Inside a DUI Jury Trial


Jury Selection

California has a process for jury selection that adheres to the standard structure of jury selection across the country. The process begins when the potential jurors are notified, usually through mail, that they must attend the jury selection process at the court house.

Before the process begins, a statement is read to the jurors:

“Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court and that failure to do so may subject you to criminal prosecution?”

The purpose of this statement is to ensure that the potential jurors understand that they must be truthful in any questions they answer so that the judges and attorneys can select jurors for the case properly.

Voir Dire

Voir dire is the process by which judges, the defense attorney(s), and prosecuting attorney(s) will interview potential jurors to determine their competency to serve. After this is done, the attorneys and judge will ask some questions that help determine whether or not the potential jurors hold any biases or prejudice, or if there is some other reason that a juror cannot be fair and impartial when deliberating on the case.


During voir dire, attorneys from either side can make a motion to excuse a juror from selection if they so desire. If the judge feels the need to remove a juror, he or she can also make that request. For attorneys, depending on which side they are representing, they will want jurors that can provide the desired verdict; or they will want to avoid seating jurors that will reach an undesirable verdict. When an attorney wants to strike a juror from the selection process, they can make a motion called a challenge. Challenges fall into two categories:

  • For Cause: If an attorney feels the need to remove a juror, and makes a challenge for cause, he must explain his reasoning. In most cases, a for cause challenge must be granted by the judge, so the attorney must have sufficient reasoning. Examples of for cause challenges include things like prior convictions or some sort of involvement or interest in the case.
  • Peremptory: If an attorney wants to remove a juror but does not have sufficient reasoning, or does not want to provide a reason, he may make a motion for a peremptory challenge. The state of California limits peremptory challenges to ten per side in most criminal cases. In death penalty or life imprisonment cases, attorneys may be able to use up to twenty challenges.

Opening Statements

Once your case makes it to the courtroom, the trial proceedings begin. The trial itself is a complex process involving several steps. When the time comes for the trial, you will be seated with your drunk driving attorney. After the judge has allowed the proceedings to begin, the prosecution and the defense will then make their introductory speeches. This speech is called the opening statement. The opening statement is an introduction to the facts of the case according to both sides. It also allows the prosecution and the defense to show their respective methods of proving guilt affirming innocence.

Improper Opening Statements

In the court of law, nearly every process, procedure, motion, or action has set rules on how it must be performed or executed. Opening statements are no different, although attorneys have some leeway with regard to what can be said. The prosecution or the defense can frame their tone and attempt to use imagery and language to try to sway the jury to a certain extent. While attorneys have a good deal of freedom in how they will present their opening statements, certain things are not permitted including:

  • Actual arguments: Attorneys may not actually argue the case in the opening statement; meaning that they must stick to defining how they will structure their cases, and not actually present them. Phrases such as “This shows that the defendant…” or the defense arguing the principles of certain laws will not be allowed. These should be saved for the closing arguments at the end of the trial.
  • Inadmissible evidence: Attorneys are not permitted to discuss evidence that has been deemed inadmissible through pre-trial motions and prior preparation. This applies to evidence that has been revoked through pretrial motions.
  • Facts that will not be proven: Attorneys cannot present any facts that will not be or cannot be proven during the course of the trial. An example of this would be suggesting probable testimony from a witness who is not available to testify, such as someone involved in an accident from your DUI.


So what happens when an attorney’s opening statement is deemed improper? This can go one of two ways. The judge, on his or her own authority, can intervene if he or she believes that the statement is improper. Then the judge will ask the jury to disregard the statement. Or the other option is when the defense or the prosecution objects to one another’s statements. At the discretion of the judge, the objections will be sustained, meaning that the opposing side can resume, but the jury must disregard the prior statement, or they will be overruled, meaning that the opposing side can resume without anything being disregarded. The jury is under oath as well, so they must adhere to the judge’s decisions on objections, even if they hear facts that are inadmissible or facts that do not pertain to the case.

Prosecution Case

The actual start of a case is at the time of an arrest or a police report filing. The record of the arrest will detail the events of the crime, witnesses, and other information that may be relevant. In most criminal cases, defendants will not be able to obtain a copy of the police report. However, their lawyers will be able to obtain one for review. Legal representation is a key element of success in a criminal case, as the police report shows what items can be leveraged against you.

The prosecutor, upon receiving the police report will then make the decision as to whether or not he will file DUI charges against you, and what the charges filed will be. He will also decide whether or not these charges will be at the felony or misdemeanor level. He is also able to file all or some of the charges form the police report. If you are held in jail, you do have the right to a speedy trial, and thus the prosecutor must file the charges within 48 hours of the arrest. These days do not include weekends, holidays, or mandatory court closures. Once the prosecutor decided what charges will be mounted against you, there will be an arraignment. The date of the arraignment depends on your arrest.

In short, the arraignment is a preliminary hearing for the charges, and also the first time you will be in court for them. You will be given the opportunity to enter a guilty or not guilty plea,as well as claim your right to an attorney.

The prosecution will use all the evidence collected against you to prove beyond a reasonable doubt that you are guilty of a DUI. The prosecutor will likely attempt to use the following items to form a case and charges against you:

  • A breathalyzer or blood test results
  • How high your BAC (blood alcohol content) was at the time
  • Your refusal to take a breath test, if applicable
  • The full police report, including field sobriety tests, and the officer’s reason for pulling you over
  • If there was an accident
  • If there were children in the car
  • Prior convictions, whether or not this is not your first DUI

Often when it comes to a first time DUI, you may want to have your lawyer look into the possibility of a plea bargain. It is important to remember that a DUI is a crime, and not just a minor traffic offense. A please bargain will likely result in some level of conviction.  If the trial goes your way, you will walk away without a conviction. On top of all this, trials can be expensive, so it is important to weigh your options and look at what the consequences could be for each approach. Your 1-800-NoCuffs attorney will be able to advise you on what your best choices are for your situation.

Defense Case

In a DUI case, the prosecution will come after you with determination to convict. A solid defense has to be ready for evidence like breath or blood tests, police reports, and witness testimonies.

Possible Defenses

When it comes time for trial, your attorney will have a defense strategy he or she prepared with you to combat and counter the prosecution’s case. A lot of your attorney’s work will be focused on casting doubt to avoid a conviction. After all, if a reasonable doubt exists in the jury, you are not to be found guilty. These potential doubt-oriented defenses can include:

  • Questioning Blood Test Results: Blood tests administered by breathalyzer are not always accurate. Several common medical conditions, including diabetes, can cause inaccurate breathalyzer results. Additionally, there are many regulations that must be followed by law enforcement officials relating to the care and maintenance and calibration of breath test machines. Your lawyer will want to cast doubt on any results that show up, and also suggest that the test results may not have been obtained properly or that blood tests were administered poorly.
  • Questioning Field Test Conditions: Officers can administer a “field sobriety test” to a driver who they believe is under the influence. These often involve arbitrary tasks such as walking in a straight line, or reciting numbers backwards. These tests can be incredibly subjective and are not really indicative of true sobriety, especially since some of these tests can trip up even sober individuals if they are nervous. Your lawyer can use this reasoning to suggest that these field tests are irrelevant.
  • Officer Out of Compliance: There are a number of rules and regulations as to how an officer should conduct his or her self when arresting a person for a DUI. Officers must extend a fifteen minute observation period before administering a BAC test. If an officer is prepping the test while waiting for that fifteen minute observation time to finish, has he really extended that courtesy to you? Be certain to tell this to your lawyer as it may help your case.
  • Outside Factors: A breath test does not always respond to the alcohol that is present in a person’s system. For instance, there are a number of ways alcohol content can still be present in the mouth of the individual being tested and skew the results. Mouthwash, a burp, and certain medicines are all potential causes that a person’s breath can be high in alcohol content, but not connected to the presence of alcohol.

Should the defendant testify?

If you have been charged with DUI and your case has proceeded to a jury trial, you have the right to testify in your own defense, should you chose to do so. However, you are also constitutionally guaranteed the right to be free from self-incrimination; therefore you are not required to testify.

There can be pitfalls to taking the stand as a defendant. The prosecution can be aggressive during the cross-examination and will use interrogation techniques designed to make you appear as though you are not being truthful. For example, if a defendant cannot recall certain elements of the arrest, the prosecution may frame this as evidence of intoxication to the jury (despite the fact that significant time has passed and recalling all relevant details is in no way indicative of guilt).

In the court of law, during the presentation of evidence and witness, defendants themselves may have a chance to testify if they so desire. California State law allows a defendant to choose whether or not he would like to testify in court. This decision is one of most important decisions in this process. What does a testimony mean for the defendant? How does this decision affect the jury’s decision making? What will be expected of the defendant on the stand?

These questions can all be answered through a look at what the pros and cons are for testifying as a defendant:


  • Sole Witness: In certain cases, you may be the only witness to the DUI. It may be up to you to provide an accurate version of what happened, as opposed to having everyone go off what may or may not have been included in the police report.
  • Presenting Your Own Side: Sometimes, even though there are other witness accounts, you may have a point of view that extends key elements of the events not known or seen by anyone else.
  • “Pleading the Fifth”: You are not ever required to reveal anything incriminating about yourself. You can elect to not answer certain questions.
  • Defense Examination: Your attorney can also work with you to present your testimony in a manner helpful to your case. Your attorney will be an expert in criminal defense, and will know what questions to ask that will help your case.
  • Silence as Guilty Conscience: While the jury is not supposed to take your silence as an admission of guilt, their emotional response to your silence may not always be in line with what the law upholds. Silence on the stand can invoke an assumption of guilt in the jury.


  • Prior Convictions: If you have a prior DUI on your record, the prosecution may be able to use this against you to cast doubt upon your credibility as a witness. This may also affect the jury, because they may believe that if you commit a crime once you would be willing to do so again.
  • Nervousness/Poor Public Speaking Skills: The courtroom can be a nerve-wracking space for any individual. Even the most confident defendants can succumb to the pressure of having to present their case in the courtroom. Nervousness and poor speaking skills can create judgments in the jury’s mind over the credibility of the testimony at hand.
  • Stressful Cross-Examination: Even though your lawyer will present you with an easy and stress-free examination, the prosecution’s cross-examination will not be nearly as friendly. The prosecution will come at you with questions that are designed to either convince the jury of your guilt or at least put you in difficult positions. Sometimes the prosecutor may attempt to derail your train of thought and purposefully try to get you to mix dates or times up.
  • Perjury: Above all else, you do not want to lie on the stand. Perjury is a crime, and if you are caught you will face charges for that as well.

If you are facing criminal charges and a trial, consult with your lawyer about what can be gained through your own testimony. Your attorney will be an expert on courtroom proceedings, as well as what can happen to you on the stand; and he or she can direct you on what the best course of action is.

However, there are also benefits to testifying in one’s own defense. Despite the fact that juries are instructed not to interpret a defendant’s lack of testimony as a sign of guilt, some jurors may still feel that an improperly accused person would want the chance to take the stand and clear their name. Additionally, if there were certain extenuating circumstances present during the arrest (for example if a defendant was diabetic and this lead to an artificially high BAC results) it might be helpful to have the defendant testify in order to give context to the situation.

Ultimately, the choice to take the stand in your own defense will be one that you and your lawyer can make based on the circumstances of your case and the defense strategy you are pursuing. An experienced DUI defense attorney will be able to properly analyze the circumstances of the situation and advise you on the best course of action to take.

Closing Arguments

The closing argument is the final chance for your attorney to really reach the jury. In a DUI case, the closing argument may be the best chance your attorney has at cinching the case together and getting the desired “not guilty” from the jury. A well-practiced 1-800-NoCuffs lawyer will be able to look for key items in the case the prosecution brought against you that they can counter against in their closing argument. A good closing statement will poke holes in the prosecutor’s case, and remind the jury of their duty of proof “beyond a reasonable doubt.”

Creating Reasonable Doubt

DUI cases all too often seem open-and-shut, meaning the jury needs to see very little evidence before choosing to find the defendant guilty. DUI is a very shameful crime to be charged with, and public opinion on DUI offenders is at an all time low. So how can your attorney land a favorable verdict? By creating reasonable doubt that you were driving while under the influence of alcohol.

  • Questioning Blood Test Results: Oftentimes, breathalyzer or other blood tests can have skewed results. Your attorney may choose to notify the jury of this, and base the closing argument on the very real fallibility of machines. This can be compounded by showing that sobriety field tests were either passed or inconclusive.
  • Reminding the Jury of Weak Points in the Prosecution’s Case: Your attorney may have noticed some weaker points in the prosecutor’s case. For instance, your attorney’s cross-examination of a police officer or a bartender may reveal some things that the prosecution did not think to ask. If this is the case, in the closing argument, your attorney will likely return to those facts and remind the jury that the prosecution is not as strong as it seems.
  • Reminding the Jury of Reasonable Doubt: All jurors have a duty to uphold. They must deliver a guilty verdict ONLY if there is not a shred of reasonable doubt in their minds. Your attorney will likely remind them of this, and in combination with inconsistencies or weak points in the prosecution’s case, implore the jury to return with a verdict of “not guilty.”
  • Sending a Message: A popular model closing statement for prosecutors is the notion that the jury should send a message to all future DUI offenders and criminals that this behavior will not be tolerated, through the form of a guilty verdict. An often-cited closing statement that the defense can use turns the tables on the prosecution by asking the jury to instead send a message to the public that justice must outweigh popular opinion of DUI offenders, and that each individual case must be deliberated fairly with its own individual elements.

An experienced criminal defense attorney will have significant trial experience, and may already have some ideas on what to say in their closing argument and how to tie it all together. A strong closing argument can tie everything together and help with getting an acquittal.


Jury Instructions

Before the jury in your DUI case can properly deliberate, they must hear the trial out. The jury must also be sure to deliberate properly according to the rules of the justice system. Each juror will receive a set of jury instructions that are specific to the crime. These instructions, at a glance, essentially notify the jurors of how they are to conduct themselves when viewing the case and during deliberation. For any criminal offense, the contents typically include what must be proven to find the defendant guilty, as well as what certain terminology signifies in court. For DUI matters, the instructions lay out definitions for “under the influence,” “alcohol,” and “drug” for jurors to understand.


The jury instructions also include what defenses are valid or invalid for the crime. For DUI offenses, the instructions list legally being entitled to use the drug as an invalid defense, and also states that as long as a driver was under the influence of alcohol or drugs, any outside source that impaired his or her ability to drive is not a valid defense either. It also states that having a blood alcohol level of 0.08 or more can be considered, but is not required to be considered, as “under the influence.” This allows the jury to draw their own conclusions, even outside of what a blood test warrants. Remember, the jury is supposed to determine whether that you were under the influence, not whether or not your BAC was above 0.08 percent.

There are also separate instructions for the lesser crime of driving above the legal limit, or the crime of driving with an alcohol content of 0.05 while under 21. These crimes are charges that deal with the matter of whether or not the test results were above legal limits. Defenses in these cases often rests upon discrediting the test itself, and in the instructions this is considered valid.

Prior Conviction

If this case is not your first DUI, and you have prior convictions on your record, the jury also must prove that those convictions are valid if they wish to increase your sentencing. Each conviction must be considered separately, and must also be proven beyond a reasonable doubt if they are to be factored into the crime. If they have not met the burden of proof for this conviction, then they must find that the alleged conviction has not been proved, and may not include it in their sentencing or considerations. The defendant if he so chooses, may also stipulate to the truth of the convictions, in other words, he or she may claim the truth of these convictions, likely during the discovery process. Stipulation should be done at the advice of your attorney. Also stipulations to the convictions may not affect this case, as the judge will decide what is disclosed to the jury and what its relevance in the matter is.


After the trial concludes and the closing arguments have been heard, the jury will then move on to deliberations. The deliberation period is the period of time when the jury will discuss the facts and matters of the case and eventually arrive at a unanimous decision as to whether or not a conviction will be served. During this time period there are specific rules and guidelines of how their discussions must be carried out. The first step in this process is to select a foreperson. This foreperson has the duty of ensuring that each juror is able to express their opinion and participate, and make sure that the discussion happens in a “free and orderly” manner.


A jury’s discussion should be comprised of facts of the case and the laws surrounding the judgment. Jurors will have access to any exhibits provided during the trial, and jurors can requests instructions on the law from the judge. If the jurors have need of further instruction or need to see certain testimony another time, they can request this from the judge. This process will involve returning everyone to the courtroom again so these requests must not be used frivolously.

It is common for jurors to have differences in opinion and argue out their viewpoints. Jurors should be open to discussion and able to express reasoning behind their respective opinions. A juror should not enter the deliberation room with a mindset of stubbornness or unwillingness to be swayed. The deliberation period is designed specifically for argument of the facts and evidence of the case. Jurors should adhere to their opinions unless they are convinced otherwise by argument and careful thought.  Likewise, jurors should not let any outside matters or opinions held outside the case influence their final decisions. Speculation or guesses not brought up in court should not play a part in the discussions either.

Finding a Verdict

The verdict is decided by a unanimous vote of all jurors. If even one juror has reasonable doubt, they must continue deliberations until all jurors decide on one verdict. Once a verdict is reached, the foreperson will sign and date a verdict sheet and return to the courtroom with all signed and unsigned verdict sheets.

Should the jury fail to arrive at a conclusion, deliberations will continue. In some cases, if the judge has reason to believe that the jury will not produce a verdict in a reasonable amount of time, he or she may dismiss the jury and call a mistrial. This will mean the defendant can be tried again in court under a new jury.


After deliberations, the jury will come back to serve you with a written verdict. Depending on the evidence presented during the trial, you will be served a verdict of either guilty or not guilty. From there, the judge will determine your sentencing based on the case, what he or she knows of you, and the jury’s findings.

Not Guilty: What Happens Next?

You and your lawyer, through a boisterous defense, were able to counter the prosecution efficiently, resulting in a not guilty verdict. This is great news; you will not suffer a conviction! Also, provided that there are no other charges brought against you, you are home free. Keep in mind, if the charge is applicable, the jury may still find you guilty of the crime of driving over the legal limit.

However, even with an acquittal, your time in the court system may not be over yet. Records of your charges and your arrest will remain in law enforcement and court records. The next step in this process is work towards an expungement and, if possible, a motion for factual evidence.

Guilty: What are my Options?

EDespite best effort, your defense may not be enough and the jury may return a “guilty” verdict.” If you are convicted of a DUI, you will have to serve your sentence according to the judge. The terms for first time DUI conviction are:

  • Fines up to a maximum of $1000
  • Up to six months in a county jail
  • A six-month license suspension
  • Impounding a vehicle
  • Breathalyzer ignition lock

After your sentencing is complete, you can begin the process of expunging your old records with the help of a lawyer. The process for expungement on a conviction can be significantly difficult.

If you believe your conviction was the result of an error in the law, the process of the court, the jury, or any other legal process component, you may want to consider running an appeal on your case. The appeals process is lengthy and there must be sufficient evidence to prove that there was an error in the law for there to be a hearing. You should consult your attorney before attempting an appeal. You can review the case together, looking for anything resembling false or inadmissible evidence, conflicts of interest with the jury or judge, prosecutors acting unethically, or the jury including facts or speculation outside of presented evidence to reach the verdict. However, even if an error is found, there may not be a reversal.