THINGS YOU SHOULD KNOW WHEN YOU ARE ARRESTED FOR A DUI
There is a lot to know when you have been arrested for a DUI. The following is a brief outline of what to expect during both the DMV and Criminal process.
One of the first steps we take is to demand the discovery materials (police reports, recordings, etc.) from the district attorney/prosecutor. We need these items in order to fully evaluate the case. The timeline for receiving these items may vary between a few weeks to months. After we have gotten all the materials requested we will typically contact you in order to discuss our assessment and discuss how to proceed.
Practical Legal Advice When Stopped For DUI In Alaska
KEEP US ADVISED OF YOUR CONTACT INFORMATION
Often times people move or change their phone number. It is very important for us to always have current contact information for you. We will have you sign a Consent to Proceed, this is a form where as an attorney on a misdemeanor we may appear on your behalf. On a felony you must appear at every court appearance or you risk an additional charge. We will always keep you informed of court and hearing dates that you will need to attend so that you can arrange your schedule accordingly.
THE DMV HEARING REQUEST AND YOUR DRIVING PRIVILEGES
When you are arrested and charged with a DUI you are given a “Notice and Order of Revocation.” This is a form that granted you temporary driving privileges for a period of 7 days only (assuming you had a valid license at the time of your arrest). As soon as a DMV hearing is requested your temporary driving privileges will be extended by the DMV until the date of the DMV hearing (unless you choose to start a license revocation sooner).
If you hired us within 7 days after your arrest, we will immediately request an administrative (DMV) hearing for you. This request will extend your temporary driving privileges at least until the date of your administrative hearing (unless the court should order a revocation of your license before that time). The DMV hearing is usually scheduled approximately 4-6 weeks in the future.
The DMV will send you a notice of the DMV hearing in the mail (usually this is sent by certified mail). The notice of hearing you receive will also serve as a temporary driver’s license until the date of the DMV hearing. Although you will not receive this notice for several days, your temporary driving privileges will continue as soon as we send in the request for hearing.
If we prevail at the administrative DMV hearing, you will be eligible to get your license back, simply by requesting a duplicate license at the DMV.
YOUR FIRST COURT HEARING
Your first court hearing is called an “arraignment.” At the arraignment a plea of “Not Guilty” is entered, and the judge schedules a trial date. If you hired us before your arraignment, we will appear at your arraignment for you, and will enter a “Not Guilty” plea. Unless we tell you otherwise, you will not need to be present at this hearing. It does not help your case at all by being present at the arraignment, since we simply enter a “Not Guilty” plea and schedule future court dates. At the arraignment the court will schedule a pre-trial conference hearing, and a trial call date. We will send you notice of all future court dates. Trial is usually scheduled for a date approximately 6-12 weeks after the arraignment. Again, within a few days after the arraignment you will receive a letter and/or call from us advising you of all future court dates.
FUTURE COURT DATES AFTER ARRAIGNMENT
Unless we advise you otherwise, you will not need to be at the pre-trial conference or trial call. At the “calendar call” we will appear for you.
The DMV hearing is almost always a telephonic hearing. The hearing officer would be on the telephone in her office. We would be on my phone at my office, and the officers who are subpoenaed to testify would also be called telephonically. Your presence at the DMV hearing is not mandatory. Often, our clients do not testify at the DMV hearing. Sometimes they do. It depends entirely on our analysis of the case and the issues involved.
DMV AND COURT – TWO COMPLETELY SEPARATE PROCEEDINGS
The DMV proceeding is completely separate and apart from your court case. The DMV hearing usually, but not always, occurs before the case is resolved in court. The result in the DMV case is not dependent on the result in the court case, and vice-versa. This is because the DMV case is an “administrative” proceeding, whereas the court case is a “criminal” proceeding. In the DMV hearing, the burden of proof is a “preponderance of the evidence” standard – this means proof “more likely than not.” On the other hand, the burden of proof in the criminal case if the case goes to trial is “beyond a reasonable doubt”. Obviously, it is much more difficult for the prosecution to prove guilt “beyond a reasonable doubt” than by a “preponderance of evidence.” Additionally, a single hearing officer decides your case at DMV, and formal rules of evidence do not apply. If your criminal case were tried, we would have the right to unanimous verdict by a jury of six.
There are, however, some instances in which the DMV may be bound by what happens in the criminal case. For example, if we can get the breath test result or refusal “suppressed” or thrown out in the criminal case before the DMV hearing, the DMV may be required to rule in our favor and dismiss the license revocation action. Additionally, if we have good grounds to suppress the breath test evidence or refusal evidence, we may prevail in the DMV proceeding, even if that DMV hearing is held before the criminal case is resolved.
Both the DMV and the court can revoke your driving privileges. This means that we will need to prevail in both proceedings in order to avoid a loss of your license. If we prevail in both proceedings your license will be reinstated in full.
Our hope and intent is to avoid a license revocation altogether. If, however, the DMV rules against us, the DMV (or the court if convicted of DUI) would revoke your driving privileges. If you have no prior convictions for DUI or refusal in the last 15 years before your arrest, a revocation would be for 90 days. If revoked for DUI, the first 30 days of the revocation is absolute, with no driving whatsoever. During the last 60 days of a 90 day revocation, you could apply for a limited license for work purposes only. There is no option for a limited license if revoked for refusal of the breath test.
A “work permit” (limited license for last 60 days of 90 day revocation) requires that you be enrolled in an alcohol treatment program recommended by ASAP (the “Alcohol Safety Action Program”). You must have the ignition interlock device installed on your vehicle and a supervisor of your employment must sign off on a limited license application – indicating your hours of work. If you are self-employed you can sign the application yourself, but you will need to present a copy of a business license to show proof of your self-employment. A limited license application is available on-line at http://www.state.ak.us/local/akpaaes/ADMIN/dmv/forms/pdfs/404.pdf. You can also obtain one at the DMV office.
THE ULTIMATE RESOLUTION OF YOUR CASE
There are many ways that your case may be resolved. After our review and analysis of ALL of the relevant discovery materials, we will be in a much better position to advise you on the best course to proceed.
There are several possibilities. First, it is possible that your case may be dismissed. Second, it is possible that we may be able to negotiate the charges in your case to a lesser offense. Third, there may be pretrial “motions” to file, in which we ask the court to exclude or suppress evidence, such as the breath test evidence. Fourth, your case may go to trial, in which case you would either be acquitted (not guilty) or convicted (guilty). Fifth, you may choose to plead guilty to a DUI.
ALCOHOL TREATMENT PROGRAMS
People who have been arrested for DUI sometimes ask us if they should get alcohol treatment. Our expertise is in the legal field. Our job is to achieve the best possible result in your court case, and we will do everything possible to resolve your case in a manner that serves your best interests. Rather or not you pursue treatment is a decision we will happily discuss with you, but is ultimately your decision.
In addition, if your license should be revoked for a first offense, enrollment in an alcohol treatment program is required for you to obtain a limited (work) permit. In that event, you would need to contact ASAP (Alaska Alcohol Safety Action Program) to enroll in a state approved program. The telephone number for ASAP in Palmer is 746-6260 website http://www.hss.state.ak.us/dbh/prevention/programs/asap/default.htm. It never hurts, in attempting to negotiate a DUI charge to a lesser offense, if you have already enrolled in an alcohol treatment program before your case is ultimately resolved. Finally, if the court should later order you to complete treatment recommended by ASAP, you will not have to repeat that treatment if you have already done so through ASAP.
PENALTIES FOR A DUI AS 28.35.030
First Offense: not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted; 90 Day License Revocation. 6 Months of Ignition Interlock Device.
Second Offense: not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once; 1 year License Revocation. 12 Months of Ignition Interlock Device.
Third Offense: not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (n) of this section; 3 year License Revocation. 18 Months of Ignition Interlock Device.
Fourth Offense: not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (n) of this section; 5 year License Revocation. Throughout the period of probation must use an Ignition Interlock Device.
Fifth Offense: not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (n) of this section; 5 year License Revocation. Throughout the period of probation must use an Ignition Interlock Device.
Sixth Offense: not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (n) of this section; Throughout the period of probation must use an Ignition Interlock Device.
*Period of probation for a misdemeanor is typically for 3 years from the Date of Conviction.
A person is guilty of a class C felony if the person is convicted under the misdemeanor section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under AS 28.35.032 (p) [Refusal Statute] was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions.
:shall impose a fine of not less than $10,000 and a minimum sentence of imprisonment of not less than
(A) 120 days if the person has been previously convicted twice (of misdemeanors);
(B) 240 days if the person has been previously convicted three times;
(C) 360 days if the person has been previously convicted four or more times;
Revocation of your Driving Privilege for Life if convicted of a Felony DUI. You may be eligible to apply for a license after 10 years, but it is within the discretion of the DMV whether or not to grant you a license.
*Period of probation for a felony is typically for 3-5 years from the Date of Conviction. You will be supervised by a probation officer and have terms and conditions of probation you will have abide by.
CDL: Upon a first conviction for DUI you will lose your Commercial Driver’s License for minimum one year. Upon any subsequent conviction for DUI you will lose it for life.
Must enroll and complete ASAP: The amount of treatment is dependent on the recommendation by the treatment provider.
10 Points on your DMV Record
SR-22 Insurance: 5 Years for the First Offense DUI. 10 Years for Second Offense DUI. 20 Years for Third Offense DUI. Any more convictions then if the person is licensed to drive they must provide SR-22 Insurance.
I realize that there is a great deal of information here, and that it may appear overwhelming. You cannot change what has already happened, so our suggestion is you not expend too much energy and emotion on the past. Rather, try to think positively and rationally about the future, and rest assured that we will work our hardest to obtain the best possible result for you in your case. That is what we do best.