If you have been arrested for “driving while intoxicated” (DWI), you're naturally worried about what it would be like to stand trial as a defendant. You may be considering if you should even want to go trial and wondering if you'd be better off pleading guilty.
Remember that a DWI charge is not a conviction. If you plead guilty, just to get it over with, you may not realize that there may be legitimate, powerful reasons that you should win the case—you may even get a dismissal.
Therefore, before you make any decisions, it is useful to learn more about the trial process, and to have a DWI Specialist with you, every step of the way.
Judge or Jury Trial?
If it is a trial by judge, then the judge is responsible for deciding rulings based on the relevant law, and the judge will also make decisions regarding the facts. In a jury trial, the judge still makes the decisions regarding the relevant law. Still, the jury is the “trier of fact”—the jury decides what really happened, who to believe, and, ultimately, it is the jury who decides if the defendant is guilty.
Choosing between having a judge or jury is not an easy decision; it requires careful consideration. You and your defense attorney will want to consider the relevant facts of the case. You'll want to consider how complicated are the facts of the case. You'll discuss if there any issues that may make a jury more or less favorable to your case. For instance, defendants who are celebrities or other public figures have to weigh the likelihood that their public reputations may impact how the jury would interpret the facts.
Additionally, in Texas, the defendant also gets to decide if they want the judge or the jury to determine their sentencing if they are convicted.
During pre-trial hearings, the judge, the defense, and the prosecution will address both administrative and substantive issues. Administratively, the court and the attorneys will address scheduling and related concerns.
Substantively, there will be hearings on pre-trial motions. The defense may offer a motion to dismiss the case. The defense will also offer motions to suppress illegally obtained evidence or to exclude witnesses. The defense may also give notice for specific defenses (if relevant).
The defense may ask the judge to compel the prosecution to produce discovery, i.e., evidence relevant to the crime) or to order the prosecution to disclose any evidence of other crimes or acts that the state may be planning on introducing during the trial.
The court may also hear motions relating to immunity of defense witnesses, change of venue, and joinder or severance—to address the appropriateness of trials that include more than one defendant. A court may also hear a motion if the defendant alleges that the police, as a matter of law, entrapped the defendant.
In Texas, there need to be six jurors to decide a misdemeanor case, while there must be 12 jurors for a felony proceeding.
A large jury pool is drawn from the community, and then a number of them are sent to a specific trial as prospective jurors. The defense and prosecution will then conduct “voir dire,” when they take turns interviewing the prospective jurors. Each side can exclude jurors. They can exclude someone “for cause,” because they are concerned that the person could not be impartial (e.g., the juror knows the defendant). But the defense and prosecution also can exclude people for other reasons—factors they think would make someone more or less likely to convict the defendant.
Who sits on the jury can decide the outcome of the trial, so both prosecution and defense take these decisions very seriously.
(If you've seen this process done in television or movies, you have heard those attorneys pronounce “voir dire” as “vawh deer,” but, in Texas courts, it's pronounced “vawr die-ur.”)
Presentation of the Case
Opening Statements: Both the prosecutor and defense attorney provide an overview of their arguments. Representing the State of Texas, the prosecutor will go first, giving the jury an overview of the facts. The defense will then speak to the jury about the weaknesses in the state's case and argue why the jury should find the defendant “not guilty.”
The State of Texas' Case: Again, the prosecutor goes first, presenting its case. The prosecutor will offer evidence for the judge and jury to review, and it will introduce witnesses to testify. Witnesses may be “fact witnesses,” those with direct experience relating to the defendant or the alleged crime, but they can also be “expert witnesses,” those who do not necessarily have any direct knowledge of the facts in this case but can offer testimony based on their expertise.
The prosecutor will ask each witness a series of questions relating to the case. After each witness, the defense will be allowed to “cross-examine” each of the state's witnesses, trying to identify any inconsistencies or unreliable elements in their testimony.
Sometimes, additional witnesses can be called to refute earlier witnesses' statements. These witnesses may not be related to the case, but instead, they may have information about the first set of witnesses, to determine if those first witnesses gave credible testimony that the jury should rely on during their decision making.
The Defendant's Case: The defense presents its case after the prosecutor has completed its case. The defense may also introduce fact and expert witnesses, and, this time, it is the prosecutor who cross-examines the witnesses.
Because the Fifth Amendment to the Constitution bars people from having to incriminate themselves, the defendant is not required to give testimony, and the jury is not supposed to infer any guilt or innocence if the defendant does not testify.
Closing Arguments: The prosecutor and defense attorney both give speeches, reminding the jury about the testimony they've heard, to persuade the jury to decide in their favor. Until now, the prosecution has always gone first, before the defense, so that the defense can refute the prosecutor's evidence. However, for the closing, the prosecutor always goes last, to give the state the advantage—so that the last things the jury hears from the lawyers are reasons why they should convict the defendant.
Jury Instructions: After the closings, the judge gives the jury “jury instructions.” The instructions list the elements of the case—each fact that must be proven in order to convict the defendant of the DWI and any other charges. The instructions also explain how jurors are supposed to evaluate evidence and rely on witnesses. The judge also explains that the standard required for guilt is “beyond a reasonable doubt.” The instructions do not have any information about sentencing.
Jury Deliberations: Members of the jury are isolated from the rest of the court staff as they review the evidence and testimony. If they have questions about any of the facts or law, they can send a note to the judge for more information. A marshal is the jury's go-between, bringing any information to the judge and responses back to the jury. The jury must deliberate in secret until they come to a unanimous decision for each charge against the defendant.
Reading of the Verdict: When the jury has completed its deliberations, the jurors return to the court. The defendant, the defense lawyers, and the prosecutors are summoned back to the court. The jurors then read their verdict out loud. If the defendant is found “not guilty,” then the judge will say the defendant is free to go.
Sentencing: If the defendant chose to have the jury decide the sentence, then the same jury that sat through the trial will decide the appropriate penalty. If the defendant chose the judge to determine the sentence, then the court will do so. Whether it is the judge or the jury, in both cases, there may be another set of proceedings, a sort of mini-trial with witnesses and expert evaluation, before the sentence is determined.
The Impact of a DWI
A DWI can impact every aspect of your life. However, as grave as a DWI can be, it is important to remember that a criminal charge is not a conviction. People can and do win a DWI defense. What makes a difference—A superlative legal team that has mastery of trial preparation, relevant facts and law, and the ability to reach and move the jury, to convince them of your innocence.
With 20 years of experience trying cases in the courtroom, Houston attorney Doug Murphy is one of only two attorneys in the entire state of Texas who is Board Certified in both Criminal Law and DWI Defense. Rated as “Preeminent” by AV, Murphy is annually recognized as being one of the Best Lawyers in America by US News , and, recently, he was named Houston's 2021 Lawyer of the Year by Best Lawyers in America. He also serves as the Dean of the National College for DUI Defense conducted at Harvard Law School. Murphy previously was on the board of directors and as co-chair of the DWI Committee with the Texas Criminal Defense Lawyers Association.
If you face DWI charges in Texas, contact Doug Murphy’s office today to discuss the case and begin working on the defense.