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Winning the Un-Winnable DUI Jury Trial | The Law Office of Richard Wagner

Posted by Richard Wagner | Feb 09, 2012


You break down all DUI cases into three parts: (A) The driving, (B) the investigation at the scene, and (C) the blood-alcohol level. Based on the DUI lawyer's evaluation of these areas, the DUI lawyer advises their 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.

justice is blind

Photo by Tingey Injury Law Firm on Unsplash

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 to 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 BAC 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.

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 to testify to my client's guilt: 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. So, no it was not a “no drive defense.” 


The case wasn't about a person who blew into a breathalyzer and it read .19 percent and who was involved in a traffic accident. The case was about a local resident who was accused of such a horrible thing. It took a while to change the perception that my client's BAC was .19 and that he was the cause of the accident.

“I am very grateful to Richard Wagner. He did an awesome job defending me throughout the trial. In court, Richard talked about the law, science, facts of case, and convinced the jury to find me not guilty. Richard definitely knows how to successfully defend a DUI charge in trial. Thanks to Richard Wagner, the DUI charge against me has gone away like it never happened and I got my life back.” J.I. said after the verdict

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.

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 that they do not take into consideration the performance on the Field Sobriety Tests when forming their opinion as to whether your client was under the influence of alcohol.

The prosecution's expert witness testified that she did not take into account "facts" that the prosecutor spent days going over in court with “highly trained” police officers, trying to paint a picture of just how important these tests were to the DUI investigation. This created a huge 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.  In this particular case, the blood vial remained in the police evidence locker for weeks before it made its way to the crime lab. Read more about DUI Blood Tests

For the defense, my client testified and he hired his own expert witness - a forensic toxicologist - to testify about fermentation of the blood. The defense also entered into evidence two photos of where the FSTs were done. A visit to the scene revealed uneven pavement and all sorts of things to contradict the police officer's description of the location as being of fair place to do the FSTs. 

Afterward, the jury deliberated and unanimously found my client not guilty of both charges – driving while under the influence of an alcoholic beverage VC 23152(a) and driving with a blood alcohol level of 0.08% or more VC 23152(b).

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

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...