Florida Criminal Defense and DUI Defense Blog

12Apr, 11

1. Alcohol and drug assessment (and possible treatment) prior to going to trial.

Once arrested for a DUI-DWI offense, most police officers assume that you may have an alcohol or drug problem.

The same may be true for your employer, or even family or friends. Right or wrong, just being arrested says to the whole world that you may have a problem.

Your attorney may suggest that you undergo an alcohol and drug assessment, and possible treatment if indicated. These programs are available almost everywhere, and most can be researched on line for information.

The first reason for this suggestion is if you do have an alcohol or drug problem, the sooner you face the problem, the sooner you are on the road to beating the problem.

Second, even if you do not have a drug or alcohol problem, the sooner you seek a private, independent assessment, the more likely this prompt action will impress your trial judge, in the event of a conviction or if your DUI-DWI attorney can arrange a favorable negotiated plea in your case.

Furthermore, the results of you actions may also be used by your attorney in his or her discussions with the prosecutor.

If this evaluation shows you have no drug or alcohol problems, this might give some credence to yet another reason why the charges against you might be lessened.

In the alternative, if the counselor suggests some educational sessions that you complete, this can be a negotiating “chit” for your attorney to use to try to get a negotiated plea in your case.

Florida has a mandatory provision that all DUI-DWI convictions require evaluation for alcohol and drug dependency. If you have already completed this condition, the court will see that you have dealt with this possible problem aggressively and without being court-ordered to do it.

Be sure that the counselor you choose is one of the state-approved providers of alcohol and drug rehabilitation, since your court or state law may only recognize state-appointed counselors.

2. Attend DUI-DWI school prior to trial.

If you attend this school at the recommendation of your attorney before either your trial or your plea of guilty, you may gain several significant benefits.

First, if there has been an administrative suspension of your license, completion of this school may allow you to get your full driver’s license again.

Second, your attendance at this school may give your attorney some leverage with the prosecution in obtaining a reduced charge against you.

Your attendance shows the prosecution your acceptance of a possible problem, and your willingness to accept responsibility for your actions.

Finally, if you are found guilty of the DUI-DWI offense, attendance of the DUI-DWI school typically will be part of your sentence.

If you have already successfully completed the school that is one less thing you have to do when the case is resolved in court. Successful completion of the school can sometimes be used by your attorney to negotiate a lesser sentence on your behalf.

Your attorney can submit to the prosecutor that you have taken this legal matter seriously, and have taken steps to address any “dependency” issues.

3. Clean up your driving history before the case reaches trial or final disposition.

As a part of taking on your DUI-DWI case, your lawyer will want to know about any of your past violations of the law, including any traffic infractions.

You must also fully disclose any pending criminal actions or traffic matters against you. This includes any speeding, reckless driving or any other traffic offenses you may have pending.

The reason for “cleaning” up your record is two-fold. First, if you have any other legal matters hanging over your head, it is far less likely your attorney will be able to make any deals with the prosecution regarding your DUI-DWI offense.

When the prosecutor sees multiple offenses, he or she will surmise that several more similar acts have probably been committed by you without detection.

Second, if you are found guilty of a DUI-DWI offense, almost anything can be used either for you or against you in sentencing. By cleaning up your record, you show the judge you are taking charge of your legal problems, your life and any impaired driving tendencies.

Finally, your attorney may be able to work out a “package” deal on all open charges, especially if all are pending within the same jurisdiction. This is a difficult undertaking, but at least let your attorney try to wrap up all pending matters.

Don’t be surprised if the prosecutor refuses to offer substantial reductions in penalties, however.

4. Make certain you have funds available to cover all costs for your criminal defense.

Once you have been arrested for DUI-DWI, you face significant expenses throughout the process. Typically, fee payments and related expenses occur over the entire length of your case, which may take a year or longer.

These expenses may include money for your bond to get out of jail, retaining the best DUI-DWI specialist attorney you can afford, the hiring of experts, investigators, accident reconstructionists, couriers, process servers, field sobriety experts and/or forensic experts to point out flaws in your breath or blood testing procedures.

You will also likely need to miss days of work, leading to that loss of income.

Other expenses you may be expected to bear may include the cost for you to attend a DUI-DWI school recommended to you by your attorney and for doing community service work or for cleaning up your driving record. Private alcohol or drug evaluation or treatment will also be a cost for you.

If you have prior convictions or legal issues in another state, you may have to employ the services of an attorney in that state to track down certified records or copies of court documents that will be needed by your present attorney.

Finally, if worse comes to worse and you are convicted of a DUI-DWI offense, there may be a monetary fine that you will have to pay, either directly to the court or through your probation officer. Fines in DUI-DWI cases typically carry additional court costs and other “statutory surcharges” or assessments associated with being on probation.

Considering all these expenses you face, it is best to look seriously at all possible avenues you have for generating the money you will need to cover these fees and expenses.

Few people can simply pay for all of this out of their pockets. Many people have to borrow funds against their assets, or liquidate some assets to have money available. Some people have to borrow money from friends or family. Some will have to put as much as they can on credit cards, and then pay the balance over an extended time period.

It is best to start exploring all of these possibilities at the beginning of your legal process in order to be able to meet these costs as they occur.

5. Keep your schedule flexible for court proceedings – save all vacation days.

One of the most difficult issues that many clients face is recognizing how little of the scheduling of court matters is within the direct control of your attorney.

One of the things out of your control (and your attorney’s) is determining when you will need to be present in court for different legal proceedings. It is the judge, and his or her clerks and assistants who set the court’s schedule.

The legal process involves several steps that require you to clear your schedule. Some of these times include appointments when you will meet with your lawyer, your investigator or possibly your expert witnesses.

You will likely have to go to the scene of your arrest for several reasons. Usually, these matters can be scheduled at times that will fit both your work schedule and the schedule of the expert witnesses. Other times, you must make your schedule “fit” the court’s schedule.

Practice varies from state to state. In some states, you will need to be present any time your case is in court. In others, a power of attorney or a written “waiver” signed by you can free you from attending certain court matters. Assuming that you bond out of jail, no preliminary hearing will usually be needed in your case.

A preliminary hearing is a legal proceeding wherein a judge (typically a magistrate judge) will be asked to review the evidence that led to your arrest to determine if your case should be bound over for further prosecution, or whether the existing evidence is too flimsy to support criminal charges.

These hearings are not full discovery proceedings and usually offer little chance for your attorney to fully examine all witnesses. However, it is unlikely that your case will merit a preliminary hearing.

Arraignment is commonly the first day that you will be expected to appear in court. The arraignment is when the full, formal charges are read to you and your “response” to these charges entered.

You can say “guilty,” “not guilty,” or offer to plead “no contest” (nolo contendere) to the charges, or you can stand mute and the judge will direct the clerk to enter a “not guilty” plea on your behalf.

You should not wait until just before your arraignment to see your lawyer, because your lawyer may need to prepare many vital written “pleadings” to be filed at, or prior to, your arraignment.

While your particular arraignment will take just a few minutes, you may need to be in court for the entire morning or afternoon because no one can assure when your case will be called among all the others.

Many courts will give priority to cases where the defendant is represented by an attorney. Also, Florida law allows a person who has legal counsel to file a “waiver of arraignment.” This would excuse you from attending court for the arraignment.

You will most likely need to be in court for any pre-trial motion hearings. These hearings are also scheduled at the convenience of the judge. Some judges will not schedule these until the morning that your trial is set to begin, even though this often inconveniences jurors. Depending on what scheduling conflicts either your attorney or the prosecution may have, the date may be reset several times.

The actual hearing can last as little as a few minutes or be heard for several days.

Unless excused by the court, you will need to be present at the hearing. Your lawyer may need your testimony or your “presence” in court, to review the testimony of the State’s witnesses for accuracy.

Also, your attorney may desire to have you testify at this hearing in order to try to win key evidentiary points in his or her quest to win your case.

Some judges require your presence in court all scheduled court dates when legal issues or scheduling of your trial is discussed. This may include “docket” or “calendar calls.” If you are unfortunate enough to have your case pending in such a court, do not blame your criminal defense specialist for the particular judge’s peculiar ways.

A docket call or calendar call is an administrative discussion between the judge and all parties regarding the scheduling of trials and pre-trial hearings.

The facts of your case are not presented and no witnesses or other evidence are typically presented at these hearings. However, if the court requires your presence in the court, you will be required to sit through the proceedings while the prosecutor, the judge and all the lawyers representing various parties discuss the upcoming court schedule.

Finally, in the event that negotiations with the prosecutor or pre-trial motions does not result in a resolution of your case, the next step in the court process will be your trial.

Surprisingly, your attorney may not know a precise date that your trial will start, due to the court trying to fit in as many cases as time will allow.

You must be ready to proceed to trial at any time your case is scheduled for one of these trial weeks. Your attorney and all of your witnesses must also be ready to go, and often with very short notice.

This means that you must be flexible and make yourself available to be present in court if your lawyer calls. For some types of employment, this is a task that is either impossible or extremely difficult.

Even more inconvenient to you, if your trial does not occur at all during the week when first scheduled, you may have been “on call” all week long. Employers do not understand or work well with such tentative scheduling of mandatory legal matters.

Please understand that other than making the trial judge aware of the job difficulties that you are facing, your DUI-DWI attorney has little control or authority to demand any accommodation of your work schedule.

Considering all of the above, it is possible that you will need to be able to take up to two weeks off from work during the year after your arrest. Some matters can be handled without you in some courts, or others can be set for a fixed date as much as a month or two in advance. Others can be limited to a given week, but not assured to be reached on a given day.

For most people, this means possibly giving up your entire paid vacation time for the year. If given the choice between having to take unpaid vacation days off from work and using your paid days, considering the expenses you face, it may be better for you to forego other vacation and use your paid “leave” days to resolve your legal problems.

6. Community service is a good thing to do while awaiting your drunk driving trial.

Most DUI-DWI statutes require some community service work as a part of their mandatory punishment scheme. These statutes require a “minimum” number of hours, depending on whether your offense is a first, second or subsequent offense within the proscribed “look back” period.

If your DUI-DWI attorney recommends that you begin doing community service hours, follow his or her advice. Getting these hours done at a charitable or non-profit organization may provide your attorney with a bargaining tool with your prosecutor.

Your prompt and early commitment to do public service may be beneficial to you if you are required to go to trial and (unfortunately) lose the case.

By showing the trial judge that you “took the bull by the horns” and got involved in a DUI-DWI school, alcohol assessment and treatment and performed community service hours, such actions can help mitigate your punishment at sentencing.

Other benefits to performing community service in advance might be that the TYPE of service you are permitted to perform on your own might be far better than the work the judge may order you to perform at sentencing or you may be able to avoid “probation supervision fees.”

These are monthly costs for a probation officer to oversee and check up on your progress in completing any court-ordered punishment such as DUI school or community service. In addition, many people who get involved in community service find they ENJOY it.

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Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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