Dealing With a DUI or DWI Charge

Learn about arraignment, plea bargaining, and your options for dealing with your DUI or DWI charge.

Sometime after your arrest for a DUI (driving under the influence) or DWI (driving while intoxicated), you'll have to appear before a judge for your arraignment. An arraignment is a court appearance in which a defendant is formally charged with a crime and asked to respond to the charge by entering a plea. Read on to learn what will happen at your arraignment, what your options are for dealing with the charge, and how plea bargaining works.

What Will Happen at Your Arraignment

At your arraignment, you'll be asked to plead to the charge. Typically, the options are guilty, no contest, or not guilty. A lawyer may also be appointed for you and the amount of your bail may be set. Most defendants charged with misdemeanors who haven't already posted bail are released on their own recognizance at arraignment.

Having an attorney represent you at arraignment is normally unnecessary. At this stage, you are only entering a plea, and you can plead not guilty. You can always change your plea to guilty or "nolo contendere" (no contest) later.

In most states, you can also insist on a jury trial. In these states you don't have to specifically request a jury trial; it is assumed you want one unless you expressly waive that right. You can always drop your demand for a jury trial later.

If you're charged with having prior under-the-influence convictions, you should deny these convictions so that you or your attorney can challenge their validity later.

Options for Handling Your Case

After you've been released from jail, try to objectively evaluate your case (most likely with the help of an experienced lawyer). Your alternatives include:

  • simply pleading guilty as charged
  • trying to plea bargain down to a reduced charge like reckless driving (a "wet reckless" is a term used for reckless driving involving alcohol)
  • asking for a trial before a judge, or
  • demanding a jury trial (available in most, but not all, states).

Should You Fight the Charge or Plea Bargain?

Generally, the wisdom of fighting a DUI charge depends on the strength of the prosecution's evidence. So, if there's evidence showing you had a high blood alcohol concentration (BAC) or that you were extremely intoxicated, negotiating a plea deal might be the way to go.

In all states, you can be convicted of a "per se" DUI for driving with a BAC of .08% or more, regardless of whether or not you were actually affected by the alcohol you drank. So, when a driver has a high BAC (about .12% or above), it becomes a lot more difficult to win at trial. Even if your attorney can raise some doubt about the precision of the BAC measurement, it might not be enough to convince the jury that you were below the legal limit.

Your chances of beating a per se DUI charge at trial get better with a BAC that's closer to .08%. With a BAC that's .08% on the dot or only slightly above, all your attorney needs to do is persuade the jury that you're within the margin of error of the testing procedure. Depending on the circumstances, your attorney might also be able to convince the jury that your BAC was below limit while driving but has risen by the time you were testedknown as the "rising-blood-alcohol defense." (Read about other DUI/DWI defenses.)

Evidence of impairment is also an important consideration. Even if the prosecution doesn't have a chemical testing showing you had a prohibited amount of drugs or alcohol in your blood (evidence of a per se DUI), there's a second type of DUI based on actual impairment. In other words, proof that you were driving while affected by drugs or alcohol you ingested can also lead to a DUI conviction.

Evidence of impairment often comes in the form of bad driving, poor field sobriety test (FST) performance, slurred speech, and behavior indicating intoxication. Sometimes, evidence that seemingly indicates impairment can be explained. For instance, a person who fails to complete an FST perfectly might have been tired or just simply uncoordinated. But for evidence of intoxication—like a driver swerving all over the freeway and reeking of boozean explanation might not cut it.

Your chances of winning a DUI trial depend on lots of different factors. But generally, it's best to talk to an experienced DUI attorney before making the call.

Should You Ask for a Jury Trial?

If you choose to fight the charge and go to trial, you're probably best off insisting on a jury trial—you'll likely have a better chance with a jury of your peers than you would with a judge deciding your case. The only exception to this general rule is when your defense is fairly unusual or technical. For example, if you staggered out of a bar and into your car and fell asleep—but you didn't drive—a judge might be more receptive to your defense than a jury. (Read more about how DUI laws apply to persons who were in a car but not actually driving.)

How Plea Bargaining Works

Plea bargaining (sometimes also referred to as "sentence bargaining") is a process where a criminal defendant (or the defendant's lawyer) and the prosecutor reach a compromise. The defendant enters a guilty or no contest plea in exchange for a reduced charge, fine, or jail sentence. The prosecutor gets to rack up a conviction without having to go to trial.

Plea bargaining generally involves assessing some of the same factors discussed above that a defendant would be looking at in deciding whether to go to trial. Typically, a defendant will be able to get a better plea bargain when there are some weaknesses in the prosecution's case. A defendant's bargaining power diminishes when the evidence of guilt is compelling. Also, prosecutors are often less willing to negotiate when there are aggravating factors like an extremely high BAC or injuries.

Getting 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 judge will probably ask you to fill out a financial disclosure form and refer you to the public defender's office. In more rural areas, the judge may appoint a private defense lawyer to represent you.

If your finances are tight but you don't qualify for free representation, you might hire an attorney for the limited purpose of fully explaining your options to you or working out a plea bargain with the prosecutor. Many attorneys even offer a free initial consultation to anyone thinking of hiring a DUI attorney.

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