How to Prepare for your DUI Trial
Before every trial I send my clients an informational email about trial; it generally follows the format below, but rather than send a slightly modified version of it over and over, it makes the most sense to post on my website/blog and simply send a link or have my staff send a link as soon as I know the matter is confirmed for trial and the Court is indeed sending us "out to trial."
But first a little background on this. Almost every court at every level has more cases going to trial than courtrooms and Judges, so things need to be prioritized. This is done by “speedy trial,” also known as "time for trial." This is an abbreviated way of discussing the right to have a trial within a speedy time frame from the date of a person’s First Appearance/Arraignment on the charge.
The rule is very flexible and rarely does anyone actually have a trial within their speedy trial right. If a person is held in jail this right is 60 days, and they have priority over the courtroom. For a person not in custody, it is a 90 day right to a speedy trial. In our current times, COVID19 has obliterated the rule in the name of public safety. As you read further you will see why this trial guide will never be the same.
Investigation and negotiations in any given case take time, and what the court requires is a waiver or an exclusion of time regarding that 60/90 period in order to move the cases along in the calendar. However, once the time necessary and the matter is "ready to be set for trial" the courts all have a similar but slightly different manner. The manner of setting trial dates has not been changed due to COVID19, but the case actually getting to the trial stage has changed.
DUI Court Schedule by County
Whatcom County District Court
In Whatcom County District Court, a DUI trial date is assigned along with a pre-trial date, called an Omnibus Hearing, from the very beginning. The pre-trial date is set, and two weeks later a trial date is assigned. Upon showing up at the Omnibus and announcing that the case is ready for trial, the Court sets a Thursday at 1:30 hearing called "Status" and all cases confirmed the 2 weeks prior, show up and advise whether they are still ready. If only 1 is ready it will go to trial the following Monday or Tuesday. If 10 cases are ready and there is only 1 Courtroom and Judge, then the oldest of the 10 cases goes to trial. The 9 others get reset to the following week and the oldest one goes to trial.
Trial days of the week are Monday and Tuesday starts depending on Judge assignment.
Bellingham Municipal Court
In Bellingham Municipal Court, the Judge will assign a desired trial date that the parties agree on when the parties attend the pre-trial hearing and advise the Court they want a trial set as all pre-trial matters are handled. The trial date is set and then the court works backwards to set two other dates. Trials start Tuesday morning. The day before a trial date is called "Status" — a hearing to ensure the parties appear and inform the court they are really ready. This seems funny because two weeks prior to the trial date is a hearing called "Readiness Hearing." At this hearing, two weeks prior to the trial date, the Court calls these cases in the order of priority according to the oldest case to the youngest case among the group, and inquires as to whether both parties are ready for trial. If a witness is not available or the case settles this is the chance to advise the court of that and allows the court to offer the single courtroom to a different case for the same trial date. In this court — and most courts in Whatcom, Skagit, Island, and San Juan where I travel for DUI defense — only one judge and one court room is available for any given trial date, so it’s not uncommon to line up numerous cases for one room.
Skagit County District Court
In Skagit County, the case goes from its pre-trial status, to a Trial Assignment calendar, where trial dates are selected/assigned. The week of trial, the case is assigned a Monday 1:30pm date for confirmation. Numerous cases are assigned the same confirmation date and in order of priority, the Judge will inquire as to who is ready. Skagit has a two day trial system (Thursday and Friday with a potential special start day on Wednesday if it is known that the trial will be longer than two days) and sometimes two trials can go — one on Thursday and another Friday — but these details are what the Monday confirmation is for. As is the system under the right to a "speedy trial" the case that has the shortest time left gets the priority in order. It is the court’s job to determine from those the oldest case to be tried, or the case with the least amount of speedy trial associated with it.
Island County District Court & Oak Harbor Municipal Court
Island County is similar to Skagit County in so far as the schedule above. Island and Skagit DUI trials are also similar in that both of these District Courts hold trials on Thursday and Friday every week, but Island County District Court also functions as the City of Oak Harbor Municipal Court and their trials are the first Thursday and Friday of each month. Both courts set a trial date that is usually agreed upon by the parties and then the Tuesday one week prior to the Thursday trial date, a readiness/confirmation hearing held.
San Juan County District Court
In San Juan County, a DUI trial date is assigned from the pre-trial calendar and DUI trials begin on Thursdays. A Readiness Hearing is usually set one to two weeks prior to the trial date. At the time of trial date selection, a hearing unique to this jurisdiction is set for the afternoon before the trial date. At this hearing, because of the limited time afforded for the first day of trial and the late start to ensure all potential jurors arrive by ferry from their surrounding island homes, some work that is usually done pre-jury selection mid trial, is accomplished the afternoon before. The parties submit and discuss proposed jury instructions as well as attend to motions that need to be heard that help set forth some ground rules. Both of these things are usually done the morning of trial in other jurisdictions because the potential jurors arrive and are educated to the jury process in a separate space, whereas San Juan uses the actual courtroom.
COVID19 and social distancing is going to be incredibly challenging in San Juan DUI trials. Because San Juan County is made up of islands whose population relies on the ferry system, DUI defense in this jurisdiction has always been challenging. While the court has found a way to best maximize the time available by discussing trial matters before rather than during the trial process, with COVID19, I have found things take much longer and those time saving techniques will likely need to be revisited.
The Impact of COVID19
In fact, every DUI trial will be impacted by COVID19 in terms of time. The need to social distance creates a slowness we have never encountered, and the need to socially distance and protect people with PPE in the form of masks means micro expressions will be missed, and credibility of a witness or potential juror based on these will be harder, and most of all, the desire to use Zoom, GoToMeeting, Teams, and other such platforms will run up against the long standing Constitutional Right to confront witnesses.
Having said all this, what follows is a trial guide in “normal times” and you should bear in mind that the procedures described here are fairly universal and will remain. The manner in which social distancing and CDC guidelines and protection from the virus and measures to slow the spread, will have a dramatic impact yet unknown. I send the following information to each of my DUI clients after we have announced our “Readiness” for trial. This gives each client about a week to prepare for the trial process. Very few clients have ever gone through a DUI trial as most have never been arrested for DUI before.
I. Trial Prep
My trial preparation begins days, and most often weeks, prior to trial and will always continue over any weekend prior to trial up to the morning of trial. If we go longer than a day, preparation continues into the evening every day of trial until the end. Trial preparation is a fluid process because trial is unpredictable and every contingency needs to be planned for.
Despite constant adjustment the day prior to trial, I am completely assembled and ready to go for your trial. My trial notebook contains all of the information we have regarding your case, any relevant case law we may need, pre-trial motions, exhibits (pictures, graphs, video, transcripts, anything we may use, or may not use, as I need to have everything at the ready, as well as cases and rules that permit its use in case it is challenged). My DUI trial notebook is often divided based on stages of trial and witness order.
Each trial and trial notebook is a product of much thought, training, planning, and most importantly — trial experience, as well as Judge familiarity. It is several days of exceptionally hard work that has come on the heels of all the previous work put into the case.
As you can see, preparation is key and lasts for hours and days despite the fact that most DUI trials last only one, but sometimes up to three days. The length of a trial depends on how many witnesses. A DUI refusal of breath typically has one witness — the arresting officer. This makes it likely to be a one day trial. Whether a trial is done before a jury or before a single judge is also a factor. A non-jury trial means we don’t have to spend close to a half day selecting a jury.
A DUI trial with a crash, multiple witnesses, and a blood draw for BAC results will be one of the longest trials as that involves a minimum of five witnesses. A trial is fluid as we move through each witness and stage, and as a result, days (short breaks and lunch breaks) and evenings of trial, I continue to work and prepare for all that goes on in trial. A good DUI trial attorney will always be assessing the evidence and testimony that has come in to determine if the trial plan needs to be changed/altered.
II. Dressing for Court
It is important to "dress to impress" when appearing in court for trial. Think of it as a job interview and it’s a job you are not just hoping to get, but you need. After all, your freedom is at stake. Conservative colors and dress are preferred. However, make sure you are comfortable. Courtrooms get hot in the summer and can be chilly in the winter, and more importantly, if you have never worn a piece of clothing before, please don’t use trial to try it out. Reaching to adjust a collar and tie all day, or realizing that the skirt is just a little too short, distracts a jury in my experience. In the age of COVID19 be mindful of your face cover designs. Even I have to resist the urge to wear a face cover with the simple message "Not Guilty", but we have to be mindful of courtroom decorum and how a jury is always assessing our every move.
III. Appear on Time
It is not unusual for judges to take up matters before the trial actually begins. Please do not arrive late for your trial appearance. Many Judges will issue a Bench Warrant for arrest if late. Best practice is to be there about 15 minutes early from your assigned trial time. Generally that means 8:00am or 8:30am.
You need to plan on being in court for 1-2 consecutive days. Most DUI trials take a minimum of one day to complete but may (very unlikely) spill over into a third day (which would be Monday). Please make whatever arrangements you need to make to be with me all day Thursday (until about 3pm-ish) and Friday morning.
IV. Last Minute Offers
It is not unusual for the Prosecution to decide to make a last minute offer and plea bargain on the day of trial. If a new offer is made, I will relay it to you before the trial begins so that you can consider it, but don’t expect it; we try these cases as frequently as they make a day of trial offer. Having said that, it is unlikely the State Prosecutor will throw away all their preparation and organization by making a deal that we thus far were unable to secure. I don’t think we should expect one, but if one is offered, it’s best to have contemplated what is acceptable before it’s offered to make a quick decision as time is of the essence the day of trial.
V. Decisions to Make Pre-Trial
There are decisions that you will have to make regarding your trial. As we discussed, we must decide whether or not you want to testify during your trial. I typically find no benefit and a lot of potential harm when clients testify in their trials. However, each case is different. At this point I don’t see a need for you (or any of my clients for that matter) to testify, and I don’t see a reason for your testimony. This is something that will “develop” a little further as we approach and even get into the trial.
VI. Jury Selection
Jury selection is a process that takes about 2-3 hours to complete. It begins the day trial starts. A panel of 20-30 potential jurors will be seated in your case. The panel normally consists of 20-30 people randomly called in for jury duty. Each panel member will fill out a jury questionnaire that gives us some information about them. The numbers and the location of this process is impacted by COVID19. Normally these people are seated shoulder to shoulder in a courtroom that holds at most 50 people, so how we get this done in the COVID19 era is a work in progress.
Initially the Judge will speak to the jurors and explain the process to them. The Prosecutor will then be given between 20-30 minutes to speak with the panel and ask questions. I will then have the same opportunity. We each be given 10 more minutes. During this process you are seated next to me and will provide me your thoughts and feelings. Some jurors may be excused for what is called "cause," meaning there is a reason to dismiss them such as their general bias against you and your case. Others can be dismissed for no reason at all; they can be struck. Each side gets three of these to use however they like, except for obviously racism reasons which are rare but do happen.
After all questioning is complete, a short conference will be held at the Judges bench for the Prosecutor and I to eliminate up to three jurors each for use of our strikes (total of six) that we respectively don't like for the case. There is also the COVID19 question as to how many jurors will show up as they don’t feel safe. If we don’t have enough jurors no trial can be held.
Take a piece of paper out, and on one side, from the middle of the page, write the numbers 1-7, to your left, then behind that start 8-14, then behind that 15-21, then 22-28, then go opposite of the 1-7 row, and mark 29 – 33 etc. Like this:
|21, 20, 19, 18, 17, 16, 15||36, 37, 38, 39, 40,|
|14, 13, 12, 11, 10, 9, 8||29, 30, 31, 32, 33, 34, 35|
|7, 6, 5, 4, 3, 2, 1||22, 23, 24, 25, 26, 27, 28|
|We sit here facing them||Prosecutor sits here facing them|
Each number represents a person and their number. And the diagram is a direct relationship to the courtroom, which is usually square and has an aisle down the middle, but not always. The important takeaway is they face us at the outset and we face them with our back to the Judge and they are identified by their number corresponding to an information sheet we have. Both myself and the Prosecutor speak mostly to the first 14 because if you do the math we each get to get rid of three, totaling six, and usually a couple people there get challenged for cause.
The first six jurors (according to their numbers assigned at the beginning of the selection) remaining will make up the jury. So we focus on the first 12 to 18. After they are selected we will take a break and let them get situated for the day and we will frequently continue working on motions and other issues that may be handled. The trial will then begin after that. 10:30 - 11:00am is typical. We will work until 12:00pm, break for lunch then resume at 1:30pm. Break at 3:00pm and then go to 4:30pm.
VII. The Trial
It is customary and a sign of respect to stand up when either the Judge or the Jury enter or leave the courtroom.
The trial will normally begin with the Judge confirming we are ready, they will then give the jury a brief explanation of the upcoming process and ask the State Prosecutor to make an Opening Statement. I have the option of making one as well then and there or reserving for later. This is a choice I make based on various factors. Once I am done, or if I decline to make an opening at that time, the Judge will ask the State to call their first witness.
The arresting officer is normally the first witness called. The Prosecutor will ask questions and perhaps introduce pictures or videos or other pieces of expected "evidence." The officer’s and other witnesses' sworn testimony is also considered "evidence." It is never something that helps your case, it is intended to prove their case.
When the state stops asking questions, I will then cross examine the officer. This is a process to show the other side of the facts and all the things that are helpful to your case.
If the case involves a breath test versus a blood test it will have a different number of witnesses with different functions. What follows is an example of a real blood case but I am adding the procedural differences with a breath test case.
Witnesses in Breath vs Blood Tests
I expect the order to be the police officer(s) that stopped and arrested you, one after another, although I try to exclude the one who played no part in the stop and arrest of you — the one who just watched. Under the rules of Evidence, the officer has no “relevant” information.
The next witness in a breath case is a Breath Test Technician, in a Blood case the next witness would be the Phlebotomist (the function of the person who drew your blood), then the Toxicologist—the person who analyzed the blood, or rather ran the machine that analyzed the blood and produced the number and certificate.
The Toxicologist is their expert and will testify to the blood analyses procedure and all the things that alcohol does to the human body and then embrace the ultimate question: would a person with a Blood alcohol concentration of "X" be affected by alcohol, such that their ability to operate a motor vehicle is appreciably affected?
In a breath test case, the Breath Test Technician testifies to how the breath test machine works and all the things done to make it accurate and reliable. I spend time examining them on the machine's limitations and how it is set up to incriminate the subject rather than set up to accurately and precisely measure the alcohol concentration under scientific standards. If we have a breath test expert of our own — a Scientist, a PhD. — who understands the way air and gas exchange occurs in the lungs, I will frequently have the breath test police officer admit all the things he is not an expert in, which makes our expert more powerful.
In a blood case I spend a tremendous amount of time cross examining the Toxicologist on all the things she/he does NOT know about you, your blood, preservatives used, the method of draw, the method of analyses, and flaws, and actions of others involved in the process the is unknown to him/her.
VIII. The End of the State’s Trial Presentation
After the Prosecutor has finished calling all of their witnesses, they will stand and tell the Judge that they "rest." That means they have put on all the evidence they intend to introduce. At that time, we will call our expert if you have hired one, and if we have not, and we have no witnesses to call we also "rest," our case.
After both sides have “rested” the Judge will tell the jury to return to their room for a while so that we may have a conference on the Jury Instructions. These are instructions telling the jury what the law is and how to do their job, but every case has different facts so instructions need to be tailored to the case. This takes time, and arguments in most instances. The room the jury uses is important in these COVID19 times as they are frequently small, and can not hold 6 people and keep them all six feet apart. Their room is used all throughout the trial and so this room plays a significant role in how jury trials are conducted. On any given day of trial the jury uses the room a minimum of 5 times, often times more than this. In fact where the jury sits in the courtroom is just as important as this room as they are seated in a line next to each other shoulder to shoulder. They leave and enter in a single file, out of the jury box, through the courtroom door, down the hall and into a small room. Social distance is impossible.
Once both sides have agreed or made their record on the instructions, copies are made and then the jury will be called back into the courtroom and the judge will read it to them.
Once they are told what the law is, each side, starting with the Prosecuting Attorney gives a Closing Argument.
The Prosecutors always get to argue first, then me, and then the Prosecutor is allowed to go a second time for what is called "rebuttal." We do not get a second chance after theirs. Once they are done, the Judge will instruct the jury for a few more sentences, and then tell them to go to their room to deliberate/decide.
IX. Jury Deliberations
Once the jury retires to deliberate, there is no way to predict how long they will be out before reaching a verdict. It could be 5 minutes, 5 hours or 5 days.
The jury must be unanimous. If they cannot reach a unanimous verdict, the judge will be forced to declare a “Hung Jury” and declare a mis-trial which means the trial ends with no verdict. The jury will be asked to decide two things really:
- Are you DUI because your ability to operate a vehicle was “affected by” alcohol? Little evidence here when a person does not do roadside testing as it's out of the car and into handcuffs. When a person does the roadside tests they are used as evidence against them to make this point/answer this jury question.
- Was your breath/blood test over .08? They will also be told that they can find you DUI by way of the breath/blood test being over .08 but they have to consider the test in light of procedures and protocols and all things that bear on accuracy and reliability.
Then a third special question sometimes:
- If the test is accurate and reliable is it over a .15? or If the Refusal to be tested an Actual Refusal?
A verdict of NOT GUILTY means that you are free and clear. The case is over.
In the event of a GUILTY verdict, it’s two parts: affected by vs .08 and above a .15. A jury can find you guilty of all three, meaning finding you guilty over .15 for the extra sentence it carries: they can find you guilty of over .08 but not over .15 due to breath/blood test problems present, they can find you guilty of DUI, but no faith in the test, but all things considered.
Once they render their verdict and submit the form to the Judge, the jury will be told that their service is done and free to leave, stay, and even talk with us. But before that happens the judge will inquire as to whether we are ready to do a sentencing hearing. Typically, I think it best to sentence immediately in most cases.
For DUI and Physical Control cases, there is a mandatory sentencing and this is based on breath test result and your criminal history — the amount of times you have been arrested in the previous years, specifically the last seven years, if any. The mandatory sentencing is known from our first meeting where this was explained.
The Judge has to impose the statutory minimums but is free to do more up to a year in jail and up to a fine of $5,000.00. Both sides will argue for what they think is appropriate, but the Judge cannot do less than the mandatory minimum.
Prior to the Judge imposing sentence you have the right and opportunity to speak to the judge. In the event of a guilty verdict I recommend writing down (and letting me review it, in preparation and hope you don’t have to use it because we get a Not Guilty verdict) because it can be an important speech by you and has the ability to sway a judges sentence one way or the other.
Once you are done the Judge will announce the sentence. In almost every instance, you are given a date to report to jail, on your own timeline, if any jail is imposed or required. Once done the Judge has to inform you of your right to appeal.
In the event of a GUILTY verdict, you may choose to appeal. We will discuss this at the time. A Notice of Appeal must be filed within 30 days of the verdict if you choose to appeal. I will come prepared with such a notice so we can chase the issues immediately—but there is a new one—your right to a speedy trial may now be an issue based on COVID19.