Given the dramatic effect that an arrest for DWI can have on the life of a defendant and his or her family, the DWI defense attorney has a complicated and sometimes delicate task.  The attorney needs to understand the facts of the case, as well as, understand as much as possible about the client's life so that he can not only defend the client in court, but also act as a counselor to the client.


Often the attorney's job is to mitigate the damage that the client's own actions have brought about.  Sometimes this consists of trying to minimize the impact on the client's employment, finances and even freedom that a DWI related conviction can have effectively negotiating the best possible plea agreement that can be reached with the prosecutor's office.  In other cases it may mean litigating the matter all the way through a trial by jury.  Explaining the options that the client has, what the risks and costs of each option are while protecting the client's rights may be what the attorney is required to do.

The Legal Process


The course of events in DWI defense can be broken down into three rough phases: 1) pre-litigation; 2) motions and hearings; and, 3) the trial.  The pre-litigation phase consists of learning the facts of the case, explaining to the client what their rights are and what decisions they will have to make, representing the client at arraignment, obtaining initial "discovery" from the prosecution and exploring possible plea bargain dispositions with the prosecutors.  An important responsibility in this phase is making sure that any pre-conviction suspension of the client's license is lawfully made and, if necessary, insuring that the client is granted any and all restricted driving privileges to which they are entitled.


If the pre-litigation phase does not result in a disposition that the client finds acceptable the next phase usually involves the attorney making motions to the court to either suppress evidence that the police have or preclude evidence from being used against the client at a trial.  The motions are made in writing to the judge that has been assigned the matter.  In general, the written motions don't result in evidence being suppressed or precluded.  But, they often lead the court to grant a "hearing" as to whether the evidence should be allowed into a future trial.  Typical issues that are litigated at hearings include whether or not the police had a lawful right to "stop" the defendant's vehicle and whether or not the police had probable cause to arrest the defendant. 


If after the hearing, the judge determines that some or all of the evidence cannot be used against the client it may cause the whole matter to be dropped by the prosecution or it may cause the prosecution to offer a more beneficial plea bargain.  It is important to the understand that the burden of proof required at a "hearing" is simply "more evidence than not" (basically 51% on one side or the other is sufficient).  This is the lowest standard of proof in the law.


Even if none of the evidence is thrown out the hearings can be very valuable in that the arresting officers have now testified, under oath, as to many of the facts of the case. With that information the DWI defense attorney can reasonably assess the client's prospects should he take the matter to trial. It also allows the defense attorney to plan a strategy to attack the testimony of the police at trial if there is one.


The Trial


If a defendant has been charged with a misdemeanor DWI they have a choice between a jury trial (with 6 jurors) or a "bench" trial where the judge decides what the facts are.  If the defendant is charged with felony DWI they are entitled to a jury of 12 people.  In either case in order to be convicted the jury must unanimously agree that the prosecutor has proven all of the elements of the offense "beyond a reasonable doubt," which is the highest standard of proof in the law.  The burden to present evidence sufficient to convict the defendant is on the prosecutor.  The defense does not have to present any evidence if they don't wish to.


At trial the DWI defense attorney's job is to decide whether to seek a jury trial or a bench trial, to participate in helping determine who will serve on the jury (a process called voir dire), making pre-trial motions to the court, presenting an opening argument to the jury, cross examining the witnesses that prosecutor presents and conducting the "direct examination" of witnesses called to testify on behalf of the defendant.  In some cases this may involve the defendant testifying him or herself. In other cases it may involve the use of "experts" to testify about subjects like "field sobriety tests" or "chemical breath test devices." 


At the close of the trial both the prosecutor and the defense attorney will make closing statements or "summary" arguments to the jury or the judge highlighting there overall arguments in favor of a "guilty" or "not guilty" verdict.  If it is a jury trial the judge will instruct the jury as to the law and what their deliberation should and should not include.  The jury will then deliberate on the matter in private.  If all the jurors agree that the prosecutor did not prove their case "beyond a reasonable doubt" they are required to find the defendant "not guilty."  If the jurors unanimously decide that the prosecutor did meet their burden of proof they will find the defendant "guilty."  If after repeated attempts to reach a unanimous verdict the jury cannot agree a "mistrial" will be declared by the judge.  If a mistrial occurs because of a "hung jury" the prosecution has the option to re-try the case or simply give up.


If the defendant is convicted by the jury (or the judge if a bench trial) a "pre-sentence investigation report" will be ordered by the court prior to sentencing.  This report is prepared by the Probation Department and it makes a recommendation to the court as to whether the sentence should include incarceration and/or probation and or fine.  Regardless of what the report recommends the court has it in its discretion to sentence the defendant to any and all sanctions authorized by law.


Costs of litigation


The decision whether to litigate a case and, possibly proceed to trial involves more than just the probability of winning or losing.  It also involves and cost/benefit calculation that the defendant and the defense attorney must discuss.  Additional legal fees are usually involved for moving the matter to motions and hearings, for conducting a trial and for the use of experts to testify on behalf of the client.  How much of a financial burden this will amount to needs to be balanced against the costs of accepting a plea offer.


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Law Offices of Glenn W. Magnell
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162 Main Street, Goshen, NY 10924
Phone: 845-294-0585
National College of DUI Defense
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Copyright 2013 - Law Offices of Glenn W. Magnell

Please note: Information on this website is intended to inform, not to advise. No one should attempt to interpret or apply any law without the assistance of an attorney that is familiar with that area of law, the rules of the court involved and the specific facts of each individual case.

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Glenn W. Magnell
Law Offices of Glenn Magnell
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Unlike most attorneys I came to the practice of law as a second career. Prior to becoming an attorney I spent 20 years as a business executive, eventually running a large subsidiary of a Fortune 500 company. While those years in private business were challenging and rewarding, there came time that I wanted to do something different and more directly related to assisting other people. So, I left the business world, went to law school, passed the New York State bar exam and became a practicing attorney.  You can read my full bio here and meet our staff here.


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NCDD National College for DUI Defense: Glenn Magnell