Thursday, July 2, 2009

Don't Take Your Right to a DWI Trial For Granted

If only it was this easy to get jurors to stay awake

This past week I took my family on our annual summer vacation. We went to Williamsburg, VA and then whitewater rafting in PA. You can imagine their yawns when I told them where we were going first. My wife and I both went there when we were children so naturally we thought it would be an exciting and educational adventure for them. They were disappointed that the re-enactors did not stay in their colonial roles. My favorite part of the restored community was the colonial courthouse, of course. It reminded me of how much we as Americans take for granted, especially our Constitutional Right to a Jury Trial.

You see part of our revolution (our revolt) against England was because the British wanted the ability to punish some crimes against the Crown without the right to a Jury trial. They wanted certain crimes to be tried to only a Judge (a Bench Trial). These crimes were punishable by death. To get some perspective, back in the day, horse stealing was a capitol offense (punishable by hanging). The colonists wanted to be free and prevent oppression from the government. We think nowadays that we are all guaranteed a Right to a Jury Trial, sadly we are not.

Under the Sixth Amendment of the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But the right to a Jury Trial is a qualified one, it is State, and crime dependent. Much like the right to a free lawyer may not be the right to the best or most qualified lawyer. This is especially so in the area of drunk driving laws.

Not every state provides a Right to a Jury Trial for DWI cases. Our sister states, Pennsylvania and New Jersey do not give a right to a jury trial for first time DWIs (which are unclassified misdemeanors in PA). You get a Bench Trial in those jurisdictions.

Fortunately, in New York State DWI charges under VTL section 1192 give people a right to a jury trial. This comes from New York Criminal Procedure Law, Section 340.40(2) which states: “In any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial." Misdemeanors are tried to a jury of six people. Felonies (2nd time DWIs in NY) are tried to a jury of twelve people.

Only being allowed a Bench Trial (to a Judge) for a DWI criminal charge (as in NJ and PA) I feel puts people at a great disadvantage. In a Bench trial the Judge must act as the factfinder. The factfinders (Jurors in a Jury Trial) hear the evidence and decide it's credibility, it's weight, and it's value. In a Jury Trial, the Judge must explain the law to the Jurors. He is said to "charge" the Jury, he in effect gives them a specific set of Jury instructions. The Judge also acts as the interpreter of the law. Jurors then apply the facts to the law as explained and charged by the Judge. Finally they will render a verdict of guilty or not guilty of the crime of driving while intoxicated.

The ability to challenge the evidence of intoxication in front of a jury of six people gives a person accused of DWI a fighting chance. A chance to demonstrate what they did right, a chance to reveal themselves as human beings, a chance to confront the police on their bias and their subjective perspective, a chance to show the unfairness of field sobriety testing, a chance to challenge the Breath machine and it's "science", and a chance to tell their side of the story.

Thank god our forefathers were smart enough to recognize the value of the Jury Trial for crimes charged. In most criminal cases I would rather trust my fate and that of my clients to a Jury of my peers then an elected official (the Judge). Many of us living in New York State like to complain about the laws, the taxes, and the problems with our state government. After practicing law in the other two sister states (PA and NJ) without this valuable right (Jury Trials for DWIs) I can tell you in no uncertain terms I feel blessed to be in New York, and having the DWI Jury Trial as a backbone to our liberty from Government Oppression.

The 9 Most FAQ About NY DWI, here:

The New York Up State DWI Survival Guide, here:

Winning The NYS DWI Refusal Case, here:

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 550 blog posts, dozens of articles, and over 520 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.


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