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What Is The Court Process For A DUI?

  • By: Mace J. Yampolsky, Esq.
  • Published: June 22, 2018

A misdemeanor DUI case would typically take about a year to fully resolve from the time the person was
pulled over. They would be pulled over and given a court date in a month or six weeks, depending on how
busy the courts are. We would plead not guilty at the first court date and set the trial date out a couple of
months.

Each defendant would have a right to go to trial within 15 days, and this would normally be invoked by
people who are in custody, or sometimes for whatever reason the person may want to go to trial right
away. I tell clients that I do not think this would be in their best interest for the most part. But this is the
client’s decision.

Usually we will continue the trial a few times. (If they don’t try you, they can’t convict you!) Eventually we
would either plead or go to trial. The time until the case is over usually takes longer for felony DUIs, such
as a third time DUI or a DUI involving death or substantial bodily harm. Because instead of going to trial
at the justice court level, it would be set for a preliminary hearing. The justice court does not have
jurisdiction to hear felony trials.

Preliminary Hearing

The Preliminary hearing is the probable cause hearing in which the prosecution would need to establish
whether there was probable cause to believe the person had committed this offense and have him bound
over, to district court. This means have the case moved to the felony courts, because a third time DUI is a
felony which means the penalties are at least 1 year in prison. The penalty for a third time DUI is one to
six years in the Nevada State Prison and a $2,000 to $5,000 fine.

If the case moved up to the felony court, we would try and resolve it so it was not a DUI, and it would be
some other charge such as reckless driving, leaving the scene of the accident or something else which
does not carry mandatory prison time.

Serious Offenders Program

Another possibility would be the serious offender’s program which has very stringent requirements.
Someone who entered a plea to a third time DUI and was accepted into the program, would be on house
arrest for six months. They would have to do counseling to help overcome the alcohol addiction, and they
would be on three years probation. It would be a very rigorous program. If they successfully complete the
program, the third time DUI would then be reduced to a second time DUI (a misdemeanor) and the person
would receive credit for time served, meaning they would not need to do any additional jail time.

Advice For People Who Just Want To Plead Guilty

When clients want to just plead guilty to get the case over as soon as possible, I tell them that under the
law it does not matter what they actually did, what matters is what the state could prove.

Let us suppose the client told me they were drunk, they went around the corner and hit a parking meter
and then walked home. Because they were drunk, they felt they should just plead guilty. The police saw
the vehicle and then either saw the client when he was at home or they saw him when he was walking
across the side of the road. But they never saw him behind the wheel.

The question would be whether he was under the influence when he was behind the wheel, or whether
he had been drinking at home, because they would just not know. If we ever have this defense then we
need to plead it specifically, meaning we need to tell the prosecutor that we wanted to rely on drinking
after he stopped driving as a defense.

The other scenario would be if the police saw him walking down the road and he was about a half mile, or
a mile away. The police would not be able to prove when he was actually driving so they would not be able
to prove beyond a reasonable doubt whether or not his blood alcohol level was over a 0.08 at the time he
was driving.

Since he had had an accident, one could assume that he was under the influence of alcohol to any degree
however slight, which made him incapable of driving safely. But could you prove it? We could defend that
by saying that although he had had an accident, hundreds of thousands of people have accidents every
single day even when they are stone cold sober. I actually handled a case just like that and it was a third
time DUI. We were able to resolve it as felony reckless driving so there was no mandatory prison time.

Decreased Probable Cause Needed For The Prosecution If Someone Had A Previous DUI

The burden of proof is a term we only use at trial. A previous DUI might give the officer more reason for
probable cause, although I think it should not make a difference. Each case would have to be evaluated
on its own merit.

If it was a first time DUI and the officer did not have a reasonable suspicion to pull the driver over because
he was weaving within a lane and it was not a traffic offense, then it would be the same thing if it was a
potential second DUI. The penalties would be more severe and the prosecutors would not be as flexible
when negotiating the case.

About the Author Attorney Mace Yampolsky has been achieving successful outcomes
during pre-trial negotiations as well as in the courtroom, defending
clients on nearly all types of criminal defense cases.

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