The number one biggest mistake that a person charged with drunk driving can make is to assume right from the start that there is no defense.
Trial for the Drunk Driving or Drugged Driving Charge (OWI/OUID)
Like all of the other topics on this web page, this topic is covered in detail in Mr. Barone’s book The DUI Book - A Citizen’s Handbook on Fighting a Drunk Driving Charge. This is some of the text from that book. As you might imagine, the actual book covers this topic in much greater detail, and a chapter outline follows.
Chapter 15 - Bench Verses Jury Trials
15.0. Purpose of this chapter - The purpose of this chapter is to help you understand the two types of trial available to you, bench trials and jury trials, and how the two differ. Also, this chapter will help you understand why your attorney may recommend one type of trial over another.
Simply stated, a bench trial is a trial before only the judge, without a jury being present. Instead of the jury deciding the issues of fact (like whether or not you are guilty of driving while intoxicated), it is the judge who makes this decision. In a jury trial, the judge decides issues of law (i.e., which evidence is admissible and which is not) while the jury decides issues of fact. So, one way to think about this issue is: do you want the judge or a jury deciding the issues of fact in your case?
15.1. Who gets to opt for a “bench” trial or a jury trial? It is a fundamental right for anyone facing any criminal trial, including misdemeanors like OWI, to have a jury if they want one. To opt out of a jury trial and have only the judge decide your innocence or guilt, you must knowingly, voluntarily and intentionally (also written as “expressly, intelligently and personally”) waive your right to a jury trial, and in Michigan, you must get the consent of the prosecutor and the court. The reason you need the consent of the prosecutor is because in Michigan, the “State” also has the right to have the case heard by a jury as well. In other words, both sides must agree to allow the judge to be the fact-finder rather than the jury to have a bench trial.
Here is a chapter outline from that book:
15. Bench Trials
What is a “bench” trial?
Who gets to opt for a “bench” trial?
Why would your attorney want a non-jury trial?
Who is present at a bench trial?
How long does a bench trial take?
What is lost by opting for a bench trial?
What may be gained by choosing a bench trial?
Who testifies at a bench trial?
What is the procedure for conducting a bench trial?
Is a motion for new trial possible after a bench trial?
Is appeal possible after a bench trial?
If you appeal after a bench trial, is punishment deferred?
Would the accused be more likely to testify at a bench trial?
Is there a cost savings by opting for a bench trial?
Burden of proofAffirmative defenses—burden to disprove is on the state
State's burden to get chemical test results admitted, then shifts to defendant to rebut or explain why an error exists
Presumptions and inferences
Who gets to benefit from inferences
No presumptions for DUI-DWI drugs
Other presumptions or inferences
Stages of a Bench Trial
16. Jury Trials
When is a jury trial available in your jurisdiction?
When a jury trial is the only option to try to achieve victory
Jury trials take longer and typically cost more
Jurors decide the case --- not the judge
Who will not be allowed to be a juror?
“Striking” a jury: eliminating the bad jurors
For cause – unlimited
Peremptory – both sides limited
Is jury questioning (“voir dire”) available?
Background information on jurors: can your attorney get it?
How can a jury trial improve your chances on appeal?
What if jurors don’t tell the truth at voir dire?
Mistrial– available from either side or at the judge’s initiative
What is a directed verdict (instructed verdict) of acquittal?
What happens if you are convicted?
What happens if you are acquitted?
Motions for a new trial: why file one?
If you assert but lose the motion for a new trial, can you still appeal?
Burden of proof
Affirmative defenses—burden to disprove is on the state
State's burden to get chemical test results admitted, then shifts to defendant to rebut or explain why an error exists
Presumptions and inferences
Who gets to benefit from inferences
No presumptions for DUI-DWI drugs
Other presumptions or inferences
Motion for directed verdict (instructed verdict) of acquittal
Winning a directed verdict by exclusion of evidence
Judge can decide issue, with or without permitting argument
Judge cannot direct jury to return verdict of guilty
Stages of a jury trial
17. The Verdict: Acquittal, Conviction, Mistrial, Sentencing and Issues Relating to Jail (if convicted), License Loss and Probation Issues After Conviction: What are the Consequences and the Timing of Enforcement of the Sentence?
Verdict rendered by jury (or judge)
Read and published in open court
Judge must accept it and make it the order of the court
Polling the jurors, by either side
Three possible outcomes for each count (each separate charge against you)
Not guilty – judge discharges you from the case, orders bond released
Guilty – sentencing will follow (by either judge or jury, depending on jurisdiction)
Mistrial declared by judge because the jurors cannot reach unanimous verdict
Sentencing (if convicted on any counts) is required to be done
Merger with the DUI-DWI offense?
Evidence in aggravation
Evidence in mitigation
Attacks on prior conduct
Incarceration
Maximums and minimums
Alternatives to regular jail time
Fines
Probation
Conditions of probation
Community service
Probation supervision fee
Restitution
Probation revocation
License suspension
Judge sentences – issues to consider
Jury sentences – issues to consider
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