DUI PROCEDURE

• Release Following DUI Stop
• The rules of criminal procedure permit the release of a DUI suspect once the police investigation is completed. An intoxicated suspect can be released to a sober adult. Once a suspect is sober they may be releases. Therefore, DUI suspects are typically not held in jail post-investigation unless they are intoxicated and a danger to others or themselves.
• Notice of Charges & Criminal Complaint
• Pursuant to the rules of criminal procedure, the proper manner to file charges and give notice to an individual accused of DUI is by filing a criminal complaint and serving them via USPS mail with a summons to appear in court.
  
  All DUI cases start in district magistrate court, which is the lowest level of criminal court. This court is responsible for sending notice to the accused, setting bail, and conducting a preliminary hearing. Judges at this level may, but are not required to be, licensed attorneys.
• • Criminal Complaint
  • A criminal complaint is the charging document in DUI cases. It identifies the accused and the charges filed in the case. It also contains an affidavit of probable cause that is the arresting officer’s narrative version of the crime
  • • DUI Statute of Limitations
    • In Pennsylvania, the statute of limitations for DUI is two (2) years. This means that he police have two (2) years from the date of the offense to file the charges.
    • Errors in the Complaint
    • It is important to note that criminal complaints are freely amendable. Thus, any errors can be corrected and are unlikely to result in the case being dismissed unless they impact the substance of the case. Regardless, even if a case is dismissed for defects in the complaint, it can be re-filed.
  • Notice to Appear
  • At the time the criminal complaint is sent, the accused is also sent a notice to appear in court. The accused must appear a bench warrant will be issued for their arrest.
  • Fingerprint Order
  • Likewise, the accused may also receive a notice to get fingerprinted. The ruled of criminal procedure require that all people charged with a misdemeanor or felony are processes (fingerprinted and photographed). Suspects are immediately reassessed upon being processed.
    
    I advise my clients to appear for fingerprinting but to remain silent concerning the facts and circumstanced of their case. I sometimes make arraignments for my clients to appear for processing the day of their preliminary hearing.
  • Bench Warrants
  • Bench warrants are issued when an accused failed to appear as directed. They will also be issued if a suspect’s mail is returned to the court as undeliverable. Bench warrants are unpleasant and have a way of resolving themselves in the most inconvenient manner. A bench warrant will likely be discovered upon having any police contact and can result in unnecessary jail time.
    
    If a bench warrant has been issued against you, it is best to immediately contact a lawyer to start the process of getting it lifted.
• Seeking DUI Counsel
• • ​Pro Se
  • Anyone can represent themselves in a DUI prosecution. Few people should.
    
    As this article suggests, DUI law is extremely complex. It cannot be learned on the Internet. Even if it could, the Internet cannot prepare one for the courtroom. Further, courts are subject to human error. No case is “easy” and too many things can go wrong when people are involved. Having a lawyer is always advisable when confronted with a criminal case.
  • Applying for a Public Defender
  • The public defender is free to anyone who financially qualifies. Public defenders are often very experienced criminal defense lawyers. Many devote their professional life to representing indigent criminal defendants free of charge. It is a difficult and admirable career. Many public defenders are also excellent trial lawyers.
    
    An accused may need to hire a private criminal defense lawyer if they do not qualify for the services of the public defender because they make or have too much money.
    
    Further, while an indigent person is entitled to a free lawyer, they are not entitled to the lawyer of their choice. Likewise, they are not entitled to the same lawyer for each court appearance. Therefore, even if a person qualifies for the public defender, they may decide to hire a private defense attorney because they want to choose their lawyer.
    
    In addition to wanting to choose the lawyer that defends them, the accused often hire a private lawyer to get greater access and attention. Having a private lawyer enables an accused to discuss their case, prepare their defense, and have a “game plan” prior to appearing in court. In short, a private defense attorney does not have the burdensome caseload of a public defender and can give greater time and attention to a specific case and client.
  • Hiring Private DUI Counsel
  • When confronted with the life changing penalties associated with a DUI charge, it is wise to hire a private criminal defense attorney, provided you have the financial ability to do so. Choosing which lawyer to hire is an extremely important and personal decision. Of course, I also suggest that you must speak with a lawyer prior to retaining one. It is essential that you trust your instincts. Nevertheless, I will offer some guidelines. Be sure that the lawyer you hire:
  • • Possess ample experience defending DUI cases.
    • Has sufficient experience practicing in the court your case is in.
    • Gives you confidence in their knowledge.
    • Is interested in you.
    • Is interested in you case.
    • Is willing to give you their time when you speak with them.
    • Understands that this is YOUR case and it is IMPORTANT.
    • Does not make promises or guarantees (I suggest running from anyone who does).
    • Does not suggest that their personal relationship with the prosecutor of judge will achieve your goals.
    • Finally, the most expensive lawyer may not be the best lawyer, the least expensive lawyer may not really be the best deal; and, the lawyer in the biggest city may not know how to get to where you are being prosecuted. caveat emptor.
      
• Preliminary Arraignment & Bail
• At preliminary arraignment, the magistrate court will read the charges to the accused and set bail.
• • Bail in DUI cases
  • There are two fundamental purposes of bail. The first is to encourage the accused to appear in court. The second is to protect society.
  • • Bail Conditions
    • In general, courts can set whatever condition on a bail that are necessary to motivate appearance and protect society.
    • • Standard Bail Conditions
      • A summary of the standard conditions of bail are:
      • • • Appear as directed to court hearings
          • Notify the court of a change of address.
          • Stay out of trouble and obey all laws.
          • Avoid all contact with any victim, witness, and/or the arresting officers. Don’t seek to harass or intimidate them. Don’t seek a third party to harass or intimidate them on your behalf.
      • Non-Monetary Bail Conditions
      • Courts will often also add non-monetary bail conditions that require an accused for refrain from all use of alcohol and non-prescribed drugs. These conditions typically include a requirement that the accused timely complete a CRN evaluation. They may also require pre-trial supervision, house arrest, and/or participation in alcohol and drug treatment (typically outpatient) programs.
  • Types of Bail
  • Bail can be secured, unsecured, ROR, or have non-monetary conditions.
  • • Secured Bail
    • Secured bail means that the accused must pay cash or offer collateral to be released. When a secured or cash bail is set, an accused may seek the services of a bail bondsman, who will post bond for a percent of the total bail and be responsible for ensuring the accused appearance. If a secured bail is anticipated, it is important to have a bondsman ready before bail is set.
    • Unsecured & ROR Bail
    • When bail is unsecured, the court will set a monetary value that only becomes due if the accused violates the terms of the bail. In other words, it becomes a promise to pay the court a sum of money if the terms are broken. Provided the terms are followed, no money is owed or due to the court.
  • Preliminary Hearing
    
  • The preliminary hearing is the first substantive hearing on any criminal charge. While a court may conduct a bail hearing at the preliminary arraignment, that hearing only considers the accused’s personal history and the grading of the charges. The preliminary hearing is a very important moment in a case because it is usually the first opportunity to speak to the prosecution about the case. It is also a critical moment in the case because it may determine the track a case will take towards resolution. Thus, it is critical to have a plan in place before attending a preliminary hearing. In short, the accused and counsel should discuss if the case will be a full hearing or a waiver and the reasons in support of making that choice. In deciding how to proceed with a preliminary hearing it is important to understand the rules that apply at these hearings. In short, preliminary hearings are not trials and the rules heavily favor the prosecution and suggest that most DUI cases will be prosecuted in the Court of Common Pleas. In other words, few DUI cases get dismissed at the preliminary hearing. Regardless, even if a case is unlikely to be dismissed at a preliminary hearing, there are strategic reasons for having requiring testimony at the magistrate level.
  • • Where is the Preliminary Hearing?
    • Preliminary hearings are held in magistrate district courts. These courts are in the magistrate judge’s office. They are often located in municipal building that also house a police station or other local government services. They are typically small and basic courtrooms. As a practical point, the building were these courts are located often do not look like courthouses and can be difficult to find.
      
    • Purpose of the Hearing
      
    • At a preliminary hearing a magistrate judge must determine whether the Commonwealth established a prima facie case. This means that magistrate must be satisfied that the prosecutor can show that a crime was committed and that it is more likely than not that the accused committed the offense. The purpose of the hearing is to see if there is enough evidence for case to continue against the accused and to send the case to the Court of Common Pleas. The Court of Common Pleas are the county courthouses (the “big” courthouse) where cases are held for trial.
      
    • Lowest Burden of Proof
      
    • The burden on proof is at its lowest at a preliminary hearing. As noted the Commonwealth only needs to show that a crime occurred, and it is likely that the accused committed the offense. So, a preliminary hearing is not a trial. Of course, the prosecutor must prove a case beyond a reasonable doubt at trial. Accordingly, if the prosecutor can establish that the accused drove a vehicle and showed signs of impairment, the case will be forwarded to the Court of Common Pleas for further prosecution.
      
    • • Preliminary Hearing Waivers
        
      • In general, most preliminary hearings are waived. This is especially true for DUI cases. Waiving a preliminary hearing means that accused agrees that the case will be sent to the Court of Common Pleas for prosecution without requiring the Commonwealth to produce testimony in the magistrate court. Waiver is appropriate when it seems obvious that the Commonwealth can establish prima facie evidence.  Waiver is not an admission of guilt.
        
        An accused’s right to a preliminary hearing can be used as a bargaining tool in DUI prosecutions. The Commonwealth may agree to an unsecured bail or to withdraw certain summary or non-DUI offenses in exchange for a waiver.
        
        Further, an accused may also agree to waive their preliminary hearing because waiver may be a condition to participate in a diversionary program such as ARD or a treatment court, or to gain the Commonwealth’s support for sentencing alternatives like credit for inpatient rehab or house arrest.
      • Testimony & Evidence at a Preliminary Hearing
        
      • Testimony at a preliminary hearing should be required in DUI cases where the elements of the offense are deficient. While an accused always has a right to a preliminary hearing, they should consider the rules that apply to these hearings and the specific goal they hope to achieve by having a full hearing in their case. Not only is the burden of proof low at a preliminary hearing, the rules of evidence are also relaxed to favor the prosecution. For example, while hearsay evidence is generally inadmissible at trial, it is admissible at a preliminary hearing. This is an important rule because it permits an officer to testify to what other people may have said on scene or to what others may testify to at trial.  
        
        Moreover, it is important to note that “double jeopardy” rights do not attach at a preliminary hearing. This means that even if a case is dismissed after testimony is heard at a preliminary hearing the case can be re-filed against the accused.
  • Required DUI Evaluations
    
  • • CRN
    • Anyone charged with a DUI in Pennsylvania must complete a Court Reporting Network (CRN) evaluation. A CRN is a onetime drug and evaluation used to determine if an accused needs treatment services. The law requires this evaluation to be completed before a case is resolved. Courts will not permit an accused into ARD or sentence an offender without a completed CRN. This is a strange requirement since it conflicts with an accused’s rights to remain silent during a prosecution. Accordingly, it is important to understand the track a case will likely pursues as early as possible. DUI defendants seeking a trial should delay the CRN and will only have to complete the evaluation should they be convicted.
      
    • Full Drug & Alcohol Assessment
      
    • Full Drug & Alcohol Assessments are statutorily required in certain DUI cases. This means that regardless of the result of the CRN, some DUI suspects must also complete this more comprehensive evaluation. A Full Drug & Alcohol Assessment may also be required based on the results of the CRN evaluation. Further, these evaluations are required to participate in certain sentencing alternative programs such as house arrest.
  • Formal Arraignment
    
  • Formal Arraignment is the first court proceeding in the Court of Common Pleas. It should be waived as the purpose of the hearing is a procedural formality. Those who attend formal arraignment enter a not guilty plea and are read the charges files against them. As a practical matter, formal arraignments are a waste of time. Nevertheless, failure to appear at formal arraignment without a properly executed waiver, will result in a bench warrant being issued against the accused.
    
    While it is not a substantive hearing and should be waived, formal arraignments dates are important for procedural and case management purposes. Whether an accused attends formal arraignment or waiver their appearance, the date of formal arraignment triggers the time periods to make certain request and make specific challenged to a DUI case.
  • • Bill of Particulars
      
    • An accused has seven (7) days from the date of formal arraignment to file a Bill of Particulars. The purpose of this document is to request specific information about the allegations that may have been omitted from the criminal complaint (time, date, location, etc.). This is rarely requested in a DUI case.
      
    • Request for Discovery
      
    • Discovery is the term used to generally describe the things that the government has and may use to prosecute an accused. It is the prosecutor’s case file less their work notes and strategy. Requesting and reviewing Discovery is necessary to evaluate and defend a DUI case. While it can be requested earlier, a defendant is not entitled to Discovery prior to formal arraignment. According to the rules of criminal procedure, Discovery must be requested within fourteen (14) days of formal arraignment.
      
    • Omnibus Pre-Trial Motion
      
    • An omnibus motion is a document consisting of one or several motions requesting specific relief such as suppression of evidence or dismissal of charges based on a violation of law. An omnibus must be filed within thirty (30) days of formal arraignment. Upon filing the motion, a pre-trial hearing is scheduled for testimony and argument.
      
  • DUI Case Paths
    
  • There are multiple paths a DUI case can take through the court system. The path chosen depends on the facts of the case and the accused’s goals in resolving the case. Choosing the correct path is extremely important and should be done with the advice of experienced counsel.
    
  • • Preliminary Hearing Resolution
      
    • • Dismissal
      • DUI cases can be dismissed at a preliminary hearing for lack of prosecution or evidence. It is rare that the police fail to appear for a DUI preliminary hearing. It is also infrequent that cases are dismissed at a preliminary hearing. It happens, it just isn’t typical. Moreover, dismissal at a preliminary hearing does not prohibit the police or DA from re-filing the criminal charges.
        
      • Guilty Plea at Preliminary Hearing
        
      • The rules of criminal procedure permit a magistrate court to accept a guilty plea to first offense DUI cases at the lowest level. Lampman Law practices in one county that permits this resolution when it applies. To be eligible for this resolution, the defendant must have the CRN completed prior to the hearing. Doing this avoids additional court appearances and court costs. Nevertheless, it results in a misdemeanor conviction, 6 months probations, and payment of the costs of prosecution.
        
    • Diversionary Programs
      
    • Diversionary programs remove cases from a trial list for a period of time when an accused is given the opportunity to complete a term of supervision in place of traditional prosecution. There are many types of diversion programs but not all apply to DUI cases.
      
      All diversionary programs require an accused to waive certain rights. Obviously, all require waiving the right to trial. They also require a waiver of speedy trial rights. These waivers are outweighed by the benefits of participating in the program. They also make sense. First, because these programs are designed to avoid trial, waiving trial does not harm the participant. Moreover, should the participant be dismissed from the program, the right to trial is restored. Second, it makes sense that the period to prosecute a case should be extended while participating in the program since it is requested by the accused and agreed to for their benefit. In short, the prosecutor must forgo trial to allow the accused the chance to successfully complete the program. Should the accused fail to complete the program, the prosecutor will return the case to the trial list for resolution via plea or trial.
    • • ARD
      • An Accelerated Rehabilitative Disposition (ARD) is a great way to resolve a case that is likely to result in a conviction at trial. The program consists of a term of probation (typically 6 or 12 months), a driver’s license suspension (30, 60, or 90 days), unless it is at the lowest tier without a crash, where there is no suspension. ARD avoids the mandatory minimum terms of confinement and fines. Successful completion of the program results in dismissal of the case and the criminal record becomes eligible for expungement (the ARD resolution will still appear on a driving record and will count as a prior offense in future DUI prosecutions).
        
        ARD cases typically require two (2) court appearances (the preliminary hearing and an ARD hearing).
      • • ARD Eligibility
          ARD is only available to first offense DUI prosecutions.
          The statutory eligibility requirements are as follows:
        • • No DUI convictions or resolutions within the prior 10 years (unless the prior was a first offense under 3802(a)(2);
            
          • No crash involving death or serious bodily injury to another;
            
          • No passenger under age 14 in the accused’s vehicle.
            
          • In addition to the statutory requirements, the District Attorney for each county can place additional eligibility requirements on ARD. These additional terms of eligibility can disqualify an individual from ARD because of:
            
          • • Any prior DUI.
              
            • Any criminal record.
              
            • Lack of a driver’s license or a suspended license.
              
            • A terrible driving record.
              
            • Lack of auto insurance.
              
            • Drug offenses charged with the DUI offense.
              
            • A BAC over a certain level.
              
            • A passenger under 18 years old.
              
            • Objection from the arresting officer.
              
            • Other reasons based on the facts of the case.
              
        • ARD Program Terms
          
        • DUI ARD does not include any additional terms or conditions that a DUI offender would otherwise be required to complete. There is a common misconception that ARD participants must do extra programming. As explained, this is not true. Like all DUI offenders, a DUI ARD participant must Complete:
          
        • • CRN.
            
          • Full Drug & Alcohol Assessment, if required.
            
          • A term of Drug & Alcohol treatment if recommended.
            
          • AHSS.
            
          • Community Service.
            
          • A victim impact panel (if ordered).
            
          • Litter brigade (if ordered).
            
          • Pay court costs, the cost of prosecution, and a monthly supervision fee.
            
          • ARD participants may have to pay an ARD administrative fee; however, these fees are lower than the mandatory minimum DUI fines that ARD avoids.
            
          • • Consent Decrees
              
            • A consent decree is diversion program similar to ARD for juvenile offenders. A consent decree in a DUI case is noteworthy here because it requires a 6-month license suspension.
              
            • Treatment Courts
              
            • Treatment courts can be useful to resolve non-ARD eligible first offense DUIs and subsequent DUI prosecutions. These long-term programs include, veteran’s courts, drug and alcohol courts, and, in very limited situations, mental health courts. Treatment courts are designed for offenders in need of treatment and that are ready and willing to submit to treatment. Some include periods of jail and/or house arrest. All include strict supervision and require significant time commitments and real work. In sum, these programs are not easy, require participants to plan their lives around the program, and require commitment. Most treatment court participants would agree that serving a jail sentence would be much easier than resolving a case with treatment court.
              
          • Guilty Plea​​
            
          • Most DUI cases end with a guilty plea. A guilty plea is a conviction equal to being convicted at trial. When one pleads guilty they convict themselves and relive the Commonwealth of all their burdens and obligations to prove the case.
            
            A properly negotiated guilty plea can be a great resolution to a DUI case that would otherwise likely result in a conviction at trial.  Of course, the decision of whether to plead guilty should be made with the assistance of experienced counsel based on the facts of the case, a review of all the Discovery, and after a full investigation of the case.
        • Trial
        • All DUI cases have a right to trial. As noted, not all DUI cases have a right to a jury trial. More importantly, it is important to understand that having the right to a trial does not mean that trial is right for your DUI case. The point of taking a case to trial is to win. If winning is not possible, seeking diversion or a sentencing program will likely cut legal fees and offer the better resolution.
          
          Indeed, taking any case to trial is a commitment and you must be fully invested in challenging the case. An accused will likely have to appear in court several times before a case is “ready” for trial. Even if the accused does not have to appear at all the pre-trial or status conference, the lawyer usually must appear for each.
          
          Of course, trial requires a detailed review of Discovery and a full investigation of the case. It may require additional cost such as retaining an investigator and experts to testify at trial.
          
          Making the decision on whether to take a DUI case to trial, or to resolve it otherwise, is the most important decision an accused must make. It is critical that you make this decision with a lawyer that understand the law, the facts of your case, the local courts, and what you have at stake. Likewise, it is essential that you make this choice with a lawyer that you trust.
        • Sentencing Alternatives
          
        • There are many sentencing alternative programs used to resolve DUI cases. The most common are house arrest, credit for inpatient treatment, and modified confinement.
          
        • • House Arrest
            
          • First, second, and third offense DUI offenders are statutorily eligible for house arrest. Fourth and subsequent DUI cases are not edible. House arrest is a permissible sentencing alternative within the county intermediate punishment program.
            
            To be eligible, a DUI offender must apply for the program and complete a full drug and alcohol assessment. Most counties require a land-line telephone and for participants to reside within the county prosecuting the case. Some counties will agree to transfer house arrest to another county so long as the county of residence agrees to accept the supervision. House arrest costs about $10.00 to $15.00 per day so it can be expensive. Some counties accepting a house arrest transfer require full payment for the term of house arrest as a condition to accepting the transfer. Obviously, this is expensive for long house arrest sentences.
            
            House arrest is an alternative to mandatory DUI jail sentences. It is typically used for employed DUI offenders who would lose their jobs if sentenced to jail. Courts can use house arrest to fulfill the entire mandatory minimum term of confinement; however, some courts will require a period of the sentence to be served in jail.
          • Work Release
            
          • Work release allows a DUI offender to leave the jail to report to work. While most DUI cases are eligible for work release, there are logistical issues that may impact whether a jail grants the work release. For example, the offender’s job must be close enough to the jail to make release feasible. There are also transportation issues to consider.
            
          • Weekend Reporting
            
          • Some courts will permit a DUI offender to serve a lengthy mandatory jail sentence over the course of several weekends.
            
        • Appeals
        • After every sentence, a defendant has ten (10) days to file a motion to modify and reduce a sentence. Offenders also have thirty (30) days to file a Notice of Appeal seeking review of a sentence in the Superior Court.
          
          In sum, DUI offenders have the same post-sentence, appellate, and post-conviction (PCRA) rights as any other criminal defendant.
        • Clearing DUI Criminal Records
          
        • The rules on expungements, limited access orders, and governor’s pardons are complex, and a full discussion is beyond the scope of this article.
          
        • • Expungement
          • DUI cases that are resolved in the charges being withdrawn, dismissed, or with an acquittal or ARD may seek expungement. Acquittals and ARDs are entitled to expungement as a matter of law; however, the extent of the expungement differs.
            
          • Limited Access Orders
            
          • DUIs that are graded as a misdemeanor and a misdemeanor of the second degree are eligible for a limited access order provided that the terms of the conviction have been satisfied and the offender has remained free of criminal prosecution for at least ten (10) years following their release from probation.
            
          • Governors Pardons
            
          • DUIs graded as a misdemeanor of the first degree or as a felony are only eligible for an expungement once a governor’s pardon has been granted. Governors pardons are a lengthy process and should be supported by extraordinary circumstances in DUI cases. In short, a case may be appropriate for a governor’s pardon when an accused can show that they have been fully rehabilitated and need the pardon because the criminal record is preventing employment or some other important interest. Considering that the DUI look-back period is ten (10) years, a DUI offender seeking a pardon should wait at least that long before seeking a pardon.