Winning the Un-Winnable DUI Jury Trial

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It’s no big secret. You break down all DUI cases into three parts: (A) The driving, (B) the investigation at the scene, and (C) blood alcohol level. Based on the DUI lawyer’s evaluation of these areas, the DUI lawyer advises the client to accept or reject the prosecutor’s offer to settle the case. With DUI cases in California, rejecting the offer means going to a jury trial.

Every now and then you think you find yourself in impossible situations. I thought I was in one when I was in Whittier Courthouse of the Los Angeles Superior Court last month. Instead of going into court to get a routine continuance for the attorney of record, I was ordered to be ready to try the case Monday morning — it was Wednesday.

I only had a few days to prepare for the case. Here are the 3 parts: The driving: my client caused a rear-end collision, the investigation at the scene: horrific FSTs, apparently my client couldn’t even say the ABCs, and blood alcohol level was .19%, measured by a blood test.

Note: There are many different reasons to take a case to trial. Obviously, this worked out. However, based on the three parts of this case, it didn’t look good). This was a second DUI. If he wins, he gets the DMV Admin Per Se (APS) Suspension reversed, no mandatory jail time, no Ignition Interlock Device, and no 18-month DUI Program.


Aside from the craziness about the judge making me start the trial and denying the motion for continuance, I wouldn’t be writing this if I hadn’t won. Most assume it was a ‘no drive’ defense. The ‘no drive’ defense is when the lawyer concedes the blood alcohol level, but contests whether the client was the driver.

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This makes it unnecessary for the DUI defense lawyer to cross-examine the state’s expert witness from the crime lab or the police officers about whether the driver was under the influence of alcohol, or over the legal limit. It also makes it unnecessary for the criminal defense attorney to utilize an expert witness and put in the work necessary to put on an intricate DUI defense such as fermentation.

In my case, the prosecutor from Los Angeles District Attorney’s office called several witnesses: 3 police officers, 2 expert witnesses from the Los Angeles County Crime Lab, and the phlebotomist who drew the blood. The prosecutor also put the vial of blood into evidence and some blood test records.


The case wasn’t about a person who had a .19% BAC and caused a traffic collision. The case was about a local resident who was accused of such a horrible thing. It took a while to change that perception. It begins in the hallway while you stand with your client, during jury selection, and with the interaction with the prosecutor and court staff. The unfairness of the DUI prosecution has to be apparent from the beginning and go all the way through to the closing argument. The DUI defense attorney must make an effort to control what the case is about, not the prosecutor.

You can almost hear a click that goes off in some of the juror’s minds when the state’s expert witness admits on cross-examination he does not take into consideration the performance on the Field Sobriety Tests when forming his opinion as to whether the client was under the influence. The expert does not take into account something that the prosecutor spent days going over in court with “highly trained” police officers telling us how important these so-called tests were during the investigation. This created a disconnect in the prosecutor’s case. It allowed the police to be blamed for doing such a poor investigation. Remember, the police also handle the blood sample that was collected. This leads nicely into the fermentation defense.

For the defense, my client testified and so did an expert witness. The defense entered two photos of where the FSTs were done.

Afterward, the jury deliberated and unanimously found my client not guilty of both charges – driving while under the influence of an alcoholic beverage and driving with a blood alcohol level of 0.08% or more.

If you are arrested for a DUI, contact The Law Office of Richard Wagner for a FREE Consulation⇒ 714-721-4423.

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