A recent Boston Globe Spotlight Series on OUI Defense Lawyers and Jury waived Bench Trials is reverberating throughout the Massachusetts District Courts. Defending OUI cases at trial has never been easy. Now the option of “going jury-waived” may be a thing of the past. I completed three (3) OUI jury trials in the past two (2) weeks. All difficult cases with bad facts, capable prosecutors, and fair-minded presiding Judges. Two guilty verdicts, one not guilty verdict. Never did I consider going “jury waived” as an option on any of the three cases. But even if I had, I would not have suggested it to my respective clients, given the palpable fallout of the Spotlight series. An honest and forthright potential juror in one of the cases was excused for cause, because she admitted during the empanelment process that she couldn’t be fair to my client given what she read in the Globe Spotlight series.

Any First Offense OUI charge in Massachusetts entitles the defendant to choose to go to trial to fight the charge either before a jury of six (6) persons or a single judge. The jury waived trial is often employed where a case involves a narrow legal point of law, whether “operation” or “public way” can be proven given the legal definition of those elements and facts of the case. Many times police arrive at the scene of single car accident after the fact where the only evidence of operation is the uncorroborated admission of the defendant. The driver is parked, asleep behind the wheel, engine running, in a lot posted “no trespassing, private property.” An experienced OUI defense lawyer may well advise his client to take these cases to a Judge, rather than a jury, because the evidentiary issues, burdens of proof, and facts, are best weighed by an experienced, trained, legal mind, rather than six (6) citizens, untrained in the law, subject to the biases, prejudices, and assumptions that unfortunately permeate any jury pool asked to consider a drunk driving case. Ironically, Massachusetts is woefully behind the curve on jury voir dire prior to empanelment. In many states, lawyers are allowed to directly engage potential jurors with questions regarding experiences, biases, prejudices and feelings as they relate to any particular case to be tried, including drunk driving offenses. The outcome of a bench trial is often times much more predictable then the verdict from six citizens picked in an almost entirely random, blind draw. Not every bench trial is a political or personal back-slapping affair. Fair-minded, ethical Judges render not guilty verdicts routinely, as do juries. We should not throw out the baby with the bathwater.

So what is wrong with a Judge saying “not guilty.” Isn’t that the job of a Judge, sworn to apply the law to the facts and evidence as he or she finds it? The standard of “proof beyond a reasonable doubt” is not the same as “probable cause to arrest.” A police officer can arrest when the facts warrant a reasonable person to believe that an offense has occurred: probable cause. A defendant can only be convicted of a criminal act when the jury and/or judge determines beyond a reasonable doubt, to a moral certainty, that the charge is true on each and every element, operation, public way, ability to operate safely diminished by alcohol. Again, a trained, legal mind, experienced in these types of cases, may be better suited, from the defense perspective to weigh these burdens.

My practice has always been evenly split between representing DUI defense clients in both Massachusetts and New Hampshire. In New Hampshire every DWI First Offense is charged as a Class B Misdemeanor, no possible jail sentence, therefore no jury trial. Every DWI goes to a bench trial if it is to be tried. Is this system more or less fair than the Massachusetts system that gives the defendant a choice between a bench or jury trial? Absolutely not! Judges sit in judgment, empowered to render verdicts. As a lawyer, you’d better know your Judges, their tendencies, practices and preferences as to how a case is tried.

85% of the over 17,000 OUI arrests in Massachusetts are resolved by a plea of guilty or admission to sufficient facts. Regardless of whether the finding is “guilty” or “continued without a finding” the plea results in an OUI sentence and penalty that exposes the defendant as a second offender, for the rest of his/her life. Therefore, beware “plea escort services” that sell you the benefit of a “c.w.o.f.” It’s as good as a guilty for the Commonwealth and the Prosecution. Many OUI trials end up going jury waived because they never should have been brought in the first place. In New Hampshire police departments prosecute their own cases in the District Court. Often times the prosecutor is a police officer: Sergeant, Lieutenant, Captain or Chief, with years of street level law enforcement experience under his/her belt. What do they do when a case comes into their office, weak on an element or lacking overall evidence of impairment, when the presiding Judge is a known factor in such cases. They dismiss the DWI case, they plea bargain the DWI charge down to a more appropriate level civil offense, with conditions crafted to meet justice in that particular case: fines, license loss even substance abuse counseling.

In seventeen years and literally hundreds of Massachusetts OUI cases I can count one (1) hand the number of times I have had a bad OUI case voluntarily dismissed or amended in a Massachusetts District Court. Nor have I met an assistant district attorney in any Massachusetts District Court authorized, or vested with the necessary discretion to make such decisions. If the Globe Spotlight series sounds the deathknell of the jury waived trial, hopefully prosecution decisions in all OUI cases, as well as expanded jury voir dire during empanlment will result.