Most DUI-DWI offenses are misdemeanors and charges are usually initiated by the filing and service on the defendant of a verified complaint or similar instrument signed by the investigating police officer. After being formally charged, most drunk or impaired driving defendants are released either on bail or on their own recognizance after a short confinement. In most jurisdictions defendants in misdemeanor DUI-DWI cases are not entitled to a preliminary hearing unless they are incarcerated and unable to post bail.
While the right to a preliminary hearing is governed by statute or court rule in most jurisdictions, it should be understood that in a misdemeanor case the defendant is constitutionally entitled to a judicial determination of probable cause as a pre-requisite to extended incarceration following arrest. Further, to satisfy constitutional requirements the procedure adopted by the local jurisdiction for determining probable cause must be fair and reliable and the determination must be made by a judicial officer either before or promptly after arrest.
As indicated above, a preliminary hearing is constitutionally required in a misdemeanor drunk driving case if the defendant is incarcerated for an extended period. However, a defendant arrested for a drunk driving offense, jailed overnight, and released the next day on bail has been held to have no right to a preliminary hearing unless the local rules or statute so provide. Further, Gerstein v. Pugh, supra, requires only a “judicial determination,” and not a “preliminary hearing” in the traditional sense. Thus, it may be constitutionally permissible for the court to determine whether probable cause exists on the basis of hearsay and without the presence of the defendant or counsel for the defendant.
If, in the local jurisdiction, a defendant incarcerated on a DUI-DWI charge is entitled to a preliminary hearing wherein the prosecution must present competent evidence of probable cause, it is usually a good practice to request (rather than waive) such a hearing. At a preliminary hearing defense counsel is normally permitted to cross-examine the prosecution’s key witnesses and examine the prosecution’s other evidence. In this manner a recorded account of the prosecution’s witnesses’ testimony can be established, and defense counsel can plan the defense accordingly.
Ordinarily, defense counsel should not approach a preliminary hearing with the idea of winning the case at that point by precluding the establishment of probable cause. A better practice in most cases is to use the preliminary hearing for discovery purposes. However, if probable cause as to a key element in the crime is an important defense in the case, it may be possible to establish this defense at the preliminary hearing and obtain the dismissal of the case at that point. In practice, such happenings rarely occur. In any event, the defendant should seldom, if ever, be permitted to testify at a preliminary hearing, as such testimony usually aids the prosecutor later in the case much more than it helps the defendant at the preliminary hearing, where his or her testimony will carry little, if any, weight.