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What Is the Difference Between a Misdemeanor V Felony DUI?

Dale Gribow Oct. 12, 2022

I was retained on a new DUI case this week by a young girl celebrating her 21st birthday, and getting arrested for a DUI with an Accident Injury. Most DUI’s result in an OR RELEASE… on your promise to show up in court. With a Felony Bail is usually required. Though my client was arrested for a Felony, we will do everything we can to see this case does not wind up as a Felony. 

The arresting officer will send the report to a Sgt. who forwards it to the filing Deputy DA. The reports are sometimes delayed in filling because paperwork has been misplaced or more info is needed.  When the filing Deputy DA reviews it, s/he tries to determine what crimes have been committed.  

Even though the police officer may have arrested you/cited you for a particular crime, the filing deputy could decide that there were more counts that should be filed and/or less counts.  DA’s often over file, so that they can offer to dismiss a count. However, Some cases are a direct file to the court, by the arresting agency, thus bypassing the DA.    

When in custody we have some bondsmen that will get you released with NO MONEY DOWN, if you qualify, and charge 7- 8% for our clients, instead of 10%.  If there is no filing of the complaint, on the arraignment date, the matter is continued for 15 days. 

Your first appearance is called an Arraignment, for either a Misdemeanor or Felony. Because of COVID the court have been backed up and on Friday October 7, 2022, the California Supreme Court ended the 25 Covid extensions. On that date, Judge Dale Walls retired, and 5 new DA’s will be on the bench soon. Thus things are somewhat up in the air as to what cases might go where. 

Misdemeanor Arraignments are in Department 2K and stays there until Trial and then get sent out.  On Misdemeanors, we can appear on behalf of our clients, pursuant to a Waiver of Personal Appearance under Penal Code Section 977.  

On Felonies, the defendant has to appear each and every time unless we can get the judge to allow us to appear on the clients behalf. In addition, it is often difficult to get discovery from the DA before a preliminary hearing.  

When we appear at the Arraignment, we are supposed to get a copy of the police report, which we forward to you. We ask you to review it and let us know what looks correct or incorrect.  Recently, the court Deputy DA has not had a copy of the report, and we have to enter a plea of not guilty, and get the report at a later date.  

Most DA’s have to go to a supervisor for their authority “to deal”.  In 2022, they are making a standard jail time offer on most cases. With the court backed up, we don’t know if the judges will continue cases, contrary to the Statute of Limitation or whether the DA will offer attractive deals. 

The current District Attorney for Riverside County is Mike Hestrin.  Both he and the DA had their term of office extended for 2 years as of October 2022, to be in compliance with the Presidential elections. The  DA has instructed his deputy district attorneys to not plea bargain and to demand the defendants plead straight up to the charges with maximum sentences.  Thus, the court deputies have had limited authority to negotiate.  Today the DA’s maintain they will make the best offer at the Arraignment court and the offers go up from there. 

On a Felony, after the Arraignment, the matter is set for a Pre-Preliminary hearing or Felony Settlement Conference where you have an opportunity to try to work out a disposition.  After that, a Preliminary Hearing will take place where the prosecution has to prove that a crime was committed and that the defendant is connected to the crime.  A Prelim is not a stage where you have guilt beyond a reasonable doubt.  In the vast majority of Preliminary hearings, the judge rules in favor of the District Attorney, and you have to return to court again for an Arraignment and a subsequent Trial Setting Conference and Trial.  

The Indio Courts are  backed up with 1700 criminal cases because of Covid. In the past there have been  civil freezes.  This means that no civil case goes out to Trial, as all the courts are just handling criminal matters. That may happen again. Because the District Attorney will not readily negotiate a plea, the courts are inundated with cases.  Because your case is set for a particular date for Trial does not mean it will go out on that date, nor does it mean the case will stay in Indio at the Larson Justice Center. In other words everything is up in the air.