“Just” a DWI Jury Trial?

 Posted on February 13, 2008 in Uncategorized

Scott's condescending attitude toward DWI trials had me thinking this week:

Hey, after I get out of my DWI trial I should maybe write something about the importance of DWI trials.

So here I am on the other side of another DWI trial.

DWI cases aren't beneath the dignity of any criminal-defense lawyer in Texas that I know of.

Sure, they are "not murders or conspiracies", but in Texas (which is where people naturally go to find trial lawyers) the defense lawyers who try murders and conspiracies are also lawyers who try DWIs.

In Texas DWI is a jailable offense (up to 180 days) and a DWI trial is a real jury trial (unlike my 30-minute minor-in-possession trial last Friday; that was not what I would call a real jury trial).

Now, granted, we're only picking six jurors out of a pool of 24 (rather than the 12 out of 60 that is par for the felony course). And, granted, the client's not going to go to prison if things go wrong. And, granted, the DA's office isn't throwing its most experienced prosecutors at the misdemeanor DWI cases - more likely, they're using it as a training ground for the youngest prosecutors.

But a DWI is extremely serious to the people accused of it. DWI is the most serious thing that most of them will ever be charged with. A conviction - guilty plea or jury trial - remains on a person's record forever and costs $1500 a year in driver's license surcharges. So rational people accused of DWI are willing to pay to fight the accusations.

A DWI jury trial is usually almost risk-free for the accused. By this I mean that the accused is not likely to receive much more severe sanctions for trying the case (a "trial tax") than he would for pleading guilty - he is probably going to get probation (if he wants it) if he pleads guilty to a first DWI, and he's probably going to get probation (if he wants it) if he goes to trial and is convicted. But nobody ever got acquitted by pleading guilty. So, from the perspective of the accused, most first-time DWIs should be jury trials rather than guilty pleas.

In a DWI trial (lasting two days or more), a criminal trial lawyer, at a bare minimum:

1. Picks a jury;

2. Makes an opening statement;

3. Cross-examines two cops (at least);

4. Raises and responds to objections; and

5. Argues to a jury.

He might also deal with sophisticated suppression issues and scientific testimony (no wiretaps, and no autopsy reports, but lots of issues of real substance), or examine witnesses on direct.

The cops in DWI cases are no less professional testiliarsfiers than the agents in federal cases. The task force cops don't have that formal Quantico "look at the prosecutor when he asks the question, then turn and answer the question to the jury" training that federal agents have, but they get more on-the-job training on the jury stand.

A trial lawyer's tools are his skills - listening, cross-examination, rhetoric, and so forth. Tools get rusty and dull with disuse; the only way that trial lawyers can keep the tools in their toolboxes clean and sharp is to use them, and the only way to use all of those tools together is to try lawsuits.

The DWI jury trial provides the criminal defense trial lawyer with a way to maintain his skills - to stay in shape. Along the same lines, it gives him a warmup for the heavier lifting of the major felony cases. Finally, it also allows him to try new techniques in an environment of little risk to his client. If you're going to try a new way of relating to jurors, better to do it in a DWI jury trial than a murder.

That's why, unlike our Gucci-loafer-wearing brethren in New York, we Texans - even those of us who try murders and drug conspiracies - don't scoff at DWI jury trials.