San Diego DUI questions

What is an arrest?

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may have been involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary. You also can be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address, and to show some identification if requested.

What rights do I have?

Whether you are an adult citizen or a non-citizen, you have certain rights if you are arrested. Before the law enforcement officer questions after you are in custody, he or she must tell you that:

You have the right to remain silent.
Anything you say may be used against you.
You have the right to have a lawyer present while you are questioned.
If you cannot afford a lawyer, one will be appointed for you.
These are your "Miranda" rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.

Once I am told my rights, can I be questioned?

You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take a test, your driver's license may be suspended and the refusal will be used against you in court.

When should I see a lawyer?

If you are arrested in a crime, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to the law enforcement officers to avoid being misinterpreted or misunderstood.

How can I find a lawyer?

Look for a lawyer experienced in DUI as listed on the internet and check the BBB. If you decide to hire a lawyer, make sure that you understand what you will be paying for, how much it will cost, and when you are expected to pay your bill.

What if I can't afford a lawyer?

The Public Defender's office may provide you with a lawyer or the court will appoint one for you if you qualify. However, you need to understand that if this is the case you will lose your license as a public defender can not, by law, help you.

Who can arrest me?

All law enforcement officers - such as police officers, county sheriffs, investigators in a district attorney's or an attorney general's office, and highway patrol officers - can arrest you whether they are on or off duty, in most cases. In addition, they can arrest you even if they did not see you driving. They can arrest you - even if they do not have an arrest warrant - if they have probable cause or good reason to believe you have committed a felony. They do not have to see you commit a felony in order to arrest you. If you commit an infraction, instead of taking you into custody, they may ask you to sign a citation or notice. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.

What is bail and how is it set?

The amount of bail - money or other security deposited with the court to insure that you will appear - is set by a schedule determined by the County.

Who maintains arrest records and what do they include?

Local police departments and the State Department of Justice keep arrest records. According to law they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies which have a right, by state law, to investigate your criminal background. The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions. If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble, you are able to have the conviction removed from your record for the purpose of employment background checks after probation is over. If you are convicted of certain felonies and you successfully complete probation, you can have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance to clear your record.

What happens at an arraignment?

You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you can not afford one, and bail can be raised or lowered. You also can ask to be released on O.R., even if bail was previously set. If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case, unless the charge can be punished as a felony.

What happens at a preliminary hearing?

During the preliminary hearing, usually within 10 court days of the arraignment, the district attorney's office must present evidence in showing a reasonable suspicion that a felony was committed, and that you did it, to convince the judge that you should be brought to trial. You may have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial will later be held.

Why do I need a criminal defense attorney?

There are lawyers for every conceivable legal problem. However, if you are facing criminal charges or under investigation, your legal situation is different than any other legal problem. Here, the government wants you and your freedom , not money. Most attorneys specialize in an area of law where the end result is money and the amount (or lack thereof) determines a "victory" or "defeat". However, criminal defense attorneys, deal directly with you (and your family's) personal future, whether it involves loss of time (i.e., Community Service), loss of freedom (i.e., jail or prison) or loss of a professional license (i.e. lawyer, or doctor).

What is the difference between a criminal defense attorney and a DUI attorney?

You would not go to a dermatologist if you felt chest pains? Most likely no, even though both of the doctors received general training. Unfortunately, many people facing serious criminal charges simply do not realize that like doctors, lawyers have different "specialities" and have specialized training and experience in those areas of the law. Unfortunately, many lawyers will "handle" your criminal defense for the excitement while other types of cases, such as divorce, are where they have experience and make their income. Most importantly, it is important to understand that driving under the influence (DUI), unlike theft crimes and other generic criminal offense are inherently complex legal matters rooted in very detailed scientific research and documentation which is not readily known by the lawyer who "also" handles criminal and drunk driving matters. A true drunk driving lawyer is a member of local and national organizations dedicated to drunk driving defense and attends State and National seminars on a regular basis, thus keeping up to date on all of the current issues in the field. Further, your criminal defense attorney should be trained in the operation of breath testing equipment and field sobriety tests in the same manner as the officers arresting his/her clients. Please see our qualifications here: San Diego DUI Lawyers Qualifications and Specialized Training.

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