DWI / DUI Anatomy of a Trial
low, mid and high terms. Examples of enhancements are membership and acting in furtherance of a criminal street gang, having a prior prison term and causing great bodily injury.
EARLY DISPOSITION CONFERENCE/ PRE-PRELIMINARY HEARING.
This appearance is similar to the misdemeanor pretrial conference. We speak to the prosecutor about the weaknesses in the prosecutor’s case, to amplify the reasonable doubt standard that applies to all of our clients. We speak to them about factors in mitigation, for example, a history of drug use, alcohol abuse, mental health issues, tough family situations, marital discord. We talk to the prosecutor about things that our client may have done after the triggering event, like attendance at a drug and alcohol rehabilitation center, AA, NA, CA and MA meetings, payment for any damages caused and the like.
THE PROBATION REPORT.
In felony cases, our client, usually accompanied by us, attends a probationary interview with a state probation officer. This interview includes the probation officer taking an in-depth factual inquiry which goes to the question of whether or not our client is suitable for probationary supervision. This is clearly the goal in felony cases. Most often, our client does not discuss the facts of the case with the probation officer. When we go to court after our probation interview and pick up the actual written probation report, we want to see that the probation officer whom we met with RECOMMENDS PROBATION and not state prison.
THE PROSECUTOR’S OFFER.
The prosecutor makes an offer to settle the case. This is typically the best offer that is extended by the prosecutor in a felony case before preliminary hearing (discussed below).
OUR COUNTER OFFER.
Many times in felony cases, our counter offer will include a request to reduce the charge from a felony to a misdemeanor. If the prosecutor is set on a prison offer, we may make a counter offer for a ninety day diagnostic study so that we can have another opportunity at a probation recommendation.
HIGHER UPS.
Again, if we feel it necessary and appropriate, we meet with a higher up prosecutor to see if we can get a better offer extended.
PRELIMINARY HEARING.
In situations where circumstances prevent resolving the matter early, we proceed to preliminary hearing. Preliminary hearing is a long proceeding wherein the prosecutor calls witnesses to testify in court about the event. AT THIS PROCEEDING, THE ACTUAL COMPLAINING WITNESSES DO NOT NEED TO APPEAR TO TESTIFY. Under Proposition 115, the prosecutor only needs to call the police officers who investigated the event to testify. However, at the actual trial, the complaining witnesses themselves need to come into court and testify.
THE JUDGE’S DECISION.
At the end of the preliminary hearing, the judge makes a determination as to whether or not there is enough evidence to hold our client to answer to any or all of the charges against him or her. The standard of proof at a preliminary hearing is not beyond a reasonable doubt. The prosecutor must show instead that there is a STRONG SUSPICION that our client is the person who committed a crime or crimes. We fight at every twist and turn during preliminary hearing. If the judge does not believe that the strong suspicion standard is met, the matter will be DISMISSED. If the case is dismissed, the prosecutor has the option to re-file the case against you or to drop the case entirely.
MOTION TO REDUCE.
During argument after preliminary hearing, if appropriate, we can make a motion under Penal Code section 17(b) to reduce the charge or charges from felonies to misdemeanors.
ARRAIGNMENT.
If the judge finds that a strong suspicion does exist and our client is held to answer after preliminary hearing, he or she will set the matter for another arraignment. Again, we typically plead “NOT GUILTY” at this appearance.
PRETRIAL CONFERENCE.
Then the matter proceeds to pretrial conference. The same applies here that has been discussed above and again, there may be several pretrial conferences before trial.
YOUR DECISION.
At the “end of the road,” when we have gone absolutely as far as we can in your defense, the discovery process is complete and the prosecutor has extended its best offer, you have a decision to make. WILL YOU RESOLVE THE CASE SHORT OF TRIAL THROUGH A PLEA BARGAIN OR WILL YOU GO TO TRIAL? We will guide you throughout this process and be very straight and honest with you in terms of the likelihood of success at trial and our opinion as to the best course of action based upon all of the facts and circumstances at hand.
TRIAL.
There are two types of trial, a court trial and a jury trial. YOU HAVE THE CONSTITUTIONAL RIGHT TO GO TO TRIAL. This is true in both misdemeanor and felony cases. A court trial is a trial where the only decision maker is the judge: