1. by actually witnessing the suspect’s driving symptoms (on-view arrest).
  2. due to probable cause like an accident that the police did not actually witness (after-the-accident arrest).

The details of the arrest are important because certain legal rules govern the arrest process. If an illegal arrest was made, certain remedies may exist that will benefit the suspect.

NOTE: At the time an arrest is made, the police officer is not filing charges. Instead, the police officer is gathering evidence for the prosecuting attorney who then will decide whether charges should be filed and, most importantly, what those charges will be.


Misdemeanor & Felony DUI/DWI

A Misdemeanor DUI/DWI refers to a charge where no injury is involved. If you have been arrested for a DUI/DWI 4 times within 10 years, then you may be charged with a Felony DUI/DWI. Some crimes are defined in the Penal Code as “wobblers”. This means the prosecution could charge them as misdemeanors or felonies. In a DUI/DWI with injury, the prosecutor can still charge the offense as a misdemeanor if little or no serious injury was involved. All felony charges have two levels of proceedings in California. They start in Superior Court where the judge sits as a magistrate to determine whether or not probable cause exists for you to be tried. If the judge finds that there does exist probable cause, then you are “held to answer” and arraigned again for trial..


The Arraignment will be the defendant’s first appearance in court whether the defendant is in custody or not. The defendant will be advised of the formal charges against him/her. The defendant’s attorney will receive a formal complaint that lists the alleged violations of the law against the defendant, along with police evidence that the prosecution has against the defendant. This process is the first step in assessing what crime or crimes the defendant is accused of committing and initiates the Court Case against the defendant where the defendant is typically charged with two separate criminal offenses:

  1. Section 23152 (a) – it is illegal to drive under the influence of alcohol (see California Vehicle Code)
  2. Section 23152 (b) – it is illegal to drive with a blood alcohol level of .08% or higher (see California Vehicle Code).

At the Arraignment, the defendant is to inform the judge how he/she will be pleading. The defendant is once again advised of the charges against him/her and made aware of his/her constitutional rights, and assigned future court dates. Finally, the judge sets the conditions and the amount of bail. The purpose of bail is to assure that the defendant attends his/her next court date and is based upon a number of factors including the defendant’s risk of flight, prior record, length of time living in the community, and nature of charges. Note: bail is set in almost every case, but in some cases NO bail is allowed.

Preliminary Hearing

If the defendant is charged with a Felony DUI/DWI, a Preliminary Hearing is held to review probable cause, or, in other words, whether or not there is sufficient evidence to support the charges against the defendant. If the judge determines that there is probable cause, the case will be sent to trial. If the judge determines that there is not probable cause, the charges will either be reduced from a felony to a misdemeanor or dismissed.

Pre-Trial Investigations

Pre-Trial Investigations help the defending attorney gather evidence that will help exonerate the defendant and protect against any surprises at trial. Pre-Trial Investigations include:

  • Interview prosecution witnesses
  • Photographing the scene of the arrest
  • Locating expert witnesses in the area of blood-alcohol analysis
  • Reviewing the prosecution’s evidence and information
  • Police arrest reports
  • Traffic accidents reports
  • Booking slips
  • Mug Shots
  • Sound tape recordings
  • Videotapes, motion pictures, or photographs
  • Transcripts of interrogation
  • Oral and written statements of defendant
  • Notes of Officers
  • Identity, addresses, and telephone numbers of witnesses
  • Police manuals
  • Records of felony convictions of defendant and witnesses
  • Defendant’s driving recordings
  • Reports written by the arresting officer in other DUI/DWI cases
  • Previous altercations between the officer and other arrestees
Pre-Trial Motions

After the defendant’s attorney reviews the research gathered during Pre-Trial Investigations, the defendant’s attorney determines if and what appropriate motions to file to help construct an effective defense including motions to limit or exclude certain evidence and to discover the evidence that the prosecutor intends to offer against you at trial. The judge will rule upon these motions whose success or failure will largely determine the legal strength of weakness of the defense’s case.

Pre-Trial Conference

A Pre-Trial Conference is very important and will determine whether or not the defendant’s case will actually be going on trial. At this conference, a judge may also be included in a discussion between both the defense and prosecuting attorneys. It is at this time that a case can also be resolved with a plea, a.k.a plea bargaining, or even dismissed.


If both parties have not agreed upon a settlement, the case is set for trial. A jury of twelve unbiased peers is chosen by the prosecution and defendant’s attorney to observe the defendant’s case. During the course of the trial, the prosecution and the defendant’s attorney will make opening statements, present evidence, introduce witnesses, cross-examine witnesses, and make closing statements. Afterwards, the jury retires to make its decision on whether the defendant is innocent or guilty beyond a reasonable doubt. If the jury is “deadlocked” or not able to agree upon a decision, the judge will declare the procedure as a mistrial. Note: the jury must unanimously agree that the defendant is guilty of the charges in order to convict him/her.


A case is set for sentencing when the accused pleads guilty/no contest or is found guilty by a jury. The judge determines the punishment, or Penalties, at this time; however, the following options may be available in some cases:

  1. Motion for New Trial- A motion that attempts to set aside the defendant’s conviction.
  2. Motion to Withdraw- A motion that attempts to set aside the defendant’s conviction.
  3. Appeal- If the defendant’s attorney can prove either that there were errors made by the court or that the defendant was denied due process of law, the conviction may be overturned.
  4. Modification of Sentence- If the defendant is placed on probation, it might be possible to ask the judge for modifications to the terms and conditions of the sentence.
  5. Expungements-Taking place after the defendant’s completion of a sentence, this might be possible to have a conviction removed from the defendant’s record.
Related Links

California Vehicle Code
The California Vehicle Code is found on the official site for California legislative information and outlines laws pertaining from DMV procedures to criminal/traffic violation offenses and penalties.