Generally at a DWI trial where there is a jury, on a misdemeanor case there are six jurors, on a felony case there are twelve. When the case begins for a trial you will have gone through all of the preliminary stages including meeting with the judge and with the prosecutor and it’s all done in open court. There is no jury there yet. All procedures that need to be straightened out are discuss and from the defense point of view you will talk about what’s called a ‘motion in limine’ which talks about what we believe the prosecutor should or should not be able to say or introduce during the trial. The prosecutor does their part and then the judge makes his ruling.
Ultimately what will happen next is that they’ll bring in a group of people and the two lawyers will pick jurors who ultimately will be the deciders of the facts of the case. In New York State and in the United States the burden of proof is still on the government because they are accusing somebody of committing this act of driving while intoxicated.
The prosecution will then have to put witnesses on the stand. The first witness in a DWI case is usually going to be the police officer who had the first encounter with the person on trial. The client has the right to confront his accusers. Additionally if there was a test given, other than the sobriety tests, whether it’s a breath test or a urine test or a blood test, whoever administered that test has to come to testify as well.
The accused never has to testify on his own behalf, a very good reason for that is because (by him sitting and saying that he didn’t do it, it is nearly impossible to prove you did not do something. That is why the government has to prove you did do it. On the defense side many times witnesses are called as well, whether it was someone who maybe observed whatever transpired with the police and it may be contradictory to what the police said.
Additionally the defense will have people come in to discuss the test results as well. In fact, Attorney Sachs won a very big case in Nassau County which is now used throughout New York State, for what’s called discovery.
The judge in that particular case ordered that the police and the District Attorney turn over certain documents to the defense regarding the breath testing machine. When they did not do that there was a sanction that was imposed against the government and that sanction would be to tell the jury that these documents weren’t turned over. From that the jury may have inferred that the documents had they been turned over, would not have supported the D.A.’s position. Attorney Sachs brought in an expert witness to talk about what those documents were and how important they were and what it means when they’re not there to help the jury make that negative inference.
At the end of the case each of the lawyers, the prosecution and the defense gets to make what they call a final argument or summation to the jury to tell the jury what they believe the case has shown or has not shown and why the jury should decide, that the People people did not prove their case beyond the reasonable doubt and therefore it should be not guilty. That’s really how a trial goes.
Are There Ever Cases Where The Arresting Officer Does Not Show Up For A DWI Trial?
If the arresting police officer doesn’t show up to trial there is no way that the government could prove their case because the only person that can testify (you need live testimony), is the police officer who pulled you over and made the arrest. Without his testimony there is no accuser. The People would not be able to go to trial on that case. That has happened where perhaps police officers retire, are deceased or unavailable for some other reason and there’s a problem. As per Constitutional reasons someone has to come in and give live testimony.
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