Being Charged with a DUI When You Reside Out-of-State


Interviewer: As you’re in wine country, I imagine you probably have a significant number of people visiting there. What happens to those people that are visiting and do not live there? Is the DUI process any different for them?

Steve: Sonoma has its fair share of wineries, so you can refer to Sonoma County as wine country as well. That’s a different situation. For an out of state resident that’s visiting and going wine tasting and ends up getting a DUI, it’s not necessarily unfair that bail be set because they reside out-of-state. They have no ties here, so there’s no way to completely be certain that that person’s going to make the appearance.

Under those circumstances, I can see and I don’t argue with them setting a reasonable bail. That still would be the same exact bail that they would set for an in county person. For example, say they set a $10,000 bail. That person is still going to have to come up with a $1,000 premium. They can do that on their own. Or, they get help doing it by contacting a bonding company.

If You Retain a Local Attorney, They Can Make Court Appearances on Your Behalf

After posting a bond, they usually leave to go home. What ends up happening is they will inevitably get online to try to find a lawyer. I’ve had some of my best successes with out of state residents for their cases because under the law I can make all the appearances for them. It can be done by phone and computer and fax, and their case can be handled very effectively.

Interviewer: Do people call you when they have to bond out of jail? Do they usually call you, whether they’re in state or out of state, once they’re out of jail?

Per California Law, You Cannot Contact a Lawyer from Jail After You Have Been Arrested for a DUI

Steve: That’s the thing. California has its own laws. What they’ve done in California is they’ve stripped people of their right to a lawyer for a DUI case. Even though the DUI is a criminal case, it’s a misdemeanor. You can go to jail, and people routinely do, they’ve taken the lawyers out of the process, and that is disturbing.

It’s extremely disturbing because in certain states, for example, Minnesota, where I’m from, I was getting calls all the time from jail, all the time, on a regular basis. It would wake me up. I would have to handle the call, talk to these people in the jail.

Here, you don’t hear from these people until they’ve been released. Sometimes you hear from them the day after. Sometimes you hear from them several days after, and sometimes you hear from them even after the ten days have passed to request a hearing.

The short answer of your question is, generally speaking, you do not receive calls from these people in the jail because it’s useless to call a lawyer at that particular point. They can do everything on their own. The lawyer has been taken out of the process right from the get go. They do have a right to an attorney if they’re going to be questioned, and there’s a fine line as to when these people are in custody. The way they do things here is very difficult because the police are trained to do it a certain way.

At What Point During a DUI Stop Are You Considered ‘Under Arrest?’

For instance, the first thing that ends up happening is that the officer will approach the vehicle. The driver will roll the window down. The officer will then ask some preliminary questions, ‘Where are you going?’ ‘How you doing?’ ‘Were you drinking?’ At that particular point, obviously the person isn’t in custody. That can be recorded down as, ‘Yes. I’ve been drinking.’ ‘Get out of the car.’ At that particular point, ‘Get out of the car,’ has that person been detained, or has that person been arrested?

If they’re ordered to get out of the car, the courts have said that they’re detained. I’m not sure necessarily about that, but then they start the DUI investigation, and they’re trained to ask questions to these people right from the start because then it’s an argument that they really haven’t been arrested, they’ve merely been detained at that particular point.

I still think during even these pre-field sobriety test questions, at that point, even though the driver is not technically under arrest, he or she would arguably have a right to an attorney.

This is because the questions they are being asked are designed to elicit answers that incriminate the person. The answers elicited from those questions can be used as evidence against the person. So, even though they’re not arrested they could just say, ‘My lawyer has said that I would like to talk to you, but I can’t. I have nothing to say. In fact, I would like to call the lawyer.’ However, the police would not let them call a lawyer at that particular point. They just wouldn’t do it.

Interviewer: At that point, the police would say, “You’re not calling one and that is final.” If at that point you said to the police, “I’m not answering any questions. I want to speak to my lawyer.” What will be the response of the police?

Implied Consent Advisory

Steve: They will reply, “You don’t have a right to a lawyer right now.” Which, actually, is incorrect. You always have the right to a lawyer. The problem is they carry it over and this is the point, once they arrest you, immediately after the arrest they have to invoke the Implied Consent Advisory. At that point, the person detained has to make a decision about whether or not to take a BAC test.

The legislature has removed the attorneys from that process. Since you don’t have a right to talk to a lawyer at that moment, that point in time, which is the pivotal point in time, then you make your decision on what chemical tests to take, then it’s the end of the show.

This means they have all the evidence to convict you, other than the test. Then they’ll transport you in. You’ll take the test and that’s the end. Getting back to your question, “Will they call you from the jail?” No.

The reason they won’t call you from the jail is law enforcement has already done everything necessary and essential to gain a conviction at that particular point, so why call a lawyer at that point? It’s like locking the barn after the horses have already escaped.

After You Are Arrested for a DUI, When Is Your Arraignment?

Interviewer: When someone’s arrested and they get out of jail, what’s the criminal case timeline for them?

Steve: Interestingly enough in Sonoma County, it used to be, that they were setting the people’s arraignment sometimes 45 days out, even closer to 60 days out. The arraignment would not happen for quite a long time. That’s changed now. They’re getting people who have been arrested into court pretty quickly and they’re processing it quicker.

It had a tendency of lulling people into a false sense of complacency. This is because why do they need to be doing anything now when their court date isn’t for 45 to 60 days out? They didn’t do anything. So, what ended up happening are a many times the DMV deadlines would pass. Since they were lulled into this false sense of security while they were waiting for a court date into the future, they didn’t do anything.

That was problematic. Now the system is getting people into court within two to three weeks from their arrest. The arraignments are happening very quickly. That’s why I find that there’s been an increase in incidents of telephone calls several days after they’ve been released from custody.

What Will Occur at Your Arraignment

Interviewer: What will happen, for people that don’t know, at an arraignment? Is that a trial? What do you do when you go for an arraignment?

Advising the Defendant of His or Her Rights

Steve: The arraignment is a very simple process. This is some general concept of criminal laws that apply to DUI practice. The purpose of an arraignment is twofold. They are both very simple for the most part. One, the person needs to be advised of their rights. The judges will apprise people as soon as they appear before the bench, because it’s very important to advise the people of all their constitutional rights.

You Have the Right to An Attorney and the Right Not to Incriminate Yourself

One of the constitutional rights is to have a lawyer represent them at the proceedings. Now, the lawyer becomes important in terms of the process. You have a right to a lawyer. You have a right not to incriminate yourself. Interestingly enough, the lawyer then becomes important right under the Sixth Amendment and the right to counsel.

Advising the Defendant of the Charges

Nevertheless, when they really need the lawyer they don’t have that right. With that being said, the purpose is to advise the defendant of their rights and also to advise the defendant of what the charges are against him or her. That’s really the only purpose of the arraignment.

In Most Cases, Your Attorney Can Appear on Your Behalf

What ends up happening is, if a person comes in and hires me as their attorney, they honestly almost never have to see the inside of a courtroom. This does depend on the individual case.

Whether they’re out of state, whether they’re in state, one of the benefits in California law, for a misdemeanor charge, an attorney can appear on behalf of the client. This can be quite convenient for the client.

Entering Your Plea at the Arraignment

Typically I have the client stay home, go to work, and live their life like they normally would. I would go to court to handle the arraignment. I would enter not guilty pleas to the charges against the client and then because the client’s out of custody, you waive time because you lose rights to a speedy trial. In misdemeanor cases the trial is scheduled in about 30 days.

Interviewer: At the arraignment, someone has to make a plea of guilty or not guilty or no contest? Right?

It Is Not in Your Best Interest to Plead Guilty at the Arraignment

Steve: Right. That’s the last part of the arraignment, the purpose of entering a plea to the charges. Typically you don’t just go in an arraignment and plead guilty. However, it’s commonplace for people that don’t call lawyers, they think that there’s nothing that can be done. They go in. They waive all their rights. They plead guilty at the arraignment and then they’re convicted.

I’ve had a lot of people call me after they’ve been convicted because they didn’t realize that a DUI conviction would result in more than one consequence. They did not think about the potential to lose their job, or now paying a very steep increase in their insurance, or them not having a license for an extended period of time. That is why you need qualified legal counsel during the arraignment process. What I do is I enter a not guilty plea at the arraignment and then that’s when I start my work.

By Steven Taxman

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