Traffic Stop & Arrest
A DUI/DWI begins with a traffic stop. For an officer to have the right to pull someone over, he must have a reasonable 'articulable' suspicion that a traffic violation has occurred. 'Articulable' means more than just a mere hunch, but a reason that can be put into words. Examples of a proper reason include swerving, speeding, or even a broken tail light. It can be any violation, and if an officer witnesses a violation that is not related to a DUI/DWI, and properly pulls the driver over, that stop will still be proper if the driver is later arrested for intoxicated. Thus, the officer only needs evidence that the driver is breaking the law to conduct a traffic stop, not necessarily evidence that a DUI/DWI has been committed. That being said, a viable defense may still be that the officer did not have a reasonable and 'articulable' suspicion to make the stop. Once the stop has been made, if the driver provides the proper identification, license and registration, that officer cannot detain the driver for a search, unless there is evidence of some type of criminal conduct. Thus, unless there is probable cause for DUI/DWI at that point in the procedure, the driver must be released. However, if probable cause of intoxication does exist, an arrest can be made and a breathalyzer may be administered.
When a driver is arrested for a DUI/DWI, the next step is arraignment. This is when a person goes before the court and is formally charged. A judge will read the charges allowed, and the accused will enter a plea of guilty or not guilty. In order for certain constitutional protections to be raised at trial, the court must be informed during the arraignment of which defenses shall be used, or the ability to use them at trial may be lost. This is one of the many reasons it is very important to have an attorney. Additionally, if an attorney has been retained, the accused's appearance at the arraignment can usually be waived.
The next process is the discovery process. This is the part where the police turn over all the evidence they have against the driver to the driver's attorney. Sometimes the police can take a while to do this, and can cause the case to be delayed. The driver's attorney cannot proceed without this information because it provides a detailed account of the arrest, and from it the attorney can determine whether any constitutional defenses apply. Lack of reasonable suspicions for the traffic stop and lack of probable cause for arrest fall within the umbrella of the 4th Amendment right against unreasonable search and seizures, and if the records reflect that the police acted above their duties, an attorney can challenge any evidence stemming from that error and have it barred from trial. This is one way to have charges dropped. Additionally the attorney needs this information to determine whether there were problems with the administration of a breathalyzer. There are several requirements that must be met for breathalyzer evidence to be admissible. First, the officer who gave the breathalyzer must have been properly certified. Second, the machine must have been used properly. And third, there must have been nothing wrong with the machine, and it must be demonstrated that the machine was certified for use. This gathering of this information is all part of the discovery process.
Before the trial, the defendant's attorney, after consultation with his client, may negotiate with the prosecutor for a plea agreement. Sometimes there are facts that are advantageous to the defendant, or there are problems with the prosecution's case, but not to a high enough level where charges could be dropped. This type of information can be used by a defense attorney to negotiate for lesser charges or lesser penalties in exchange for a guilty conviction. Sometimes a client may choose to opt for a diversionary program in exchange for a guilty plea. This is where the client agrees to plead guilty and forego trial, and in exchange he must participate in a program that requires certain conduct to be maintained over a period of time. One of the benefits of a diversionary program is that if it is successfully completed, the defendant's criminal record will be sealed, and his attorney can move to have it expunged.