DUI ARESTEES FORCED TO SIT IN JAIL FOR 4 NIGHTS OVER NEW YEAR'S WEEKEND

New Year's Eve has long been one of the biggest nights for DUI arrests. Unfortunately, because New Year's Eve was last Thursday night, many people who were arrested for DUI weren't be able to see a judge to set bail until today- Friday was New Year's day, a holiday, and then we had Saturday and Sunday, days on which the courts are closed.

Under the holding of the U.S. Supreme Court decision in Gerstein v. Pugh, defendants who have been arrested without a warrant in a criminal case have the right to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, the U.S. Supreme Court set a time frame in which a defendant in a criminal case is entitled to a Gerstein hearing. In McLaughlin, the Court held that when a jurisdiction in which probable cause determinations are combined with other pretrial hearings, i.e. arraignments, the court must conduct the probable cause hearing as soon as feasible, but no later than 48 hours after arrest. That means that individuals arrested on a Wednesday night have the right to see a judge for a probable cause determination and the setting of bail by Friday night.

In practice, I have seen individuals sit in jail without the opportunity to see a judge until 48 hours have passed. In Mclaughlin, the Suprme Court clearly stated that when 48 hours have passed , the burden is on the government to show some sort of emergency circumstances. The government cannot use weekends or intervening holidays as an excuse as to why the defendant did not receive a probable cause hearing within 48 hours. Yet, I have already been made aware of at least one DUI arrest that occurred on New Year's Eve in which the arestee has been denied a probable cause hearing until today due to the prolonged holiday weekend. This practice is unconstitutional.