Phase 2: Awaiting and Preparing for Trial
The pre-trial phase begins with a judge deciding whether an impaired driving defendant will remain in custody or be released back into the community. Only in instances where there is a significant risk to public safety is the defendant likely to be held until trial. If the judge decides to release the defendant, pre-trial release conditions are imposed.
A screening/assessment may be conducted at any point during the pre-trial process to identify the individual’s risk level and potential treatment needs. (Learn more about the process of screening and assessment.) An individual may also be diverted from the formal criminal justice system at the discretion of the prosecuting attorney.
Most jurisdictions have an agency responsible for overseeing pre-trial services to protect individual rights and to ensure that defendants report to court when required. Pre-trial services for impaired drivers vary across the country and represent an opportunities to strengthen existing criminal justice practices.
First Appearance and Bail
A first appearance before a judge typically occurs within 24 hours of the arrest of a suspect. This appearance may also be referred to as a bond hearing, preliminary hearing, or arraignment.
The purpose is not to establish guilt or innocence. The judge makes a ruling regarding whether the state has established probable cause to support the charges. If this burden has not been met, the defendant is free to go. If it is, the judge then considers if the defendant should remain in custody pending trial, weighing several factors:
- Does the defendant have a criminal record? What are the individual’s prior convictions?
- Is the alleged DUI offense a misdemeanor or a felony?
- Did the defendant have a high BAC level?
- If there was a crash, where there serious injuries or fatalities?
- Does the defendant have any outstanding warrants?
- What is the likelihood that the defendant will appear in court for upcoming court dates?
- Is the defendant a risk to public safety?
- Does the defendant have significant ties to the community?
When the prosecutor determines that the defendant can be successfully adjudicated for DUI, the next step involves deciding whether the level of charges is correct.
- Can the charges be enhanced based on the facts of the case—due to a high BAC level, for example?
- Does the defendant have prior convictions that could potentially enhance the charge?
- Can additional charges be filed? Did the defendant have a valid license at the time of operation? Did the defendant have a child in the vehicle? If the defendant was involved in a crash, did a death occur after the initial arrest?
In most cases, unless the defendant is deemed to be a significant threat to public safety or accused of a violent crime, pre-trial release is likely. The judge sets release conditions, which often include supervision, screening and assessment and prohibition from consuming alcohol and drugs.
Release on recognizance (ROR). For most misdemeanor and non-violent offenses, individuals can sign a written promise to appear in court on their next hearing date and be released on their own recognizance. This is an option for first-time DUI defendants who have little or no prior contact with the criminal justice system if their identity is confirmed and there is no reason to believe that they are a risk to the community. ROR is essentially no-cost bail.
Bail/bond. For other DUI defendants, a judge may decide to set a bail amount. Bail is a sum of money that defendants must pay to secure their release from a detention facility, typically a county jail. Judges ultimately have discretion when setting bail amounts. For individuals with lengthy criminal histories or past failures to appear in court, judges are likely to set higher bail amounts. Jurisdictions may have standard bail schedules, which limits judicial discretion. The more serious the offense, the higher the bail. For example, the uniform bail schedule in Orange County, California, sets release for vehicular homicide that involves DUI with gross negligence at $100,000 and a first-time misdemeanor DUI at $2,500.
For defendants who do not have the funds available to secure their own release, a bond can be posted by a third party on their behalf. A bond is usually posted by a bail bondsman or a family member or friend. Defendants who either fail to appear or violate the conditions of their release will forfeit the amount paid to secure the bond. Judges frequently require defendants to post bail/bond to ensure that they have something at stake if they fail to appear. Most impaired drivers are released on bail and will not be detained.
Pre-trial services programs. Some defendants are sent directly into a pre-trial release program where they are actively supervised. These programs are generally for individuals who the court determines would benefit from monitoring. The added supervision element can help keep these individuals on track and guard against additional criminal behavior while they await the resolution of the DUI case. Individuals may not be required to pay bail to secure their release because the court has confidence that they will appear due to the added supervision.
Release conditions. Defendants released back into the community are required to abide by a series of conditions outlined by the judge. Often, prosecutors and defense will offer recommendations about these conditions. Common pre-trial release conditions in DUI cases include:
- Reporting to a pre-trial supervision authority on a set schedule.
- Appearing at the next scheduled court date/hearing.
- Completing a screening/assessment for substance use disorders.
- Not consuming of alcohol.
- Not possessing or using controlled substances.
- Not committing any new offenses.
- Using electronic monitoring technology.
- Using of alcohol or drug testing technologies to monitor substance use.
- Attending substance use treatment.
If facts of the case or criminal history warrant, additional pre-trial release conditions may include movement restrictions, association restrictions, residence restrictions, weapons prohibitions, partial confinement, no contact orders and more.
The violation of pre-trial release conditions could result in forfeiture of bond and a hearing before the court. In cases where new charges are applied, the individual will likely be taken back into custody.
Defendants deemed to be a safety risk will be held until trial and ineligible for bail. Individuals who cannot pay cash bail may also be held even if they are not identified as posing a threat to the community. The criminal justice reform movement is working to abolish the cash bail system for this reason. It has led to the disproportionate pre-trial incarceration of minorities and individuals of lower socioeconomic status. DUI defendants as a group tend to be of higher socioeconomic status, making it easier to secure release.
Research has shown that defendants who are detained for entire pre-trial periods are more likely to be sentenced to jail or prison and for longer periods of time than those individuals who are released at some point pending trial (Lowenkamp et al., 2013). Other studies reveal that the use of pre-trial detention does not decrease the likelihood of recidivism in certain populations, and in some instances, may increase potential for future offending (Reichert & Gatens, 2018).
Many jurisdictions have established agencies that have the authority to oversee pre-trial services. Most of these agencies serve individuals who are released pending the resolution of their cases. These agencies conduct screenings and assessments and also monitor defendants to ensure that they remain compliant with the conditions of their release. Some jurisdictions also provide support services to individuals with substance use disorders. While most defendants cannot be mandated to enter treatment without a conviction, some choose to participate voluntarily in recommended programs. Defense attorneys often encourage clients to enter these programs to demonstrate a commitment to changing their behavior.
Though not always the standard practice, it is crucial that screening and assessment for both substance use disorders and mental health disorders be done at the pre-trial phase. The criminal justice process can drag out for months, which leaves a significant amount of time between DUI arrest and case resolution. If screening and assessment is not completed until after a conviction, individuals with disorders may continue to deteriorate.
Pre-trial diversion programs
Pre-trial diversion is an alternative to traditional adjudication, and it places strong emphasis on rehabilitation. The goal of a DUI diversion program is to take lower-risk—typically first-time offenders with BACs below .15—and give them an opportunity to demonstrate that they are capable of adhering to conditions and changing their behavior. Program acceptance and conditions are commonly determined by prosecuting attorneys, not judges. Individuals are incentivized to participate voluntarily because of the potential to avoid more severe penalties. Individuals who fail to adhere to conditions or complete diversion are subject to the traditional adjudication process.
There is significant variance in diversion programs. They include up to a year of education or treatment programming. These may use monitoring technologies such as ignition interlocks, continuous/transdermal alcohol monitoring, remote breath testing, and urinalysis to determine if participants are controlling their substance use.
The premise that underpins diversion programs is that lower-risk people are likely to learn from their arrest and prosecution, are amenable to rehabilitation, and will change their behavior. Individuals who successfully complete pre-trial diversion normally have their DUI charges dropped, reduced or expunged from their criminal record. In some states, there will be no record of any charges, dismissal, or completion of diversion, which can be problematic if it allows an individual to enter diversion more than once. In other states, the criminal record reflects the charge and successful completion of diversion, but the conviction does not appear on criminal background checks.
To maximize accountability and create a strong diversion program, the law should be structured so that individuals who complete the program and are subsequently arrested for another DUI are processed as second offenders, not first offenders. Essentially, the expunged first offense would reappear for sentencing purposes. Diversion programs should only permit participation once within a lifetime.
DUI diversion programs can reduce burdens on the criminal justice system and offer several advantages:
- Reduce the amount of time between case intake and disposition;
- Reduce the effort that prosecutors have to put into preparing cases for trial;
- Allow both prosecution and defense to concentrate on more serious DUI offenses; and
- Decrease pending caseloads as these cases are diverted from court dockets (Grube, 2019).
DUI diversion programs have yet to be evaluated extensively and best practices are limited. In reviewing existing literature, NHTSA states that the evidence has been mixed (Richard et al., 2018). Other studies have found that there is “substantial anecdotal evidence that diversion programs, by eliminating the offense from the offender’s record, allow repeat offenders to avoid being identified” (Hedlund & McCartt, 2002). For programs where data is available, studies have demonstrated that diversion programs, particularly those with short sentences, do not reduce recidivism, yet pre-trial diversion programs continue to be favored in some jurisdictions for their efficiency in dealing with first-time offenders (Wiliszowski et al., 2011).
Many judges claim DUI diversion programs weaken the overall DUI system. A lack of monitoring or limited tracking can create significant gaps in the system and will afford repeat offenders the opportunity to escape accountability for their actions.
Consequently, jurisdictions that are considering passing a DUI diversion law or establishing an informal local program are strongly encouraged to work with all relevant stakeholders to ensure that the program does not do more harm than good. A properly function diversion program must have rigid tracking to ensure offenders are only permitted to enter diversion once and that they do not enter diversion if they have multiple pending DUI charges in various jurisdictions.
Keep reading: The criminal justice process progresses with an in-depth discussion of screening and assessment practices followed by an exploration of the adjudication of impaired driving cases.
A Framework for Pre-trial Justice (National Institute of Corrections, 2017)
NIJ’s Multi-site Evaluation of Prosecutor-Led Diversion Programs (Rempel et al., 2018)