The DMV & Court Process
The legal procedures surrounding a DUI charge are extremely complex and can be a long, difficult process for the defendant. With an effective and knowledgeable DUI defense attorney protecting your rights, you have the best chance of reducing the charges or even getting them dismissed. Experienced DUI lawyer ‘Bo’ Pollard has extensive experience in the methods used by law enforcement and prosecutors to build a case against you. With this experience and knowledge of the criminal justice system, he can guide you through every step in the process, building a stronger defense for you at each interval.
DMV Hearing - Once arrested for DUI in Nevada or DUI in California, your license is automatically revoked (Nevada) or suspended (California). The arresting officer may provide you with a temporary license, which allows you to drive temporarily for until your DMV Hearing is held.
At this hearing you will discuss only your reasons why your license should not be revoked or suspended, and not the DUI charges against you. Before your DMV Hearing you should contact an aggressive DUI attorney to represent you during this procedure. At this stage it is still possible to prevent your license from being taken away, provided you have the right defensive strategy. Your DUI defense attorney will have the opportunity to cross-examine the police officer that arrested you.
NOTE: In California, you have only 10 days to request a hearing and stay of the suspension; otherwise the right is lost.
In California, DMV Hearings are wide open to address many issues, including: whether your were lawfully arrested or were subjected to an unlawful police stop; whether your blood alcohol content (BAC) was over the legal limit of 0.08%; and whether you were the actual driver.
In Nevada, the DMV Hearing is much more limited in relevant issues, which are: whether you drove or had actual physical control (APC); whether the officer had a reasonable basis to suspect the presence of alcohol, thereby justifying a request you submit to an evidentiary test of your breath or blood; and whether the result was 0.08% or higher at the time of the test. APC is meant to cover situations where an intoxicated person is found in a parked vehicle and has the capability to operate the vehicle, regardless of whether they actually are operating the vehicle at the time.
Nevada DUI violations which include driving or APC:
- While under the Influence of Alcohol – being unable to safely operate a motor vehicle. This is the most difficult for the State to prove;
- While 0.08% or higher. Nevada law requires proof of alcohol level AT THE TIME OF DRIVING. This is also difficult for the State to prove, (which prompted the Legislature to add #3);
- While 0.08% within two hours AFTER driving or APC;
- While under the influence of a controlled substance;
- While under the combined influence of alcohol and a controlled substance;
- While having an excessive level of a PROHIBITED SUBSTANCE in one's blood.
Thus, in Nevada, in addition to alcohol, a driver can be arrested and convicted of DUI with a test result lower than 0.08% if they are found to be under the influence of controlled or prohibited substances such as marijuana, cocaine, barbiturates, and other drugs.
Likewise, under Nevada law, the incident needs to have taken place in a premises open to the public. This can include apartment buildings, condominiums, malls, and the like. Although private property, they are "open to the public" for purposes of DUI laws. A single family home is not. So, APC in one's driveway without the officer seeing someone driving on the street is defendable in many cases.
It is in dissecting these specific details of the law where an established attorney can build a time-tested DUI defense strategy for your case. DUI defense attorney ‘Bo’ Pollard is highly skilled in challenging the evidence submitted by law enforcement at the DMV Hearing. By questioning every aspect of procedure regarding the three issues above, there is a possibility of your suspension being dropped, and there is an even greater possibility of uncovering a mistake by law enforcement that you can later use to strengthen your case at trial.
Arraignment - The Arraignment is your first court appearance for the DUI criminal charges. For a felony DUI charge, this is often referred to as a first appearance, rather than an Arraignment. The judge will read the charges against you and ask you to enter your plea. If you plead guilty, your sentence will be determined at this point. If you plead not guilty, you will be assigned a date for your Preliminary Hearing or Pre-Trial Conference. A vigorous DUI defense lawyer will be able to help you decide which plea is best for your particular circumstances and your best defense strategy.
After your Arraignment (misdemeanor) or first appearance (felony), your next step may be a Pre-Trial Conference or Preliminary Hearing.
Pre-Trial Conference - A Pre-Trial Conference, typical in misdemeanor DUI cases and often referred to as an Early Settlement Conference, is where your attorney receives the initial discovery evidence from the District Attorney’s office and discusses the details of your case with the Prosecution. A Pre-Trial Conference can be held before the Preliminary Hearing. At this point, both parties may come to a resolution, or your attorney may set hearings or motions to suppress or limit evidence before setting the case for trial. In DUI cases, the State is constrained from offering a plea bargain unless they feel they cannot prove their case. A plea bargain is an agreement between you and the Prosecution that you will enter a guilty plea for a lesser charge in exchange for not facing trial on the more serious charges they intended to pursue. An experienced Nevada DUI attorney may successfully argue to the Prosecution that there are weaknesses in the their case that will justify a plea bargain. At this point you can accept or reject the plea bargain offered. If no plea bargain is made to either dismiss the charges or reduce them, or you reject their plea bargain, then your case will go to trial.
Preliminary Hearing - A Preliminary Hearing is the procedure used when a felony DUI is charged. After your first appearance, the court will set a date for either a Pre-Preliminary Hearing or a Pre-Trial Conference. During a Preliminary Hearing, the State must show through sufficient evidence that there is probable cause to bind the defendant for felony trial in District Court, however the State does not have to prove guilt beyond a reasonable doubt at this particular hearing as they would at trial. If the judge agrees with the State, your case will be set for Arraignment in District Court. At the Preliminary Hearing, an experienced Nevada DUI attorney may challenge the Prosecution and argue for some of the evidence against you to be inadmissible and therefore should not be considered as a basis to bind you over for trial. With an aggressiveDUI defense lawyer, witnesses may be called to give testimony that strengthens your case and misconduct by the arresting police officer may be exposed. Depending on the statements and evidence that your experienced DUI attorney has been able to gather for your defense, the Prosecution may offer you a plea bargain; an agreement between you and the Prosecution that you will enter a guilty plea for a lesser charge in exchange for not facing trial on the more serious charges they intended to pursue. At this point you can accept or reject their offer. If no plea bargain is made to either dismiss the charges or reduce them, or you reject their plea bargain, and the Justice of the Peace finds sufficient probable cause exists, he will “bind” you over for Felony Trial. Your case is then transferred to the District Court and the Justice Court loses jurisdiction.
At the District Court level, you then have an Arraignment where you would enter a plea of either “guilty” or “Not guilty” and the matter is customarily set for a Pre-Trial Conference. After that, there will either be Motion Hearings, trial, or a hearing for a “change of plea” in the event a plea bargain agreement is worked out with the Prosecutor.
Trial – While most DUI cases are resolved prior to this step, some cases go to trial. If your case goes to trial, your case will be heard before either a judge or a jury, depending on if it is a misdemeanor or felony DUI. In California, many misdemeanor cases go before a jury. Each side will present their evidence, witnesses for both the Prosecution and the Defense will be cross-examined, and the attorneys will make their arguments. Going to trial is ultimately a decision that is up to you, and DUI defense attorney ‘Bo’ Pollard will advise you on the strength of your case and the most likely outcome of a trial should you be faced with this decision. In the event you are found guilty, you have the right to appeal your DUI conviction.
In Nevada, you have the right to a jury in a felony trial; however, that right does not exist in misdemeanor DUI charges and in almost all such trials, only a Justice of the Peace or Municipal Judge will hear and consider the evidence.
Sentencing - If you win the case, the charges against you will be dismissed; however, if you are found guilty or plead guilty, the judge will determine your sentence. An experienced Nevada DUI attorney can explain the entire process to you so that you understand the details of your sentence and what is expected of you. He can also argue before the judge for a more lenient punishment.
Appeals – A guilty verdict is not always the final word. If you have been wrongfully convicted of a DUI charge, you have the right to appeal the judge or jury’s decision to a higher court. An appeal can be based on evidence on record in the case, errors that occurred during your trial, or failure of your previous legal counsel to protect your rights. DUI defense attorney ‘Bo’ Pollard is dedicated to helping individuals protect their rights when they feel the justice system has failed them. A skilled litigator, his 25 years of experience has proven highly valuable to his clients when their cases are brought before the appellate courts.