The Criminal Process
Perhaps the most challenging aspect of a DUI charge is dealing with the stress associated with it. There are several stressful factors that will affect the defendant, the most difficult of which is the frightening experience of the arrest itself. It is very common to have nightmares about the ordeal and to find oneself thinking about it during daily activity as well. Many people notice changes in many aspects of their lives including diet, difficulties in completing daily activities, weight loss and sleepless nights. These are common occurrences and those who are handling DUI charges should understand that they are not alone and their problems are not unique. Most people who are charged with the offense of driving under the influence are just common everyday people. They have never had a brush with the law. They are not regular customers with the legal system, especially the criminal legal system, and should understand that the stress they are going through is very normal although overwhelming at many times.
Another difficulty that may arise and cause stress is the waiting period. In the majority of cases, your attorney can do nothing to speed up the waiting process because the control lies with the clerk of the court, judges, and the prosecutor and they will move at their pace depending on the amount of cases that are ahead of your own. If a case is delayed a few months, you should not be worried because it must wait its turn in the regular rotation of cases. The average waiting period for a case is two or three months, but in very rare instances, the case could run over a year.
There are times where your attorney may also delay your case, which is referred to as a continuance. These are intentionally extended by your attorney to provide accommodation for your case so that your chances of winning the case will be improved. Try not to stress during the waiting period. Your attorney is doing what is in your best interest and you must trust his/her decisions. Trust in your attorney and in that their decisions are in your best interests is essential to a healthy attorney-client relationship.
Another large contributor to stress is ambiguity in the legal system. The system is very complicated, but the following flowchart (See Figure G) explains the normal processes.
Figure G
After your arrest, the police will issue you a summons to appear in court. You may be required to post a bond to be released. The police may also release you on a written promise to appear. Both will inform you of the date of your mandatory court appearance. Failing to appear in court may result in the State charging you with the crime of Failure to Appear. Even the lowest charge of Failure to Appear carries the potential penalty of one year in jail and/or a $2000 fine. Initially, your case will appear on the “regular” docket. This is the docket to which all new cases are assigned. A case will likely be maintained on the regular docket for the first few court appearances and in certain situations, your case can be resolved while on this docket. Some courts allow the attorney to appear on your behalf, while others require the appearance of the client.
Failure to be in court can result in forfeiture of your bond and a warrant being issued for you for the crime of Failure to Appear. Over the next few court appearances, the prosecution and your defense lawyer discuss the merits of your defenses, however these discussions are conducted in private. One of the main reasons for this practice is that any information, when discussed in private, cannot be used in the prosecution of the case. If the discussions were conducted in open court, there would be witnesses who could be called to testify about the case. It serves your benefit to allow this to happen.
If the discussions with the prosecutor and your attorney do not yield a satisfactory disposition, the matter will be set down for a judicial pretrial. Most courts have a judge who controls the criminal docket. This judge is called the “presiding judge.” This judge will sit as the final arbiter of the matter before it is determined that the case cannot be resolved without a trial. After a judicial pretrial, the Court will make an offer to resolve the case after hearing from the prosecution and the defense lawyer. The sides often propose different disposition possibilities and the judge listens to both sides to see what is a reasonable disposition given the legal and factual claims both sides make.
If you, your attorney and the State agree on a disposition of the case you may be required to do a number of different things. Some of these things involve paying a fine, completing alcohol counseling or complying with probation. If you plead guilty to a crime, which may be punishable by some period of jail time, the judge must ask you a series of questions to determine if you are knowingly and voluntarily pleading to the charges. The judge must also agree to give you the disposition that you agreed upon, and even if the judge does not approve, the judge must allow you to withdraw your plea.
There are 3 ways to plead or be found guilty. The first way is a “straight” guilty plea. A straight plea means you agree with the allegations, and that the state is saying you committed a crime and you are agreeing you are guilty. The second way you can plead guilty is under the Alford Doctrine. The Alford Doctrine means that you do not agree with some, or all of the facts that the state claims happened, however, in light of what you know the state has to prove, you wish to plead guilty and accept a definite disposition rather than risk going to trial and losing, and being sentenced to a greater penalty. The final way to plead guilty is to plead “nolo contendere.” “Nolo contendere” is Latin for “No Contest.” This means that you are not contesting the charges and not putting up any defenses to the charge. The judge, after hearing the charges, will find you guilty, and sentence you. A “nolo contendere” plea is often used in situations where you may be sued by another person, perhaps a person with whom you were involved with in an accident, because this type of plea cannot be used against you in a civil case like a guilty plea could.
If the case cannot be resolved without a trial, both attorneys are then given an opportunity to file motions. Motions, simply put, are "requests" that are made of the court to grant some type of “relief.” This “relief” is usually asking that some part of the State’s evidence be excluded from trial when the case goes to court. Attorneys may seek to exclude a breath or blood test result, field evaluations or a custodial statement made by you after your detention, but before the Miranda advisement (i.e. “You have the right to an attorney; you have the right to remain silent,” etc).
In addition, your attorney will make a motion for the prosecutor to send him or her the “discovery” in your case. Discovery is a generic term that relates to production of evidence that the state intends to present against you in court. An example of “discovery” is a list of the State’s witnesses against you, plus information on how to locate them. Obtaining discovery allows your attorney to be as fully prepared as possible when we enter court so that there won’t be surprises. One of the key aspects of discovery may be a videotape of your arrest, either at the scene, in the station or both. Most prosecutors’ offices in Connecticut follow an “open file” policy from the beginning of the case which allows your attorney to view the police report (some will allow a copy, while others only allow notes to be taken).
Your attorney will then be given oral argument of these motions, which is an important step as it sometimes allows your attorney to attack various aspects of the State's case prior to trial. The elimination of harmful evidence is the primary purpose and goal of “motions.” There will be no jury involved at the motions hearing, but rather, at a typical motions hearing the judge, your attorney, the prosecutor, the State's witness (the arresting officer) and yourself would be present. The judge will hear motions and argument from both sides, then grant or deny the motions, however most judges refuse to hear motions until the day of trial. This practice is not as desirable for you for many reasons, the two most important of which is that it limits your attorney’s time to obtain a transcript of important testimony of the State’s witnesses (commonly used for “impeachment”), and your attorney will have to prepare for both motions and trial, thereby costing a larger attorney fee.
Following the motions hearing is the trial, which can be either a jury trial (a 6-person jury is used in misdemeanor cases) or a bench trial (heard only by the judge). If the case is set down for a trial, there will be a day when you and your attorney will be summoned to begin “jury selection” or “voir dire.” In Connecticut, our Constitution allows for your defense attorney to question each independent potential juror about their knowledge of the case, the witnesses and there general outlook on life. During this phase, your attorney tries to find the best possible candidates to sit on a jury and side with you. At the same time, the state attorney is looking to find the best possible jurors who will convict you. Depending on the exact charges against you, your lawyer and the state will each have a certain number of “challenges” which allows them to get rid of a potential jurors without having a reason. If your attorney or the State attorney tries to exclude a particular gender or race, however, the judge can stop them if the other side points it out.
Unlike on TV and in the movies, in Connecticut there are not long opening statements. In fact, unless there are unusual circumstances and a judge has approved them, there will be no opening statement in your case. The prosecutor will call the first witness for the state, which is usually the police officer. After the state has asked questions of the first witness, your defense lawyer will be allowed to “cross examine” the witness and this continues until the state has no more witnesses to call.
According to the federal and state constitution, the defense does not have a burden to introduce any evidence. If the defense chooses not to do so, the sides would then make their closing arguments. However most of the time, the defense will call witnesses of their own, at which point the defense attorney will ask questions, and the prosecution will have a chance to cross-examine. After the defense has finished, the State then has a chance to bring in witnesses if they can rebut the evidence of the defense witnesses. If they do not call any, the case proceeds with closing arguments.
During closing arguments, both sides try to convince the jury to either find you guilty or not guilty (depending on the attorney). After closing arguments, the Judge will instruct the jury on the law of the case, and how it is to be applied. Once that is done, the jury is sent to the jury room to deliberate. They elect a foreperson, and discuss the case until the have reached a unanimous verdict, which means that all of the jurors must be in agreement on the verdict. Once a decision has been made, the jury sends a note to the judge in order tell the court that they have come to a decision.
If they cannot agree, the judge may tell them to deliberate again, however if they decide that an unanimous decision cannot be found, the judge declares a mistrial. If the jury can agree, the judge then brings the jury into the courtroom and the clerk of the court asks the foreperson what the verdict is. If the jury finds you “not guilty” then the case is over. If the jury finds that you are guilty, the case will then continue on to sentencing phase.
When appearing for sentencing, which may happen the same day if the case is a misdemeanor, the judge may sentence you to the maximum period of jail time allowable for the crime. Oftentimes prior to sentencing, the judge will order the Probation department to conduct a pre-sentence investigation and report, which serves to provide the judge with a better understanding of whom you are as a person. The probation department may suggest a certain way for the judge to structure the sentence or certain things to include (community service, counseling), however the judge ultimately decides the sentence.
If you are convicted, you are permitted to an appeal, but you must hire a lawyer to represent you for this new phase, which unfortunately is normally a separate fee from your trial fee for your trial lawyer. Many times people simply hire the trial lawyer for the appeal because he or she already has knowledge of the case and has conducted research on the exact issues that will be appealed. The appeal only deals with legal issues, not factual issues, so it is not a retrial. Your lawyer then will review the court transcript to find questionable issues, such as the inclusion of improper evidence by the state or incorrect instruction on the law to the jury by the judge. The appeal is filed within a few months and then the State is given time to file a brief in opposition. The case is then argued in front of a panel of 3 judges in Hartford, in which witnesses are not presented and a time limit is instituted for both sides. After the case is argued, the judges release a written decision, which either affirms the guilty verdict, or reverses the decision and a retrial begins. In rare circumstances, the reversal will complete the case and there will not be a retrial. If the original decision is affirmed however, your lawyer may appeal for review by the Supreme Court
How to Dress for Court
Going to court is a formal occasion and the members of the bench (judges) and bar (attorneys) take their role very seriously. Many of them chose this profession after careful reflection and years of study. There are specific rules concerning behavior, the procedure, and even what can be said, and even though these rules only apply in the courtroom, the manner in which you proceed and follow these rules greatly affects your case. First impressions and the way in which you carry yourself are very important, and instead of wearing whatever you feel like (your work clothes, casual clothes, etc.) to court, ask yourself who the judge would take most seriously. To gain the respect of the Court, you should dress professionally, as if you were attending a job interview, so that you may provide the best first impression possible.
By establishing a sense of professionalism with your dress, you are also establishing credibility. Men should wear a suit and tie or a sport coat and tie. Women should wear a business suit or a conservative dress. If you do not have this type of clothing, make sure that your clothes are neat and clean. Dress like a professional, avoiding loud colors, costume jewelry, or anything else that is flashy and that will draw attention. Do not wear items that identify your personal association with a group, whether it be a college pin, religious jewelry or political buttons, for these items can inspire prejudice in the minds of the judge or jury. Men should be clean-shaven and should get a hair cut if needed and women should avoid loud hairstyles and keep their makeup to a minimum.
How to Conduct Yourself in Court
Rude behavior is not tolerated in court, so simply be respectful and do not argue. Politeness is also a sign of professionalism, so do not get overtly excited and avoid interruptions. Patience is particularly important as well. You may have to be in the courtroom all morning and then return in the afternoon. You are free to leave the courtroom whenever you need to, but tell an officer of the court that you are leaving. Officers of the court include your attorney, or public defender, the marshal or the court clerk. If your case is called and you have not told someone you were leaving, the judge can issue a warrant for your immediate arrest.
Cell phones, laptop computers, handheld stereos, CD players and other similar items can not be used in court. Sit and wait patiently while paying attention to how other people interact with the judge. Do not read a newspaper or book while in court, for this is disrespectful. Finally and most importantly, make sure to get enough rest the night before a court date. While it is a quiet place, you should ensure that you never fall asleep in court. If you do, it is likely that you will be escorted out by the Marshal and forced to come back on another date, forcing you to lose yet another day of work.
Before entering the court, you should double check your clothing and appearance as well as review reports, records, and any personal notes. Any other material that could be deemed as evidence should be reviewed to make sure it is intact and organized when bringing it into court. If you have any concerns, including those about testifying or have information that your attorney should know, it should be disclosed prior to entering the courtroom. The case should be reviewed by both you and your attorney and remember to disclose any “skeletons in your closet” to prevent your attorney from being surprised in court. Reviewing the case prior to entering court will also help to refresh your memory. Be early when arriving to court or at the least, BE ON TIME! If you miss your case, you will have to reschedule and will end up missing another day of work, or you may be arrested for Failure to Appear, another misdemeanor.
The way that you act while in court will help to develop your credibility, either positively or negatively. To prevent from developing negative credibility, avoid being perceived as cocky, argumentative, defensive, immature, or uninterested. Do not carry any items in your pockets that could make noise or that could distract you during court. You will be evaluated by how you act in the courtroom, so avoid negative body language such as folding your arms, crossing your legs or chewing gum. Simply sit silently and do not slouch and when speaking, do so slowly and clearly. Listen when you are being addressed so that questions do not have to be repeated and always address the judge as “Your Honor”.
Courthouses and Clerks’ offices are open Monday – Friday from 9am until 5pm, but are closed for lunch between 1 and 2 p.m. Offices and courthouses are closed only on legal holidays which include the following days:
New Year’s Day
Martin Luther King Day
Lincoln’s Birthday
Washington’s Birthday
Good Friday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veteran’s Day
Thanksgiving Day
Christmas Day
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