A tough concept for clients in a DUI case to understand is that they are fight two battles not just one. Both matters are completely unrelated. The DMV will have a chance to penalize you by imposing a license suspension. Another tough concept to understand is that the results in one proceeding will have little to no effect on the other.

The truth is with the DMV is that they are free to act independently of the court system. Lets say criminal charges are dismissed by the prosecutor the DMV will usually ignore this and proceed to suspending your license (assuming you lose the DMV hearing). In fact, even if a jury finds you not guilty for DUI (under VC 23152(a)), this will not effect the DMVs decision to suspend your license. Additionally, winning a DMV hearing will have no effect on your criminal case.

However, there is a concern about how a dismissal or a not guilty can effect your DMV suspension. Vehicle code section 13353.3(e) states that “if a person is acquitted of criminal charges relating to a determination of facts under the department shall immediately reinstate the persons privilege to operate a motor vehicle. An acquittal on the charge of Vehicle Code Section 23152(b). Remember, an acquittal is a ruling that is a determination of one or more factual elements that you were not driving at or over .08%.

So if you receive a not guilty verdict (23152(b)) or there is a stipulation with the court  that you were not guilty on the facts of 23152(b) then your drivers license will be reinstated.

Eligibility

For the first element you must be eligibility. The eligibility are as follows:

-Not been convicted of a prior felony

-Not been convicted of a prior misdemeanor involve force or violence

-Has not been convicted of ANY prior Misdemeanor in the last 10 years.

-Has not had a deferred entry of judgment before.

-The crime you are not charged with does not have a mandatory jail time.

-The charge is not a 290 offense, domestic violence, elder abuse, DUI, or vehicular manslaughter.

-The charge does not include any of the following: Force or violence of a peace officer, dangerous weapon, gang allegations, victim is a minor, and environmental or workplace safety crime

Now if you meet the requirements for the “Eligibility” element then now you can argue that you are also a Suitable person to be granted the diversion.

Suitability

Suitability just means you are the type of person that can be rehabilitated by attending this program. Such as you have a steady job, you are going to school, you support your family or children. Your plans for the future, any training or education you received, any 12-step or religious affiliations you have. Once the court has made the decision you have met both elements then the court may grant you the diversion program over the prosecutors objection.

The arraignment proceeding is completely procedural, which means you will not be able to argue your case before the court. The court will call your case, the court will inform you of your charges and your constitutional rights including your right to counsel.

If you are in custody at the time of your arraignment there are two issues you can address to the court: 1) Bail Reduction and 2) Probable Cause Hearing

Bail Reduction/ OR Release

Your entitled to be released on your own-recognizance unless the court makes a finding on the record that your release will compromise public safety or you are a flight risk. The court will look at a variety factors such as: 1) community ties, employment and sources of income, duration and location of where you live, property holdings, and family attachments. You bear the burden of proving these things through evidence.

However, if the court denies you to be released, you can follow it up by asking the court to reduce the amount of your bail. The court will look at the protection of the public, seriousness of your offense, your criminal history, and whether you are a flight risk. That is why it is important to retain an attorney before your arraignment date to make these arguments on your behalf.

 Probable Cause Hearing

Your attorney should consider making a probable cause motion when you want the court to make an independent judicial determination of whether there is probable cause to believe that 1) public offense has been committed and 2) you are guilty of that offense. This is a low standard but it is worth making the motion. You must be in custody at the arraignment and you must plead not guilty to move for this. The court will consider arrest warrants with supporting affidavits; 2) sworn documents including the police report and any other documents of similar reliability. If the court finds there is a lack of probable cause, the court will dismiss the complaint and release you.

Furthermore, after these procedures (if applicable to your situation) the court will then ask how would you like to proceed with your plea. This is why it is extremely important to hire an attorney from beginning to conduct the arraignment proceeding correctly.

If, after presentation of evidence, the magistrate determines that no public offense has been committed or that there is insufficient cause to believe the defendant is guilty of the charged offense, the magistrate must order the complaint dismissed and the defendant discharged. Most defendants are represented by an attorney at the preliminary hearing and the court must allow the defendant reasonable time to obtain one. Sometimes, a plea that includes a reduction of a felony to a misdemeanor charge is offered and it may only be accepted if the defendant’s guilty plea is voluntarily and knowingly made. Additionally, before accepting a negotiated plea of guilty or no contest, the court must determine that there is a factual basis for the plea. If the judge approves the negotiated plea, the judge must inform the defendant before taking the plea that:

• The judge’s approval is not binding
• The judge may at the time of the hearing on the application for probation or pronouncement of judgment, withdraw the judge’s approval of the plea in light of further consideration of the matter
• The defendant has the right to withdraw the plea if the defendant desires to do so.

The preliminary hearing must be held not less than two nor more than ten court days from the date the defendant is arraigned or enters a plea, whichever is later. The magistrate sets the time for the preliminary hearing when the defendant appears for arraignment unless one of the following occurs:

• The defendants waives the right to preliminary hearing and chooses to plead guilty
• The defendant and the prosecution waive the right to a preliminary hearing at the earliest possible time
• The magistrate grants a continuance of the preliminary hearing for good cause

Even when the defendant has waived the ten day time limit or the hearing has been continued for good cause, the hearing must be held within 60 calendar days from the date of the arraignment or plea, unless the defendant personally waives the right to preliminary hearing within the 60 days. When a defendant has waived the right to preliminary hearing within the ten day time limit, the court is not required to take an additional waiver from the defendant if the hearing is continued again within the 60 calendar days; all that is required is that the hearing be conducted within the 60 day time limit.

In general, only competent evidence that is otherwise admissible under the Evidence Code may be introduced at the preliminary hearing. In felony cases, defense counsel may move for the suppression of any evidence, tangible or intangible, that is the product of an illegal search and seizure at the preliminary hearing if the prosecution seeks to introduce the evidence at the hearing. A search and seizure motion may be used to litigate suppression of illegally seized evidence. It may not be used to challenge an allegedly illegal confession or identification unless the confession or identification was the result of an illegal search or seizure.