DUI Dictionary – Atlanta DUI Lawyer & DUI Book Author Explains Common DUI Terms
By: William C. Head, Georgia DUI Attorney – Copyright 2016
DUI GLOSSARY – WHAT IS A DUI?
A person charged with a DUI-DWI is typically unfamiliar with the terminology, the court procedures, abbreviations and acronyms for drunk driving and how a drunk driving or drugged driving arrest proceeds from handcuffs, to jail, to bonding out, to arraignment, through plea offers and plea negotiations, to pre-trial motion hearings and possible trial. The trial can either be held before a judge sitting without a jury or at a jury trial.
DUI DEFINITION AND COURT PROCESS EXPLAINED
The terms and phrases relating to drinking and driving and the explanations of the impaired driving evidence collected by police for use at an administrative license suspension hearing or at the criminal trial can be confusing. The relationship between the criminal part of a DUI case, and the administrative license revocation or suspension aspect confuses most people facing a DUI prosecution.
This copyrighted glossary has been adapted from The DUI Book, one of a dozen books about DUI laws written by Atlanta DUI Lawyer William C. Head. By being able to find explanations of the legal jargon and court vernacular in one place, a citizen facing criminal charges can learn more about the criminal justice system and the terminology used by their DUI lawyer or by others within the court system. This DUI glossary may assist an accused drunken driver to comprehend the legal process of a DUI arrest better, plus be prepared to deal with the various stages or phases of the criminal court process.
The document that a prosecutor accusing a misdemeanor DUI uses to specify and identify each specific type of crime alleged to have been committed by the accused person. In some states, misdemeanor offenses are accused by an “information”, which is a synonym for accusation. An accusation in a DUI-DWI case typically has several “counts” (each count is written and considered as a separate offense, with separate items of proof required to support a conviction). The various counts set forth in the accusation identify in general terms, how, when and in what fashion each criminal or traffic offense was committed. In DUI-DWI practice, a person might be accused in alternative “counts” of an accusation with (1) DUI-alcohol (drunk driving), (2) DUI-per se (being above the state’s “over the limit” alcohol blood level), (3) DUI-drugs [impairment from a prescribed medication or from illegal (i.e., cocaine) drugs], AND (4) DUI-alcohol AND drugs, by being under the combined impairing effects of both alcohol and some type of other drug. The accusation usually has language describing the underlying traffic offense or offenses that created probable cause to pull over the accused DUI driver.
A finding by a judge or jury that a person who went to trial for allegedly committing a crime is not guilty of that offense. Because a person typically faces multiple counts in an accusation or an information, acquittal on one count, but conviction on another count is not uncommon. In an impaired driving case, in which the accused took an implied consent test and was “above the limit”, she might have been acquitted of operating while impaired (OWI), but convicted of OWI per se (being over the legal limit) which is the type of drunk driving offense that requires no proof of impairment.
A term used by medical personnel in hospitals and emergency care facilities to refer to a patient’s intoxication that is “of clinical significance” (translated: potentially fatal). The most common source of such a condition is ethanol (alcohol as found in beer, wine, liquor or similar alcoholic beverages). Complications from acute intoxication may include trauma, aspiration (vomit getting into your lungs), delirium, coma, and convulsions, depending on the substance and method of the drug being introduced or administered to the person. See Mr. Head’s blood alcohol BAC calculator estimation tool for number of drinks required for you to have a fatal BAC level.
Postponing or rescheduling a case or court session until another date and time. In some jurisdictions, this is called a “continuance.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, for good cause shown to the Judge, who either grants or denies a change of date.
Generally, this term refers to a final judicial determination (by a court) of a decision in a pending legal matter. In juvenile court cases, an adjudication of delinquency is the equivalent of a ‘conviction.’ In typical criminal cases, “adjudication” refers to the court entering its final ruling of guilty or not guilty after a bench trial. By contrast, a ruling on pre-trial motions by a judge before trial is not a final adjudication, but is merely a decision on what evidence is admissible at a later trial.
ADMINISTRATIVE LICENSE SUSPENSION OR REVOCATION
In the context of drunken driving arrests, “Administrative License Suspension” laws or “Administrative License Revocation” laws exist in all but two states. This type of civil punishment for DWI-DUI drivers was recommended by an agency of the federal government, NHTSA, as a means of administratively suspending or revoking a DUI-DWI suspect’s driving privileges before the criminal charges were ever resolved. In fact, most states (e.g., California, North Carolina) passed their state ALS or ALR laws to ignore what is happening in the driving while impaired criminal case. The concept for ALS-ALR laws was that any person who submitted to implied consent testing and yielded a numeric test result equal to or greater than the state’s legal limit for that driver (e.g., the adult DUI-DWI in all states is 0.08 grams percent) would be summarily suspended from driving, or have his or her driver’s license revoked or restricted for a mandatory period of time. This new type of ALS or ALS license suspension for driving and “being over the limit” was added to the existing implied consent suspension or implied consent revocation that was imposed when an arrested drunken driver refused to be tested, as mandated by the state’s implied consent law.
A written statement of fact that is verified by oath or affirmation before a notary public or another judicial officer sanctioned by law to attest to a person’s signature. If state statute allows the use of an affidavit for a particular purpose (e.g., a custodian of records certifying the attached papers are the complete medical records of the defendant) offered to the court to verify some fact or to confirm that some act has been accomplished which does not require a court appearance. A common example in a DUI case might be sworn certification of periodic maintenance records for a breathalyzer device having been checked for calibration by a state technician.
Without denying the charge, the defendant raises special extenuating or mitigating circumstances such as insanity, necessity, or coercion to avoid civil or criminal responsibility. In a drugged driving case involving “sleep driving” from taking Ambien before going to sleep, the affirmative defense is “unintentional DRIVING” caused by an unexpected reaction to the prescribed medication. This is sometimes referred to as “the Ambien defense” due to most sleep driving cases being cases involving Ambien or one of its generic alternatives. Another way of thinking of an affirmative defense would be as a valid excuse as to why the crime was committed inadvertently or why the defendant should not be held to blame for the crime, such as lacking the intention to be driving at all. The defendant usually must prove (or set forth some evidence of) any affirmative defense he/she raises. Court rules or state statutes typically require a defendant to notify the opponent before the trial that an affirmative defense will be asserted, and different state evidence laws control whether the Prosecutor or the defense has to carry the burden of proof.
A term derived from Arabic. Alcohol is a category of chemicals that have similar molecular composition, whether suited for human consumption or not. The term “alcohol” is often used by lay persons to refer to alcoholic beverages made with ethyl alcohol or ethanol, which is “drinking alcohol.” The usual type of alcohol found in mixed drinks, wine and beer is ethanol. The most common impairing substance in DUI arrests is alcohol in a DUI alcohol case. However, the chemical “alcohol” can be part of many products that contain some form of alcohol, often in an altered or different form than ethanol, for example, consumer products such as sugarless chewing gum, breath sprays, medicines, mouthwashes, cologne or deodorant. Wood alcohol is a solvent used for many purposes, but is lethal to humans. Most alcohols, in large enough quantities, including ethanol, can be lethal.
The so-called Alford plea is a form of “guilty” plea in which the defendant does not admit the act, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty. Alford pleas are more commonly used in felony criminal cases, as opposed to DUI misdemeanor cases. Your criminal defense lawyer can advise of the benefits or lack of benefits to you in your criminal prosecution, for an Alford plea. Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose sentence as if the defendant had otherwise been convicted of the crime. However, in many states, such as Massachusetts, a plea that “admits sufficient facts” more typically results in the case being “continued without a finding” (see description below) and later dismissed. It is the appeal of the ultimate dismissal of charges that engenders most pleas of this type. This plea originated in the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25 (1970). After the Alford decision, the plea “Alford” plea generally has the same effect as a plea of guilty with respect to sentencing. Later use of the conviction based on an Alford plea as an aggravating factor (if the defendant is later convicted of another offense) is allowed in all courts.
A “lack of presence” defense. The Defendant need not prove that he was elsewhere when the crime happened; rather, a Prosecutor must disprove a claimed alibi (i.e., Prosecutor must prove beyond a reasonable doubt that the defendant was present). Although rare in DUI-DWI cases, some drivers may not be present — after an accident — when the police arrive at the scene. In most, if not all, states, the Defendant’s criminal defense attorney must notify the prosecution prior to trial if they are going to claim an alibi defense.
A request to take a case to a higher court for review of proceedings in a lower court. As a general rule, no new evidence may be introduced during the appellate process. Although most appeals are conducted at the end of a trial, limited other appeals called interlocutory appeals or discretionary appeals may be appropriate in certain criminal cases. Prosecutors wishing to appeal certain important pre-trial rulings by a judge excluding key items of evidence in a criminal case have the statutory right to stop the proceedings (by appealing) and ask for a review of the adverse ruling from an appellate court, because adverse rulings (such as the exclusion of a high BAC level blood alcohol test) could end or substantially hinder their criminal prosecution. Since the Government (the prosecutor) cannot appeal an acquittal, this type of appeal law is important and makes common sense. On the other hand, an accused defendant who loses a pre-trial motion hearing must typically wait to see if the jury (or a judge, if a bench trial) acquits him or her of the DUI charges before appealing. For criminal convictions, an appeal is a matter of right, but for interlocutory appeals, these cannot go forward unless the trial judge first certifies the disputed ruling is of such gravity and importance as to either end the case, or establish new legal precedence.
Although usually associated with an attorney’s “entry of appearance” (see below), this word can signify a client’s obligation to show up for court at the time, date, and place indicated in a summons or other court notification of a scheduled hearing, calendar call or trial date.
The party appealing an adverse decision or judgment to a higher court.
A court having jurisdiction to review the actions of a trial court, for a review of the record created at a lower level. No witnesses testify at an appellate level, generally. Trial level courts are where testimony is taken. Trial level courts are where witnesses will be sworn in to testify under oath and the presiding trial judge makes rulings on the admission of documents, exhibits, or testimony at the trial. The judge also is responsible for managing the jurors and giving legal instructions on the law that the jury is legally obligated to apply in the trial.
The power and authority of a court (established by state law) to review a case that has already been tried by a lower court or acting upon a special, interlocutory appeal or discretionary appeal. (See definition of “appeal” above.)
The party responding to an appeal filed by the opposite party in a higher court.
Typically, the first court appearance after an individual’s arrest and release from jail on an appearance bond. The arraignment process is where the pending criminal charges are formally read aloud to the accused citizen, and the accused person enters his or her plea of guilty or not guilty. In most DUI cases, the DUI attorney representing the accused drunken driver will “waive” (give up) the defendant’s right to hear the charges being read aloud, to save a wasted court appearance. A person who appears in court without a lawyer and stands mute will be considered (by his or her silence) to be pleading not guilty, and the judge will order the clerk of court to show the plea as a “not guilty” on the court docket records.
A lawyer; one who is licensed to act as a representative for another in a legal matter or proceeding; one who is licensed to practice law. Most attorneys are licensed in and only practice in one state, with some exceptions for attorneys whose office location is near the border of another state or states.
In all legal matters, the client (whether or not a party to litigation) has a privilege to refuse to disclose, and to prevent another from disclosing, confidential communication between client and lawyer. The attorney-client privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and any legal advice received in return. The objective of this well-recognized privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney, unfettered by fear that others will be informed of confidential matters. While the privilege belongs only to the client, the attorney is professionally obligated to claim it on his or her client’s behalf whenever the opportunity arises, unless he has been instructed otherwise by the client. In OUI-DUI cases, the DUI lawyer may be private counsel or a state-appointed attorney who is paid by the state, but whose loyalty and confidentiality obligation goes to the indigent, accused defendant.
In criminal proceedings, to set free a person arrested or imprisoned (pending the outcome at trial or the case’s possible resolution of an appeal, after trial) in exchange for another person posting security such as cash, a credit card payment, or pledging real estate so that the jailed person’s later appearance is secured by the equity in real estate that the principal pledges. Bail is forfeited by the trial judge if the person fails to appear in court as directed.
In criminal law, a surety bondsman or bondswoman puts up money or property that assures the appearance of the defendant or (if the defendant fails to appear) the payment of the defendant’s bail amount. Commercial bonding companies are the most common sources of principals for appearance bonds and collect a bondsman’s fee that is capped by state law. The person who agrees to be the “surety” is financially obligated to the Government to pay the bond if the person released from jail fails to appear. The failure to appear will typically cause the judge of the court requiring attendance to issue a “bond forfeiture” order, as well as a warrant for the defendant’s arrest for FTA (failure to appear). In DUI cases, another common provision of most states’ OWI-OUI laws relates to the non-appearing, accused citizen’s driver’s license. The judge has the legal authority to order suspension or revocation of the missing defendant’s driving privileges.
BLOOD ALCOHOL CONTENT – BLOOD ALCOHOL CONCENTRATION
The amount of alcohol in a person’s bloodstream from a forensic test via blood collection, urine sample or breathalyzer. The numeric results obtained by a BAC level test for a drunken driving prosecution can be used to prosecute a DUI-DWI case or to be evidence in a civil case, following an accident that causes injury or property loss. The adult (age 21 and over) legal limit in drunken driving cases is .08% in all states. For someone under 21, the legal limit is 0.00%, 0.01% or 0.02%, depending on the state the offense is committed in. For persons of any age driving a commercial vehicle, the legal limit is 0.04%.
A forensic test of blood to measure a person’s BAC level by drawing (collecting) the blood via a needle, usually done in a hospital. DUI blood tests are often requested where substances other than alcohol are suspected to be impairing a motor vehicle driver in a DWI-DUI case, or where an accident with injuries may require that the person suspected of drunk driving is already going to be transported to a hospital. In some states, refusal of a DUI blood test is possible for a person who is capable of refusing. Forcible (involuntary) blood collection may be sanctioned in felony cases involving a DUI-related homicide by vehicle or serious injury by vehicle cases, but the prudent course for a law enforcement officer to take is to swear out an affidavit of need for the blood, as evidence, and have a judge issue a search warrant for the blood, to be used in criminal prosecution. This is based upon the landmark United States Supreme Court ruling of Missouri v. McNeely, from 2013.
A type of DUI-alcohol test used to capture a sample of deep lung air and measure the breath alcohol content within the breath. Breath testing is usually done at a police station or at a jail but can be done in a mobile van designed and wired for BAC testing. A detained DWI-OWI suspect does not have to agree to blow into a breathalyzer machine but can face a lengthy loss of driving privileges for refusal. DUI attorneys in some states advise that a person who is asked to provide a forensic breath sample should refuse to cooperate. In other states, where a full year license suspension or revocation would result, taking the DUI breath test and then demanding an independent blood test is the better course of action. Some police jurisdictions also use roadside breath tests to make DUI arrests, but these numeric results (generally) are not admissible as evidence in court. A few states, however, have purchased evidential breath testing devices, like the Alco-Sensor RBT IV with printer, and (if state law allows it) these portable devices can yield a legally admissible breath alcohol result.
A written document presented by a criminal lawyer to the judge presiding over a criminal case. The prosecution also can submit a brief. Each attorney sets forth both a short summary of the facts of the case and cites the relevant law that supports the lawyer’s case.
BURDEN OF PROOF
This refers to the evidentiary obligation of a party to legal proceedings having to “carry” the burden to prove his or her allegations during a trial. Different levels of proof are required depending on the type of case. This phrase is employed to signify the duty of proving the facts in dispute on an issue raised between the parties in a cause. In criminal cases, as every person is presumed to be innocent until the contrary is proven, the burden of proof rests on the prosecutor to prove each and every element of the charges. After the prosecutor has presented such evidence, the defendant may need to rebut (challenge) the prosecutor’s evidence, as a practical matter, even though the burden of proof in criminal cases never shifts to the defendant.
A formal accusation, indictment, or other criminal complaint form used to inform an accused person of the existence of a criminal offense against him or her. These are also sometimes merely called “criminal charges” or DUI charges, in driving under the influence cases. Most states initiate drunk driving charges through an officer’s traffic tickets or “citations”. Prosecutors can then amend, replace or delete certain original charges by creating information or an accusation or an indictment (for felonies, in some states).
A type of indirect evidence that implies that certain facts occurred but does not directly prove it. For example, circumstantial evidence that it rained recently can be obtained by a witness testifying that he went into his house at 6:00 p.m. and it was not raining. Later, at 7:30 p.m., he comes outside and the ground, roadways and trees are wet. He did not SEE it rain, but circumstantial evidence says it did. In a DUI trial, typical jury instructions tell a jury that they can chose to accept or reject direct evidence and testimony, or accept it, and the same applies to circumstantial evidence. The jury weighs the evidence – direct or circumstantial.
Similar to a unique web site address [URL], this is a legal shorthand method of “citing” or referring to a particular criminal or civil appellate case that has been decided by a court and is part of the official “reporters” (bound volumes of important cases). Each reported (and some unreported) decisions by appellate (and even trial level decisions in some states) is given a unique set of alphanumeric identifiers that help attorneys refer to the case so others can look it up and review the rulings made by that court. On the Web, you may see such cases used as references for legal points that are made either in the text itself or in the footnotes. By copying the case names (State v. Jones) and the numbers and words following (233 N.C. App. 456) as a whole, and then entering this information into either a legal search engine query or into a Google search, you may be able to find the text of the entire case. Well over 100,000 DUI appeals and other trial level cases have been reported.
A collection of written laws arranged into chapters, a table of contents, and an index, and published by legislative authority in each state or commonwealth. For example, the Iowa Code is a collection of laws approved by the Iowa legislature. Abbreviations for statutory provisions in this book may be a byproduct of the “code” citation. Example: Official Code of Georgia Annotated is abbreviated O.C.G.A. The Georgia DUI law is often given a shortcut citation as OCGA 40-6-391.
Law based upon previous decisions of English “common law” courts or referring to the body of laws passed down from England to America when our statutes were created in the United States. Many of the states have language in their Code stating that where no specific state law has been enacted, that “common law” guidelines control how that legal issue should be decided.
Upon conviction for multiple crimes arising from a criminal sentence, a person being sentenced can be ordered by the judge to serve any custody and/or probation periods at the same time as another criminal sentence, rather than one after the other.
Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time, are called “consecutive” sentences. Consecutive sentences may only be imposed if there is specific statutory authority to do so. Many states leave that decision to the sentencing judge. In some circumstances, consecutive sentences may be imposed within the judge’s discretion (e.g., when a person is convicted of a new offense committed while on probation or on parole status). In other circumstances, consecutive sentences are mandatory under state law.
CONTEMPT OF COURT
This phrase refers to any act or conduct that shows disrespect for the court’s authority that is done within the court’s boundaries. While these boundaries are usually the courtroom, anything within the court building may be subject to contempt power. Contempt of court usually means a person has failed to obey a court order or directive. Contempt can be punished by a fine or imprisonment or both. Generally, contempt that can result in jail time must occur within the courtroom or in the presence of the judge. Other forms of contempt are typically punished by fines. Anyone, including a DUI attorney representing a person, can be held in contempt.
This term refers to postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called an “adjournment.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, and typical rules include being able to prove several criteria exist that justify the Court resetting the case to a future date. See adjournment, above.
Finding by a judge (who is deciding guilt or innocence without a jury) or a unanimous decision by a jury that a person is guilty beyond a reasonable doubt of committing one or more of the crimes charged.
COPPING A PLEA
See “Plea Bargain” below.
Refers to legal counsel assigned by the court to represent an indigent criminal defendant. The term “public defender” may be used for court-appointed lawyer. A court-appointed attorney is not necessarily a “free” attorney. In most states, an application fee for investigating a person’s indigent status can be required, and the court can order that some, or all, of the attorney’s time utilized on behalf of the client be reimbursed if the person is found guilty. If there is no chance jail time will be imposed on a defendant on a traffic or a misdemeanor offense not carrying jail time or the chance of DUI probation, the judge need not appoint an attorney.
The process of challenging the evidence presented by a witness who is testifying for the opposing side in a trial. The lawyer cross-examining the witness may utilize a series of questions, plus documents and other exhibits (such as a DUI videotape) to cast doubt on the testimony of the witness. Questions on cross-examination (as opposed to direct examination) can be “leading” (questions that suggest the answer to the witness). Leading questions are not permitted to be asked by the party who offers the witness for providing evidence on their behalf.
The person accused of a crime.
The testimony of a witness not taken in open court, but given under oath before a court reporter pursuant to authority given by statute or court rule, to take testimony in preparation for trial. Deposition testimony may be introduced as evidence in a court proceeding. Only a few states allow deposition testimony in criminal cases, although depositions are very common in civil cases.
In criminal cases, upon motion made by the criminal defense attorney, a trial judge’s directive (order) to a jury to return a specified verdict of “not guilty,” usually because the prosecutor failed to prove all elements of the criminal charge. This type of ruling or order is sometimes called an “instructed verdict of acquittal.” Because an accusation, indictment and information usually have multiple counts, it is possible for a verdict on one or more counts to be directed by the judge, and others to remain for the jury to decide.
A lawyer elected or appointed to serve as a prosecutor for the state in criminal cases. In some jurisdictions, this prosecutor’s title is “state” attorney or solicitor. The common abbreviation for the elected District Attorney in a jurisdiction is “DA,” while the assistants who work for him/her are “assistant district attorneys” (ADA).
A disposition not requiring a trial, and often not creating a state criminal record, these statutes are state-specific, meaning that many states do not officer diversion at all, for some offenses. This type of special disposition is typically reserved for first-time offenders and may be called adjournment in contemplation of dismissal, probation before judgment or conditional dismissal. The term diversion in DUI and some drug possession cases can describe a state’s treatment and education program for addicted individuals in which a defendant is put on conditional probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court within a per-established time period, the criminal charge will be dismissed. Diversion is generally only allowed for first time offenders, as that term is defined by each state’s law. Some jurisdictions have no statutes authorizing diversion in DUI-DWI cases. In fact, some states, like Georgia, statutorily block any expunction or removal of a driving under the influence charge, in addition to not having any diversion program.
A list or index of cases and case events maintained by the clerk of court. This term can also mean a list of cases on a court calendar for a specific day to report to court, or refer to a term of court.
In criminal law, a plea of “double jeopardy” is a procedural defense based upon state and/or federal constitutional rights (and possibly statutory rights in some states) that forbids the government from trying an accused citizen a second time for a crime, after he or she has already been tried for the same crime. In ancient common law, a defendant would plead “autrefois acquit” or “autrefois convict” which merely meant that the defendant had been acquitted or convicted of the same offense before, and was not subject to an additional trial.
Only people new to America would ask, “What is a DUI?” Television news, radio, newspapers and the Internet are overflowing with stories of celebrities and politicians being arrested for DUI, which can be quickly described as impaired driving. DUI is the most common acronym for the criminal offense of driving under the influence. The impairing substance causing the person to be “under the influence” can be anything knowingly ingested, injected or inhaled, like alcohol, drugs, plant material like marijuana, glue, noxious vapors, inhalants, or any combination of impairing substances. So, DUI vs DWI, or OWI vs DUI is meaningless, since the crime of drunk driving or drugged driving is being identified. Multiple other abbreviations or acronyms for impaired driving exist in many states, but the substantial majority of states in America utilize “D.U.I.” as the acronym identifying the crime of intoxicated driving. The full list of USA acronyms for DUI, DWI, OWI, OVI, OUI and other unique drunken driving acronyms and usage around the country can be found within this website.
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Entrapment occurs when police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime. It also applies when police engage in conduct so reprehensible and underhanded that it cannot be tolerated by the court. Entrapment does not occur if the defendant has the propensity to commit the crime, and the police conduct only gives the defendant the opportunity to commit the crime. This defense is almost never viable in a DUI-DWI case, but is part of the evidence in many sex crimes cases, especially where online solicitation from a police officer posing as a young sex victim occurs.
ENTRY OF APPEARANCE
A document filed by an attorney with the court, and provided to the prosecutor and judge, advising that the attorney has undertaken representation of a specific individual. See the definition of “APPEARANCE” above.
A fact or item presented before a court, such as a statement of a witness, an object (Like a DUI field sobriety test video), etc., that logically bears upon the relevant evidence or establishes a point in question.
This is a court-made rule preventing illegally-obtained evidence from being used by the government in its case-in-chief against a criminal defendant. The rule is derived from the 4th and 5th Amendments to the United States Constitution. Some states have enacted state constitutional provisions or state statues to give citizens more protections under state laws that loosely track the same protections covered by the federal Fourth Amendment and the Fifth Amendment. These state laws can offer more protections than the United States Constitution offers to a citizen.
Evidence that the Prosecutor may possess that could establish a person’s innocence, or be used by his or her attorney to prove some fact that could cast doubt upon his or her guilt, is exculpatory evidence. When state discovery rules are not complied with by a rogue prosecutor, such conduct of not disclosing evidence can lead to a new trial, a dismissal or possibly even be the basis for criminal charges against the prosecutor.
A Latin term that means “by or for one party.” This refers to situations in which only one party appears before a judge without the adversary being present. Such meetings are prohibited, are highly suspicious, and can result in legal penalties against the party that meets with a judge without the opponent being present or even being notified. Especially in criminal cases, the inherent familiarity of many prosecutors with the criminal court judges is enough of a hurdle to overcome, without actual collusion.
EXPUNCTION (or sometimes incorrectly called “EXPUNGEMENT” which is not a word)
A process where a conviction may be set aside either upon the passage of time or by virtue of an event occurring or by the completion of certain conditions required as conditions of a plea agreement or a sentence of a court. The conviction may or may not be totally removed from all aspects of a criminal record, such as federal records of an arrest taking place. Expunction is not available in some states, or for some criminal offenses in many states.
EXTRADITION – EXTRADITE
This is the formal application process whereby the prosecuting authority of one jurisdiction seeks the turnover of a person who has been located in one state to the authorities in another state where that person has been accused of or convicted of a crime. This can also be done between nations, where a person has fled from one country to another to avoid being brought to justice.
FIELD SOBRIETY TEST
A voluntary and 100% optional roadside exercise or evaluation that is used by a law enforcement officer investigating a DUI-alcohol case or a DUI-drugs case. Ostensibly, these examinations are purported to correlate with driving impairment, but that underlying tenet has never been scientifically proven. When NHTSA sanctioned these so-called “field tests,” the proponent of the evaluations, Dr. Marcelline Burns, clearly stated that these field sobriety tests have no scientifically-proven correlation with driving impairment. Although police routinely do not advise of the voluntary nature of these evaluations, field sobriety tests are totally optional in all jurisdictions. Most experienced drunk driving attorneys advise their friends, relatives and clients against attempting any of the FST evaluations due to inconsistencies in officer training, defective administration of the field sobriety evaluations, as well as the subjective nature of these roadside exercises. Most field sobriety test exercises are filmed on video, and can be used by police in most states, despite the bogus scientific foundation. Best bet: just say NO.
A crime considered to be of a more serious nature than a misdemeanor and punishable by more than a year in prison. Examples of felonies include murder, kidnapping, manslaughter, burglary, armed robbery, and certain types of sexual acts, misconduct and abuse. In the DUI laws context, all US states have felony laws for homicide by vehicle, vehicular manslaughter or even murder, when a drunken or drugged driver causes the death of another.
HABEAS CORPUS (Petition for)
From the Latin, this translates to “you have the body.” A petition for habeas corpus is a petition to bring a person (typically a prisoner) before a court or a judge for a hearing on whether the person is being held or detained illegally. In most common usage, it is directed to and served upon the official person (like a Sheriff) who is detaining another, commanding that the person keeping the person “in custody” produce the body of the prisoner or person detained at the Courthouse so the court may determine if such a person has been denied his or her liberty without the process of law. Physical custody is not mandated, if the person is on probation, and his or her full liberty is not unfettered.
A statement made outside of court (i.e., not from the person on the witness stand at the present proceeding) that is offered into evidence not merely to prove that the statement was made but to prove that it was true. The reason that hearsay is often kept out of a trial is that it is considered unreliable. Instead of having someone testify about what they heard someone else say, it is much more reliable to have the person who actually made the statement testify. There are over a dozen of long-established exceptions to the general rule that hearsay statements are inadmissible in court. However, each exception is based on circumstances where the out-of-court statement carries a strong likelihood of trustworthiness (e.g., deathbed statements, self-incriminating statements, statements made to doctors about medical conditions, etc.).
By using the highways of a state, the legal assumption is made that you are willing to consent to breath, blood or urine testing, if you are lawfully stopped by police and are suspected of driving under the influence, that you have “impliedly” consented to such testing, after you are arrested. IF you are PROPERLY detained or seized by police for a legitimate traffic or criminal offense, and IF the law enforcement officer does have legitimate probable cause to believe that you were “in actual physical control” of a motor vehicle, or were seen driving impaired (and were affected by any impairing/intoxicating substance or substances), your consent to be tested for that impairing substance is IMPLIED (assumed as a matter of law) because you voluntarily drove on the state’s highways and roads). So, through a legal fiction, you are DEEMED to have given your consent to take the State’s requested test or tests. You also may have the right to WITHDRAW that consent (i.e., you can refuse to be tested), since most states have provided for what happens to your driver’s license or driving privileges when a refusal to test is received. . In most states, DUI implied consent laws basically outline legislation that provides that by driving a motor vehicle on the highways of Georgia, (if asked by a police officer who HAS ARRESTED YOU) to submit to a chemical test or tests of your breath, blood, or urine to determine alcohol or drug content. THIS CONSENT CAN BE WITHDRAWN in most states by saying “NO” to taking a breathalyzer test or blood test or urine test, after you have been legally arrested for DUI-DWI. IMPORTANT NOTE: the implied consent advisement is always told to you AFTER your arrest for drunk driving or drugged driving. See Mr. Head’s YouTube advice about rights. Implied consent no longer can be the basis of a forcible blood draw from an unwilling driver in a run-of-the-mill, drunk driving case. The U. S. Supreme Court handed down Missouri v. McNeely in 2013, disapproving of Missouri officers simply forcing DWI drivers to take a blood test, in a warrantless seizure of blood. So, a non-consensual, forced blood draw now requires a judge to issue a search warrant for blood and the facts to support this need must be based upon an adequate showing of probable cause to believe that the arrested driver was impaired and to show why the forcible blood test was needed.
A formal accusatory document of one or more felony offenses, drawn up by a prosecutor, such as the District Attorney.
A formal accusation of crime, based on an affidavit of a person allegedly having knowledge of the occurrence of the criminal offense.
Regarding some legal case that is cited as legal precedent for the same issue, but later in the same document, which is usually a reported appellate case. This Latin word is also used by criminal attorneys in brief writing or legal memoranda. A related term, “infra” is described below, but serves a similar purpose, but is pointing backwards, not forwards, from some case law or legal proposition.
Also called “jury instructions” or “jury charges,” these are oral directions given by the judge to the jury concerning the law of the case and on the applicable legal principles that the jury is duty-bound to follow in deciding guilt and innocence. In some jurisdictions, it is standard practice for the jurors and the parties’ lawyers to be given a written copy of the jury instructions to review.
A legal term that means provisional, temporary or preliminary. It applies to legal orders or decrees given by a court before it issues its final decision. An “interlocutory appeal” involves an appeal of a matter within a case before the case is concluded or final. See the additional information under “appeal” in this glossary.
The right and power to interpret and apply the law to a particular case. One definition relates to the authority of a court to hear and rule upon certain types of cases. This is sometimes called “subject matter jurisdiction.” This term can also refer to a limitation on the extent of authority or control the trial court can have. By way of example, the law in some states limits the place or geographic area that a police officer can arrest a person to being the area where a crime is committed and observed within the officer’s “jurisdiction” (e.g., the City Limits).
A group of upright and unbiased people, selected according to law, and sworn to listen to certain matters of fact and declare the truth based upon evidence presented to them. In a criminal law case, panels of 6 to 12 jurors (depending on state law) can hear misdemeanor cases, and 12 will typically be required to hear felony cases. It may or may not be required (in a few states) to have a unanimous decision for either a conviction or an acquittal. In DWI cases in several states, a jury trial is not permitted, such as Louisiana (first offense DWI), New Jersey (on a first DWI, second DWI or a third offense DWI), and Nevada (first DWI offense), on a first DWI offense.
Also called, voir dire. This is an inquiry of prospective jurors, by the attorneys (in most jurisdictions) and by the judge, to determine if such jurors are fit for jury duty in a given case. Any juror revealing an inability to be impartial to the parties or issues will be stuck (taken off) the jury panel by the judge either by the judge’s own action or upon a well-founded motion “for good cause” made by either attorney for the person’s removal from the panel of prospective jurors. Once all questions and answers have ended, each attorney is allowed a fixed number of arbitrary “strikes” (eliminations) of those on the panel. These are called “peremptory strikes,” and can be made for any reason that is not unconstitutional (such as excluding merely because of race).
The name of a writ that is issued from a court of superior jurisdiction, directed to a lower court or a public officer, commanding the performance of a particular act.
A four-part warning required to be given by police to a criminal suspect who has been arrested before custodial interrogation can take place. This warning advises the person being detained that he or she does not have to talk to police, that he or she can stop any interrogation at any time and have counsel present, and that his silence will not be held against him, and his right to legal counsel before talking to police. This “phrase” derives from a US Supreme Court decision: Miranda v Arizona, 384 US 436 (1966). Over the years, courts at every level have carved dozens of exceptions into the rule so that its effect is watered down. This is what the 1966 U.S. Supreme Court decided was the minimum required notice:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Offenses considered less serious than felonies. Multiple classes of misdemeanors can exist under state laws. The three most common monikers in DWI-DUI practice are: simple misdemeanor, serious misdemeanor, and aggravated misdemeanor. Examples of misdemeanors may include simple battery (hitting someone), traffic violations, thefts of property not exceeding a certain value (possibly $500), trespass, and disorderly conduct. Maximum fines for misdemeanors vary from state, but $5000 is usually an upper limit, with many states capping fines at $1000. Typically, the longest prison sentence for being found guilty of a misdemeanor is one year or possibly less than a full year.
A mistrial is a court ruling made by a trial judge after a jury is impaneled but before the jury is able to reach a final decision on the accused’s innocence or guilt on the pending criminal charge(s). Where prosecutorial goading of the DUI defense lawyer occurred, that necessitated the criminal lawyer for the accused having to ask for a mistrial, a new trial may be unavailable to the prosecutor. When a judge acts on his or her own to declare a mistrial, if the defense attorney timely and properly objects and seeks less drastic measures, this granting of a mistrial by the judge can result in a double jeopardy challenged by the DUI defense attorney, when and if the case is re-accused.
An application to the court requesting action or some type of “relief” in a pending case. Usually, a motion is made in writing, and addresses an issue that is within the court’s discretion to order some form of guidance as to how the trial will proceed. The judge may also order some act to be done or to not done by one or both litigants or participants at trial. In terms of pre-trial motions, these are challenges to certain evidence being presented to the jury (or judge) due to some legal challenge that requires that evidence either be allowed to be used at trial or that it not be permitted to be considered by the jury.
NOLLE PROSEQUI – NOL PROS
The Latin term used in many jurisdictions to describe the prosecutor’s voluntary dismissal of one or more pending criminal charges. The court’s permission is required for the nolle prosequi to be valid. As long as a jury trial has not been started, the entry of a nolle prosequi by a court is not an adjudication of the case on the merits (e.g., it is not final and you can be re-accused later).
NOLO CONTENDERE PLEA
A nolo contendere plea (also called a “no contest” plea or “a nolo plea”) can be entered by criminal defendants in some jurisdictions to some criminal charges when the accused is facing a realistic prospect of conviction, and does not wish to undergo the expense and uncertainty of a trial. By entering a “nolo” plea, the accused is not admitting to being responsible for the criminal act charged. Also, defendants may wish to avoid admitting to guilt, so as to admit to committing a tort (a civil personal injury suit arising from an accident in which the injured party seeks monetary damages), can get a CIVIL advantage from receiving a nolo contender disposition in the criminal cases. This avoids an admission to any type of wrongdoing alleged in the indictment, accusation, uniform traffic citation or information against him/her with a view to protecting possible civil action.
A formal statement (typically in writing) by a judge, magistrate or justice (another name used for trial level judges in some states), that sets forth a decision about some aspect of a case or on the legal issues bearing on a case.
A law passed by a city, town, parish or county legislative body. Ordinances are of lower judicial significance and “reach” than state laws, which control the law across an entire state. By way of example, if a state (like Louisiana) had no law prohibiting open containers of alcohol, a city might enact an ordinance prohibiting vehicles in that city from allowing any open alcohol containers within the vehicles.
A judge’s decision (usually made during trials or motions hearings) to not allow an objection to certain evidence being heard by the jury to prevail. Also, this trial ruling, if critical to the conviction, can later be part of an appeal of a criminal conviction.
In criminal cases, the persons who are actively concerned in the prosecution or defense of a legal proceeding are referred to as “the parties.” In a criminal case, the parties are the State, or some other governmental entity that is serving as the prosecutor versus the defendant, or the accused person charged with the crime. The person against whom the crime was committed is typically not a party.
Knowingly making a material false statement, while under oath to tell the truth and nothing but the truth. Perjury is a crime in all jurisdictions and applies to all witnesses (i.e., it is a crime to lie to the judge or while testifying before a jury.)
Latin, meaning “of, in, or by itself or oneself; intrinsically.” Pronounced “per say,” in drunk driving defense law practice, all that the prosecutor needs to prove to obtain a conviction for this type of “DUI-DWI” offense is to successfully introduce the breath, blood or urine test result that meets or exceeds the applicable numerical “level” for presence of the drug (alcohol or possibly marijuana) so as to convince the jury or judge that the result of the BAC level obtained through laboratory testing or breath testing was reliable and trustworthy, as required to be established under state law.
This term generally refers to an agreement in a criminal case in which a prosecutor and a defense attorney (acting on his or her client’s behalf) arrange to settle the criminal case against the defendant on some negotiated terms and conditions. Typically, all plea bargains are subject to the consent of the trial judge before whom the DUI case or other criminal misdemeanor or felony charge is pending. The defendant may agree to plead guilty or try to plead nolo contendere in exchange for the prosecutor dropping some charges or reducing the recommended punishment aspect of the case to a more favorable level. For some types of offenses, particular felony drug charges, a first offender plea can help clear a state criminal history, assuming that all conditions and requirements are met and no new criminal violations occur.
A formal statement, generally written, propounding the case of action or the defense of a legal case. Pleadings may also have specific titles such as “Motion to Suppress,” “Motion in Limine” or “Discovery Motion,” and these are all classified as “pleadings.”
Synonymous with preliminary examinations, this is a hearing given before a magistrate or other judge to determine whether a person who is in custody and charged with a crime should be held further or bound over for trial. The level of proof required to be shown at this level of criminal proceedings is very low (typically “some evidence to believe”) since the prosecutor typically will not have had time to fully investigate the case before the hearing, which can be within 48 to 72 hours of arrest. Often, if a person is released on bond, no right to such a preliminary hearing exists, or is waived (given up) by getting freed on bond. These types of hearings are very rare in driving under the influence cases, unless the charges have been enhanced as a felony by virtue of a vehicular homicide or vehicular manslaughter cases, possibly.
PRESUMPTION OF INNOCENCE
The Government has the burden of proving a person charged with a crime guilty beyond a reasonable doubt, and if it fails to do so, the person is (so far as the law is concerned) not guilty. The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent until the judge or jury finds them guilty. The law does not require a person to prove his innocence or produce any evidence at all, nor can the government use this silence against a defendant.
Latin for “at first view.” Evidence that is sufficient or plain enough on its face to raise a presumption of fact or to establish the fact in question, unless rebutted by the other side. So far as can be judged from the disclosure, an accurate fact, presumed to be true unless disproved by some evidence to the contrary.
Latin for “on one’s own behalf.” A person who represents himself in court alone without the help of a lawyer is said to appear pro se. This person usually has the worst possible lawyer, himself or herself.
A legal term of art that means a constitutionally prescribed standard of proof or (in the alternative) may refer to a reasonable ground for belief in the existence of certain facts. Probable cause is the burden of proof necessary for issuance of an indictment or issuance of an accusatory document (i.e., an information or an accusation). In DUI prosecutions, the officer must see a traffic violation, or see an equipment defect or know of some reliable report of a criminal act, in order to have probable cause to turn on emergency lights and/or the siren to effectuate a pullover of the vehicle.
A form of criminal sentence in which an offender agrees to comply with certain conditions imposed by the court rather than staying in jail or being put in jail or prison, due to not being willing to comply with the rules of probation.
When a person who is out of custody, by the grace of the sentencing judge screws up and violates the terms of his or her probation, then the probation officer overseeing the person’s case can file paperwork in Court, asking the judge to revoke probation, and further ask the judge to sanction the person, and this sanction is that jail time be served, instead of the person remaining on probation.
PROOF BEYOND A REASONABLE DOUBT
The highest level of proof in any legal matters, reserved for criminal cases. In order for a criminal defendant to be convicted of a crime, the prosecutor must prove his or her case to the point that the no juror has no reasonable doubt in his or her mind that the defendant did whatever he or she is charged with having done. The jury in criminal cases must be unanimous. So, if just one juror will not agree to vote to convict, then that is not a unanimous jury, and no conviction can be had.
A government lawyer who initiates an accusation against a party suspected of committing a crime; also one who takes charge of a case or performs the function of a trial lawyer in a criminal case on behalf of the state or the people.
A lawyer employed by the government to represent a person accused of a crime and who cannot afford to hire a lawyer.
Evidence offered by the opposing side of a case that is given to explain or disprove facts given in evidence that were put in front of the jury by the opposing party. Each side can offer rebuttal evidence, or surrebuttal evidence.
A legal remedy sometimes allowed by statute under which a person aggrieved by the actions of a criminal is restored to his or her original position prior to the loss or injury. In DUI-DWI accident cases, the laws of many jurisdictions authorize the criminal court disposing of a guilty verdict or plea to order restitution of damages to the “victim” of the DUI-related crash. In these case, the person convicted of having been DUI-DWI, must pay “restitution” to the victim of the accident, to put the victim in the financial position they would have been in if there hadn’t been an accident.
A part of an employment contract between an attorney and his or her client. Preferably (under most state bar rules) these need to be in some written form, but retainers can be oral. The payment of money to the attorney as a “retainer” signifies an agreement for the attorney to act on the person’s behalf and to represent the person in the legal matter that is the subject of their “contract.” In criminal cases, a retainer is typically a partial payment toward the ultimate, total fee that may be due in the event the case requires filing of a variety of motions and other pleadings, handling administrative license suspension issues, conducting pre-trial hearings of various types, going to trial or possibly filing an appeal. To avoid confusion on the exact terms and schedule of other payments, retainer agreements should be in writing in virtually all criminal cases.
Judgment formally pronounced by a judge upon defendant after the defendant’s conviction in the criminal prosecution. No appeal can be filed after a conviction is announced, until the sentence has been imposed.
The prosecutor of both felonies and misdemeanors in some jurisdictions (i.e., South Carolina) representing the state. In other states (e.g., Georgia), the solicitor-general is the misdemeanor prosecutor and the District Attorney is the felony prosecutor.
A law adopted by the state legislature.
A court-authorized or court-issued form (usually under the seal of the court) ordering a person to be in court at a certain place, hour and time, or (if willfully absent) “to be punished” for not doing so.
The legal citation in an appellate decision or possible in legal briefs for the case law citation or the legal point just made, which has already been fully cited and identified above, in the same document.
A judge’s decision (usually during trial or motions hearings) to not allow an objection to prevail for the party objecting to testimony or evidence being offered by the other side.
Spoken evidence given by a witness, testifying under oath, as distinguished by evidence derived by writings, physical exhibits and other sources.
When a group of citizens acting as a Grand Jury listen to the Prosecutor and his/her witnesses, and decide that the criminal case needs to go forward and be prosecuted, this is called a “true bill.” If those Grand Jury members vote to not go forward, then that is a “no bill.”
TRIAL INFORMATION (OR ACCUSATION)
A document filed by the prosecutor, which states the charges and evidence against a defendant in a criminal case. See further information under “accusation” or under information” in this glossary.
UNIFORM CITATION (OR UNIFORM TRAFFIC CITATION)
A statutory form of a handwritten or digitally created charging document generally used by police officers to accuse a citizen of certain types of offenses. In some states, this method allows a law enforcement officer to issue a traffic citation on certain misdemeanor or traffic infraction cases. Typically, uniform citations are authorized for traffic offenses and other types of violations that are considered less serious offenses. Some states allow the prosecution of DUI-DWI cases on these citations, without the need for the prosecutor to file a formal, computer-generated (or typewritten) accusation or “information” setting forth the charges.
The formal decision or finding made by a jury in a trial after consideration of the evidence presented and applying the rules of law given to the jury by the judge. In a criminal case, for each “count,” the jury will render one of three decisions: (1) “guilty,” (2) “not guilty” or (3) “can’t agree unanimously” (or by whatever non-unanimous standard some state may have rather than unanimous).
French term for “to speak truly, to tell the truth.” In English, this is called “jury selection.” Jury selection is an inquiry of prospective jurors by the attorneys (in most jurisdictions) and by the judge, to determine if prospective jurors are qualified for jury duty in a given case.
This refers to knowingly and intentionally giving up a right. Example: a defendant waives his right to remain silent by agreeing to be interviewed by police. In the legal system, almost any right can be waived, if it is done willfully, knowingly and intelligently. In guilty plea proceedings, where an accused person is proceeding pro se (as his or her own attorney), the law presumes that if the proceedings are not fully recorded and documented that the person did NOT freely, knowingly, willfully and intelligently ether a guilty plea.
A writ or order issued by a judge or a magistrate authorizing an officer of the law to make an arrest, to conduct a search, or to perform some other designated act.
One who testifies to what he or she has seen, heard, or otherwise observed or (in the case of expert witnesses) testifies to his or her professional opinion based on a hypothetical set of facts, physical evidence recorded at an arrest location or crime scene, from treatment records, or from a statement given.
A probation program (alternative to jail sentence) that is available in some jurisdictions wherein the defendant is permitted to maintain employment while residing in jail at night and on weekends, when not at work. The defendant leaves jail on workdays only for his or her work hours, plus limited travel time. These programs are not available in some jurisdictions, due to lack of funding for such facilities. Also, some state statutes do not allow DUI-DWI detainees to utilize “work release.”
An order issued from a court requiring the performance of a specified act, or giving some state agent or actor the authority to carry out the mandate of the written writ. (See habeas corpus, above).
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