Dui Guilt Myth — Chapter 10

Chapter 10 DWI Lawyer Bob Keefer: DUI Guilt Myth

                                                           CHAPTER 10


You do not have to know everything about the trial process and how to argue your case—that is what an attorney is for. This chapter is simply meant to help you understand the basics of what the trial process looks like and the kinds of arguments that work in your favor.


The process begins with an arraignment, which will be the first time you appear in court. At your arraignment you will receive a copy of the police report and the District Attorney’s charges against you. Your lawyer will enter a plea of not guilty for you, and then dates are set for motions, pre-trial conference and trial.

Pretrial Motions

After your arraignment, the process of arguing your case will begin. After your attorney has thoroughly reviewed the facts, the next step is to file pretrial motions. A motion is a document that your attorney files on your behalf asking the Court (i.e. the judge) for a certain action. There are several different types of motions, each with a different goal. But filing successful motions, no matter what the specific type, will help you and your attorney to shape the trial process in a way that benefits your case.

Motion to SuppressWhen the prosecutors begin preparing their case against you, they start by collecting all the evidence that supports their claim that you were breaking the law. However, just because they have collected it and want to present it at trial does not mean that it is automatically admissible. There are strict legal requirements that determine whether a piece of evidence can be presented at trial. An important part of making your case is arguing that the evidence that the prosecutors want to present at trial does not meet these requirements and therefore cannot be used against you.

A motion to suppress asks the court to “suppress” or exclude certain evidence from a trial because it was obtained improperly or illegally by the police officer. For example, a motion to suppress might argue that the officer did not have probable cause to pull you over. This motion would need to argue that the officer’s belief that you were committing a crime was not “reasonable.” This means that the officer’s justification for pulling you over must be something he actually saw. An anonymous tip, for example, would not be enough. If this motion were successful, all evidence that was made possible by pulling you over (which is nearly everything) might also be suppressed.

A motion to suppress might also question the results of the BAC tests that you took at the police station. Recall the discussion in chapter 6 about the various factors that can make the tests unreliable. Any of these reasons might be used as a basis to argue that the test results should be suppressed.

•Discovery Motion

This type of motion asks the prosecutor to release additional evidence. Discovery is based on the idea that the defense is entitled to all the information that will be used by prosecutors in their attempt to convict. Most of the time the prosecution will simply give your lawyer the evidence, making a discovery motion unnecessary.

There is an informal discovery process that happens between the prosecution and the defense, without the judge getting involved. Each side provides the other with a list of the information that they would like to be given. The kinds of evidence that your attorney will receive in this informal discovery process include things like the names and addresses of prosecution witnesses, statements made by you, relevant evidence seized or obtained as part of the investigation, results of scientific tests, and all written or recorded statements of witnesses whom the prosecutor intends to call at a prospective trial.

However, if either side refuses to provide a piece of evidence that the other side requested, then a formal discovery process begins. This process requires filing motions so that the judge can decide whether to order that the prosecution give your lawyer the evidence you want.

• Motion to strike prior DUI convictions.

This motion asks the Court to make it so that any prior DUI convictions from the last ten years are not taken into account when deciding a sentence. As you might expect, the penalty goes up with each additional DUI you get.

However, there must be a reason to file the motion. Something must have happened that led you to and your attorney to believe that the officer’s past conduct should be called into question. The motion must provide a specific fact so the judge can decide if there is sufficient reason to look into the officer’s past.

The more of these motions that are successful—suppression, discovery, strike prior DUI convictions, pitches—the more likely the case against you will simply be dismissed without a trial. If not, your case proceeds to a pre-trial conference.

Pretrial conference

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 attorney will offer a plea deal that you will consider with your attorney. If you choose to take the district attorney’s offer, or to have your attorney counter with an offer of your own, your case may be resolved at this stage. If not, then you are set to go on to a jury trial.


The U. S. Constitution guarantees each criminal defendant the right to a speedy and public trial. Because of busy trial calendars in many courthouses, the right to a speedy trial has been given specific guidelines, which vary from State to State. These guidelines set time limits on how long you have to wait before your trial. If you are still in custody, you probably will not have to wait as long as you would if you were released on you own recognizance. If your lawyer needs more time to build your case, do an investigation or file motions, he or she can request that these time limits be extended. However, this decision to delay the trial is ultimately up to you: only you can waive your right to a speedy trial.

The jury trial is a hearing in which all of the evidence is presented to 7 for a misdemeanor or 12 jurors for a felony, with the judge presiding. The trial will have witnesses from both sides, including the officer or officers who observed you from the time you were stopped until you were released from jail, as well as expert witnesses who will testify regarding the tests that were taken at the police station. You may also testify if you and your lawyer decide it is a good idea, and you may also call other people, such as passengers, who will testify on your behalf.

The process of selecting 7 or 12 jurors from a large pool of potential jurors is called “voir dire.” Both sides—your lawyer and the district attorney—want to choose jurors who will be most sympathetic to their case. In voir dire, both sides are allowed to ask questions of potential jurors and each side is allowed to “challenge,” or reject, a certain number of potential jurors without having to provide a reason. The idea behind the process is that, if both sides are allowed to challenge potential jurors that they believe are biased against them, the jury will be fairly balanced when all is said and done.

Once the jury is selected, the trial will officially begin with each side offering opening statements. The opening statement that your lawyer makes to the jury provides an overview of your version of what happened. It is a story that your lawyer will attempt to persuade the jury of by providing evidence, questioning witnesses and poking holes in the prosecution’s version of events. But before your attorney can present your case fully, the prosecutors must present theirs. In a jury trial, the prosecution always presents its case first. In a certain way, this works in your favor because the jurors—like the rest of us—are more liable to remember what they heard last. Finally, once all the evidence has been presented and all the witnesses have testified, both sides will present closing arguments. The jury will then be given its instructions as to how to weigh the evidence presented to them, after which they will begin deliberation. Once the jury finishes deliberating, all that is left is for them to present their verdict.

Expert Witness Testimony

At some point during the trial your lawyer will probably decide to call an “expert” to testify. Experts can be called to testify about the chemical tests, field sobriety tests, accident reconstruction, and other scientific aspects of your case.

Chemical Tests: Experts can discuss flaws with breath, blood and urinalysis tests. For example, the breath machine was not properly calibrated or fermentation occurred in the blood and a higher alcohol reading resulted.

Field Sobriety Tests: Field sobriety tests are not considered “scientific,” but the results can work in your favor if your lawyer calls an expert witness to testify on your behalf. If you performed reasonably well on the field sobriety test—displaying good balance, coordination, attention and reasoning—the expert can use your performance on the field sobriety test to support the opinion that you were not under the influence at the time of driving. If you showed signs of physical impairment but not mental impairment, the expert will testify that, because alcohol always affects your mind before your body, the physical impairment was probably due to something other than alcohol.

Alcohol Level at Time of Driving vs. at Time of Testing: The use of BAC tests at trial is based on the assumption that, if a person was impaired at the time of the test, they must have been impaired at the time of driving. In other words, the assumption is that the BAC falls as time passes. Experts can be called to rebut this assumption in certain cases. Under certain circumstances the BAC could actually be rising, which means it is higher at the time of the test than when driving. Since this is an extremely technical area, an expert is essential to explain it to the jury and raise reasonable doubt as to whether the person was over the legal limit at the time of driving.

Accident Reconstruction: If there was an accident before the arrest, an expert in the field of accident reconstruction may be used to reconstruct the events of the accident based on facts in the case. The accident reconstruction expert can testify regarding the mechanics of the accident, and give his or her opinion regarding whether or not the accident was the fault of the impaired driver, the other party, or would have been unavoidable regardless of impairment.