DUI Trial Lawyer Explains DUI Trial Process

Going to Trial for a DUI: Should I Take My DUI Case to Trial?

Not all states permit trials by jury in DUI-DWI cases. This has a dramatic effect on how many DUI cases go to trial. The most anti-trial state is New Jersey, and statistics prove that your chances of winning a DWI trial in that state are far worse than in states that do not force accused citizens to be decided at a DWI-DUI bench trial (meaning a judge-only trial).

Due to the prosecutor having the distinct advantage in most states on a driving under the influence case, states like New Jersey (all DWIs are non-jury) and Mississippi (which relegates first offense DUI and 2nd DUI cases to a non-jury trial) virtually never see a DUI dismissed before trial. This article addresses many clients’ DUI trial questions.

What happened on the roadway can play a major role in whether you want to have a DUI jury trial or bench trial. When clients know and exercise the right to remain silent, and not do field tests, the case is usually of much higher quality, for winning a trial. Plus, if it is a DUI refusal trial with no court-ordered blood extraction, these cases usually never have to go to trial.










In most jurisdictions, a decision that must be made early in a drunk or impaired driving case (often at the arraignment) is whether to try the case to a jury or to the court. The Supreme Court has held that the Sixth Amendment right to a jury trial is applicable to the state proceedings through the 14th Amendment.

The Supreme Court has further held that the Sixth Amendment does not require a jury trial for “petty offenses,” which have been defined as crimes that are punishable by a maximum sentence of six months or less, although other factors are also considered in determining whether an offense is “petty.”

The Supreme Court has held that offenses for which the maximum period of incarceration is six months or less are presumptively petty and therefore not subject to the Sixth Amendment right to a jury trial. The existence of additional punishment in the form of a $5,000 maximum fine and other lengthy probational penalties (in addition to a six-month prison term) did not entitle the defendant to a jury trial.

In DUI or DWI cases, factors such as a mandatory jail sentence, automatic license revocation, the amount of the fine, the fact of enhancement of future offenses, and public concern with the drunk driving problem in the jurisdiction should be considered. Plus, all states increase the maximum sentence on subsequent crimes of this mature. These considerations all have relevance to whether a defendant has a Sixth Amendment right to a jury trial.

However, it has been held that the fact that a drunk driving offense is punishable by a jail or probationary period of more than six months does not entitle the defendant to a jury trial. If a defendant is charged with two or more offenses, the sum of the maximum sentences is used to determine whether the defendant has a right to a jury trial.

Finally, it is an abuse of discretion for a trial court to limit its sentencing discretion in the case prior to trial to deny the defendant the right to a jury trial. An example of this would be for a judge to announce that if the case stays here, then the maximum sentence handed down would not exceed certain limited punishments, such as not taking the person’s driver’s license if convicted.

9 FAQs About Trials When a DUI vs DWI Is Involved

  1. How long does a DUI trial take? The average length of a DUI trial varies somewhat, by the lawyer trying the case. Plus, when a forensic test is involved, an additional DUI trial length of 3 to 6 hours is not uncommon, for the State and defense to put up expert testimony. Since a jury may deliberate on a verdict for as long as it takes, how long does a DUI trial last is their decision, until and unless the judge declares a mistrial.
  2. Do DUI cases usually go to Trial? When you have a DUI going to trial is a frightening concept for many people. In refusal cases, where no field tests were taken and no forensic breath or blood test is part of the evidence in your case, there are a few reasons to have a pre-trial for DUI clients.
  3. What are the chances of winning a DUI Jury Trial? This depends largely on the quality of your DUI trial attorney. A new public defender may lose his or her first 10 trials. In states like New Jersey, the chances of winning a DUI trial are usually less than 1 in 5, according to reported statistics. With jury trials, the overall chances for victory are much better, but this largely depends on the case facts and DUI attorney skill level.
  4. What are the costs of a DUI trial? If indigent, the State pays all DUI trial costs. For those with private counsel, the court reporter cost, expert witness fees and travel expenses are part of your court costs.
  5. Can my field sobriety tests be excluded from the trial? Possibly the HGN eye test, if the officer was not trained or did the evaluation improperly, negates its standardized test value.
  6. What happens if you lose a DUI Trial? Penalties in each state vary, depending on prior DUI record of conviction, and any aggravated DUI factors. Some states may sentence a person to jail or take away all driving privileges for up to 90 days.
  7. Is there a right to a speedy trial? DUI laws vary greatly. Some states, like New Mexico mandate that trials must be finished within 6 months unless the accused waives that right. Other states, like Georgia, give all criminal clients the right to request a statutory speedy trial under OCGA 17-7-170, and that trial must be heard within two (2) terms of the court. If any delay is caused by Defendant, that length of the delay is usually an event that takes away the statutory speedy trial deadline. The sister state of South Caroline has no similar state speedy trial law.
  8. Will my case always have a pre-trial hearing? Hearings involving a pre-trial hearing DUI investigation into any legal issues raised by the litigants. These are often dealing with DUI discovery issues and suppression motions hearing. Not always in bench trial cases. Almost always in jury trial cases, for the expert DUI attorneys.
  9. DUI refusal to test. Can refusing to submit to breath testing after my DUI arrest cause my case to be more likely to result in a conviction?







The Sixth Amendment does not specify the number of jurors that are needed to constitute a jury. While 12-person juries were required under common law, the states are not required to provide juries of that size.

At least six persons are required to constitute a valid jury, however. While six-person and 12-person juries in criminal trials must render unanimous verdicts, 12-person juries (in civil cases in some states) may render verdicts concurred in by fewer than all the jurors.

The right to a trial by jury granted in many state constitutions has been construed to provide for jury trials in instances where the Sixth Amendment does not (i.e., where the maximum sentence is less than six months). It should be understood that while a state constitution (or statute) may not validly prohibit a jury trial in instances where such a trial is required by the Sixth Amendment, it may permit a jury trial in instances where such a trial is not required by the Sixth Amendment.

Most states have statutes governing the right to jury trials in criminal cases. Obviously, statutory rights cannot be less permissive than the rights granted in either the Sixth Amendment or the state constitution. Some statutes base the right to a jury trial on the penalty provided for a crime, while others base it on the category of the offense.

In most jurisdictions, a defendant accused of any drunk or impaired driving offense is entitled to a jury trial. In other jurisdictions, however, jury trials are not permitted for DUI offenses wherein the maximum sentence is less than six months.

Our DUI Lawyers in Atlanta GA Are Focused on DUI Defense Statewide

The author of this article is the founder of TEAMDUI.com. Board-Certified in DUI Defense, Mr. Head is also the creator and now co-author of The Georgia DUI Trial Practice Manual. Our law firm near me offers a FREE lawyer consultation to all citizens facing DUI charges. Call our toll-free number at 844-832-6384 to also receive a PDF copy of Mr. Head’s book for clients, The DUI Book.

No attorney-client relationship is created by posting this information, and all legal decisions should only be made after consulting directly with your DUI lawyer. If your case is from states other than Georgia, a referral will be offered for a lawyer for DUI-DWI-OUI in other states.

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