The DWI/DUI Process

DWI Charges can be Stressful and Confusing. Understanding Your Rights and Defenses Can Alleviate Both. New Mexico DWI: DWI Collected Reading and DWI FAQ’s

The DWI/DUI process can be confusing and stressful.  Understanding what to expect can go a long way toward alleviating some of the stress.

The Albuquerque DWI Attorneys at Collins & Collins, P.C. are here to help through this difficult time.  In the meantime, here is a broad outline of the DWI process.

Keep in mind that every case is different, and many other issues may come up in any particular case.

Arrest and First Appearance

Obviously, the first step in the DWI process is the stop and the arrest for driving while intoxicated or under the influence.

Following your arrest, your case will be set very quickly for your first appearance.  In cases such as DWI where there has been an arrest, the first appearance is typically held by video from the jail. This hearing will address bail and conditions of release.

Your case will then be set for arraignment.


The arraignment is really a formality where you appear before the court to plead not guilty. It would be extremely unwise to plead guilty at the arraignment, though it sometimes happens with unrepresented defendants.

Because it is a mere formality for the purpose of entering a plea of not guilty, most judges will allow a defendant to waive the arraignment through a Waiver of Appearance.

To waive the arraignment, you must be represented by an attorney, and that attorney must file a Waiver of Appearance which will act as a not guilty plea without the necessity of your appearance in court.

This same document can be used to waive your appearance at all pre-trial hearings if your judge allows this practice.

Pretrial Process and Deadlines

There are a number of deadlines that commence at the time of your arraignment or the filing of your waiver of arraignment. These deadlines may vary slightly depending upon the court you are in.

Discovery: The most important deadlines deal with discovery which must be provided by the prosecutor to your attorney. Discovery is includes the proof that the District Attorney has in its file proving your guilt. It also includes any exculpatory evidence that would suggest your innocence.

In addition to documentary evidence, the State must also make available any witnesses that it intends to call to testify against you.  These would include the officers involved in your arrest, and any other witnesses to the DWI.

Typically, in a DWI cases, the State has 30 days from the date of arraignment to provide discovery.

Pre-Trial Conferences:  During this time, your case will be set for a pre-trial conference. As mentioned, many judges will allow you to waive your appearance at all pre-trial hearings. Your attorney would file a Waiver of Appearance for these purposes often along with the waiver of arraignment discussed above.

The purpose of pre-trial conferences is for the attorneys on both sides to report to the judge on the progress on the case. Often times, the District Attorney has not provided discovery and has not made State’s witnesses available for interview. Even more common, the police officers have not cooperated with interviews.

These issues would be discussed with the Court and typically the court will instruct the District Attorney to cooperate in the discovery process. If the police officers have not cooperated with interviews, many judges will require that subpoenas be issued to compel their attendance at the scheduled interviews.

Motions to Dismiss on Violation of Deadlines

Should the District Attorney fail to abide by the discovery deadlines or the judge‘s instructions, your attorney will move for a dismissal. Unfortunately, many judges will give the State every benefit of the doubt and refuse the motion for dismissal.

Other judges are more strict on compliance with the rules of procedure. This  makes your decision of whether or not to exercise your right to get rid of the judge through the filing of a Peremptory Recusal so important.

Those judges that do not hold the District Attorney to the rules can make it more challenging to effectively defend against DWI charges.

Other Pretrial Motions

As discovery proceeds, other issues may arise that affect the outcome of your case. There may be facts discovered or other considerations during discovery that warrant a variety of motions such as motions for dismissal, motions for suppression of evidence, and motions to exclude witnesses among others.

If these are filed, they will be set for pre-trial motion hearings. Again, if you have waived your appearance for all pre-trial hearings, your attendance will not be required.

Plea Negotiations v. Trial 

As your case proceeds, there will almost always be a plea option of some kind offered by the District Attorney. Whether or not you want to plea will depend upon the nature of the charges against you, the facts of your case, the evidence, and possible consequences of a plea versus those at trial.

If you decide to take the plea, then you will enter your plea at the next trial setting, or plea conference depending upon the court‘s practice.

If you decide to go to trial, then you and your attorney will begin preparing for trial.  If you win at trial, you go home free of any penal consequences.


In the event that you enter a plea or go to trial and lose, then the next stage is sentencing. Unless it is a simple (below .16 breath alcohol score) first DWI, your case will be set for a sentencing hearing.

In many cases, prior to this hearing, the probation department will prepare a pre-sentence report with its recommendations for sentencing. The sentencing on a DWI will follow the mandatory sentencing guidelines set by the State.

Within these sentencing guidelines, the Judge can follow the recommendations of the probation officer, the recommendations of the District Attorney, the recommendations of your attorney, or issue a sentence based upon his or her own judgment.

Do Not Delay

There are many decisions to make at each step of this process.  Many important decisions must be made early.   Every case is unique, including yours, and the decisions are determined by the facts of your case.

It is important to seek the guidance of an experienced DWI attorney from the beginning.  Delay can result in missed opportunities in your DWI defense.

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