An affidavit is a formal written statement declaring truth of the facts in question. In a drunk driving arrest the affidavit can be a sworn statement by the police outlining the facts of the case and the legal justification of why the judge should either issue a search warrant or information concerning the DUI arrest, including evidence that the driver who was arrested for DUI was either in the process of or likely to commit a crime.
Affidavits of probable cause can be completed by the arresting officer if they are trying to obtain a search warrant from a judge. The affidavit can contain the officer’s observations or information from a third party such as an informant. If the judge believes that there is sufficient evidence in the affidavit to provide probable cause for the search, meaning there is sufficient evidence that the place to be searched contains criminal activity, they will issue the search warrant. If not, the judge will likely deny the request.
Affidavit in a DUI arrest
An affidavit can also be prepared to establish probable cause when a law enforcement officer is citing a driver for a crime the officer has witnessed. This affidavit is given to the prosecuting attorney to support the charges of the crime. Whether or not the prosecuting attorney decides to file formal charges may depend in large part to the evidence outlined in the affidavit. If the information does not clearly establish probable cause for the DUI arrest the prosecution may not formally charge the driver for drunk driving.
Citation for a DUI arrest
Citations for drunk driving are generally issued at the scene. Police officers generally will issue a copy of the ticket and in some states may also give the driver a printout of their breathalyzer test results (if they submitted to one) and a hearing request form from the Department of Motor Vehicles in their state (if they either refused a chemical test or there is evidence after the BAC test that their blood alcohol concentration level (BAC) was above the legal limit of 0.08%).
What if you did not get a DUI citation at the time of the arrest? Unfortunately, some officers may take their arrest report and submit it directly to the prosecutor who will review the information from the DUI arrest and decide whether or not formal charges should be filed. In some counties the prosecutor may not file charges and issue the court summons four or five months after the DUI arrest (they generally have up to one year if the charge is a misdemeanor DUI).
Keep in mind, if you have been issued information about a hearing with the DMV this means that your license could be suspended through a civil administrative hearing initiated by the DMV in your state, regardless of whether or not you have been formally charged or convicted of DUI by the criminal court. To challenge the administrative hearing from the DMV you must request a hearing within a specified number of days from the date of the DUI arrest (the number of days you have to request the hearing varies by state). If you fail to challenge the administrative suspension your license will automatically be suspended, assuming you refused or failed the chemical test.
So is the affidavit the same as the arrest citation? No, an affidavit is simply a statement declaring the facts in question and the citation is the formal arrest notice. The officer may complete the affidavit without the prosecutor filing a formal charge against a driver for DUI.
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