Kenneth Carroll: Should I Go To Trial For DUI?

Percentage wise, very few cases actually go to trial because it would be a matter of having a good enough legal or factual issue to actually take the case to trial, along with actually having the funds to do that. Probably, somewhere around 1 or 2% of cases actually make their way to trial, whereas the vast majority of cases end up in a plea agreement with another small percentage ending in the dismissal of the case in full. Sometimes, there really would not be any risk involved in taking the case to trial but it would just be a matter of the financial aspect where it would often not necessarily be worth it for someone to pay thousands of dollars extra to take the case all the way to trial if there wasn’t a good likelihood they would win. The public defender would probably end up going to trial more often than a private attorney simply because there would be no additional funds required when taking the case to trial with a public defender.

Unfortunately, a lot of attorneys are simply interested in their own pay day so they recommend their clients to go to trial and they tell them what they want to hear just so they would keep paying them and so they could get more money. One of the biggest determining factors is whether or not the person was asleep in their vehicle while they were parked on the side of the road or parked in a parking lot. One of the defenses against DUI charges is the Shelter Rule defense and this would apply if someone was in a parking lot and they were asleep. This rule basically says that as a society, we want to encourage people who are too drunk to be driving to pull over to the side of the road or pull into a parking lot and sleep off the affects of alcohol or find another way home. Unfortunately, officers are still looking for that type of scenario and they are arresting people and charging them with DUIs. Sometimes the cases that really should be dismissed are the ones that end up being more likely to go to trial because as an attorney I simply cannot recommend for my client to take a plea agreement to something they did not do. It would always be up to the client whether or not they wanted to take a plea agreement even if I had advised them it would be in their best interest to go to trial.

Realistically, the client could decide whatever reason they wanted to go to trial. The client would not have to explain their reasoning for why they wanted to go to trial, because it would be their constitutional right to go to trial. I would only be able to advise them with respect to my thoughts about them going to trial and what their options would be so they could make a fully informed decision on how they wanted to proceed. It would be perfectly fine if they wanted to go to trial and it would be perfectly fine if they wanted to take a plea agreement. DUI trials are expensive. You have at least one or two days in court and you have a lot of preparation time to get ready for a trial. Sometimes, you have the cost of an expert witness, if you need it. So it can be in the thousands of dollars for the cost of the trial. If you really want to do it and do it right. But like you mentioned, you have to weigh that with the risk of having a conviction. If you have some pretty good defenses and good explanations and you have a strong case, then it is worth it to spend the money to go to trial because the long term ramifications of a DUI conviction; the jail time, the possible loss of the license, can far outweigh the cost of the trial. There are statistics out there and analysis of the costs of a DUI and a DUI conviction. When you are talking rental cars and increased insurance, lost job opportunities, The cost can range anywhere up to $200,000, the possible long term ramifications of a DUI conviction. So if you can spend $5,000 to $10,000 on a trial for a DUI and get an acquittal, if you have some strong defenses, then it is well worth proceeding this way.

One of the most important things that clients must know is the trial process, one is, they are giving control of the outcome of the case to someone else. If they are going to trial, they are letting a judge or juries determine the outcome of the case versus they are making the decision on a plea deal. And I think the second most important thing that I try to explain to them is the jury itself. They are given instructions to follow the law and weigh the evidence and to not make a decision until they have heard all of the evidence and there are a lot of things that go on in that jury room. But ultimately, you just never know and it is tough for members of juries, because in a small group like that, you have someone who is going to emerge as a leader. Sometimes that leader will tend to sway the others, a kind of pack mentality.

Whereas if you have a jury of eight or more people, you might have two pack leaders. You might have a pack leader for not guilty and you might have a pack leader for guilty. It would be tougher to get the whole jury to go guilty if you have a pack leader that is arguing for not guilty. Whereas if there are just four people and you have a pack leader of guilty, then the odds are greater, that there could be more guilty verdicts. It is just tougher. I am saying that with the four member jury, I believe the jury trials are tougher just because there are fewer people that have to make a decision, and in the smaller groups, people might be easier to sway one way or the other. I guess the vital thing would be is even though the jury was instructed to follow the law and not make a decision until they have heard everything, sometimes that they might not do that. They might have a certain feeling or a certain bias about maybe the way you look or if you did not testify, they might hold that against you and so it can be a big risk. So they need to know those things. Sometimes there should not be, but sometimes there is a distinction. When you are talking about representing, the attorney is there for them, the attorney might be dealing the very minimum, making sure just a brief overlook of the facts and moving on and looking for the best possible plea deal, or there is zealously advocating for your client where you do not leave any stone unturned so to speak. Even where you are not just taking a cursory look at the police report, you are going further, you are investigating the officer and you are looking at the blood test results. You are pulling information from the lab and the lab analyst and going over their training and qualifications; or the breath test machine.

You are not just relying on the test result; you are pulling the maintenance certificates and the calibration records and seeing if there have been any problems with the machine. There is a difference there. Most DUI attorneys, they understand and they understand that to get a good outcome, they have to zealously advocate, they have to go and dig deeper into the case than just being there to represent someone. In almost every case, unless there are technical issues, we prefer a jury instead of just appearing in front of a judge. The reason being, the odds are better going in front of twelve of your peers versus going in front of a judge in order to obtain a not guilty verdict. In regards to how many cases go to trial, it depends on what attorney we are referring to. Typically about two percent of cases end up going to a jury trial. For some attorneys, it can go either way; it just depends on the cases. There might be times where ten percent or more of these cases will go to trial. But typically, the case that is going to trial is going to be the one where this is the wishes of the client. The client always has the right to go to a jury trial, and a typical trial case would be one where the chances of winning far out way the other.

Generally, most criminal defense attorneys are good lawyers who fight their DUI cases. There are some out there that never go to a jury trial. All they do is pleading their clients guilty, every time. Some of the criteria when considering a trial in defending a DUI case is what is the strength of the case the risk and the potential penalties. In many cases when a deal is offered, they will lose a trial. The penalties are not going to be that much different. In that case, you can afford it. If you have the time, go to trial, it is recommended. But there are a number of counties and cases where if you do go to trial, you are looking at a penalty that is much worse than if you do not. You want to make sure in those cases that you have a chance to win and that you can handle the consequences if you are found guilty. In a DUI case, for a first offense without any extra allegations, the maximum penalty is six months in jail, which means the worst that you would do if convicted is three months in jail. In most cases, the judge is not going to offer that light of a sentence. Most attorneys should be able to look at the possible penalties involved and then balance that with your chances of winning. We then start looking at all the different offenses involved, and we focus on a handful of defenses that we think will get the jury trial to come to a not guilty verdict. Worst case scenario is a hung jury and hopefully the DA will not refile and then case is over.

Different types of defenses that we look at are the elements of the offense. For example, drunk driving, you have to be driving, so we want to look at whether or not the officer saw you driving, whether the DA’s office can prove you were driving and was there a witness who saw you drive and called it in. The other issues are where you impaired when you were driving, or were you at or over a 0.08% blood alcohol level when you were driving. We would look at the field sobriety tests and other aspects of the case, the investigation that the officer did, video and audio reports of the actual driving, conversations, and then there are the chemical test results; which are the breath or blood testing and what procedures were utilized to administer them. Was there any margins in errors with the testing, issues with the machines or can they prove beyond a reasonable doubt that you were out or over a 0.08% BAC level and was the machine acting properly, working properly and were there issues with the blood test, was there some type of contamination and were there mycobacterium that could cause a false positive on a blood test. There are many different defenses, but in most cases, there is only one or a handful that might work. There are some attorneys who will avoid going to trial and almost always plead their clients guilty. These are also usually the same lawyers that quote shockingly low legal fees. Any individual who is charged with a DUI and consults with a potential lawyer should ask that attorney how many DUI bench or jury trials have they done in the last few years they have been practicing law.

It is surprising to most people how many DUI lawyers literally do not take cases in to trial. For me, taking a case to trial is one of the most enjoyable and rewarding parts of my job, because it is the culmination of all my studying, training, and experience. Not every DUI should go to trial, but I investigate, research, and prepare every case as if we are going to trial. The reason we take a case to trial is because, based on my review of the facts and law, I think I can produce a not guilty verdict in the case. The second reason is if we run out of options and our backs are against the wall, which is a pretty rare occurrence, but it does happen from time to time. If I evaluate a case and notice the facts and laws are on our side, I will recommend going to trial to my client and in the long run it is usually favorable. The decision to go to trial is sometimes difficult because the evidence is not as cut and dry or black and white as you would think. The evidence is frequently on the fence. A case could be dismissed if it was determined that there was no probable cause to make that traffic stop. A case can be dismissed if there was no probable cause to arrest them for a DUI. DUI cases can take years to go to trial. When a case does go to trial, the typical time is somewhere between six months and a year and a half. That is pretty standard because it takes a long time. Often motions happen before the trial. If you are released from jail and you are not in custody, you have a Constitutional right to a jury trial within 45 days of your arraignment. That is your first court date.

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