Queens County Bar Association
Martindale Hubbell - Distinguished 2023

How Often Do DWI Cases Go to Trial?

It is very hard to predict when DWI cases will go to trial. I do not think that there are any statistics on these records, but probably about ten percent of DWI cases will go to trial. Incidentally in our jurisdiction, these cases are called DWI, driving while intoxicated rather than what is known in most states as a DUI. But, they are the same thing.

Do Most DWI Attorneys Avoid Going To Trial?

The main reason that you do not want to take a DWI case to trial is if you can get a better disposition by working out a plea than you would expect to get at a trial. Obviously, it depends on the particular case. In many cases the District Attorney is willing to offer a plea disposition that is considerably better than what you would normally expect to get by going to trial. In those situations, it is foolish to go to trial, and it is an unnecessary expense and you might possibly end up with a poor result.

How Do You Determine Whether A DWI Case Should Go To Trial Or Not?

It depends largely on the circumstances of the case. For instance, if the District Attorney is offering a plea to the charge with no jail time as opposed to the possibility of jail time, that is usually not enough of an incentive to give up your right to a trial. If you feel that you have a reasonable chance of winning the case and the District Attorney is not offering any reduction, generally you would want to go to trial unless the case against your client is so strong that all you are doing by going to trial is increasing his cost. There are many cases where you do have a good chance at winning and the District Attorney is not offering you a commensurately good plea, and in those cases we have no hesitation going to trial.

A Brief Timeline Of The DWI Trial Process In New York

At an actual trial, the process works this way, assuming that you have not won the case on the hearings that I talked about earlier. The first thing that happens is you have to decide whether or not to have a jury or a non-jury trial. If there is a jury trial, both the District Attorney and you will make an opening statement to the jury telling them exactly what you intend to prove or what evidence you will present and what the evidence is going to prove. The opening statement is not evidence and is simply each attorney telling the jury what they expect the evidence is going to show. After that, it is the District Attorney’s obligation to present evidence to show that the defendant was in fact intoxicated and secondly, which is very important, that he was literally operating that motor vehicle while he was intoxicated.

Customarily, this is done through the arresting police officer who may have observed the car in motion. He will describe what he saw that was unusual, e.g., that the car was weaving back and forth erratically and that when he stopped the vehicle, he smelled alcohol on the defendant’s breath. Typically, he will claim that the defendant’s speech was slurred, his eyes were bloodshot, and he “reeked’ of alcohol. You can almost tell in advance what the officer is going to allege. He will then testify how he asked defendant to get out of the car and how he gave him various field tests after which the defendant was arrested. At that point, the defendant is taken to a location where other tests are given, including a breathalyzer and some coordination tests.

Usually the person at the precinct who gave those tests may testify as to how the breathalyzer test and instruments was calibrated, and why it was accurate and what the reading was. After each witness testifies, the defendant’s attorney can cross examine the witness to show that the defendant was not really intoxicated and there may be contradictory evidence. Of course, all of this would depend on each particular case. After the people present all of their evidence, the defendant can argue that just on the basis of law, it was not sufficient. Usually, that argument does not hold and then the defendant can present his own case. A defendant does not have to present any evidence in a criminal case, but most likely he is going to.

Sometimes it may be just the testimony of the defendant and again, it depends on the facts. There are many cases where a defendant is just sitting in a car and he had no intention of driving that car. We would present evidence as to that claim which can take many forms. For instance, the driver may have been at a bar or party, knew he was intoxicated, and called someone to pick him up at his car location. The “pickup person” would certainly testify and we would bring in telephone record of the phone call(s) to show this wasn’t a fabricated story.

At other times there may be an explanation as to why he had alcohol on his breath. Maybe it was a mouthwash or some medication that he was taking. Sometimes, we will even put expert witnesses on the stand that can show why in this case the tests that were given are not giving accurate results. After the defendant finishes, both sides sum up to the jury. Then the jury deliberates and eventually reaches a decision. That is essentially what happens at a trial.

For more information on DWI Trials In New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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