DWI Jury Trial

Jun 12, 2009

OUTCOME: Not Guilty Jury Verdict - Arrest Expunged

This was the typical nothing-to-lose so you might-as-well-go-to-trial DWI case. One deputy stopped my client, the second administered FSTs and arrested him. According to the former, my client had ... “blown through a barricade” but when the facts came out fully in cross examination, it turned out that the cement barricade was actually placed behind – and not visible from – the parking lot where my client had pulled out. My client had not performed well on the Field Sobriety Tests (7 out of 8 clues on the Walk and Turn, 4 out of 4 clues on the One Leg Stand) but we had reasons to show – other than impairment – why he looked so bad on the video tape. Why do I call it the nothing-to-lose DWI case? Because while the state had offered probation instead of jail time, the latter was never a realistic possibility. I advised my client that if we lost, the judge would likely give him probation if he was convicted. But my client didn’t want probation – even if convicted. (Aha – the plot thickens!) In Texas, unlike most states, a criminal defendant has the option of picking either the judge or jury to assess punishment. Most of my clients favor the pick-the-judge option, because it’s the best way to ensure probation. But this client wanted to elect jury punishment if convicted. I’m glad he chose that, because it helped immeasurably in voir dire. Folks I knew would make bad guilt/innocence jurors were absolutely volunteering themselves for challenges for cause (“3 days is a slap on the wrist” “I would never consider the minimum punishment” etc.). As the jury was deliberating guilt/innocence, I was busy incorporating some of the prosecutor’s closing argument into my punishment argument, if necessary (“We’re not saying he’s a bad person” etc.) Fortunately, the jury acquitted, and I never got to find out what punishment they would have assessed. Obviously it’s a good result for my client – and what lawyer publishes bad results on Avvo? – but more importantly I learned something that I can use in my practice, namely: Electing for jury punishment in a misdemeanor trial allows the lawyer the opportunity to both identify and strike more bad jurors for the guilt/innocence phase. I’m sure many future first time DWI clients will still opt for the pick-the-judge and –ask-for-probation option, since they are almost certain to get it. But I look forward to the next client who wants to give his lawyer the edge, and takes my advice to elect jury punishment.