ll continue by examining exactly what a “Pre-Trial” is, and the importance of its role in a DUI case.