In Part 2 of this article, we examined DUI Pre-Trials, and we learned that, more than anything else, a Pre-Trial is a meeting where the Defense Lawyer and the Prosecutor discuss their case, and try to work out some kind of resolution (usually meaning a plea deal) in order to avoid having the case decided at a Trial.
In this 3rd installment, we’ll discuss the components of a DUI Trial. The reader should note that the Library of any Lawyer who makes his or her living in Court usually contains numerous books about Trials, and Trial strategy. Since even the most abbreviated overview of Trials would result in a rather long book, our review will necessarily be rather brief. Accordingly, we will focus on the more important and relevant aspects of a DUI Trial.
To begin, it is fair to say that a DUI Trial occurs because the Prosecutor and the Defense Attorney are unable to agree upon a resolution. Beyond that rather “legal” description, it typically means that the Prosecutor has offered no kind of “deal,” and the Defense Lawyer believes he or she can either beat the case at Trial, or at least get a better (always meaning less-serious, or severe) verdict than whatever plea offer (or not) is on the table.
In a Criminal Trial, a person’s guilt must be proven “beyond a reasonable doubt.” To put it plainly, at a Trial, the Prosecutor must essentially hit a home run.
If a Trial is held before a jury, then a “Guilty” verdict can only occur if ALL of the jurors (6 in a Misdemeanor case, and 12 in a Felony case) agree that the Defendant is guilty. If even 1 of the jurors does not agree, the jury is considered “hung” and the person will not be found guilty, although they may later be re-tried. If the jury, however, returns a unanimous verdict (meaning all 6 or 12 jurors agree) of either Guilty or Not Guilty, then that is the final decision.
Which brings us to as good a place as any to talk about the end result of a Trial. Everyone knows that a Criminal Trial (and a DUI case is a Criminal case) can result in a verdict of either “Guilty” or “Not Guilty.” Yet there are other outcomes that can occur, and understanding them can have a huge impact on deciding whether or not to have a Trial in the first place. Let’s explore this further…
There is an often overlooked potential consequence in any Criminal Trial; the lesser-included Offense. This means that while a person may be able to avoid a conviction for the crime with which they are charged, they can still be convicted of another, less serious crime called a “lesser included Offense.”
In DUI cases, this is always called “Impaired Driving.” In a 1st Offense case, the difference between a straight-up OWI and the lesser charge of Impaired Driving is rather substantial, at least in terms of how they are treated. In a 2nd Offense case, the ONLY difference between the straight-up OWI and the Impaired Driving charge is 2 points on the Driver’s Record, and a Driver’s Responsibility Fee to the Secretary of State of $1000 for 2 years for the OWI that drops to $500 for 2 years for the Impaired Driving charge. Given that, in either case, the person’s Driver’s License will be Revoked for at least a year anyway, the only real difference is a grand total of $1000 saved in Secretary of State fees. That’s it.
Now, given that it costs thousands of dollars to properly conduct even the simplest of DUI Trials, a person, for example, who chooses to go to Trial in a 2nd Offense DUI case, and who is NOT convicted of the original OWI charge, but is instead found guilty of the lesser charge of Impaired Driving, 2nd Offense, has just blown a few thousand extra dollars to save a thousand. In other words, it’s a net loss!
This means, then, that going to Trial in any DUI case only makes sense if the end result is a “Not Guilty” verdict.
Lawyers have long called an acquittal on an OWI (and its predecessor, OUIL, or Operating Under the Influence of Liquor) and a conviction for the lesser-included Impaired Driving Offense the “dreaded compromise verdict.” Under the current DUI Laws, such a result, at least for those who hire a Lawyer in a 2nd or 3rd Offense case, generally means, as noted above, a net loss.
It is against this backdrop that the whole idea of “going to Trial” must be considered.
There are 2 kinds, or types of Trials:
- Jury Trials, meaning a Trial where a group of either 6 (in Misdemeanor cases) or 12 (in Felony cases) people decide if the Defendant is either “Guilty” or “Not Guilty,” and
- Bench Trials, meaning a Trial held in front of a Judge, with no Jury.
In terms of money, a Jury Trial costs a lot more because a jury must be “selected.” When a Jury Trial is convened, both the Defense Lawyer and the Prosecutor have a certain amount of input into who gets seated on the jury. It is certainly not like 6 or 12 people are called in, and that’s it. Jurors are “selected” from a “jury pool,” which is a large group of potential jurors who are questioned by each side, and sometimes the Court, regarding their beliefs and experiences that might impact their ability to fairly and impartially decide a case. And of course, the reader has no doubt heard someone talk about “getting out of” jury duty. It’s not like very many people are anxious to be picked to spend a day or two, or even longer, sitting on a jury in a Drunk Driving case.
The jury selection process can take quite a while. Most skilled Trial Lawyers will agree that this stage of a case is extraordinarily important, and requires monumental effort. In fact, this task can require so much time and effort that many expert services make a rather lucrative profit as “jury consultants.” These “consultants” help a Lawyer readying for a Trial review the backgrounds and credentials of the members of the jury pool, and then further help the Lawyer in Court as he or she goes through the selection process. The selection process itself involves each prospective juror being asked questions (what they probably see as endless questions) by both the Defense Attorney and the Prosecutor. Each side has a certain number of “bumps” (technically called peremptory challenges) that allow them to simply excuse a person without the need to explain why.
In addition, either side can challenge an unlimited number of potential jurors “for cause,” meaning they argue to the Judge that for some reason or other, a certain person is incapable of being properly attentive, fair or impartial (or some other reason sufficient to disqualify them) and should not be allowed on the jury. If the Judge agrees, the person is excused. If not, the person who argued for their dismissal probably DOES NOT have a sympathetic ear on the jury panel…
Jury selection can last days. Even at its quickest, and in the simplest of cases, the process will typically eat up the better part of at least a day. And guess who’s paying for all that Lawyer time…?
The other kind of Trial, called a Bench Trial, proceeds without a jury. Instead, the Judge alone decides guilt or innocence. Bench Trials get underway rather quickly, as there is no jury to question.
That said, if a case turns upon the believability of a Police Officer, or the accuracy of his or her observations, for example, many would argue, and I am inclined to agree, that the odds of finding at least one juror out or 6 or 12 who would not just go along with that Officer’s testimony are much better than just dumping one’s fate in the hands of one person. In addition, some would argue that a Judge, because of his or her political position, might be inclined to go along with the Officer.
Whatever else, just playing the numbers game (6 or 12 versus just 1) tilts the odds significantly in favor of a Jury Trial.
It has been observed that when the facts of a case aren’t as much at issue as the Law that applies, a Bench Trial may be the better choice. If the facts of a case are disputed, then a Jury Trial is generally preferred.
If this seems complicated, it is. Of all the things that Lawyers do, trying cases is about the most difficult and laborious of them all. There are numerous stages of a Trial:
Submission of Jury Instructions to the Court before Trial Exchange of Witness Lists with the Prosecutor Final Pre-Trial Motions Identification and Disclosure and Marking of Exhibits to be used in Trial Jury Selection Opening Statements Prosecutors Direct Examination of Prosecution witnesses
Defense Cross Examination of those witnesses
Re-Direct Examination Re-Cross Examination Defense Direct Examination of Defense witnesses
Prosecutor’s Cross Examination of those witnesses Re-Direct Examination Re-Cross Examination Closing Arguments The Judge’s Instructions to the Jury Jury Deliberations Jury’s arrival at a Verdict Reading of the Verdict, and finally,
A Sentencing, (if that Verdict was Guilty)
The list above is not complete or exhaustive. It does, however, provide a general idea of what is involved in just gearing up for a Trial.
In addition to all that, there are tons of often differing Trial strategies and all kinds of variables, often unpredictable, that enter into the mix. Very few Lawyers actually like conducting Trials. It’s no wonder why.
And if there is an overriding point here, it’s that a person should never go to Trial without a rock solid reason for doing so and that, in turn, had better be supported by a rock solid likelihood of being found “Not Guilty.”
If the reader, for some reason, is interested in more detail about the Trial stage, beyond the links included in this installment, they can likely find enough reading material on the web to last a lifetime. As I noted before, the library of any Lawyer who spends a significant amount of time in Court (meaning my library, as well) is usually loaded with books about Jury Selection, Opening Statements and Arguments, Closing Statements, Cross and Direct Examination techniques and other aspects of Trial work.
Yet, for all of that, the UNDISPUTED FACT is that the vast majority of DUI cases are resolved before and without the need for a Trial.
In Part 4 of this series, we will look at what happens after a person enters a Plea, or is found Guilty after a Trial. While it might at first seem logical that the next step is a Sentencing, where the Judge decides what punishment and other consequences the DUI Driver will actually get, in fact the next step, more than anything else, determines what that punishment and those consequences will be. This step, called a “PSI,” or Pre-Sentence Investigation, is required by Law, and includes the legally mandated alcohol assessment test. To understand this better, in the next installment, we will rewind a bit and look at how the Plea (or Verdict of Guilt) itself can influence this process, as well.