Florida Criminal Defense and DUI Defense Blog

19Apr, 11

Defenses related to the legality or sufficiency of the indictment, accusation, complaint, information, or other charging instrument (such as a uniform traffic citation) during your drunk driving arrest

In a criminal prosecution, you start with a presumption in your favor that you are innocent until and unless proven guilty.

You also have the right to be accurately and completely informed precisely what the charges are that the State is bringing against you.

Such information is vital to protect your constitutionally guaranteed right to a fair trial. For example, if you cannot read, you must usually still receive a written copy of the official charges against you.

However, at your first appearance before the court to announce whether you plead guilty or not guilty (called your “arraignment”), the charges will be read to you in a manner and language that you can comprehend.

The paperwork starting a DUI-DWI case can be as simple as the citation or ticket that the law enforcement officer gave you at the time of your arrest.

Some jurisdictions authorize the use of such documents (and only these documents) to proceed all the way to your trial.

Other jurisdictions will permit such “charging documents” to be used, or permit a prosecutor to draft a more precise (or even additional) description of the criminal charges by way of a typewritten accusation, information or complaint that more clearly states how and when the offense occurred.

In such a case, the ticket or citation is “superceded” or replaced by the new formal document.

The State might use other types of written notification to officially notify you of all of the charges against you.

While you may have received a copy of the paper citation or ticket at the time of your arrest detailing the specific charges against you, the State has the option of bringing additional (or different) charges against you if their investigation of the facts of the case reveal that amended or alternative counts should be pursued against you.

You may arrive at your arraignment and learn that not only have you been charged with DUI-DWI (which you knew), but several alternative counts of DUI-DWI, and possibly other traffic or criminal violations as well.

For example, if the search of your vehicle uncovered marijuana, you may face charges of DUI-DWI (alcohol), plus a separate charge of DUI-DWI (contraband drugs), plus DUI-DWI (alcohol and drugs, in combination).

Because this charging document must inform you adequately and completely of the charges against you, mistakes, omissions or deficiencies in the form of the document or in the contents may be used by your attorney as means to either cause the documents to be redrawn or possibly (in certain circumstances) to completely BAR prosecution.

A demurrer (or motion to quash) is an attack by the defendant on the form or the content of the accusatory document.

The timing and form of this kind of legal challenge is very important, and requires an extensive knowledge of state law and criminal trial practice to succeed.

This is a prime reason why you need a DUI-DWI specialist who knows when, how and by what written filing of documents to best use this little-known legal challenge.

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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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