Dui Guilt Myth -- Chapter 10

Chapter 10 DWI Lawyer Bob Keefer: DUI Guilt Myth				A pre-trial conference is an opportunity for the
				prosecutor and your attorney to discuss various
�				options to resolve your case without a trial. The district
CHAPTER 10				attorney will offer a plea deal that you will consider
				with your attorney. If you choose to take the district
“MY CASE IS GOING TO TRIAL—HOW DO I				attorney’s offer, or to have your attorney counter
PREPARE? “				with an offer of your own, your case may be
				resolved at this stage. If not, then you are set to go on
You do not have to know everything about the trial				to a jury trial.
process and how to argue your case—that is what				Trial
an attorney is for. This chapter is simply meant to help				The U. S. Constitution guarantees each criminal
you understand the basics of what the trial process				defendant the right to a speedy and public trial.
looks like and the kinds of arguments that work in your				Because of busy trial calendars in many courthouses,
favor.				the right to a speedy trial has been given specific
				guidelines, which vary from State to State. These
Arraignment				guidelines set time limits on how long you have to wait
				before your trial. If you are still in custody, you probably
The process begins with an arraignment, which will be				will not have to wait as long as you would if you were
the first time you appear in court. At your arraignment				released on you own recognizance. If your lawyer
you will receive a copy of the police report and the				needs more time to build your case, do an investigation
District Attorney’s charges against you. Your				or file motions, he or she can request that these time
lawyer will enter a plea of not guilty for you, and then				limits be extended. However, this decision to delay the
dates are set for motions, pre-trial conference and trial.				trial is ultimately up to you: only you can waive your
Pretrial Motions				right to a speedy trial.
After your arraignment, the process of arguing your
case will begin. After your attorney has thoroughly				The jury trial is a hearing in which all of the evidence is
reviewed the facts, the next step is to file pretrial				presented to 7 for a misdemeanor or 12 jurors for a
motions. A motion is a document that your attorney				felony, with the judge presiding. The trial will have
files on your behalf asking the Court (i.e. the judge) for				witnesses from both sides, including the officer or
a certain action. There are several different types of				officers who observed you from the time you were
motions, each with a different goal. But filing successful				stopped until you were released from jail, as well as
motions, no matter what the specific type, will help you				expert witnesses who will testify regarding the tests
and your attorney to shape the trial process in a way				that were taken at the police station. You may also
that benefits your case.				testify if you and your lawyer decide it is a good idea,
• Motion to SuppressWhen the prosecutors begin				and you may also call other people, such as
preparing their case against you, they start by				passengers, who will testify on your behalf.
collecting all the evidence that supports their claim that				The process of selecting 7 or 12 jurors from a large
you were breaking the law. However, just because				pool of potential jurors is called “voir dire.” Both
they have collected it and want to present it at trial				sides—your lawyer and the district attorney—want
does not mean that it is automatically admissible. There				to choose jurors who will be most sympathetic to their
are strict legal requirements that determine whether a				case. In voir dire, both sides are allowed to ask
piece of evidence can be presented at trial. An				questions of potential jurors and each side is allowed
important part of making your case is arguing that the				to “challenge,” or reject, a certain number of
evidence that the prosecutors want to present at trial				potential jurors without having to provide a reason. The
does not meet these requirements and therefore				idea behind the process is that, if both sides are
cannot be used against you.				allowed to challenge potential jurors that they believe
A motion to suppress asks the court to				are biased against them, the jury will be fairly balanced
“suppress” or exclude certain evidence from a				when all is said and done.
trial because it was obtained improperly or illegally by				Once the jury is selected, the trial will officially begin
the police officer. For example, a motion to suppress				with each side offering opening statements. The
might argue that the officer did not have probable				opening statement that your lawyer makes to the jury
cause to pull you over. This motion would need to				provides an overview of your version of what
argue that the officer’s belief that you were				happened. It is a story that your lawyer will attempt to
committing a crime was not “reasonable.” This				persuade the jury of by providing evidence, questioning
means that the officer’s justification for pulling you				witnesses and poking holes in the prosecution’s
over must be something he actually saw. An				version of events. But before your attorney can
anonymous tip, for example, would not be enough. If				present your case fully, the prosecutors must present
this motion were successful, all evidence that was				theirs. In a jury trial, the prosecution always presents its
made possible by pulling you over (which is nearly				case first. In a certain way, this works in your favor
everything) might also be suppressed.				because the jurors—like the rest of us—are more
				liable to remember what they heard last. Finally, once
A motion to suppress might also question the results				all the evidence has been presented and all the
of the BAC tests that you took at the police station.				witnesses have testified, both sides will present closing
Recall the discussion in chapter 6 about the various				arguments. The jury will then be given its instructions
factors that can make the tests unreliable. Any of				as to how to weigh the evidence presented to them,
these reasons might be used as a basis to argue that				after which they will begin deliberation. Once the jury
the test results should be suppressed.				finishes deliberating, all that is left is for them to present
				their verdict.
•Discovery Motion				Expert Witness Testimony
				At some point during the trial your lawyer will probably
This type of motion asks the prosecutor to release				decide to call an “expert” to testify. Experts can
additional evidence. Discovery is based on the idea				be called to testify about the chemical tests, field
that the defense is entitled to all the information that will				sobriety tests, accident reconstruction, and other
be used by prosecutors in their attempt to convict.				scientific aspects of your case.
Most of the time the prosecution will simply give your
lawyer the evidence, making a discovery motion				Chemical Tests: Experts can discuss flaws with
unnecessary.				breath, blood and urinalysis tests. For example, the
There is an informal discovery process that happens				breath machine was not properly calibrated or
between the prosecution and the defense, without the				fermentation occurred in the blood and a higher alcohol
judge getting involved. Each side provides the other				reading resulted.
with a list of the information that they would like to be				Field Sobriety Tests: Field sobriety tests are not
given. The kinds of evidence that your attorney will				considered “scientific,” but the results can work
receive in this informal discovery process include things				in your favor if your lawyer calls an expert witness to
like the names and addresses of prosecution				testify on your behalf. If you performed reasonably
witnesses, statements made by you, relevant				well on the field sobriety test—displaying good
evidence seized or obtained as part of the				balance, coordination, attention and reasoning—the
investigation, results of scientific tests, and all written or				expert can use your performance on the field sobriety
recorded statements of witnesses whom the				test to support the opinion that you were not under the
prosecutor intends to call at a prospective trial.				influence at the time of driving. If you showed signs of
However, if either side refuses to provide a piece of				physical impairment but not mental impairment, the
evidence that the other side requested, then a formal				expert will testify that, because alcohol always affects
discovery process begins. This process requires filing				your mind before your body, the physical impairment
motions so that the judge can decide whether to order				was probably due to something other than alcohol.
that the prosecution give your lawyer the evidence
you want.				Alcohol Level at Time of Driving vs. at Time of Testing:
				The use of BAC tests at trial is based on the
• Motion to strike prior DUI convictions.				assumption that, if a person was impaired at the time
				of the test, they must have been impaired at the time
This motion asks the Court to make it so that any prior				of driving. In other words, the assumption is that the
DUI convictions from the last ten years are not taken				BAC falls as time passes. Experts can be called to
into account when deciding a sentence. As you might				rebut this assumption in certain cases. Under certain
expect, the penalty goes up with each additional DUI				circumstances the BAC could actually be rising, which
you get.				means it is higher at the time of the test than when
				driving. Since this is an extremely technical area, an
However, there must be a reason to file the motion.				expert is essential to explain it to the jury and raise
Something must have happened that led you to and				reasonable doubt as to whether the person was over
your attorney to believe that the officer’s past				the legal limit at the time of driving.
conduct should be called into question. The motion
must provide a specific fact so the judge can decide if				Accident Reconstruction: If there was an accident
there is sufficient reason to look into the officer’s				before the arrest, an expert in the field of accident
past.				reconstruction may be used to reconstruct the events
				of the accident based on facts in the case. The
The more of these motions that are				accident reconstruction expert can testify regarding
successful—suppression, discovery, strike prior DUI				the mechanics of the accident, and give his or her
convictions, pitches—the more likely the case against				opinion regarding whether or not the accident was the
you will simply be dismissed without a trial. If not, your				fault of the impaired driver, the other party, or would
case proceeds to a pre-trial conference.				have been unavoidable regardless of impairment.
Pretrial conference

WorkAbility

Dui Guilt Myth -- Chapter 10