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The DUI BookGLOSSARY © 2006 by William C. Head ABSTRACT OF CONVICTION - A form sent by courts to the state criminal records department reporting a person's conviction or adjudication for a traffic violation, or other "reportable offense" (e.g., drug crimes). The FBI will also get a copy for the National Crime Information Computer. ACCUSATION - The form of charging document that a prosecutor uses to identify each specific type of crime alleged to have been committed. An accusation in a DUI-DWI case is typically several “counts” (separate offenses set forth and described separately) that identify in general terms, how, when and in what fashion the offense was committed. In DUI-DWI practice, a person might be accused in alternative “counts” of an accusation with (1) DUI-alcohol (drunk driving), (2) DUI-per se (being above the state’s alcohol blood level), (3) DUI-drugs [impairment from prescribed or illegal (i.e., cocaine) drugs], AND (4) DUI-alcohol AND drugs, by being under the combined impairing effects of both alcohol and some type of drug. ACQUITTAL - A finding by a judge or jury that a person who was tried for committing a crime is not guilty. ACUTE INTOXICATION - The term used by medical facilities to refer to intoxication that is “of clinical significance” (potentially fatal). Complications from acute intoxication may include trauma, inhalation of vomitus (emesis), delirium, coma, and convulsions, depending on the substance and method of administration. ADJOURNMENT - Postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called a “continuance”. Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party. ADJUDICATION - Generally, a final judicial determination of a case. In juvenile delinquency cases, it is the equivalent of a 'conviction' in adult criminal cases, when the court formally takes jurisdiction of the minor. AFFIDAVIT - A written statement of fact that is verified by oath or affirmation before a notary public. These are commonly introduced into court proceedings to verify some fact or to confirm that some act has been accomplished. AFFIRMATIVE DEFENSE - Without denying the charge, the defendant raises extenuating or mitigating circumstances such as insanity, necessity, or coercion to avoid civil or criminal responsibility. The defendant usually must prove (or set forth some evidence of) any affirmative defense he/she raises. Court rules or state statutes typically require a defendant to notify the opponent before the trial that an affirmative defense will be asserted. ALCOHOL – Derived from Arabic. Refers to a wide range of chemicals, whether suited for human consumption or not. The term “alcohol” is often used by lay persons to refer to alcoholic beverages. The usual type of alcohol found in mixed drinks, wine and beer is ethanol. However, the chemical “alcohol” can be part of many products that contain some form of alcohol, as well as products such as sugarless chewing gum, breath sprays, medicines, mouth washes, cologne or deodorant. See Appendix F for a chart showing the wide range of chemicals that make up the alcohol family. ALCOHOL DEPENDENCE - The need for repeated doses of alcohol in order to feel good or to avoid feeling bad. In medical terms, dependence is defined as "a cluster of cognitive, behavioral, and physiologic symptoms that indicate a person has impaired control of psychoactive substance use and continues use of the substance despite adverse consequences." In its unqualified form, dependence refers to both physical and psychological elements. Psychological or psychic dependence refers to the experience of impaired control over drinking, and physiological or physical dependence refers to tolerance and withdrawal symptoms. In biologically-oriented discussion, dependence is often used to refer only to physical dependence. ALCOHOL EDUCATION PROGRAM – A screening, evaluation and education program that is either required by statute or made the order of a sentencing judge, whereby a person who is charged with alcohol or drug-related offenses completes a specified curriculum or treatment sessions. ALCOHOL FLUSH REACTION - Flushing of the face, neck, and shoulders after consuming alcoholic beverages, often accompanied by nausea, dizziness, and heart palpitations. The alcohol flush reaction is seen in approximately fifty percent of Asian (Mongoloid) racial groups. It is caused by an inherited deficiency of the enzyme aldehyde dehydrogenase, which starts the breakdown of acetaldehyde. The reaction also occurs when alcohol is taken by a person receiving treatment with alcohol sensitizing drugs such as disulfiram (Antabuse), which inhibit aldehyde dehydrogenase. ALCOHOL “PROOF” - A measure of the amount of absolute alcohol in a distilled spirit. The British and the Americans use different systems for measuring proof. The British system is based upon a comparison of equal volumes of water and liquor at 51° F: 87.6 proof equals fifty percent alcohol. The American system is based upon the percentage of absolute alcohol in the liquor at 60° F: 100 proof equals fifty percent alcohol. Thus, due to the different means of calculating “proof”, British proof is lower than American proof for spirits of equal strength. ALCOHOL WITHDRAWAL - Symptoms of variable degrees of severity that occur when a person who has been chronically abusing alcohol suddenly ceases or reduces use of alcohol. Occurs usually in persons with a prolonged period of abuse. The syndrome may be accompanied by signs of physiological disturbance. A “withdrawal state” is one of the indicators of a dependence syndrome. It also is the defining characteristic of the narrower definition of dependence, from a psychological perspective. Alcohol withdrawal syndrome is characterized by tremors, sweating, anxiety, agitation, depression, nausea, and malaise (general distressed feelings). It typically occurs 6 to 48 hours after cessation of alcohol consumption and, when uncomplicated, goes away after 2 to 5 days. This condition may be complicated by grand mal seizures and may progress to delirium (also known as delirium tremens). ALCOHOLIC BEVERAGES - Ethanol (C 2H 5OH), which is the main psychoactive ingredient in alcoholic beverages, results from the fermentation of sugar by yeast. In addition to its use for human consumption, ethanol can be used as a fuel (additive to gasoline), as a solvent (cleaner), and in chemical and food product manufacturing. Medical personnel often abbreviate drinking alcohol as “ETOH” in hospital or medical charts. ALFORD PLEA – The so-called Alford plea is a form of “guilty” plea in which the defendant does not admit the act, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty. Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose sentence as if the defendant had otherwise been convicted of the crime. However, in many states, such as Massachusetts, a plea which "admits sufficient facts" more typically results in the case being “continued without a finding” (see description below) and later dismissed. It is the appeal of the ultimate dismissal of charges which engenders most pleas of this type. This plea originated in the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25 (1970). After the Alford decision, the plea “Alford” plea generally has the same effect as a plea of guilty with respect to sentencing. Later use of the conviction as an aggravating factor (if the defendant is later convicted of another offense) is allowed in all courts. ALIBI - A "lack of presence" defense. Defendant need not prove that he was elsewhere when the crime happened; rather, a Prosecutor must disprove a claimed alibi (i.e., Prosecutor must prove beyond a reasonable doubt that the defendant was present). Although rare in DUI-DWI cases, some drivers may not be present after an accident when the police arrive at the scene. ALLOCUTION - A defendant's opportunity to make a statement to the judge at sentencing. A defendant may make a personal statement, but is not required to do so. His/her attorney may also make a statement. AMICUS BRIEF - A brief filed by an amicus ("friend of the court") in support of a party in a lawsuit or pending appeal. The court may need to give the amicus permission to file the brief, and may limit the issues that the amicus litigant can assert or argue. AMICUS CURIAE - "Friend of the Court" (Latin). A party who volunteers information on some aspect of a case or law to assist the court in its deliberation. APPEAL - A request to take a case to a higher court for review of proceedings in a lower court. No new evidence may be introduced during the appellate process; the reviewing court considers only whether errors occurred during prior proceedings. APPEARANCE - A document filed by an attorney with the court, and provided to the prosecutor and judge, advising that the attorney has undertaken representation of a specific individual. APPELLANT - The party appealing an adverse decision or judgment to a higher court. APPELLATE COURT - A court having jurisdiction of appeals of lower courts—not a trial court. Typically, an appellate court will see only the record generated at the lower court and will not consider any other evidence. APPELLATE JURISDICTION : The power and authority of a court (established by state law) to review a case that has already been tried by a lower court. APPELLEE - The party responding to an appeal filed by the opposite party in a higher court. Appendix - Supplementary materials added to a brief or memorandum of law for a court. ARRAIGNMENT – Typically, the first court appearance after an arrest and release from jail on bond, where the charges are formally read, and one enters his or her plea of guilty or not guilty. ATTORNEY - A lawyer; one who is licensed to act as a representative for another in a legal matter or proceeding; one who is licensed to practice law. Most attorneys are licensed in and practice in one state. ATTORNEY-CLIENT PRIVILEGE – In all legal matters, the client (whether or not a party to litigation) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. The attorney-client privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and legal advice received in return. The objective of the privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney, unfettered by fear that others will be informed. While the privilege belongs only to the client, the attorney is professionally obligated to claim it on his client's behalf whenever the opportunity arises unless he has been instructed otherwise by the client. BAIL - To set free a person arrested or imprisoned (pending trial or resolution of an appeal), in exchange for security such as cash, credit card deposit or real estate. Bail is forfeited if the person fails to appear in court as directed. BINGE DRINKING - A pattern of heavy drinking that occurs in an extended period set aside for the purpose of drinking. In population surveys, the period is usually defined as more than one day of drinking at a time. The activity of binge drinking also is referred to as "bout drinking" or "spree drinking." The term "drinking bout" is used to refer to the occasion. A binge drinker or bout drinker is one who drinks predominantly in this fashion, often with intervening periods of abstinence. BOND - In criminal law, a surety bond assures the appearance of the defendant or the payment of the defendant’s bail if the defendant fails to appear. The person who agrees to be the “surety” is financially obligated to pay the bond if the person fails to appear. The failure to appear will typically cause the judge of the court requiring attendance to issue a “bond forfeiture” order, as well as a warrant for the defendant’s arrest. BLOOD ALCOHOL CONTENT/LEVEL (BAC) OR (BAL) - The amount of alcohol in a person’s bloodstream. The adult (age 21 and over) legal limit in drunken driving cases is .08% in all states. For someone under 21, the legal limit is 0.00%, 0.01% or 0.02%, depending on the state the offense is committed in. For persons of any age driving a commercial vehicle, the legal limit is 0.04%. BLOOD TEST - A test to measure a person’s BAC by drawing the blood, usually done in a hospital or at the jail. Blood tests are often requested where substances other than alcohol are suspected to be impairing the driver in a DUI-DWI case, or where an accident may require that the person suspected of drunk driving is already going to a hospital. In some states, refusal is possible for a person who is capable of refusing. In other states, forcible blood draws are authorized. BREATH TEST - A test to measure your breath alcohol content, usually done at a police station or a jail. One does not have to agree to blow into a breath machine, and in most cases should not agree to do so. Some police jurisdictions also use roadside breath tests, but these are not usually admissible as evidence in court. BRIEF - A written document presented to the court by a lawyer which sets forth both the facts of the case and the law which supports the lawyer’s case. BURDEN OF PROOF - The obligation of a party to prove his allegations during a trial. CERTIORARI - An original writ or court order commanding judges or officers of lower courts to certify or return records of proceedings in a cause for judicial review. CIVIL CASE - A non-criminal matter or case pertaining to the private rights or obligations of an individual or corporate entity. CHARGES - A formal accusation of having committed a criminal offense. Also called “criminal charges”. CIRCUMSTANTIAL EVIDENCE – A type of indirect evidence that implies something occurred but does not directly prove it. For example, circumstantial evidence that it rained recently can be obtained by a witness testifying that he went into his house at 6:00 p.m. and it was not raining. Later, at 7:30 p.m., he comes outside and the ground, roadways and trees are wet. He did not SEE it rain, but circumstantial evidence says it did. CODE - A collection of laws arranged into chapters, table of contents, and index, and published by legislative authority. For example, the Iowa Code is a collection of laws approved by the Iowa legislature. Abbreviations for statutory provisions in this book may be a byproduct of the “code” citation. Example: Official Code of Georgia Annotated is abbreviated O. C.G.A. COMMON LAW - Law based upon previous decisions of courts or referring to the body of laws passed down from England to America. Concurrence - An agreement. CONCURRENT SENTENCE - U pon conviction for multiple crimes, a criminal sentence can be ordered by the judge to be served at the same time as another criminal sentence, rather than one after the other. CONSECUTIVE SENTENCE - Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time, are called “consecutive” sentences. Consecutive sentences may only be imposed if there is specific statutory authority to do so. In some circumstances, consecutive sentences may be imposed within the judge's discretion (e.g., when a person is convicted of a new offense committed while on parole status). In other circumstances, consecutive sentences are mandatory under state law. CONTEMPT OF COURT - An act which shows disrespect for the court’s authority. Contempt usually means a person has failed to obey a court order. Contempt can be punished by a fine or imprisonment. Generally, jailable contempt must occur within the court room or in the presence of the judge. CONTINUANCE – Postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called an “adjournment”. Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party. CONTRACT - A mutual agreement between two or more parties, in which each party gives up something of value and gains another thing of value. CONVICTION - Finding that a person is guilty beyond a reasonable doubt of committing a crime. COPPING A PLEA – See “Plea Bargain”, below. COURT-APPOINTED ATTORNEY – Refers to legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a "free" attorney; the court can order that some or all of the attorney's time utilized on behalf the client be reimbursed. If jail time will not be imposed on a misdemeanor, the judge need not appoint an attorney. CROSS EXAMINATION - The process of challenging the evidence presented by a witness who is testifying for the opposite side in a trial. The person cross examining the witness may utilize a series of questions, plus documents and other exhibits (such as videotape) to case doubt on the testimony of the witness. Questions on cross-examination (as opposed to direct examination) can be “leading” (questions that suggest the answer to the witness). Leading questions are not permitted to be asked by the party who offers the witness for providing evidence on their behalf. CWOF (CONTINUATION WITHOUT A FINDING) – An alternative to risking trial that is allowed in a few jurisdictions. A CWOF is not technically the same as a guilty plea. A person who accepts this compromise plea does not admit that he/she did anything wrong, but agrees that there is sufficient evidence to find him or her guilty. If that person gets in trouble again, a prior “continuation without a finding” typically can and will be used against him or her as a prior “drunk driving” offense. However, by use of such a plea, the person can truthfully say that he/she has never been convicted of a crime. CRIMINAL CASE - A case concerning an act considered harmful to the general public that is forbidden by law and punishable by fine, imprisonment, license suspension, restrictions on lifestyle or community service. DEFENDANT - A person sued in a civil suit; or (in criminal law) the person accused of a crime. DENATURED ALCOHOL - Ethanol made unsafe for consumption by the addition of methanol (methyl alcohol) or acetone and a small quantity of benzene or compounds such as denatonium that make it highly unpleasant to swallow. The purpose of making it “unfit” to consume by humans is to avoid taxes that are assessed on any “drinking” alcohol in most nations. This chemical mixture is meant for use as a solvent and for chemical processes. Cases have been documented where alcoholics have ingested denatured alcohol when their access to alcoholic beverages (ethanol) has been cut off, denied, or limited. DEPOSITION - The testimony of a witness not taken in open court, but given under oath before a court reporter pursuant to authority given by statute or court rule, to take testimony in preparation for trial. Deposition testimony may be introduced as evidence in a court proceeding. Only a few states allow deposition testimony in criminal cases, although depositions are very common in civil cases. DISSENT - A term denoting the disagreement of one or more judges of a court with the decision of the majority. In appellate practice, a dissent is the opinion of a judge who disagrees with the holding (decision) of the majority opinion (the prevailing ruling) on the appellate issues. DIRECTED VERDICT – In criminal cases, upon motion made by the defense attorney, a trial judge's directive (order) to a jury to return a specified verdict of “not guilty,” usually because the prosecutor failed to prove its case. This type of ruling or order is sometimes called an “instructed verdict of acquittal.” DISTRICT ATTORNEY - A lawyer elected or appointed to serve as a prosecutor for the state in criminal cases. In some jurisdictions, this prosecutor’s title is “state” attorney or solicitor. The common abbreviation for the elected District Attorney in a jurisdiction is “DA”, while the assistants who work for him/her are “assistant district attorneys” ( ADA). DIVERSION - Also known as adjournment in contemplation of dismissal or conditional dismissal. A program in which a defendant is put on probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court, the charge will be dismissed. Diversion is generally only allowed for first offenders, as that term is defined by state law. Some jurisdictions have no statutes authorizing diversion in DUI-DWI cases. DOCKET - A list or index of cases and case events maintained by the clerk of court. This term can also mean a list of cases on a court calendar for a specific day or term of court. DOUBLE JEOPARDY – In criminal law, a plea of “double jeopardy” is a procedural defense based upon state and/or federal constitutional rights (and possibly statutory rights in some states) that forbids the government from trying an accused citizen a second time for a crime, after having already been tried for the same crime. In ancient common law, a defendant would plead “autrefois acquit” or “autrefois convict” which merely meant that the defendant had been acquitted or convicted of the same offense before. EN BANC - "On the bench;" all judges or justices of a court sitting together to hear a case. ENTRAPMENT - Entrapment occurs when police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or when police engage in conduct so reprehensible that it cannot be tolerated by the court. Entrapment does not occur if the defendant has the propensity to commit the crime, and the police conduct only gives the defendant the opportunity to commit the crime. This defense is almost never viable in a DUI-DWI case. ETHANOL – Drinking alcohol, also called grain alcohol (since it is derived from grain products). It is a flammable, colorless chemical compound and is one of the many alcohols that exist and are used for a myriad of purposes. It is most often found in alcoholic beverages. In common conversation, it is the type of alcohol understood by the general public to mean “alcohol.” Its chemical formula is C 2H 5OH. EVIDENCE - A fact presented before a court such as a statement of a witness, an object, etc., that bears on or establishes a point in question. EXCLUSIONARY RULE - A court-made rule preventing illegally-obtained evidence from being used by the government in its case-in-chief against a criminal defendant. The rule is derived from the 4th and 5th Amendments to the United States Constitution. Some states have used their state constitution or state statues to give citizens more protections than the United States Constitution given them. EXCULPATORY EVIDENCE - Evidence that the Prosecutor may possess that could establish a person’s innocence or be used by his or her attorney to prove some fact that could cast doubt upon his or her guilt. EX-PARTE – A Latin term that means "by or for one party." This refers to situations in which only one party appears before a judge without the adversary being present. Such meetings are highly suspicious, and can result in legal penalties against the party that meet with a judge without the opponent. EXPUNGEMENT - A process where a conviction may be set aside either upon the passage of time or the completion of certain conditions. Not available in some states. EXTRADICT / EXTRADITION - The formal process of delivering a person found in one state to authorities in another state where that person has been accused or convicted of a crime. FIELD SOBRIETY TESTS - Various roadside exercises that are used by police officers to determine whether or not a person is likely to have an alcohol content at or above the legal limit. Although police routinely do not advise of the voluntary nature of these evaluations, field sobriety evaluations are optional in almost all jurisdictions. Most experienced attorneys advise clients against attempting the evaluations due to inconsistent officer training, defective administration of the evaluations, as well as the subjective nature of these exercises. FELONY - A crime considered to be of a graver nature than a misdemeanor. Examples of felonies include murder, kidnapping, manslaughter, burglary, robbery, and certain types of sexual abuse. Typically, the maximum punishment for a “felony” is greater than a year in jail or prison, while the maximum incarceration for a misdemeanor offense is a year or less. Defendants convicted of a felony may also be incarcerated in different jails or prisons than those convicted of misdemeanors. FETAL ALCOHOL SYNDROME - A pattern of retarded growth and development, both mental and physical, with cranial, facial, limb, and cardiovascular defects, found in some children of mothers whose alcohol consumption during pregnancy can be classified as hazardous. The most common abnormalities are prenatal and postnatal growth deficiency, small skull size, developmental (slow to learn in school) delay or even mental retardation. Many affected children can be identified by a short upturned nose with sunken nasal bridge and thin upper lip. They will often have cardiac disease, too. Many other more subtle abnormalities also have been attributed to the effects of alcohol on the fetus, but there is controversy regarding the level of maternal consumption that produces such effects. FAS (the abbreviation used medically for fetal alcohol syndrome) is associated with increased frequency of infections, especially during the first two years of a child’s life. FTA: (acronym for “failure to appear”) When a person is issued a traffic citation, accusation, information or complaint and then does NOT show up for court on the stated date and time, the judge will usually order any bond to be forfeited to the court system. Most of the time one or all of the following ADDITIONAL sanctions will occur to a person who fails to appear: (1) the driver’s license will be suspended or revoked, leaving the person exposed to being jailed for driving on a suspended license, if stopped again for any traffic offense or at a roadblock; (2) a warrant or contempt citation can be issued, and the police can then go pick up the person and incarcerate the person UNTIL a new court date is given; and (3) in some states (such as South Carolina) that have an INTEGRATED licensing and auto insurance system, the automobile insurance carrier will be notified of the license suspension, and the policy may then be cancelled. GOOD TIME CREDIT – This refers to a reduction in time served in jail as reward for good behavior. The availability of “good time” credit varies from jurisdiction to jurisdiction. GRAIN ALCOHOL - Ethanol (ethyl alcohol) that contains no more than 1 percent water and is made from grains (wheat, rye or rice) rather than fruits (potato). In statistics on alcohol production or consumption, “grain alcohol” or "absolute alcohol" refers to the alcohol content (as one hundred percent ethanol) of alcoholic beverages. GRAND JURY - A group of citizens convened in a criminal case to listen to and consider the prosecutor’s evidence against various citizens facing possible trials and determine whether probable cause exists to prosecute the suspect for a felony. The defense or defendant may not even be present. This ancient proceeding has been curtailed or abandoned in some states. HABEAS CORPUS (Petition for) - "You have the body." A petition to bring a person before a court or a judge. In most common usage, it is directed to and served upon the official person detaining another, commanding that the person produce the body of the prisoner or person detained so the court may determine if such a person had been denied his or her liberty without the process of law. HARDSHIP LICENSE – Under some state statutes, persons convicted of DUI-DWI may be entitled to a limited driving permit for certain specified purposes, such as going to and from work. State law varies widely depending on whether the person refused the state’s breath or blood test, and whether an existing administrative license suspension or revocation will block issuance of such a permit. Some states allow broader driving “purposes” such as attending college, going to and from court-ordered treatment or probation or similar driving activity. Most states restrict the permit to driving in that state only, not other states. HEARSAY - A statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence not merely to prove that the statement was made but to prove that it was true. There are dozens of long-established exceptions to the general rule that hearsay statements are inadmissible in court; the exceptions are based on circumstances where the out-of-court statements carry a likelihood of trustworthiness (e.g., deathbed statements, self-incriminating statements, statements made to doctors about medical conditions, etc.). HOME DETENTION – A form of “incarceration” wherein a person is allowed by the sentencing judge to stay at home rather than at jail. In some instances, this is done to accommodate the person’s employment situation. In other situations, it may be to allow a parent to be home for children. Often, courts will require some sort of home monitoring system to be utilized (and paid for by the detainee) to assure that he or she is at home and “sober.” INDICTMENT - A formal accusation of a felony, issued by a grand jury (a special jury that is assembled to decide if sufficient evidence exists to go forward with the prosecution) INFORMATION - A formal accusation of crime, based on an affidavit of a person allegedly having knowledge of the offense. INTOXICATION - A condition that follows the administration of a psychoactive substance (including alcohol as one of those substances), resulting in disturbances (changes) in the level of consciousness, cognition, perception, affect or behavior, or other psycho-physiological functions and responses of the person. These “disturbances” are related to the extreme poisoning of the body and the responses to the intoxicating substance. With complete recovery, these disturbances resolve over time, except where tissue damage or other complications have arisen. Intoxication varies from individual to individual and is highly dependent on the type and quantity of drug ingested and is influenced by an individual's level of tolerance and other factors. Frequently a drug is voluntarily ingested to achieve a desired degree of intoxication. Instructions : Also called “jury instructions” or “jury charges”, these are directions on the applicable legal principles that the jury is duty-bound to follow in deciding guilt and innocence as given by the judge to the jury concerning the law of the case. INTERLOCUTORY – A legal term that means provisional, temporary or p reliminary. It applies to legal orders or decrees given by a court. An “interlocutory appeal” involves an appeal of a matter within a case before the case is concluded or final. JURISDICTION - The right and power to interpret and apply the law to a particular case. One definition relates to the authority of a court to hear and rule upon certain types of cases. This is sometimes called “subject matter jurisdiction”. This term can also refer to a limitation on the extent of authority or control. By way of example, the law in some states limits the place or geographic area that a police officer can arrest a person to being the area where a crime is committed and observed within the officer’s “jurisdiction” (e.g., the City Limits). JURY - A number of people, selected according to law, and sworn to listen to certain matters of fact and declare the truth upon evidence presented to them. In a criminal case, panels of 6 or 12 jurors (depending on state law) can hear misdemeanor offense cases, and 12 will typically be required to hear felony cases. JURY SELECTION - An inquiry of prospective jurors, by the attorneys (in most jurisdictions) and by the judge, to determine if such jurors are fit for jury duty in a given case. Any juror revealing an inability to be impartial to the parties or issues will be stuck (taken off) the jury panel by the judge. Once all questions and answers have ended, each attorney is allowed a given number of arbitrary “strikes” (eliminations) of those on the panel. These are called “peremptory strikes.” JUVENILE CASES - Cases involving children (under eighteen years of age), including children accused of delinquent acts or neglected or abused children. MANDAMUS - The name of a writ which is issued from a court of superior jurisdiction, directed to a lower court or a public officer, commanding the performance of a particular act. METABOLISM - The processes by which the body uses enzymes, mechanical action and other bio-chemicals to break down ingested substances, such as alcohol, foods and drugs, so that they may be consumed (utilized) and eliminated (this process is called “catabolism”) as well as the processes by which the body synthesizes substances (this process is called “anabolism”). MIRANDA WARNING - A warning given by police before custodial interrogation. It advises the person that he does not have to talk to police, and that his silence will not be held against him, and his right to legal counsel before talking to police. This “phrase” derives from a US Supreme Court decision: Miranda v Arizona, 384 US 436 (1966). Over the years, courts at every level have curved dozens of exceptions into the rule so that its effect is watered down. MISDEMEANOR - Offenses considered less serious than felonies. There are three classes of misdemeanors—simple, serious, and aggravated. Examples of misdemeanors include minor traffic violations, thefts of property not exceeding $500 in value, trespass, and disorderly conduct. Maximum fines for misdemeanors vary from state, but $5000 is usually an upper limit, with many states capping fines at $1000. The maximum length of incarceration is a year of less. MISTRIAL - A mistrial is a court ruling made by a trial judge after a jury is empanelled but before the jury is able to reach a decision of guilt or innocence of the defendant on the pending criminal charge. A mistrial may occur (or be available) due to a variety of causes, including (1) a jury being unable to reach a unanimous decision; (2) if a juror is disqualified, dies, fails to return to court, or otherwise cannot complete the trial and no alternate juror can fill his/her place; (3) misconduct of the prosecutor, the judge, a juror or any other party or person (including the defendant or defense counsel) that prevents the trial from proceeding due to likely prejudice; (4) the trial judge permitting evidence into the trial when it should have been excluded; or (5) when the judge becomes convinced that there is a lack of jurisdiction over the type of case [subject matter jurisdiction] or over the defendant. Usually, declaration of a mistrial means another trial may be held in the same matter. However, in criminal prosecutions, if a mistrial was erroneously declared by the court (this usually means defense counsel must oppose the granting of a mistrial), or if a mistrial requested by the defense was the result of prosecutorial misconduct that was so blatant and inexcusable that it can reasonably be assumed that the error was committed by the prosecutor in order to "goad" the defendant’s attorney into seeking a mistrial, then a retrial may be barred by virtue of the constitutional protection against double jeopardy. In such instances, which are rare, no trial can be started again. MOTION - An application to the court requesting action or some type of “relief” in a pending case. Usually, a motion concerns an issue within the court’s discretion to order to be done differently by another party or participant. In terms of pre-trial motions, these are challenges to certain evidence coming before the jury (or judge) due to some legal challenge that requires that the evidence not be considered. MULTI-DRUG USE - The use of more than one drug or type of drug by an individual, often simultaneously or sequentially and usually with the intent of enhancing a feeling or condition, increasing the intoxicating effects, or for counteracting the effects of another drug. One example of a common intentional use of “counteracting” drugs is when a person who is intoxicated by alcohol seeks to counter the effects by consuming caffeine in coffee (even though this is ineffective in “sobering the person up”). The term is often associated with illegal or illicit use, although alcohol, nicotine, and caffeine are the substances most frequently used in combination with other drugs in industrialized societies. This is known as “polydrug use” by medical professionals and scientists. NOL PROS – See nolle prosequi below. NOLLE PROSEQUI - The Latin term used in many jurisdictions to describe the prosecutor's voluntary dismissal of one or more pending criminal charges. Generally the request of a prosecutor to "nol pros" a case is made after the filing of an indictment, accusation or information, when the prosecutor has determined that adjudication of the charges is not in the interest of the government. In most jurisdictions the court's permission is required for the nolle prosequi to be valid. As long a jury trial has not been started, the entry of a nolle prosequi by a court is not an adjudication on the merits of the prosecution (meaning, it is not FINAL and can be re-accused later) and the legal protection against double jeopardy will not automatically bar the charges from being brought again in some fashion. NOLO CONTENDERE PLEA – A nolo contendere plea (also called a “no contest” plea) can be entered by criminal defendants facing a realistic prospect of conviction, who do not wish to undergo a trial, and yet are not willing to admit to being responsible for the criminal act charged. Also, defendants may wish to avoid admitting to a tort (a civil personal injury suit arising from an accident in which the injured party seeks monetary damages) or any other type of wrongdoing alleged in the indictment, accusation, uniform traffic citation or information against him/her with a view to possible later civil action. NOTICE OF APPEAL - A filing made by a dissatisfied party to litigation seeking a higher level court to review the decision rendered below. Some inferior (lower level) court decisions will be appealable to a superior or circuit court, while other appeals go directly to the state appellate courts. Note that the prosecutor cannot appeal a “not guilty” verdict by a jury. OPINION - A formal statement by a judge, magistrate or justice (another name used for trial level judges in some states) which sets forth a decision about some aspect of a case or on the legal issues bearing on a case. ORDINANCE - A law passed by a city, town, parish or county legislative body. Ordinances are of lower significance and reach than state statutes, which control the law across an entire state. ORIGINAL JURISDICTION - The power of a court to hear a case for the first time instead of waiting for the case to be tried in a lower court. Some courts have only “appellate” jurisdiction, and never hear any legal matters as “original jurisdiction” cases. OVERRULE – A judge’s decision (usually made during trials or motions hearings) to not allow an objection to prevail. Also, this can refer to a decision by a higher (appellate) court that a lower court’s decision was in error. PARTIES - The persons who are actively concerned in the prosecution or defense of a legal proceeding. PECUNIARY - Consisting of money. If a judge has a “pecuniary interest” in a case, that means that he or she has a financial interest in how it is decided. PERJURY – Knowingly making a material false statement while under oath to tell the truth. Perjury is a crime in all jurisdictions and applies to all witnesses. PER SE – Latin. Of, in, or by itself or oneself; intrinsically. In DUI-DWI practice, all the prosecutor needs to prove to obtain a conviction for this type of “DUI-DWI” offense is to successfully introduce the breath, blood or urine test result so as to convince the jury or judge that the result obtained was reliable and trustworthy, as required under state law. PETITION - Written application to a court requesting that the court issue a ruling that provides a remedy available under the law. PLEA BARGAIN – This term generally refers to an agreement in a criminal case in which a prosecutor and a defense lawyer (acting on his/her client’s behalf) arrange to settle the case against the defendant on some negotiated terms and conditions. Plea bargaining is an essential part of the criminal justice machine in the United States. Indeed, an overwhelming majority of criminal cases in the United States are settled by way of plea bargains rather than by seeking trial before a judge or jury. Some states, however, have sought to legislate away the prosecutor’s ability to “reduce” DUI-DWI cases to a lesser offense. Typically, all plea bargains are subject to the consent of the trial judge before whom the case is pending. In a typical plea bargain, the defendant may agree to plead guilty or nolo contendere (“no contest”) in exchange for the prosecutor dropping some charges or reducing the punishment aspect of the case to a more favorable level. Generally, a plea bargain allows the prosecution and defense to agree on the outcome and resolve the pending charge without a trial. In colloquial terms this is known as "copping a plea". PLEADING - A formal statement, generally written, propounding the case of action or the defense of a legal case. Pleadings may also have specific titles such as “Motion to Suppress” or “Motion in Limine” or “Discovery Motion”, and these are all classified as “pleadings”. PRAECIPE – A paper containing the particulars of a pleading that proposes review by a court, lodged in the clerk’s office out of the court the document is to be issued. Also, in some instances, it refers to a writ commanding something to be done, or requiring a reason for neglecting it. In some jurisdictions, this form is called a “Rule Nisi”. PRELIMINARY HEARING - Synonymous with preliminary examinations; the hearing given before a magistrate or other judge to determine whether a person charged with a crime should be held or bound over for trial. The level of proof required to be shown at this level of criminal proceedings is very low since the prosecutor typically will not have fully investigated the case. Often, if a person is released on bond no right to such a hearing exists, or is waived (given up). PRESENTENCE INVESTIGATION REPORT – Also called “PSI”. A report created after a guilty or nolo contendere plea in anticipation of sentencing at a later time or after conviction, generally prepared by a probation officer, which presents pertinent information needed by a judge to be able to determine a fair sentence for a person convicted of a crime. Defense counsel may be able to get favorable information to the PSI investigator, to help mitigate punishment. PRESUMPTION OF INNOCENCE - The Government has the burden of proving a person charged with a crime guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty. The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. PRETRIAL CONFERENCE - A meeting of the judge and lawyers to set the rules for trial, or to discuss which matters should be presented to the jury, or to review and organize evidence and witness lists, or to set a timetable, or to discuss remaining issues involved in the case. PRE-TRIAL DIVERSION - Also known as “adjournment in contemplation of dismissal” or “conditional dismissal”. A program in which a defendant is essentially put on probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court, then the charge will be dismissed. PRIMA FACIE - Latin for "at first view." Evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted. So far as can be judged from the disclosure, an accurate fact, presumed to be true unless disproved by some evidence to the contrary. PRO BONO – Legal services provided to a client free of charge. In our legal system, people who are indigent can get an attorney appointed for free, or pro bono. PRO SE – Latin for "on one's own behalf" A person who represents himself in court alone without the help of a lawyer is said to appear pro se. PROBABLE CAUSE - A constitutionally prescribed standard of proof; a reasonable ground for belief in the existence of certain facts. The burden of proof necessary for issuance of an indictment or issuance of a trial information (accusation). PROBATION - A form of criminal sentence in which an offender agrees to comply with certain conditions imposed by the court rather than being put in jail or prison. PROBATION REVOCATION: When a judge has permitted an accused person who either pleads guilty or is FOUND guilty at trial to NOT GO TO JAIL for some portion of the sentence handed down, the judge sets conditions under which the person can stay out of incarceration. The failure of the probationer to follow the judge’s “conditions” can and usually does lead to a “probation revocation”. Typically, the person is seized (arrested) first. Thereafter, on a fixed schedule of that judge, the violator is given a day in court to explain or challenge the “violation”. Individuals who are on probation no longer enjoy all the constitutional protections that he or she had BEFORE the guilty (or nolo contendere) plea or guilty verdict at trial was rendered. For example, the ‘standard of proof’ in a criminal trial is the HIGHEST in the world: proof beyond a reasonable doubt. In a probation revocation, depending on the state you are facing a revocation in, it is either preponderance of the evidence or probable cause to believe that a violation has occurred. Very little evidence is needed to prove this. PROOF BEYOND A REASONABLE DOUBT – The highest level of proof in any legal matters, reserved for criminal cases. In order for a criminal defendant to be convicted of a crime, the prosecutor must prove his or her case to the point that the jurors have no reasonable doubts in their minds that the defendant did whatever he or she is charged with having done. The typical jury in criminal cases must be unanimous, but some jurisdictions now allow verdicts on less than unanimous verdicts for juries with more than 6 members. PROSECUTE - To initiate legal or criminal court action against an accused. PROSECUTOR - One who initiates an accusation against a party suspected of committing a crime; also one who takes charge of a case or performs the function of a trial lawyer in a criminal case on behalf of the state or the people. PUBLIC DEFENDER - A lawyer employed by the government to represent a person accused of a crime and who cannot afford to hire a lawyer. PUNITIVE DAMAGES - Damages in excess of actual damages that are assessed as a form of punishment. Typically, punitive damages apply when a defendant’s behavior is found to have been willful or malicious. Rebuttal evidence - Evidence given to explain or disprove facts given in evidence by the opposing party. RELAPSE - A return to drinking (or other drug use) after a period of abstinence (non-use), often accompanied by reappearance of dependence symptoms. RES JUDICATA – A Latin term meaning "a thing decided." In criminal law, the term identifies a common law doctrine meant to prevent starting over and litigating an issue that has already been decided between the same parties (or litigants in an indistinguishable position) on an issue before a court. For example, if an appellate court has ruled that an officer must arrest a person BEFORE reading the implied consent advisement, then other similar cases before lower level judges must follow that “decided case” on that issue. Restitution - A legal remedy sometimes allowed by statute under which a person is restored to his or her original position prior to loss or injury. In DUI-DWI accident cases, the laws of many jurisdictions authorize the criminal court disposing of a guilty verdict or plea to order restitution of damages to the “victim” of the DUI-related crash. Retainer: A contract between an attorney and his or her client. Preferably (under most state bar rules) these need to be in some written form, but retainers can be oral. The payment of money to the attorney as a “retainer” signifies an agreement for the attorney to act on the person’s behalf and to represent the person in the legal matter that is the subject of their “contract.” In criminal cases, a retainer is typically a partial payment toward the ultimate, total fee that may be due in the event the case requires filing of a variety of motions and other pleadings, handling administrative license issues, conduction of pre-trial hearings of various types, going to trial or possibly filing an appeal. To avoid confusion on the exact terms and schedule of other payments, retainer agreements should be in writing in virtually all cases. RULE NISI – A paper containing the particulars of a pleading that proposes review by a court on a certain date and time. The form is filed in the clerk’s office out of the court the document is to be issued. Also, in some instances, it refers to a writ commanding something to be done, or requiring a party or the party’s legal counsel to explain why some act has not been done. In some jurisdictions, this form is called a “Praecipe”. SENTENCE - Judgment formally pronounced by a judge upon defendant after the defendant’s conviction in the criminal prosecution. SERVICE OF PROCESS - The act of providing an opposing party with notice of a pleading or action to assure that the opposing party is aware of the action and is given an opportunity to appear. SPEEDY TRIAL – Both federal constitutional law and state constitutional (or statutory) laws may provide a person facing criminal charges with the right to a speedy trial. This defense attack can be raised when the prosecution has waited too long to proceed to trial. Each state controls its own statutes and constitutional protections as to when and under what circumstances the issue can be raised by the defense. Speedy trial challenges may be pursued in cases in which a significant lapse of time has occurred between the date of the alleged commission of the crime and the date of arrest. Also, several states have built-in “presumptive” time limits on various types of cases (including some specifying “drunk driving” cases) wherein the prosecution loses if the trial is not completed within a fixed amount of time. Others call for the defense to file a notice of an accused person’s desire to resolve the case in accordance with the available statutory or constitutional provisions available to accelerate the trial date. All such statutes and state constitutional provisions authorizing speedy trials contain various exceptions to this rule. For example, if the defense acts to cause a delay (e.g., by requesting an adjournment or continuance), this can cause a “waiver” of this right. STANDARD OF PROOF - The amount of evidence which a prosecuting attorney in a criminal case must present in a trial in order to win is called the standard of proof. In criminal cases in America, the appropriate standard is the highest legal standard in existence, proof beyond a reasonable doubt. STATUTE - A law adopted by the legislature. STIPULATION - An agreement by attorneys on opposite sides of a case as to any manner pertaining to the proceedings or trial. Typically, stipulations must be in writing and agreed to by the parties to be binding. SUBPOENA – A court-authorized or court-issued form (usually issued under seal of the court) ordering a person to be in court at a certain place, hour and time, or “be punished” for not doing so. Failure to appear in court can lead to arrest and possible jailing (until the testimony is obtained) or fines being assessed. SUBPOENA AD TESTIFICANDUM – A form of writ or summons to be at a specific court to testify. These forms usually contain clauses directing the witness to bring to court hand books, papers, etc. for the court. Very similar to a subpoena duces tecum. SUBPOENA DUCES TECUM - A Latin term for "bring with under penalty of punishment." It identifies a type of court order that requires a person to appear at and when shown in the form and to bring certain documents or other evidence (set forth and identified in the subpoena duces tecum) to the court. SUBSTANCE ABUSE - Repeated self-administration of a psychoactive drug (including alcohol) to the extent of experiencing physical and/or mental harm from its effects or from the social or economic consequences of its use. The terms "drug abuse," "alcohol abuse," etc., are widely used to refer to presumptively harmful or hazardous use of these substances and often to indicate disapproval of any use at all. Alcohol abuse refers to non-medical or unsanctioned patterns of alcohol use, irrespective of consequences. SUMMONS – See Subpoena. SUSTAIN – A judge’s decision (usually during trial or motions hearings) to allow an objection or motion to prevail. TAKE DOWN – When a court reporter comes to court and either “keys in” and records all testimony and proceedings or uses a Stenomask™ to repeat all testimony into the record. The time that he or she is in court doing this is called the “take down” of testimony. TESTIMONY - Spoken evidence given by a confident witness, under oath, as distinguished by evidence derived by writings, physical exhibits and other sources. Transcript - A copy of the record of a trial, hearing or other proceeding as prepared by a court reporter. TRIAL INFORMATION (OR ACCUSATION) - A document filed by the prosecutor, which states the charges and evidence against a defendant in a criminal case. See further information under “accusation” in this glossary. UNIFORM CITATION (OR UNIFORM TRAFFIC CITATION) - A statutory procedure for “charging” a person with certain types of offenses. In some states, this method allows a law enforcement officer to issue a traffic citation on certain misdemeanor or infraction cases. Typically, uniform citations are authorized for traffic offenses and other types of violations that are considered less serious offenses. Some states allow the prosecution of DUI-DWI cases on these citations, without the need for the prosecutor to file a formal accusation or “information” setting forth the charges. VERDICT - The formal decision or finding made by a jury and accepted by the court. VOIR DIRE - French for “ to speak truly, to tell the truth.” An inquiry of prospective jurors by the attorneys (in most jurisdictions) and by the judge, to determine if prospective jurors are qualified for jury duty in a given case. Also called “jury selection.” WAIVER – Intentionally giving up a right. Example: a defendant waiving his right to remain silent to be interviewed by police. In the legal system, almost any rights can be waived, if it is done knowingly and intelligently. WARRANT - A writ or order issued by a judge or magistrate authorizing an officer of the law to make an arrest, conduct a search, or to perform some other designated act. WITNESS - One who testifies to what he or she has seen, heard, or otherwise observed or (in the case of expert witnesses) testifies to his or her professional opinion based on a hypothetical set of facts, treatment records, or statement. WORK RELEASE - A probation program (alternative to jail sentence) in some jurisdictions wherein the defendant is permitted to maintain employment while residing in jail when not at work. The defendant leaves jail on workdays only for his work hours, plus limited travel time. These programs are not available in some jurisdictions, due to lack of funding for such facilities. Also, some state statutes do not allow DUI-DWI detainees to utilize “work release.” WRIT - An order issued from a court requiring the performance of a specified act, or giving authority and commission to having it done.
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