What Happens in a DUI Trial?

Motions In Limine

This is a term for those motions that are brought just before the commencement of a jury trial. In California, these are often referred to as "402 Motions," alluding to the section of the California Evidence Code that relates to these motions.

The purpose of the Motions In Limine is to get a ruling before trial on any items of evidence that either side expects will come up during trial. For example, it is common in DUI trials for the prosecutor to elicit from the arresting officer that they have pulled over many, many people for suspicion of drunk driving, but that they have only arrested some fraction of that amount. The prosecutor will then use that fact to argue that the officer has extensive experience in discerning those who should be let go from those who shouldn't, and that the officer is both skilled and fair-handed. I always bring a Motion In Limine to keep this testimony excluded, and 90% of the time, that motion is granted.

DUI defendants can and should expect that their lawyer will bring a number of the pretrial motions just prior to jury selection, or even during jury selection (but outside the presence of prospective jurors). There is no requirement to give the prosecutor advance notice of these DUI motions, and one tactical consideration is to bring these motions without giving advance notice so as to ensure an advantage over a less-prepared adversary.

Jury Selection

Once all the pretrial motions are resolved, the jury must be selected. In California DUI cases, 12 jurors (and one or two alternate jurors) are selected. Some states only allow 6 jurors. However, in all states that allow DUI jury trials, one thing is certain: the jury cannot convict the defendant of drunk driving unless ALL jurors agree that the prosecutor has proved each element of the case beyond a reasonable doubt. If there is a reasonable doubt of the defendant's guilt, he or she is entitled to a verdict of not guilty. The jurors must be unanimous if there is to be a conviction; if some jurors vote one way, and other jurors another, that is called a "hung jury" and often results in the dismissal of the charges. It is a win for the defense no matter what.

Jury selection begins with a panel of prospective jurors being sent to the courtroom. In most cases, 45-50 prospective jurors will be sent. The clerk of the court will "swear the panel," which is the technical commencement of the trial for purposes of the speedy trial rights discussed previously. The clerk will typically ask the jurors to stand up and raise their right hands, and swear that they will truthfully answer all questions put to them regarding their qualifications to sit as jurors in the case.

The judge may "time-qualify" the panel, letting the prospective jurors know that this is a DUI case, that it is expected to last a given number of days (which will vary depending upon the number of witnesses, usually 3-4 days in a court that allows a good amount of trial time), and to see if any of the prospective jurors have any conflicts that would prevent them from sitting as jurors in the case.

Next, a number of prospective jurors will be called at random from the audience and seated in the jury box. There will be at least 12 prospective jurors summoned, and many judges employ a system known as a "six pack," where a total of 18 prospective jurors are questioned at the same time. Once 12 (or 18) prospective jurors are seated, the judge will typically ask each juror to give their answers to several questions that are on a bulletin board at the front of the court.

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The judge will go from juror to juror, asking them to answer the questions, and to elaborate on any answers triggered by reference to the questionnaire. If the answers suggest a juror cannot be fair and impartial, because of a bias towards either side, that prospective juror can be challenged "for cause." Judges are reluctant to relieve jurors for cause, as that depletes the limited number of prospective jurors, and can cause massive delays and inconvenience. Therefore, even if a juror indicates "yes" answers to questions about MADD and relatives in law enforcement, the judge will attempt to rehabilitate those jurors by asking if they can put aside any feelings they may have and be fair to both sides. If they say yes (even if everyone knows they are lying), they will not be excused for cause.

(This is important, because the jury is picked by a process of elimination, to be described further below. The prosecutor and the DUI defense lawyer have a limited number of preemptory challenges, or challenges that can be used for any reason. In California DUI trials, each side has 10 preemptory challenges. If the DUI defense lawyer can get rid of a juror they don't like by using a challenge for cause, which are unlimited, it saves preemptory challenges, which are limited.)

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Once the jurors have all introduced themselves, and answered some of the preliminary questions put to them by the judge, the lawyers get a chance to follow up by asking questions of the 12 or 18 prospective jurors. In California, the defense lawyer goes first. This is a bit unusual, since the prosecutor goes first with everything else because they have the burden of proof. Other states may be different in terms of who goes first.

But no matter what state the trial takes place in, jury selection is a critical part of the trial process. Most experienced DUI trial lawyers agree that many cases are won or lost in jury selection. Jury selection in DUI cases is the first opportunity for the drunk driving defense lawyer to start to build a rapport with their prospective jurors, and get these 12 or 18 strangers to start liking him or her (and more importantly, start like the defendant).

Most judges impose strict time limitations on the lawyers during the jury selection process. This is true in both DUI and non-DUI cases alike. It is unfortunate that courts are so busy, and judges under such incredible pressure to move things along quickly, that quality is sacrificed in favor of expediency. However, the skilled drunk driving defense lawyer will understand that this is the time to start developing themes, planting seeds that will be brought to bear later in opening statement, cross-examination, and closing argument.

After the defense lawyer uses his or her limited time to question the panel, the prosecutor does the same. Finally, at the end of the first round of questioning by the lawyers, the judge entertains argument (outside the presence of the jurors) as to challenges for cause. As noted, these challenges for cause are limitless, but tough to make out. The DUI defense lawyer will need to demonstrate that particular juror simply cannot give the defendant a fair trial.

The judge then asks each lawyer about preemptory challenges, which are done in an alternating sequence, usually beginning with the prosecutor. The judge will indicate that the first preemptory is with the People; the prosecutor will then indicate which one of the first 12 jurors they wish to excuse. After that person is asked to leave, the DUI defense lawyer has the next challenge; after the defense lawyer excuses a juror, the prosecutor excuses another, and so on.

Each side only has a limited number of challenges to exercise. (In California, 10 preemptory challenges are available to the DUI defense attorney.) The jury is selected when one of two things happen: either both the prosecutor and defense lawyer accept the 12 people sitting in the box, or both sides run out of challenges and the jury consists of those 12 that are left.

There are an infinite number of strategic considerations that go into jury selection, and a qualified DUI defense lawyer, with experience trying cases in his or her jurisdiction, will be the best resource regarding any DUI, DWI, or drunk driving case.