At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 523-7878

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Why Is It Important To Hire An Attorney For Pre-filing And Filing Motions?

Having an attorney involved in any case at the beginning, meaning right after the defendant is arrested is important for many reasons in filing motions. One is to make someone who has been arrested for a DUI feel like there is someone in his or her corner. We can explain to these folks what they are possibly going to face with this arrest, and describe what defenses we will use in representing them. This can have life changing implications, and it often does if this DUI becomes a conviction, and becomes part of their records. Therefore, the pre-filing decision, whether to file a case is a decision made by the prosecutor, and the county of arrest, also known as the district attorney.

Sometimes, it is the city attorney’s office, depending on what county you reside. If someone is arrested for a DUI, the police will take him or her to jail, or do what they do. They may release them from the scene depending on the county, and the arresting agency. Law enforcement will write up a police report, and present it to the district attorney’s office; it also goes to the Department of Motor Vehicles as a separate case. For DMV purposes, the attorney, or the person who was arrested, needs to get a request for a hearing within ten days, or seek early action needed within the DMV part, or after thirty days, the arrested person’s license will be suspended.

In regards to the district attorney’s office, a court date is usually set, and given to the person arrested when they are already in jail, or upon their release, sometimes it is mailed to them depending on the county they reside. In San Francisco, it is often within a couple of weeks. In other counties, it is usually at least four weeks, and in others, it may be three months later. The district attorney gets the report from the police department, and evaluations are made. That evaluation leads to whether that case is now a felony issue.

If we are talking about DUIs, this is a felony, which would involve an injury more than just a scratch, but they have charged damages as felonies, it can be charged as felony if someone has a prior felony DUI within the last ten years, or if this is a fourth DUI arrest within ten years of the others. Out of state priors will reflect these charges in making that determination. The prosecutor’s office is either going to charge you with a felony, or a misdemeanor. On a misdemeanor DUI, the prosecutor, or district attorney would determine those charges for that person.

They might not charge anything, or it might be an infraction, such as a speeding ticket, or something like that. They want to see are the elements of this alleged crime present, if any at all. Typically, in a DUI, we are talking about driving. There are two charges, 23152A of the Vehicle Code, and 23152B. The driving is under code 231152A, driving is one element, and two is impaired driving. This is where they are driving with the care, and caution of a sober person. That is determined by what the officer observes, such as field sobriety tests, odor of an alcoholic beverage, different signs, and symptoms to determine whether they should be charged with impaired driving.

The other charge is 23152(b), and that requires driving plus being at or over 0.08% BAC, that is a per se number charge. If someone is at or over 0.08%, in most cases, or counties, they are going to be charged with a DUI for having that blood alcohol level. The prosecutor looks if the person who was driving can they prove whether the person was driving, and can they prove that they were impaired, or that they were at or over 0.08%. The case is easy for the prosecutor, if driving is clear, and they have over the limit of a BAC at 0.08%. Nevertheless, if someone is not at 0.08%, they might be less likely to charge a case if there is no evidence of impairment. If an accident occurred, they are more likely to press charges if the blood alcohol level comes back under 0.08%. Often, they have to wait a while for a blood alcohol level to come back. They might charge a case before they actually get the blood alcohol results.

Where does the attorney come in when helping someone through this process? How can an attorney affect whether the case is going to be charged? In most cases, the attorney cannot do anything. There are certain types of cases, and I am not going to touch on every one of them. As an attorney, I have made an impact on whether the District Attorney or prosecutor’s office actually file charges against my clients. One example would be if they were going after someone for drugs in their system. If someone has a prescription, and it is their personal script, presenting that to the prosecutor’s office, in some cases, has helped to get the DA to back off, and not file charges.

Another successful area is when we have a case where the actual issue of driving is presented, and may not be provable as it might look in a police report. I had a case within the last year where my client according to the police report, was allegedly the driver of a vehicle. A witness said my client was the driver. I was able to present to the prosecutor in this case that there was a different person driving that vehicle with my client as the passenger. The DA did their own investigation, and decided that they did not have enough proof of driving, and they never filed the charges against my client. Therefore, that is an example where something like this can happen.

There are a number of other potential areas where it may be helpful, but they do not come up enough. It is not something where you should have that attorney prevent the charges from being filed. If attorneys are telling people, “Let me take on your case, because I might be able to get the DA not to file charges”, and a case where we have the breath result already that say, 0.14%, or whatever it is above the limit, and driving is clear, this is something no matter what the excuse, the DA is going to file the case. Whether someone is politician, a police officer, or a doctor it does not work this way.

Telling anyone that you can potentially stop the prosecutor from filing, is a false statement. I have a problem with that, because once you are in the system, and the DA has a very compelling reason to not file, because if they have to answer to their supervisors, and if it is in the public eye, which they can be, it can come back to bite them. Prosecutors are not willing to put their jobs on the line, and they should not be willing to put their jobs on their line to do a favor for somebody, that is not what they are here for.

The other two areas where a prosecutor can direct a case that is if they decide in their pre-filing decision not to charge a felony or a misdemeanor is just not to file at all. The other is an infraction. There may be an issue in a case where as the attorney, a non-driving, or a drug case, or something like that, where the prosecutor might say, “We’re not going to file it as a misdemeanor, but we’re going to go after someone for an infraction, like a speeding ticket”. I had a prosecutor recently make that filing decision on a client of mine, and it was a great result, because the speeding ticket is something that you can receive, as opposed to being charged with a DUI, there is no question about this direction, you should take that offer.

For more information on Pre-filing & Filing Motions, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

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Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

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