What Can I Expect To Happen If My DWI Case Goes To Trial?

Some courts have faster dockets than others. Some judges will hire visiting judges to move trials through faster. Other counties, usually the larger ones with multiple courts and busy dockets, do not move quickly or with any urgency. Other counties and courts try to move their trial dockets as fast as possible in the interest of time and efficiency, and sometimes also in order to give the defendant their day in court as soon as possible.

Whenever any DWI case does actually go to trial, the process is relatively simple once you know you will proceed on a given day. You first start with the voir dire jury selection process, which is a skill set that takes time and experience to develop and to do with effectiveness. In my opinion, this phase is the absolute and the most important part of the entire DWI trial. I believe this is based on a few factors, but it cannot be emphasized enough how it really is the only chance and opportunity the defense attorney will have to speak openly and freely with the potential jurors about just about anything that may be relevant. Hopefully, when conducting voir dire the attorney will also be able to bond with the members of the jury panel in the process, while also educating them on the law of DWI in Texas, how high the level of the burden of proof is of beyond a reasonable doubt, the presumption of innocence, etc. It is literally an open forum to speak freely about the law and procedure of how arrests are made, the trial process, and anything else pertinent that may be of concern, hopefully, done in order to convey so the jury understands everything about the law and can appropriately follow them. It is an art form hand everyone conducts this phase differently.

Personally, my overall method, I refer to as to first “eliminate, then educate.” What this means is what I first try to do is use various techniques to help “eliminate” the potentials jurors that will not be good for the particular case, and once this is done, then attempt to “educate” the jury on the applicable areas of law and principles afforded to a defendant in a criminal case, including the laws of DWI in Texas. The first portion I utilize to “eliminate” prospective jurors that would not be good for the case I try to employ and utilize various analogies and stories I have found useful to help identify those who would be preferential to the specific case.

After this, I usually spend time educating the jury on the relevant principles afforded to a Defendant, the concepts in a criminal trial, and the subjective nature of the laws of DWI in Texas. This has to be effectively done because there is no cure for a wrong thinking jury. To do this, I usually educate them on the subjectiveness and ambiguous nature of the definition for the term of intoxication is as defined under the laws of Texas. I usually find it helpful to relate how once I heard a police chief of a major city quote in the news once, “How we train our police officers to just make DWI arrests, and then let the courts sort it out later.” Usually many are aghast at hearing this, but I remind them with my burden of proof chart, how there are a large gulf and an enormous gulf beyond the standard of “Probable Cause” to arrest – which is essentially what the police was saying, and the evidence needed in a criminal trial which is Proof Beyond a Reasonable Doubt” that the person is truly guilty of the offense. I use this as a segway to remind them, even those who may think what the Police Chief said was inconceivable, how he was actually not incorrectly applying the law – because of how big of a difference the standard is that police use to make arrests, and what courts utilize before a conviction rendering Guilt can result.

Voir dire is the most important part of a DWI trial because you only get 3 peremptory strikes, which each side can use for any reason other than race or gender, but you can try and obtain as many strikes for cause as you are able.

After voir dire, or the jury selection process, both sides will be allowed usually to make opening statements. At that point, the state will then begin their case in chief, which usually will begin with the main officer testifying. If there are other witnesses, they may also be called to testify. A breath or blood test analyst could also be called to testify as an expert witness. The state presents its evidence first, and their case must be proven beyond a reasonable doubt for them to obtain a conviction.

The defense is then provided an opportunity to present whatever evidence they may wish to present, including if the defendant will testify, possible other fact witnesses, any medical or other records filed, possible expert witnesses, and anything else possibly relevant that may help mount a successful defense. Sometimes, family members or friends can corroborate how many alcoholic beverages were consumed. A mechanic can testify that he examined the car the day after it was pulled over for a supposed light out and everything was functioning. The defense is entitled to call their own expert to testify to rebut things that the expert for the state said. After that, the defense closes their case and a jury charge is read, explaining to the jury what the law is. Closing arguments are given and then deliberations begin.

Will I Have To Testify?

I have a different approach to a defendant testifying in a DWI case that most probably do. However, regardless of my own personal position, once you employ counsel to represent you, the defendant controls two aspects of his case and the attorney cannot interfere or not agree to follow their instruction: 1) The defendant is the one who has to make the decision to proceed with a trial (either by a judge or by jury) or if they will enter into some form of a plea bargain, and also whether they will take the witness stand and testify on their own behalf. Everyone has different views on this, and some attorneys are scared to ever have a defendant testify in any case. I think this can be true in other types of criminal cases, but because of how the dynamics of a DWI case and the law involved differs from all other criminal offenses, and also how usually the defendant is a very normal, otherwise law-abiding citizen that many jurors may bond and connect with, I am more of a proponent if the facts do suggest that it would help to waive their 5th amendment privilege against possible self-incrimination and testify on their own behalf. As far as testifying, if you go to trial, the only two things that a person has control of in any criminal case is whether they’re going to plead guilty and whether they’re going to testify. You’re not required to testify; the Fifth Amendment says that you have the absolute right to not incriminate yourself. If you choose not to testify in any criminal trial, including in a DWI case, the jury is instructed that they cannot legally hold that against the person regardless of anything else.

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