WINNING A DUI BY CHALLENGING A BREATH SAMPLE The police get a two-hour window to…
WHAT ABOUT IF YOU DON’T LIKE THE STATE’S OFFER, AND YOU WANT YOUR CASE TO GO TO TRIAL?
You always have your presumption of innocence – so If you don’t enter a plea, and the state doesn’t drop your case – and the judge will not dismiss your case, then the only way it gets resolved is a trial. There are two types of trials in Nevada, bench and jury. Misdemeanor BUIs will be bench trials, in front of a judge only. If your case is a felony BUI, you will be entitled to a jury trial. There will be either six or twelve jurors. The verdict must be unanimous. It is logically much more difficult to prove a case to six or twelve people, than to prove a case to a judge only, who is also an elected official and potentially concerned about appearing “soft” or “tough” on crime to their political opponents and constituency.
SO HOW DO TRIALS WORK?
Generally, the format is as follows:
I – THE MORNING OF TRIAL – PRELIMINARY STAGES
The judge will take the bench and start calling cases. Your case frequently will not be the ONLY case set for trial that day, and may get “bumped” to another day in a busy division. Trials are usually done in age order, the oldest goes first. The judge will discuss how many cases are set and begin to inquire as their status, which attorneys have preferences for which day(s). Many divisions set aside an entire WEEK for trials. Anyone who does not show up – the judge will usually issue a bench warrant.
Assuming your case is going to trial, we would announce to the judge we are “ready for trial” and the judge usually instructs the bailiff to go down to the jury staging area and send up a specific number of potential jurors (usually 16-20). This usually will occupy 45 minutes time and we wait.
Plea negotiations may still be ongoing at this time, and the state may STILL intend to make you a favorable offer. Conversely, you may (in reality) have no intention of going to trial either – you may just be trying to gain leverage in negotiations. This is a potentially risky strategy and one we would have to discuss in more detail.
II – Voir Dire – picking a jury
Assuming nothing changes in the preliminary stages above, Voir Dire would begin. The state is allowed to question the jury first. They typically spend the majority of their time trying to get the panel to understand that a presumption of innocence (at some point) can be overcome by a certain (undefined) amount of evidence that they intend to present. The state wants people who swear they are willing to convict if the evidence is sufficient. The state wants conservative people who respect the law, who like police officers. Their questions will be much more straight-forward. They want people to understand that an acquittal requires REASONABLE DOUBT, not a mere possible or speculative doubt. The judge has discretion to limit each side to a certain amount of time. We would have already had a meeting with you to discuss our strategy/what questions we would ask. Then we would ask those questions to potential jurors to try and ferret out people’s biases and predispositions – things that may indicate that they are unlikely to be the BEST jurors for our defense position. This process is far from scientific and much more of an art-form. The state and defense get a series of STRIKES to use on potential jurors. Strikes for cause are made because a juror cannot be FAIR AND IMPARTIAL, these are unlimited. The most common reason for a “cause” strike is if some potential juror had previously been a VICTIM of a certain type of crime, thus is too inclined to vote guilty in your case. Other strikes are peremptory and usually each side gets three (3). Either the state or defense can exercise a peremptory strike for any LEGITIMATE reason that does not involve race, gender, religion etc. During jury selection you would be sitting with us, writing down which jurors you like/do not like and why. The human element can never be removed from this process. In other words, we will want the jurors to not only like us as lawyers, but by association – we want them to like you – and identify with you. Therefore, we will be exceedingly polite at all times. We will not bore them, we will not pry, we will not delay. We will want them to smile and laugh whenever possible. Some of my favorite, most revealing lines of questioning:
QUESTION: “Has anyone on this panel (by show of hands) ever fought a speeding ticket?”
“Why did you fight it?”
TYPICAL RESPONSES: “I wasn’t going that fast”
“His radar gun actually was reading some other car”
“He never could have seen me driving where he said I was”
QUESTION: “So you didn’t just accept what the police officer said as GOSPEL and pay up?”
TYPICAL RESPONSES: “No, of course not, that would not be fair”
The rationale behind these questions is twofold:
# 1 – To make the ENTIRE PANEL understand that just because you choose to fight a case, does not make you guilty, or a bad person…
# 2 – That police make mistakes, and they may have made one in this BUI Case.
QUESTION: “Is there anyone who DOESN’T understand that it is NOT ILLEGAL to drink while you operate a boat in Nevada”
This question is to inform people that boating while you drink is only illegal if you become IMPAIRED, and you may never reach that point. The definition of “impairment” is totally subjective, and the best the state can hope to achieve, is only a rebuttable PRESUMPTION as to impairment. Only a judge or a jury can decide if someone is impaired while boating as a MATTER OF LAW.
After we ask all of our questions, the judge usually sends out the jury or calls the lawyers up to the bench to discuss our strike(s). Then we finalize the panel, call the jurors back in and the judge tells them which ones were selected. The state or defense can challenge any peremptory strikes here if they believe any strikes were based solely on race, gender, religion etc. The judge will ask the striking attorney for a NEUTRAL reason to justify the strike, or it will be overturned.
III- The actual trial itself, witnesses, evidence etc.
This stage begins when the judge will read what’s known as PRELIMINARY INSTRUCTIONS and also read the state’s CHARGING DOCUMENT. The judge will tell the jury that the charging document is NOT EVIDENCE.
Then each side will be given the opportunity to make an opening statement.
***The simplest explanation of how to prove a case to a jury***
1 – Tell the jury what will happen in the trial in your opening statement,
2 – Show the jury what happened by producing the evidence in your case-in-chief,
3 – REMIND the jury how you proved it with what they just saw in a closing argument
SAMPLE PROSECUTION OPENING STATEMENT
Good morning, my name is Joe Smith and I represent the State of Nevada. Today we’re going to prove to you – beyond any reasonable doubt that the defendant is guilty of operating a vessel while under the influence of alcohol. That is going to be done in a two-part process:
Part # 1 is proving he was operating a vessel – Officer Jones will testify that he boarded the defendant’s boat on July 4, 2019 to check his safety equipment. Once on the boat – Officer Jones saw the defendant was the person driving that boat, on Lake Mead, keys in the ignition, engine running. That’s half our case.
Part # 2 is proving he was impaired while operating that vessel. This will be done primarily through the testimony of Officer Jones – who saw an open container next to the steering wheel, and smelled alcohol on the defendant’s breath, saw that his eyes were red and heard that his speech was slurred. Later, a sample of the defendant’s blood was taken. The results came back at .094, above the legal limit in the State of Nevada – which is .08 – and you will learn from the judge that you will then be REQUIRED to PRESUME that the defendant was impaired WHILE DRIVING his boat. The defendant was also asked to complete a variety of tasks – called afloat tasks, and Officer Jones will explain those, and how during each one, the defendant exhibited signs of impairment. You will see those signs on the video of the incident.
When it’s all over – after we’ve produced all of our evidence, I will ask you to retire to the jury room, elect a foreperson and enter a verdict of guilty – because at that point we will have met our burden, we will have OVERCOME the presumption of innocence that the defendant had. Most importantly, I will ask you to vote guilty because it will be the only FAIR AND JUST verdict available to you.
SAMPLE DEFENSE OPENING STATEMENT:
Good Morning, my name is Mike Anello and my partner Adam Graves and I represent (Client’s name). Obviously – we disagree with almost everything the government just said. The evidence will show you that my client is NOT GUILTY. This will be despite ANY EVIDENCE or argument the government makes. The fact that my client is not guilty will become apparent primarily during a process known as cross-examination. When you hear me question the state’s witnesses, suddenly everything that may have sounded so clear and simple in your mind – will now be questionable – at best.
I want you to pay attention to how many times the State’s witnesses tell THE PROSECUTOR they cannot remember something – versus how many times they TELL ME they cannot remember something – even if it’s just the smallest, simple thing. That will be relevant because it’s your job as jurors to WEIGH CREDIBILITY. You are free to believe, or disbelieve a witnesses testimony in whole or in part. You may decide to DISBELIEVE all or much of what the state’s witnesses have to say after they are cross-examined. You may think that if you cannot believe them about one thing – how can you BELIEVE THEM about ANYTHING?
You see, there are things about this case, circumstances, things the police did or did not do – that the prosecutor did not include in his opening statement. There are A LOT of things about this case – you still have not heard. The state is not going to meet their burden. My client is entitled to a presumption of innocence, you all SWORE you would give it to him, and the state will never take it away. They get one chance to do it – they will not – and when they do not – it will become your LEGAL DUTY to find him not guilty. We are confident that you will do your duty after the state fails to meet their burden and find my client NOT GUILTY.
THE JUDGE WILL THEN ASK THE STATE TO CALL THEIR FIRST WITNESS:
IV – The State’s case-in-Chief:
It is the state’s burden to prove every element of the charge beyond and to the exclusion of any REASONABLE doubt, so they must present their evidence first. They call witnesses, (assuming they show up) produce exhibits (assuming they have the exhibits) etc. The defense gets to CROSS-EXAMINE all their witnesses. The defense gets to register any OBJECTIONS as to the admissibility of any exhibits. The judge rules on the objections. In Nevada, many of our objections will already be entered in the court file in written form. The most important evidence in a BUI trial will involve those things critical to proving that you were operating a vessel, and impairment. In other words, someone who saw you drive a vessel, and scientific evidence that while you operated the vessel, you were allegedly impaired i.e. a blood sample. This is where much of our earlier web content is tied in as far as DEFENSES to admissibility of blood, afloat tasks etc. Once the state feels as if they have presented all of their relevant evidence – at least enough evidence to constitute a Prima Facie case i.e. (legally sufficient) they will “Rest”. That means the state is done with their side of the case.
V – The Defense Motion for a Judgment of Acquittal
We ask the judge to make a finding that the state’s evidence, viewed aggregately is NOT legally sufficient, that the state did not establish a Prima Facie case. No reasonable jury could even POSSIBLY find you guilty – therefore the judge should dismiss the case now without the jury having a say in the matter. This motion is VERY RARELY granted. The judge is forced to evaluate this motion viewing all of the evidence “in the light most-favorable to the non-moving party” i.e. in the light most-favorable to the state. This motion is usually most-relevant in situations where the state is short a witness, or other evidence – but still felt forced to go forward, perhaps due to the seriousness of the accident.
VI – The Defense’s case
The judge will discuss with us in open court – send out the jury – and ask you if you have had enough time to discuss your decision to testify (or not) with your lawyer, and whether you will or will not. The judge needs to make sure that you understand that you do not have to testify, and that has to be on the record. The defense has the presumption of innocence. You do not have to present ANYTHING. Also of note, you have now gotten to see the content of the testimony against you, with us at your side advising you as to its strength. You can NEVER be compelled to testify, but also cannot be denied the right to do so.
Most basically, if you felt that the state’s case was sufficiently weak, you would decide NOT to testify, and the defense would announce on the record (in the presence of the jury) that we REST as well. You also may decide to not testify if you are too nervous, which is perfectly understandable. If not – we would call you as a witness, like any other. At this point you would have spent hours with us preparing your testimony. You would (presumably) tell the jury you were NOT IMPAIRED – despite any blood results, afloat tasks, appearance on video etc. Then you would be CROSS EXAMINED by the prosecutor. A smart prosecutor will usually try to get you to admit only a few simple things – that you were driving the boat, and that you had drank at least SOME alcohol, and that you may not be SURE as to how much.
VII – Closing Arguments –
In general, closing argument is just to REMIND the jury what the trial showed. I like to begin my closes by saying “When I first stood up – I told you that the evidence would show you that my client is NOT GUILTY – that is EXACTLY what happened…now you know that the boat was rocking when they asked my client to do afloat tasks…that it was actually his friend who was driving the boat…(THIS IS JUST AN EXAMPLE).
VIII – Jury Instructions –
The judge reads the jury the instructions, they are long, typically monotonous and boring.
VIII – Deliberation –
The jury retires to an ante room and elects a foreperson, then they discuss the evidence, take a vote. No one knows EXACTLY how they go about doing this and no one is allowed back there to watch. No one knows how long they will deliberate, there is no minimum and maximum time allotted. Sometimes they come back with questions, and ask the judge to have certain witness testimony “read back” by the court reporter. This is the risky, scary part about jury trials, you are forced to TRUST that they will follow the law, and that they can actually make your presumption of innocence real. I have frequently wondered as to any individual juror’s DECISIVENESS i.e. if they disagree with the other jurors, will they “stick to their guns” or will the other jurors pressure them into a decision. Will certain jurors “cave” to that pressure? I like to delve into that aspect of people’s personalities in jury selection. Sometimes the jury deadlocks and tells the judge they cannot decide. If that happens, you may have to go through the whole ordeal again.
IX – Verdict –
Assuming the jury reached one – the bailiff is notified, hand-carries the verdict form to the judge, who inspects it to see if it is properly entered/filled out. Then the judge gives it to the clerk who reads aloud: “We the jury in the matter of State of Nevada versus (client’s name) find as follows: The defendant is guilty/not guilty of boating under the influence – so say we all, Nancy Rogers, foreperson”. The judge may ask if either side wants the jury “polled” i.e. asked individually if they voted like the verdict read – and then each juror name will be read, the juror will stand and repeat what their verdict was. If the verdict is not guilty – the defendant goes home – we are done and happy.
X – Sentencing
If the verdict is guilty – the judge usually proceeds immediately to sentencing in a misdemeanor. In a felony case, the judge may order what is known as a PSI or “Pre-Sentence Investigation”. This is usually done by a probation officer – who will meet with the defendant and assemble his socio-economic data, background, criminal history, amenability to certain treatment etc. The judge will consider if the defendant is to be placed into custody immediately or released for a future sentencing date based upon a variety of factors.