You might also be overwhelmed with all the information you need to know, and are physically and emotionally exhausted from the experience. You may also be frustrated by how slow the wheels of justice are turning. You might even concerned that there will be no justice.

Everything you are experiencing is very common for someone in your situation. Understanding how the court system works can help. Below is information on the court system, the different elements to a drunk driving case and what to expect. You can either scroll down or click these links to be taken to the information you need now:

Impaired Driving and the Courts | The Crash Investigation | Arrest of Suspect | Arraignment of Defendant | Bail or Bond Determination | Prosecuting Attorney | Defense Attorney | Case Discovery and Pre-Trail Hearings | Evidence | Witness Testimony | Continuances | Plea Agreements | The Trial Process | The Verdict | Sentencing | Victim Impacts Statements | Restitution | Appeals | Probation and Parole | Clemency

You can also contact MADD at any time by calling our Victim/Survivor Helpline at 
1-877-MADD-HELP ( 877-623-3435 ). We have trained victim advocates that can walk you through the court process, accompany you to your court dates, serve as a liaison with the media and help you write your victim impact statement. We understand what you are going through and we want to help. MADD helps survivors survive and our services are free.

THE CRIMINAL JUSTICE SYSTEM

Impaired Driving and the Courts

The criminal justice system is one that few people know much about until they have to. And it can be confusing and overwhelming, especially if you are grieving a death or dealing with an injury.

The impaired driving laws in most states are very similar. However, there are specific differences in how impaired driving cases are handled—for not only each state, but also in each jurisdiction. Your MADD Victim Advocate or the prosecuting attorney’s office can give you specific details about the laws in your state as well as the criminal justice procedures in the presiding court.

A state’s basic impaired driving statute may be titled “Driving Under the Influence” (DUI), “Driving While Impaired” (DWI), “Operating While Intoxicated” (OWI) or something similar. Typically, the statute describes the who, what, where and how of the offense in language such as “It is unlawful for any person to operate or be in the actual physical control of any vehicle within this state while under the influence of alcohol and/or any drug.”

It’s against the law to kill or injure another human being intentionally, maliciously, with criminal negligence, or while operating a vehicle under the influence of alcohol or drugs. Most impaired driving offenses are deemed a violation of state laws and are considered crimes against the state. It’s the state’s responsibility to prosecute the offender for the crime. If the case against the offender in your crash goes to court, the prosecuting attorney represents the state’s case against the defendant (the offender).

Being an active participant in the criminal justice system can cause you additional stress and use a lot of the energy you need for your healing journey. Your participation, however, can be important in seeing that justice is served. It is, however, OK if you decide that you aren't up to participating and choose to let justice take its own course without your involvement.

For other victims/survivors that have participated, many have said that, regardless of the outcome, their participation gave them a sense of completeness. It will not lessen your grief or erase the horror you have experienced, but it may give you some sense of accomplishment. It may also enable you to focus less on the offender and more on yourself and your journey toward recovery.

For more on the realities of the courtroom experience and how it can help you in your healing journey, read the MADDvocate article “Trials and Consequences.”

Crash Investigation

The crash investigation is the first step in prosecuting an offender. The law enforcement agency that has jurisdiction over where the crash occurred will identify and secure all possible evidence to determine what factors contributed to the crash, the person(s) responsible for the crash and what laws have been violated.

If the crash occurred within city limits, investigating officers are usually from the Municipal or City Police Department. The County Sheriff's Department typically investigates crashes outside of the city limits. The State Highway Patrol (Troopers or Rangers) investigate crashes on State Highways or Interstates.

At the crash scene, medical personnel will take those injured to the hospital as soon as possible. Often, those who have died remain at the scene for investigative purposes. This process can take several hours, which is of little comfort to the victim’s family, but may be crucial in the prosecution of the offender. And because all possible evidence has to be secured at the scene, law enforcement officials cannot allow family members to be with their loved ones at the crash scene.

The Traffic Crash Report, or Accident Report as it is sometimes called, is prepared by investigators. The Traffic Crash Report will contain detailed information about the vehicle(s), automobile insurance, personal information on all parties involved, witness contact information, weather and roadway conditions, a detailed description and diagram of the crash event, and determination of the cause of the crash.

If the crash involved a death (or serious injuries in some jurisdictions) a separate Traffic Homicide Investigation Report will be prepared. The Traffic Homicide Investigation Report will be much more thorough than the Traffic Crash Report.

If you would like a copy of these reports, contact the investigating officer. It is probably best to review the reports with your MADD Victim Advocate or attorney as you will have questions. Also, be prepared for it to also be emotionally upsetting as it is detailing the crash in which your loved one was killed or injured. If you see errors in either report, let the investigating officer know—his or her name is at the bottom of the report. Even if the errors seem minor, they can be crucial in court.

The report will also indicate if the driver has been suspected of drinking or using drugs. This information is listed as Blood Alcohol Content (BAC) level or “pending results” on the report. BAC is determined by breath, blood, or urine testing shortly after the crime was committed. If the tests were not performed, you have the right to know why they were not. Valid BAC testing is essential to assist in the prosecution of the case. If this is not done, cases are subject to dismissal at the discretion of the law enforcement agency, prosecutor or at the direction of the judge.

When dealing with the investigating agency, ask if they have a victim advocacy program or a victim-witness assistance program. If they do, it’s the responsibility of the victim assistance personnel to keep you informed of the status of the case and to provide services you may need as a crime victim. Services can include referrals to appropriate agencies, victim counseling and assistance in applying to the Crime Victims Compensation program for reimbursement of uninsured expenses resulting from the crash. Your MADD Victim Advocate can also provide referral information.

Arrest of Suspect

Once all the evidence is collected and reports are completed, the law enforcement agency will turn the investigation documentation over to the prosecutor's office to pursue criminal action against the suspected offender. Most times, the law enforcement officials will suggest, by statute, which offenses have occurred.

The suspect’s arrest may or may not occur immediately following the crash. Law enforcement must establish probable cause for an arrest, meaning that evidence concludes that a law has been violated. In some cases, that might take several weeks or longer because evidentiary testing by official crime labs is often back-logged.

Once a suspect is arrested, there is a time limit determined by state statutes—referred to as speedy trial law—in which the charges must be pleaded, tried or dismissed through the court system. The defense counsel must agree with the judge in order to allow the prosecution a time extension beyond the speedy trial limit if circumstances arise. That means that it’s possible for the suspected impaired driver to be released from police custody to go about his or her daily activities—even driving.

In cases where a person is killed or injured, the suspect may be immediately arrested for impaired driving and then have the charges amended by the office of the prosecutor and presented to the court at a later date. Law enforcement officers will often work with the prosecuting attorney’s office to determine the time of arrest.

Arraignment of Defendant

After reviewing the evidence of the case, the prosecuting attorney may charge the offender with the criminal charges recommended by the investigating agency; charge the offender with different, fewer or additional charges; or decide not to charge the offender because of insufficient evidence.

In most states, a preliminary or grand jury hearing will be held to determine whether sufficient evidence exists to proceed to trial. A preliminary hearing is when the prosecutor and a few witnesses appear before the judge and the judge determines if sufficient evidence exists for the accused to be arraigned. A grand jury hearing is when the prosecutor presents evidence to a group of citizens rather than a judge. Grand jury proceedings are closed to the public and the accused is not present while witnesses testify. Also, the accused also may or may not testify. If the grand jury determines that sufficient evidence exists, they hand down a “true bill” of indictment. If they do not think sufficient evidence exists, the case is “no billed.” If indicted, the accused will be scheduled for arraignment.

At the arraignment, the suspect is brought before the judge who informs him or her of the pending charges and constitutional rights. At this point, the accused suspect is now referred to as the defendant.

The defendant may then enter a plea of guilty or not guilty. If a guilty plea is entered, the judge reserves the right to sentence the defendant or set a date for sentencing. Defendants are unanimously advised by defense counsel to enter a not guilty plea.

If a plea of not guilty is entered, the next step is the trial process. As disappointing as it may be, very few impaired driving cases conclude with a trial. The overwhelming majority of these cases are resolved through plea agreements between the prosecuting attorney and the defendant and the defense attorney.

Bail or Bond Determination

Bail or bond is an amount of money produced to the court by the defendant for pre-trial release with his or her promise to appear in court. Bail or bond is set immediately following arrest at the arraignment or at a separate hearing. The right to reasonable bail is guaranteed to defendants under the concept of “innocent until proven guilty.”

Some defendants may be released from jail on their own recognizance. This is when the judge feels certain that the defendant will appear for each court hearing in his or her case.

In most states, the bail or bond amount will be set at a high amount if the defendant is perceived as a danger to the community or if the judge feels that the defendant may flee. The defendant can usually post bail or bond through a bonding company for about 15 percent of the amount ordered by the judge.

In some situations, the prosecuting attorney may ask a crash victim/survivor to prepare a statement for the purpose of increasing the amount of bail or bond set by the court.

The Prosecuting Attorney

When the investigating agency transfers the case to the County Attorney, District Attorney or State Attorney’s office, a prosecuting attorney is assigned to the case.

The prosecuting attorney will evaluate the case and decide whether a prima facie case can be established. Prima facie means that, based on an initial review of the facts and the law, the state has a case against the driver. The attorney will then decide whether to drop the charges, enter into a plea agreement with the defendant or proceed to trial.

To evaluate the strengths and weaknesses of the case, the prosecutor must determine whether he or she can prove all elements of the offense charged. This typically involves proving that the defendant drove, operated or was in actual physical control of a vehicle within the state while under the influence of alcohol or other intoxicating substance, or while the blood alcohol level exceeded the limit set forth in the state’s “per se” statute.

Communicating with the prosecutor is important. Call the prosecutor’s office to find out which attorney has been assigned to the case. The information will be filed under the suspected impaired driver's name.

If the defendant has been arraigned on charges you don't understand, ask the prosecutor to explain. The prosecutor should discuss the strengths and weaknesses of the case with you. You may be able to provide additional information that could prove helpful in the prosecution of the case.

The prosecuting attorney should know that you support him or her in trying to convict the defendant of the most serious charges that can be proven. Also, when you talk to the prosecuting attorney, let him or her know that you want to be kept informed at all stages of the criminal justice process. In most states, you will not be informed unless you specifically request it. Then follow-up with a letter to both the prosecutor and their office’s victim advocacy program requesting to be informed. Also include the facts of the crime as you understand them and your thoughts about bail, plea bargaining or any other aspect of the case. Make sure to include your contact information in the letter.

It is important for you to understand that the prosecuting attorney is not your personal attorney—victims do not have their own attorney in criminal cases. The prosecuting attorney represents the state’s case against the defendant (the offender).

The Defense Attorney

The defense attorney is either assigned by the court or has been hired by the defendant. The defense attorney or one of his or her investigators may try to contact you. Before you communicate with any attorney or investigator confirm his or her identity. A defense attorney is not a district attorney even though he may refer to himself as a D.A. The defense attorney is clearly not an advocate for your rights as a crime victim/survivor.

You do not have to speak with the defense attorney unless you receive a subpoena for evidentiary discovery. If the defense attorney contacts you, he or she should be referred to the prosecuting attorney for requested information. If you receive a subpoena, notify the prosecuting attorney as soon as possible. The prosecuting should be present any time you are required to give testimony.

Case Discovery and Pretrial Hearings

After arraignment, the prosecuting and defense attorneys will each gather evidence to support his or her case. During the discovery phase, witnesses will be subpoenaed to give testimony to determine if they will be needed during trial.

It is typical for several court hearings to take place before the actual trial so that attorneys can argue motions for evidence suppression, change in venue, and to dispute the accuracy of evidence and manners in which evidence was obtained. You may hear the defense attorney request that the judge dismiss the case during arguments. This is a common court procedure, but sounds very alarming if you are not prepared.

Evidence

As the victim/survivor, you are in the unique position of having access to information that investigating officers might not have. For example, if you were in the crash, your recollection of the details could prove to be helpful in the court case. Document everything you remember. You may think you'll remember all the facts, but documenting them will ensure a good recollection of details.

Witnesses who were not interviewed by the investigating officer may contact you. If so, refer them to the officer or the prosecutor who will need to take their statement. Also, if you are aware of witnesses who do not appear on the crash report, immediately notify the investigating officer or the prosecutor.

If you or a loved one was injured in the crash, take photos of the recovery process. If you take pictures, have someone witness your taking the photographs. You and the witness should sign and date the photos on the back. Provide these photos to the prosecutor.

Also, keep all bills and receipts for expenses resulting from the crash and a chronological record of all financial expenditures or losses incurred as a result of the crash. These could include medical and funeral expenses, lost wages and costs of counseling. This information will be critical if the offender is found guilty and is ordered to pay restitution. This record is also necessary in filing for State Crime Victims Compensation and insurance benefits. It could also be essential if a civil suit is filed.

There might be evidence collected at the crash scene you will want returned to you such as clothing or personal effects of your loved. These items may be at the investigator's office, hospital or the medical examiner's office. Some items may need to be retained for the trial, but you can ask for those that are not essential to the case. Make certain to ask about the condition of the items before you look at them. It could be very upsetting to open a package of torn and bloodstained clothing if you are not prepared.

Witness Testimony

Witnesses who can substantiate elements of the case should be contacted early in the process. They may include bartenders, waiter/waitresses, bar patrons or party attendees, any passengers involved in the crash, eyewitnesses, medical personnel, law enforcement officials and expert witnesses.

Expert testimony is often involved in impaired driving trials because of the complex scientific data regarding the processes of alcohol absorption, specific drug reactions and, distribution and elimination. There might have been a crash reconstruction of the crash. If so, the crash reconstructionist might serve as a witness. For more information on crash reconstruction, read the MADDvocate article “Model Behavior.”

You might also be called as a witness. The prosecutor should thoroughly prepare you and all other witnesses before the trial begins. That includes familiarizing each witness with the questions that are likely to be asked by the prosecutor and defense attorney. The prosecutor should also allow you and the other witnesses to review pictures, charts and other exhibits that may be presented during trial.

Here some tips you might find helpful if you are called to testify in court.

• Dress conservatively. For men that means a business suit. For women that means a dress or business suit. Your clothing should not be flashy or distract from what you are saying in any way.
• You may want to take notes or a written statement with you to the witness stand. Be aware that the judge, attorneys and jury may be allowed to examine them. You should review your notes with the prosecutor beforehand.
• If the defense attorney asks if you have discussed your testimony with the prosecuting attorney, it’s appropriate to respond with a "yes." The attorney may have helped you organize your statement, but you are testifying to the true impact on you and your family.
• Ask for clarification. If you don't understand a question asked by one of the attorneys, ask that it be repeated. If you do not know the answer to a question, it is OK to say that you do not know. If you feel an attorney is trying to manipulate you into an answer that is not true, turn to the judge and tell him that you will need to explain your answer.
• Be as descriptive as you in telling of the physical, emotional and financial impact of the crash. Describe particular events that were/are painful for you. Your goal is to enable the judge or jury to come as close as possible to understanding how you feel.
• Maintain eye contact with the attorney who is asking you questions. If the defense attorney is asking you questions, don't look to the prosecutor for help. Also, look at the judge or jury if the attorney asks you to explain something to them.
• If you request that the defendant pay restitution to your family, be prepared to present actual bills and statements of the amounts paid or owed.
• Always be honest and take your time in answering questions. Pauses before your answers indicate that you are taking the questions seriously and thinking before you speak.

If you approach the task of testifying with integrity, your testimony will be respected.

Continuances

Pre-trial hearings are open to the public so you are free to attend. At the pre-trail hearing, both attorneys have the right to request a continuances or postponement of the case. Defense attorneys, in particular, request numerous continuances to "age the case." The reason for this is because the longer they can postpone trial, the more likely it is that witnesses will drop out or their memories will fade. Ask the prosecutor to vigorously oppose unnecessary continuances.

Defendants have a constitutional right to a speedy trial, but it’s rarely in their interest to request it. In some states, the prosecutor can request a speedy trail on the basis of sensitivity to victims. In some instances, continuances are requested and granted for legitimate reasons such as scheduling conflicts or unavailability of witnesses.

You may find continuances to be particularly frustrating and upsetting as you have arranged time off work or traveled a distance to get to the courthouse only for a continuance to be granted. Talk with you advocate about your frustrations. You can also ask the prosecutor to further explain the circumstances for the continuance being granted.

Plea Agreements

Most impaired driving cases are resolved through a plea agreement to avoid the case going to trail.

A plea agreement means that the defendant has agreed to plead guilty to one or more of the charges in exchange for one of the following: dismissal of one or more of the other charges; a lesser degree of the charged offense; the prosecutor recommending a lenient sentence, to not recommend the maximum sentence, or to make no recommendation at all.

In some circumstances, a plea agreement is better than going to trial. For example, if the preliminary investigation was inadequate, the state may not be able to prove the case. Or, key witnesses might no longer be available. In circumstances such as this, it might be best that the defendant plead guilty to a lesser charge and be held accountable versus the case go to trial and the defendant is set free.

The law does not require that you are informed of plea agreements or that you are asked to approve of one being offered. You can, however, ask the prosecutor to contact you if a plea agreement is going to be offered to the defendant. Some prosecutors are even willing to discuss the terms of the plea before one is offered to the defendant. Let the prosecutor know ahead of time that you would like that opportunity.

The Trial Process

If the defendant insists on pleading not guilty, the case will go to trial. Depending upon the jurisdiction, the defendant has the constitutional right to choose whether he or she wants the case to be decided by a judge (bench trial) or a jury. In most jurisdictions, the state must accept what the defendant has requested. At this point, a trail date will be set.

Once the trial date is set, be prepared for numerous continuances. Also, if it is a jury trial, jury selection may take days or weeks before the trial actually begins.

The defense attorney may try to prevent you from attending the trial. A common tactic of defense attorneys is to subpoena you as a potential witness and then ask the judge to invoke the "rule of sequestration." This rule means that witnesses cannot listen to other witnesses testifying, therefore, all witnesses are not allowed in the courtroom. If this happens, you will be kept out of the courtroom.

Below is a brief synopsis of the trial procedure.

• Opening statements are given by the prosecuting attorney and then by the defense attorney.
• The state calls witnesses to the stand in order to prove that the defendant is guilty as charged. The prosecutor's questioning of each state witness is called "direct examination."
• The witness is then "cross-examined" by the defense attorney.
• After cross-examination, the witness is given "re-direct examination" by the prosecutor and "re-cross examination" by the defense. The witness is then dismissed, unless either attorney plans to call the witness back to testify later. Once dismissed, witnesses may usually remain in the courtroom.
• After the state has presented all its witnesses, the defense will present its witnesses, going through the same procedures of direct and cross-examination. The defendant is not required to testify in the case.
• After all the evidence has been presented, each side may introduce witnesses to rebut testimony previously presented. Sometimes this rebuttal testimony comes from former witnesses not previously dismissed. Sometimes they are new witnesses.
• Each side then presents closing arguments. The state has the burden of proof in the case and, therefore, has the right to argue both before and after the defense, unless the defense does not put up any evidence. Typically, the prosecutor summarizes the evidence before the defense argues and then rebuts the defense's arguments.
• Both sides then rest their case.
• The judge gives the jury instructions for their deliberations. If it is a bench trial, the judge then retires to deliberate.

The Verdict

At the end of trial, the jury foreman or the judge announces a verdict of “guilty” or “not guilty.”

You can expect the reading of the verdict to be a very emotional experience. If the verdict is “guilty,” you and your family will be emotionally overwhelmed that the offender is now legally accountable for his or her actions. If the verdict is “not guilty,” you may be overwhelmed with sorrow and anger that he or she is not being held accountable.

In the case of a “not guilty” verdict, understand that a legal verdict and the truth are not always the same. The standard of proof in a criminal case is “beyond a reasonable doubt,” which means that the evidence must establish the facts so clearly, positively and explicitly that there can be no reasonable doubt that the case was proven. The “not guilty” verdict may mean that the jury was not able to conclude that the burden of proof has been met beyond a reasonable doubt.

Sentencing

If the defendant is convicted (found “guilty”), the case will proceed to the sentencing phase. This could occur immediately following the conviction or could be scheduled for a later hearing. In some jurisdictions, the judge decides the sentence; in others the jury decides.

Prior to sentencing, most courts order the probation department to conduct a pre-sentence investigation of the defendant to determine an appropriate sentence. This investigation will cover the defendant’s work history, criminal record and family history. Both the state and the defendant are usually allowed to review the pre-sentence report and correct or point out any errors.

The amount of time a convicted offender is sentenced to jail or prison varies widely. And, in some cases, there is no jail sentence, only probation. If the prison sentence is probated—meaning only a sentence of probation was given—the conditions of probation can vary widely. Also, the convicted criminal may or may not be required to pay restitution to the victim’s family.

Be prepared for the sentencing phase to be emotional as well. You may feel that the convicted offender’s punishment should equal the value of your loved one’s life and loss. The fact is that there is no punishment that can equal the value of your loved one’s life.

Victim Impact Statements

There are laws in every state that allow victims to provide a written statement to the court about the impact of the crime on their lives. These statements, which are called victim impact statements, are presented after the defendant has been convicted and, in most states, before sentencing.

In some jurisdictions, victim impact statements are read aloud in court with the offender present. If this is allowed in your jurisdiction, you may be called to the witness stand to read your victim impact statement. Your statement should not repeat evidence already presented, rather it should tell the court how the crime has affected your life.

Oral impact statements should only be about three to five minutes long. Also, when reading your statement, address the court, not the offender.

A victim impact statement can be a very important part of your healing journey. MADD’s workbook Your Victim Impact Statement, which your MADD Victim Advocate can provide you with, can help you in creating your statement. Your MADD Victim Advocate can also help you craft your victim impact statement.

Restitution

Restitution is when the court orders the convicted offender to pay the victim or surviving family money or services to hold him or her personally accountable for a crime and to restore, in part, the victim’s loss.

For injured victims, requests for restitution can cover medical expenses, funeral expenses, lost wages, lost or damaged property, counseling fees and other expenses considered reasonable by the court. In homicide cases, this can include a family’s funeral and travel expenses as well as reasonable attorney fees incurred in closing the victim’s estate.

Most states require the court to consider the current financial resources of the defendant, the defendant’s future ability to pay, and, in some states, the burden restitution will place on the defendant and his or her dependents.

While no amount of money can erase the trauma and grief you have suffered, financial aid can help in rebuilding your life.

Appeals

Following a conviction and sentencing, the defendant has the right to appeal the case to a higher court for that court to consider errors in procedure or application of the law at the trial-court level. In some circumstances, the defendant also has the right to appeal the sentence. Be prepared for an appeal to be filed, especially if the defendant received the maximum sentence.

Most convicted offenders are released on appeal bonds until the appeal is heard, which can take years. Because a person is considered "innocent until proven guilty," the trial-court decision is not considered final until the appeal is heard. While this hardly appears fair from a victim’s perspective, it’s a procedural safeguard that has proven useful, especially if a convicted defendant was indeed innocent.

Probation and Parole

Probation is a sentence ordered by a judge, usually instead of, but sometimes in addition to, serving time in jail. Probation allows the convicted offender to live in the community under the supervision of a probation officer. The judge will specify restrictions on the offender’s activities during the probationary period and violation of these conditions may result in serving jail time.

Parole is the conditional release from prison after serving part of a sentence, which is granted by a parole board or commission. The parole board may consider factors such as the offender’s behavior in prison and level of rehabilitation. If parole is granted, the offender will be let out of prison before his or her sentence is complete and will live in the community under the supervision of a parole officer. The parole board will specify restrictions on the offender’s activities while on parole. Violation of these conditions may result in the offender being sent back to jail to finish serving his or her time.

The full prison sentence given by the court is seldom served, primarily because of jail and prison overcrowding. However, parole and sentencing officials take parole very seriously in order to protect the safety of citizens. To make a competent and informed decision, parole officials must hear from the police, prosecutors, courts, prison officials and the victims. Ask to be notified by the state if, and when, the offender is scheduled to go before the parole board so that you can attend and, if allowed, tell the parole board how the offender’s crime has affected your life.

Clemency

A request may be sent to the governor’s office for the governor to pardon the offender or grant an early release from prison. The governor’s office may ask you for input in determining the validity of the request. The governor may grant a pardon for reasons such as terminal illness, severe disability or having served a very lengthy sentence with positive rehabilitation.